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regarding obtaining the Board’s permission are established under the
regulation enacted by the Authority. a) the capital share changes that
amount to five per cent or more in publicly listed companies, ten per
cent and more in other companies, b) any transaction that will result
in a change in the shareholding structure and c) the transactions that
will change the ownership or usage rights over the facilities
”
8
.
When this provision is observed, it can be inferred that the require-
ment to obtain the Board’s permission is introduced in three different
instances.
The first instance is the percentage of the capital share to be trans-
ferred. The five per cent or more capital share for publicly listed com-
panies, and ten per cent or more capital share for other companies are
required to enjoy minority rights under the Turkish Commercial Code.
The minority shareholders have certain additional rights that enable
them to affect the functioning and sometimes even the control of the
company. Thus, the above-mentioned percentages and their transfers
are deemed important and made subject to the Board’s permission.
Secondly, any transaction that will result in a change in the share-
holding structure of the company is conditional upon the Board’s per-
mission. The legislator aims to control the adoption of decisions that
can affect the company or any interference with such decisions. An
example can be the transfer of privileged shares. Even though they do
not amount to the percentages stipulated by the legislation, the transfer
of the privileged shares is also subject to the Board’s permission. In
addition, by using the phrase “
any transaction,
” the legislator includes
the share pledge agreements and usufruct agreements into the scope of
the requirement to obtain the Board’s permission.
The last criterion for the permission requirement is the transactions
that will change the ownership or usage rights over the facilities. Apart
from share transfers, a transfer of the facilities or usage rights that can
be referred to as the transfer of assets are subject to the Board’s per-
mission for the supervision of the public service conveyed.
Art. 57(2) of the Regulation expands the provisions laid down by
the Law regarding share transfer restrictions. The said provision reads:
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Official Gazette. D. 30.03.2013, No. 28603.