NEWSLETTER-2017

22 NEWSLETTER 2017 Evaluation of the Restriction within the Scope of Share Transfer Limitations According to Article 461/5 of the TCC, the company cannot pre- vent the shareholders from exercising their pre-emptive rights on the grounds that the transfer of registered shares is limited by the articles of association. With this rule, when the company’s interests in limiting the share transfers contradict the shareholders’ interests in acquiring new shares, the lawmaker prefers the pre-emptive right 11 . On the other hand, the wording of the Article reading as “shareholders that the com- pany granted pre-emptive right” concludes that this preference only protects shareholders’ pre-emptive rights, and that those who are not shareholders, but who only exercise the pre-emptive right that they acquired, cannot benefit from such preference 12 . Pre-Emptive Right in the Registered Capital System Article 461/2 of the TCC states that except for the condition relat- ing to the general assembly quorum, provisions regarding the restric- tion or removal of the pre-emptive right shall also apply to the board of directors’ capital increase decision in the registered capital system. This issue is also regulated under the Communiqué on the Prin- ciples Related to the Registered Capital System in Non-Public Com- panies 13 (“Communiqué”). According to Article 9 of the Communi- qué, during the capital increase, for the restriction of the shareholders’ pre-emptive rights for new shares through the decision of the board of directors, the board of directors must have been authorized in this regard by the articles of association. The board of directors’ authority to restrict the pre-emptive right cannot be used so as to create inequal- ity between the shareholders. It is also regulated under Article 9 of the Communiqué that in the event of the authorization of the board of directors to restrict a pre-emptive right by the articles of association, a declaration setting forth the justifications of this authorization shall also be submitted in the permission application of the companies will- 11 Preamble of Article 461 of the TCC. 12 Preamble of Article 461 of the TCC. 13 Official Gazette October 19, 2012, No. 28446. It has entered into force on the date of its publication.