18 NEWSLETTER 2021 the pre-emptive right arising from the law, if there is a shareholders’ agreement executed between the existing shareholders, privileges regarding the capital increase may also be granted in favor of the existing shareholders in this shareholders agreement. In such a case, the shareholders having privileges arising from the existing shareholders agreement must also waive them. Closing Conditions In a share subscription agreement, the completion of the investment round, in other words, holding the closing general assembly meeting regarding the capital increase, may be subject to certain conditions. Examples of closing conditions include obtaining permission from the Competition Board2, absence of material adverse changes, and non-violation of representations and warranties in the period from the signing to the closing. On the other hand, some legal risks regarding the company can be determined in the due diligence conducted by the investor before making the investment decision. The investor may request that the identified risks be eliminated before the completion of the investment round. In this case, all the actions that must be completed by the company or the founders in order to eliminate the identified risks should be designated as closing conditions in the agreement. If it is not possible to eliminate the risks identified as a result of the legal due diligence before the completion of the investment round, or if these risks are not of the quality and quantity to prevent the investor from making the investment, the actions to be taken to eliminate the risks can be designated as post-closing obligations that must be fulfilled within a certain period after the completion of the investment round. 2 In accordance with art. 7 of the Act on the Protection of Competition numbered 4054 and art. 5 of Communiqué on Mergers and Acquisitions Requiring Permission from the Competition Board numbered 2010/4, it may be necessary to obtain permission from the Competition Board, in order to complete the investment round. In this case, obtaining the required permission from the Competition Board should be designated as a prerequisite for the completion of the investment round in the share subscription agreement.
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