IV.ULUSLARARASI NECMETTİN ERBAKAN ÜNİVERSİTESİ HUKUK KONGRESİ
LIMITATIONS ON CONDITIONAL CAPITAL INCREASES IN JOINT STOCK COMPANIES
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Hande KOCADURMUŞOĞLU YÜKSEKBAŞ
Yayıncı:
Necmettin Erbakan Üniversitesi Yayınları
In joint stock companies, conditional capital increases occur gradually over time and as a result of the behavior of third parties. Registration of the general assembly decision regarding the conditional capital increase and the amendment of the articles of association to the trade registry by the board of directors is not sufficient to provide capital increase. Capital increases automatically and within the framework of use, as the holders of exchange and purchase rights exercise their rights. Although conditional capital increase has many benefits, it also has disadvantages. Some restrictions have been imposed by law in order to prevent possible problems that may arise and to provide the necessary protection to the company and its shareholders. TCC art. 463, those who are creditors from the company or group companies due to bonds or similar debt instruments, or employees can acquire shares by using their conversion and purchase rights and participate in capital increases have been determined on a limited number principle in accordance with the regulation. This regulation those who can carry out the capital increase, divided into creditors of the company or group company due to bonds or similar debt instruments and employees, will be considered as a limitation in terms of scope for those who can participate in the increase. When we look at the preamble of the article, which also includes the regulation that the capital will be fulfilled by exchange or payment, it is stated that payment in cash is valid, but payment in real is not possible. TCC art. 464 titled Limitations contains regulations regarding the authorized stock and nominal value that can be determined by the general assembly. It is a limitation in terms of the amount that the total nominal value of the conditionally increased capital cannot exceed half of the capital. The amount of capital registered in the trade registry is important when the general assembly evaluates that it cannot exceed half of the capital and determines the amount. In the preamble of the article, it is stated that the capital increase authority granted exceptionally to third parties, apart from the body’s decision, should be limited. In the article, in addition to determining the authorized stock, it is also regulated that the payment made must be at least equal to the nominal value. While the payment made is required to be at least equal to the nominal value, there is no legal obstacle in exceeding this. When consider in terms of time, it can be said that there is no limitation, but there is no restraint to the general assembly taking a decision in this direction.
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