The Capital Markets Board ("CMB") presented the Draft Communiqué on Share-Based Crowdfunding ("Draft Communiqué") for public consultation on January 3, 2019. Share-based crowdfunding regulates the raising of funds from the public in exchange for company shares through crowdfunding platforms. The Draft Communiqué introduces rules and procedures regarding crowdfunding platforms, the operations of the platforms, the membership and campaign process of these platforms, and the use of funds and venture capital companies.
- Crowdfunding platforms ("Platform(s)") will need to apply to the CMB to be added to the CMB's list to exclusively engage in crowdfunding. Moreover, the Platforms will be required to fulfil the conditions set out in the Draft Communiqué: being established as a joint-stock company with a paid-in capital of at least TRY 1,000,000; utilizing the term "Crowdfunding Platform" in its trade name; its shareholders and board members' fulfilment of the conditions set out in the Draft Communiqué; and the establishment of an investment committee composed of three members fulfilling the aforesaid conditions.
- Platforms will be required to have a transparent and open shareholding structure and notify the CMB within five business days of any change therein. Further, they will also be required to make their current shareholding structure available to the investors in the Platform.
- Platforms will be required to notify the CMB within two business days if they no longer fulfil the aforementioned establishment conditions. The CMB will be entitled to delist the relevant Platforms upon their notice. In addition, the CMB will also be entitled to delist the Platforms ex-officio for non-compliance with the provisions of the Draft Communiqué. Platforms the CMB removes from the list upon notice or ex-officio will be unable to apply to the CMB for re-listing to engage in crowdfunding for one year.
- A written crowdfunding agreement will be executed between Platforms and venture capital firms ("VCF(s)") and entrepreneurs in order to regulate the principles of crowdfunding.
- Platforms are prohibited from engaging in (i) intermediary activities regarding loans or lending transactions in exchange for consideration or pledging an asset; and (ii) any crowdfunding activity based on a capital markets instrument (other than shares) or real estate. Having said that, crowdfunding activities in exchange for prizes or donations will not fall into the scope of the Draft Communiqué.
- Crowdfunding transactions executed by Turkish residents through non-resident Platforms will not fall into the scope of the Draft Communiqué, provided that such non-resident Platforms engage with Turkish residents on reverse inquiry basis (i.e. without engaging in any publicity, advertising and marketing in Turkey).
- For VCFs to raise funds through share-based crowdfunding, they must (i) engage in technology and/or production activities; (ii) be established within the last two years as of the publication date of the information form (published in the Platform's website which includes information on the VCF or entrepreneur, shares and any rights or privileges thereto); (iii) have certain financial items in their latest annual and/or most current interim financial statements that do not exceed the thresholds set out for exclusion from the scope of the law; and (iv) have a registered website.
- Public companies, companies whose management control belongs to another legal person, and companies in which a public company or a capital markets institution is a shareholder with material impact cannot conduct share-based crowdfunding.
Membership to the Platform
- Investors must become a member of the Platform via online website and execute a membership agreement to conduct crowdfunding transactions. In order to obtain a qualified investor membership, the member must have qualified investor status from the Central Registry Agency ("CRA").
- Real persons who are not qualified investors may invest a maximum amount of TRY 20,000 within one calendar year. The CRA will monitor compliance with investment limits.
- Funds raised from investors paid in full and cash will be transferred to the VCFs. In exchange, VCFs' shares issued pursuant to the capital increase made in the amount of the funds raised will be allocated to the investors. Further, VCFs cannot raise funds through the sale of their existing shares.
- A VCF or an entrepreneur may only raise funds through Platforms with a maximum of two campaigns within any twelve-month period. The campaign process will begin as of the date of a VCF/entrepreneur's application to a Platform. A new campaign process cannot be initiated unless the existing campaign process is completed.
- Funds raised from the investors during the the fundraising campaign will be blocked in an account opened within an escrow agent to be determined by the CMB. The campaign process will be deemed ended upon (i) the completion of the capital increase and transfer of the dematerialized shares to the investors' accounts; or (ii) the return of the blocked amounts by the escrow agent to the investors if the targeted amount of funds cannot be raised. In addition, if the Platform is delisted, the campaign will be cancelled by the relevant Platform and the raised funds will be returned to the investors.
The Draft Communiqué clarifies the principles and procedures of crowdfunding currently regulated under the Capital Markets Law No. 6362.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.