Ensuring that the capital markets operate in a fair, trustworthy, efficient and stable manner, and enabling investors to reach complete and precise information, is significant for capital markets transactions. The Communiqué On Disclosure of Material Events ("Communiqué" or "Communiqué On Disclosure of Material Events"), which was published in the Official Gazette dated 23 January 2014 and numbered 28891, regulates the principles and procedures regarding the public disclosure of value and price of capital market instruments, or other information, circumstances and developments that may affect investment decisions of investors.1
The Communiqué Amending the Communiqué on Disclosure of Material Events, published in the Official Gazette, dated 10 February 2017, and numbered 29975, amended various provisions of the Communiqué. This newsletter article analyzes such significant amendments to the Communiqué on Disclosure of Material Events.
Amendments to the Communiqué on Disclosure of Material Events
The new provisions on the Communiqué on Disclosure of Material Events relate to certain categories regulated under the Communiqué. This article analyzes the amendments with respect to the articles that they relate to.
Amendments regarding the Scope
With the amendment to Article 2 of the Communiqué, the issuers whose transaction turn is temporarily closed, and whose shares are traded at platforms or markets determined by the stock exchange due to gaining the status of a public company, and related parties, shall be subject to the provisions of this Communiqué after the prospectus or issuance certificate is approved by the Capital Markets Board ("Board").
The second paragraph of the same article regulates that the issuers whose shares are not traded at the exchange, and who offer capital market instruments other than shares to the public in domestic markets, shall be subject to the articles of the Communiqué from the date the prospectus, is approved by the Board until the redemption date of the relevant capital market instrument. Moreover, as distinct from the previous regulation, the issuers who do not have capital market instruments in circulation are made subject to the provisions of such Communiqué during the validity period of the approved prospectus.
The Communiqué lastly stipulates that the second section of this Communiqué, entitled Principles of Insider Information, and the third section of this Communiqué, entitled Principles on Ongoing Information, shall not be applicable to issuers whose shares are not traded at the stock exchange, and who issue capital markets instruments in domestic markets without a public offering, the partnerships whose shares are traded at the qualified investor transaction market, and to fund users in the issuance of lease certificates actualized in domestic markets. Therefore, the new regulation extends the definition of issuers who will not be subject to sections two and three of the Communiqué. The obligations of such issuers and fund users relating to the other sections of this Communiqué shall be valid from the date of approval by the Board of the prospectus or issuance certificate until the redemption date of such capital market instrument.
Amendments regarding Transactions relating to Persons having Administrative Liability and Principal Shareholder
The Communiqué numbered (II-15.1a) brings certain essential changes to the disclosure obligation. Within this concept, one of the changes regulates the public disclosure of transactions made on the account of the issuer's principal shareholder. The Communiqué sets forth an obligation to disclose to the issuer's principal shareholder for transactions made on the account of the issuer's principal shareholder, as well as the persons having administrative liability and persons closely related to such, with respect to shares representing the capital and other capital market instruments based on such shares. It is regulated that the public disclosure obligation shall commence from transactions that exceed TRL 250,000.
If the total value of the transactions regarding the capital market instruments other than the shares offered to public exceeds TRL 250,000 in a calendar year, which are executed by persons having administrative liability, and persons closely related to such, or by the principal shareholder of the issuer, all of the transactions executed by such persons shall be disclosed to public. In this context, apart from this disclosure to be made after the sale, the public disclosure obligation that must be made one business day before the transaction, and which does not include the sale amount, is removed.
Amendments regarding Disclosures made by Issuers offering Capital Market Instruments other than Shares to the Public
The Communiqué amended certain minor points in Article 19 which regulates the disclosures to be made by the issuers offering capital market instruments other than shares to the public. For instance, the Communiqué stipulates that the agenda of the general assembly should be included in the disclosures to be made, as well as requiring the issuers offering capital market instruments other than shares to the public to disclose transactions where the capital markets instruments, other than shares, are retrieved from related parties.
Amendments to the Disclosure Requirements made by Fund Users, Qualified Investors or Issuers whose Issuance Certificates are approved for Private Placement but whose Shares are not traded on the Exchange and Partnerships whose Shares are traded in the Qualified Investor Market
The new provisions impose public disclosure obligations to fund users within the scope of the disclosure of information at general assembly meetings, and issuance of capital market instruments, in addition to issuers. The following points are added to the information that is required to be disclosed: i) the developments and circumstances that occurred in the financial circumstance, and/or the activities of the issuer or the fund users, and that may adversely affect the fulfilment of obligations by the issuers, which relates to the holders of capital market instruments; and ii) the retrieval of capital market instruments, other than issued shares, from related parties. Within the scope of the obligation to publish general information with respect to the issuers, the issuers whose issuance certificate is approved for private placement and fund users are exempt from such obligation.
Moreover, the Communiqué regulates that the partnerships whose shares are traded at the qualified investors transaction market of the exchange shall be subject to various provisions of Article 5 of the Material Events Communiqué relating to Partnerships Whose Shares are Not Traded in the Exchange (II-15.2), in addition to the public disclosure requirements of this Communiqué.
Amendments to the Notice, Scope, and Form of Disclosure
The principal amendments to the Communiqué On Disclosure of Material Events relates to the form and notice procedure of disclosures. Within this context, the Communiqué regulates that the Board may request the disclosure of material events are to be made in languages other than Turkish. The Communiqué renders possible that the disclosures be made within three business days until 9:00 following the conclusion of the transaction, by using the form annexed to the Communiqué.
As for the form of the notification to be made, the Communiqué stipulates that the disclosures by the issuers whose capital market instruments are traded at the exchange, and the fund users of lease certificates, which are traded at the exchange, shall be made through the use of the forms in the Public Disclosure Platform ("PDP"). For issuers whose shares are not traded at the exchange, and the fund-users whose lease certificates are not traded at the exchange, such obligation shall be fulfilled through submission of the relevant explanation to the Board.
With an article added to the Communiqué with respect to the scope of the disclosure, it is stipulated that in order to efficiently conclude public disclosure practices, the required procedures shall be determined by the board of directors of the issuer. Moreover, the Communiqué requires the disclosures of material events to be made by the issuers, whose capital markets instruments are not traded at the exchange, are to be announced on their web site, at the latest, within five business days following the disclosure, provided that the issuer has a web site, and that such disclosure shall be retained on this website for five years. If such issuers have more than one web site, the material events are mandatorily announced in the recorded web site, and voluntarily on other web sites.
The Communiqué Amending the Communiqué on Disclosure of Material Events brings novelties with respect to the scope and form of the disclosures, as well as to the persons whom will be under the obligation to disclose, and the disclosure of transactions by the principal shareholder.
1. For detailed information see Ali Sami Er, Renewed Communiqué and Guide for Disclosure of Material Events, http://www.erdem-erdem.av.tr/publications/law-post/renewed-communiqué-and-guide-for-disclosure-of-material-events/
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.