2020-10-01
Added · Updated
The Capital Markets Board of Turkey issued Communiqué VII-128.4 to establish regulatory principles for the issuance of foreign capital market instruments, depositary receipts, and the sale of foreign investment funds within Turkey. The document mandates Board applications for public offerings and private placements, defines eligibility criteria such as investment-grade ratings, and requires the appointment of local representatives to ensure investor protection. It further standardizes operational procedures including prospectus content, payment mechanisms, and public disclosure obligations aligned with domestic listing requirements.
1 COMMUNIQUÉ ON FOREIGN CAPITAL MARKET INSTRUMENTS AND DEPOSITARY RECEIPTS AND FOREIGN INVESTMENT FUNDS (VII-128.4) (Published in the Official Gazette edition 28800 on 23/10/2013) List of Amendments:
2 (2) (As amended: OG 22.01.2015 – 29244) Principles as to sales in Turkey of foreign capital market instruments of foreign states and local administrations will be determined by the Board according to the attributes of each application. The Board’s fee relating to capital market instruments being the subject matter of transactions executed under the terms of this paragraph shall be applied at a rate of zero per mille. (3) The concept of sales of foreign investment fund units covers sales of units against payment and one-to-one or collective promotions by letter or all kinds of other communication means for the sake of marketing of fund units, and all kinds of activities aimed at establishing relations with investors. (4) Purchase and sales executed by persons resident in Turkey of foreign capital market instruments and foreign investment fund units traded in foreign financial markets, through institutions authorized as per capital markets laws and regulations are excluded from the scope of this Communiqué, provided that such act does not constitute a public offering under capital markets laws and regulations. (5) (Added: OG 22.01.2015 – 29244) If and when foreign corporations, classified as international organizations, to which organizations and/or institutions of the Republic of Turkey such as the Undersecretariat of Treasury and the Central Bank of the Republic of Turkeyare members or partners: a) Sell capital market instruments, not giving ownership rights, through public offering or without public offering, in Turkey, b) Capital market instruments, not giving ownership rights, they have previously issued abroad are admitted to trading in the stock exchange, then and in this case, relevant foreign corporation shall inform the Board prior to the transaction, and the provisions of this Communiqué, and the regulations of the Board pertaining to preparation, approval and public disclosure of prospectuses and issue certificates shall not be applied. A prospectus or an issue certificate may be prepared and issued optionally in transactions covered by this paragraph of foreign corporations meeting the conditions set forth in this paragraph. In this case, prospectus or issue certificate is not approved by the Board, and it is clearly stated in the said documents that prospectus or issue certificate has not been approved by the Board. The Board’s fee relating to capital market instruments being the subject matter of transactions executed as per this paragraph shall be applied at a rate of zero per mille. Sales in Turkey of capital market instruments, not giving ownership rights, where the said corporations stand as the main debtor or guarantor, or admission of these instruments to trading in the stock exchange shall also be subject to the principles set forth in this paragraph. (6) (Added: OG 22.01.2015 – 29244) Foreign corporations covered by the fifth paragraph are not governed by and subject to the regulations of the Board pertaining to public disclosure of
3 material events, and financial reporting and independent audit. If capital market instruments, not giving ownership rights, are admitted to trading in the stock exchange due to transactions effected under fifth paragraph of this article, investors are required to be informed thereabout by the stock exchange in PDP through an announcement with contents to be determined by the stock exchange, also including information as to where the prospectuses and/or other public disclosure documents and financial reports and public disclosures of material events published / to be published abroad with respect to relevant capital market instruments, not giving ownership rights, and with respect to the foreign corporation are accessible. (7) Sales of capital shares and foreign investment fund units to be allocated and distributed by foreign corporations to their employees in Turkey pursuant to and under employee stock option plans and similar schemes do not require an application to the Board, provided that sales are not executed in Turkey, and any action covered by the public offering definition is not taken, and information to be provided to employees does not contain phrases or expressions giving the impression of a public offering. (8) Other collective investment schemes which are by nature similar to foreign investment funds are not considered and treated as a foreign corporation, and the provisions of eighth part of this Communiqué shall be applicable on them. (9) The terms prospectus, representative, issuer and custodian used in eighth part of this Communiqué setting down the principles relating to foreign investment fund units refer to and mean, respectively, fund prospectus, fund representative, fund issuer and fund custodian. Grounds ARTICLE 3 – (1) This Communiqué is prepared and issued in reliance upon Articles 12 and 13, and subparagraph (e) of first paragraph of Article 128, and third paragraph of Article 130 of the Capital Markets Law no. 6362 dated 6/12/2012, and subparagraph (c) of Article 15 of the Governmental Decree on Protection of Value of Turkish Currency no. 32. Definitions and Abbreviations ARTICLE 4 – (1) For the purposes and in the context of this Communiqué: a) “Exchange” refers to the Exchange defined in subparagraph (ç) of first paragraph of Article 3 of the Law; b) “Depositary receipt” refers to capital market instruments which are issued by a depositary in representation of foreign capital market instruments kept in custody by custodians, and grant their holders the same rights as granted by said instruments, and are identical to them, and nominal value of which is expressed in Turkish Lira or in foreign currencies the daily buying and selling exchange rates of which are published by the Turkish Central Bank;
4 c) “Depositary” refers to banks and broadly authorized intermediary institutions, as further defined in regulations of the Board pertaining to investment services and activities, which issue depositary receipts in representation of foreign capital market instruments kept in custody in a custodian in their own name and in the account of depositary receipt holders; ç) “Rating agencies” refers to rating agencies authorized by the Board for rating activities and operations pursuant to regulations of the Board pertaining to rating activities, and to international rating agencies permitted by the Board to engage in rating activities in Turkey; d) “Fund” refers to foreign investment funds founded abroad; e) “Fund issuer” refers to founder or manager of a foreign investment fund; f) “Fund prospectus” refers to a public disclosure document prepared and issued for sales of foreign investment fund units in Turkey; g) “Fund custodian institution” refers to an institution authorized by the relevant authority resident abroad to deal with and provide custodian services to foreign investment funds; ğ) “Fund representative” refers to banks and broadly authorized intermediary institutions, resident in Turkey, as further defined in regulations of the Board pertaining to investment services and activities; h) “Public Disclosure Platform (PDP)” refers to an electronic system defined in subparagraph (k) of first paragraph of Article 3 of the Law; ı) “Law” refers to and stands for the Capital Markets Law no. 6362 dated 6/12/2012; i) “POA” refers to and stands for the Public Oversight, Accounting and Auditing Standards Agency; j) “Board” refers to and stands for the Capital Markets Board; k) “CRA” refers to and stands for the Central Registry Agency Incorporation; l) “Qualified investor” refers to qualified investor defined in the relevant regulations of the Board; m)“Custodian institution” refers to institutions assented by the Board to deal with custody services and activities, out of the institutions authorized to keep capital market instruments in custody pursuant to the laws of its country of registry; and n) “CBRT” refers to and stands for the Central Bank of the Republic of Turkey Incorporation; o) “Representative” refers to and stands for broadly authorized intermediary institutions or development and investment banks, resident in Turkey, which have an agency or similar other contractual relationship with foreign corporations applying to the Board for sales of foreign
5 capital market instruments, except for foreign investment fund units, and/or with shareholders of foreign corporation, or with depositary; ö) “TTRG” refers to and stands for the Turkish Trade Registry Gazette; p) (As amended: OG 22.02.2015 – 29244) “Foreign corporation” refers to a corporation, institution or entity covered by the definition of persons resident abroad under the Governmental Decree on Protection of Value of Turkish Currency no. 32, issuing capital market instruments according to laws of the relevant country; r) “Foreign corporation shares” refers to capital market instruments which are issued by foreign corporations in accordance with laws of the relevant country, and which grant ownership rights; s) “Foreign capital market instruments” refers to securities issued by foreign corporations or foreign states and local administrations, except for foreign investment fund units, as further defined in subparagraph (ş) of first paragraph of Article 3 of the Law; ş) “Foreign investment fund units” refers to securities issued by a foreign investment fund classified as a collective investment scheme founded abroad, and are considered as other capital market instruments; t) “Investor information form” refers to a summary form reflecting the structure, investment strategy and risks of the fund. SECOND CHAPTER Sales of Foreign Capital Market Instruments Through or Without Public Offering Preconditions for Public Offering ARTICLE 5 – (1) Application filed for listing in exchange, or issuance of foreign capital market instruments to be offered to public in Turkey must not have been refused by an exchange or a competent capital markets authority on grounds of investor protection or due to a similar other reason. (2) Foreign capital market instruments must have been issued in Turkish Lira or in foreign currencies the daily buying and selling exchange rates of which are published by the CBRT. (3) The country where foreign capital market instruments are issued must not have imposed any restriction on their sales in Turkey, and on execution of transactions and making of payments with regard to fiscal rights associated thereto and use of administrative rights arising therefrom in Turkey.
6 (4) Foreign capital market instruments must not have been encumbered by restrictions on transfer or circulation thereof or by restrictions on use of rights associated thereto by their holders, and must not be subject to any rights in rem or liens or similar other restrictive rights. (5) For their issues other than shares, foreign corporations must have received a long-term rating score equivalent to “investment grade” level according to the scoring and grading scale of a rating agency within one year prior to the date of application. (6) The Board may impose preconditions, other than and in addition to those enumerated above, according to the attributes of issuance or capital market instruments, for protection of investors or due to a similar other reason, provided that it informs the applicant beforehand. Conditions of Eligibility for, and Appointment of Representative: ARTICLE 6 – (1) A representative is required to be appointed if foreign capital market instruments will be publicly offered, and may further be appointed optionally in applications filed for sales of foreign capital market instruments by private placement without public offering and/or to qualified investors. (2) In the case of public offering of foreign capital market instruments, a written agreement is required to be signed by and between foreign corporation and representative, and in the case of public offering of said instruments via depositary receipts, a written agreement is required to be signed by and between depositary and representative. In initial public offering of foreign capital market instruments by their holders, in Turkey, the agreement shall be signed by and between that person and representative; provided however, that the liabilities and obligations of foreign corporation are also included in the agreement, and the agreement is required to be signed by foreign corporation as well. (3) Terms of the agreement mentioned in the preceding second paragraph must be equal at least to the maturity of foreign capital market instrument, if any. However, the agreement may at any time be terminated by parties thereto with a 60-days prior notice of termination or upon subsequent occurrence of events preventing continuity of the agreement. If and when it is intended to terminate the agreement with a prior notice, for the period from the date of notice to the date of termination, foreign corporation must, alone or jointly with foreign shareholder or depositary, appoint a new representative and designate and name the representative to the Board. Upon occurrence of such events as bankruptcy which makes it impossible for the representative to perform its obligations, a new representative is immediately appointed and named to the Board. All obligations arising out of the signed representative agreement remain in force and valid until a new agreement is signed and presented to the Board. This will also be stated in the representative agreement. (4) In public offering of foreign capital market instruments via depositary receipts, depositary may also be appointed as representative, provided that it bears the qualifications required to be
7 representative. Thereupon, the representative agreement referred to in second paragraph above shall be signed by and between depositary and foreign corporation. (5) As for capital market instruments having a market maker, the market maker may also be appointed as representative, provided that no conflict of interests arises therefrom, and the market maker bears the qualifications required to be representative. Application to Board and Sales Processes ARTICLE 7 – (1) Foreign corporations, depositories or representatives shall apply to the Board in sales of foreign capital market instruments and in issuance of depositary receipts with the documents listed in Annex 1 hereof. (2) Prospectus, sales statement to investors, issue documents and other documents of the same nature which will be issued for this specific kind of transaction as well as the associated public offering and sales processes will be carried out within the framework of provisions of communiqués in relation to the relevant kind of capital market instrument, unless otherwise specified in Board regulations pertaining thereto. However, provisions of second paragraph of Article 28 of the Communiqué on Prospectus and Issue Document (II-5.1) published in the Official Gazette edition 28685 on 22/06/2013 are not applicable. (3) In the event that foreign capital market instruments and depositary receipts are issued in foreign currencies the daily buying and selling exchange rates of which are published by the CBRT, sales processes will be handled in Turkish Lira. In this case, the exchange rate to be applied, effects of changes in exchange rates, expenses, the party that will cover expenses, and other similar matters shall be clearly specified in the prospectus. (4) Foreign capital market instruments are required to be dematerialized on book-entry basis via electronic media. Foreign capital market instruments kept in custody in an account to be opened in authorized custodians in the name of CRA are required to be dematerialized on bookentry basis in CRA on the basis of beneficiaries. Provisions of the regulations relating to dematerialization procedures and principles are, however, reserved. (5) If needed so due to the kind of sales, it is required to file an application with the Exchange simultaneously with the application to the Board. Subjects to be Included in Prospectus ARTICLE 8 – (1) In public offering of foreign securities and depositary receipts, all information required to be included in the prospectus pursuant to Articles 7, 10, 11, 14, 15 and 16, and information referred to in items 8, 9 and 13 of Annex 1 shall be incorporated in the prospectus, and statements requested to be submitted to the Board as per items 2, 3, 4, 5 and 6 of Annex 1 shall be attached to the prospectus.
8 (2) The prospectus must further contain information about places of publication of prospectus, statement and other announcements, if any, published or to be published abroad for foreign securities. THIRD CHAPTER Special Provisions Regarding Depositary Receipts Depositary Receipts ARTICLE 9 – (1) Foreign capital market instruments represented by depositary receipts shall be stored in custodian in the name of depositary prior to the application to be filed with the Board. Following approval by the Board of prospectus or issue certificate submitted as part of application, depositary certificates are issued by depositary via dematerialization in CRA. Depositories are required to be member of the CRA (2) Foreign capital market instruments represented by depositary receipts shall be kept in custodian institution in an account of CRA, if CRA has any account, in that authorized custodian institution. In this case, the obligation of representative as described in subparagraph (b) of first paragraph of Article 17 shall be performed by the CRA. (3) If and when a foreign corporation issuing foreign shares represented by depositary receipts makes a cash and/or gratis issue capital increase, the to-be-issued foreign shares are also required to be issued as depositary receipts. Exchange of Depositary Certificates with Foreign Capital Market Instruments ARTICLE 10 – (1) Depositary certificates are, if and when requested, exchanged by depositary receipt holders with foreign capital market instruments represented by them. Principles as to method and period of exchange of depositary receipts, as will be determined by depositary, must be included in prospectus. However, the Board may request amendments to these principles. If and when depositary receipts are kept in custody in CRA’s account as stipulated in second paragraph of Article 9, the depositary shall determine the principles as to method and period of exchange of depositary receipts with a prior assent of the CRA. FOURTH CHAPTER Payments for Foreign Capital Market Instruments and Language of Information and Documents to Be Submitted to the Board Payments Regarding Foreign Capital Market Instruments ARTICLE 11 – (1) Principal, interest, dividend and coupon payments of foreign capital market instruments and depositary receipts may be made in Turkish Lira or in the currency of relevant capital market instrument. Payment dates, exchange rate to be applied, expenses, party that will
9 cover these expenses, and principles related to similar payments shall be stated in the prospectus. Language of Information and Documents to Be Submitted to the Board ARTICLE 12 – (1) All information and documents requested to be submitted in this Communiqué, if relied upon the Board regulations, are required to be prepared originally in Turkish, and others are required to be translated into Turkish, and the resulting originals or translations are to be sent to the Board. The Board may request the documents in foreign languages to be translated into Turkish by a sworn translator. FIFTH CHAPTER Public Disclosure and Other Obligations of Foreign Corporations Public Disclosure ARTICLE 13 – (1) Foreign corporations are under obligation to perform all public disclosure requirements applicable to corporations resident in Turkey capital market instruments of which are of a similar nature and/or are admitted to trading in the same market/platform of the exchange, except for the differences set forth in this Article and in Articles 14, 15 and 16. (2) In the case of information, events and developments which may affect the value, price of foreign capital market instruments or the investment decisions of investors, foreign corporations, foreign shareholders, depositories or other relevant parties shall comply with the relevant regulations of the Board with respect to the disclosure of material events applicable to corporations resident in Turkey the capital market instruments of which are of a similar nature, and/or are listed and traded in the same market/platform of exchange. Information about the internet website where the public disclosure made abroad is published shall be included in the disclosure. Language of public disclosures of material events is Turkish. Financial Reporting ARTICLE 14 – (1) In financial reports to be issued by foreign corporations (financial statements, board of directors’ activity reports and statements of liability) and in their preparation, compliance is required with the accounting / financial reporting standards accepted in the relevant Board regulations for corporations the capital market instruments of which are listed and traded in exchange. Compliance with International Accounting / Financial Reporting Standards issued by the International Accounting Standards Board or with the version thereof as accepted and adopted by the European Union is construed as compliance with the accounting standards accepted by the Board. Use of financial reports issued in accordance with other generally accepted accounting standards requires a prior consent of the Board. Even if the Board accepts the application of different generally accepted accounting standards, it may ask the
10 corporations listed in the exchange to clarify the accounting standards applied and the differences therein between. (2) Financial statements to be issued and published by foreign corporations in Turkey are required to be expressed and presented in Turkish Lira. (3) Foreign corporations are not obliged to comply with regulations pertaining to formats of financial statements and their footnotes applicable to corporations which are similar and/or capital market instruments of which are admitted to trading in the same market / platform of exchange. (4) Where total nominal value of issued depositary receipts is equal to or above TL 100,000, and International Accounting / Financial Reporting Standards are not used, depositary receipts may be issued, under the condition that the prospectus refers to this difference in applications, and states that it may lead to material differences in financial reports, and describes the accounting policy differences between accounting / financial reporting standards employed by the depositary receipt issuer and International Accounting / Financial Reporting Standards. (5) The following principles will be complied with in disclosure of financial reports of foreign corporations to public: a) In disclosure of financial reports of foreign corporations to public, it is a must to abide by the dates of submission to the Board or PDP of financial reports of corporations which are similar and/or capital market instruments of which are listed and traded in the same market / platform of exchange, b) Announcements of financial reports and public disclosures of material events with respect thereto are required to contain information about the internet website where the versions and copies of financial reports issued in original language and in a different currency are published. The prospectus shall also refer to the place of publication of the versions and copies of financial reports issued in original language and in a different currency, and provides information about differences, if any, between dates of announcement. c) If and when the maximum periods of time valid for public disclosure of financial reports in other countries where the relevant foreign capital market instruments are listed/issued are shorter than the periods of time determined by the Board, Turkish translations of financial statements issued and presented in Turkish Lira (except their footnotes), and of statement of liability and opinion page of independent audit report are required to be disclosed to public simultaneously with the aforementioned countries, and Turkish translations of all of financial reports issued and presented in Turkish Lira and of independent audit report are required to be disclosed to public within the period of time set forth for corporations which are similar and/or capital market instruments of which are listed and traded in the same market / platform of exchange, as stipulated in the relevant Board regulations.
11 ç) If and when the maximum periods of time valid for public disclosure of financial reports in other countries where the relevant foreign capital market instruments are listed/issued are longer than the periods of time determined by the Board:
12 Compliance with Other Capital Market Regulations ARTICLE 16 – (1) Financial and administrative rights associated with foreign capital market instruments and use of them are subject to the pertinent laws of the home country of foreign corporation. Prospectus shall provide information about laws and regulations of that country pertaining to these rights and about how these rights will be exercised within the frame of CRA regulations. (2) Voting right of foreign shares in depositary receipts may not be used by depositary ex officio in the capacity of a proxy, unless otherwise instructed by depositary receipt holders. (3) Foreign corporations are exempted from regulations of the Board pertaining to profit distribution and corporate governance, unless deemed necessary by the Board. Furthermore, as for regulations pertaining to mandatory take-over bid, the laws of the country which are more favorable and advantageous for investors in terms of conditions leading to mandatory take-over bid shall be applied. SIXTH CHAPTER Obligations and General Liability Principles Relating to Foreign Capital Market Instruments and Depositary Receipts Representative’s Obligations ARTICLE 17 – (1) Representatives are liable: a) to ensure that financial and administrative rights associated to foreign capital market instruments are exercised in accordance with provisions of the preceding Article 16 within the framework of laws of the relevant country and provisions of agreement signed with foreign corporation; b) to send to PDP within one week following the end of each month a form of statement containing the information listed in Annex 2 relating to total number of foreign capital market instruments and depositary receipts kept in the custodian as of the end of that month, and total number of depositary receipts bought and sold during that month, and total number of depositary receipts exchanged with foreign capital market instruments; c) to send to PDP within the first business day after the date of public disclosure of material events issued by the foreign corporation about payment a statement showing the amount of payments for depositary receipts and methods and dates of payment; and ç) to effect payments in Turkey with respect to foreign capital market instruments; d) to disclose to public all information on public disclosure provided to it by the foreign corporation within the frame of procedures and principles set forth in the relevant regulations of the Board.
13 (2) Representatives are further liable to publish in their own internet page on a daily basis, the exchange closing prices of capital market instruments of the foreign corporation which are admitted to trading in foreign stock exchanges and are identical to those offered to public in Turkey. (3) In public offering of foreign capital market instruments, the prospectus is required to be signed also by the representative, in addition to persons held liable to sign the prospectus in the relevant regulations of the Board. In public offerings made through issuance of depositary receipts, the obligation to sign the prospectus shall be fulfilled by depositary instead of issuer. (4) In public offering of foreign capital market instruments through depositary receipts, if depositary and representative are different entities, then depositary and representative shall be held jointly and severally liable for non-performance of obligations set forth in the first paragraph hereof. Principles of Liability ARTICLE 18 – (1) In public offering of foreign capital market instruments, the issuer is liable for prospectus and other public disclosure documents pursuant to Articles 10 and 32 of the Law. Representative is held liable for prospectus as the leader intermediary institution referred to in Article 10 of the Law. (2) In the case of public offering of foreign capital market instruments through issuance of depositary receipts, it is accepted that the issuer liability is borne also by the depositary. SEVENTH CHAPTER Conversion of Foreign Corporation Shares into Shares Admitted to Trading in the Exchange, and Board’s Fee Relating to Foreign Capital Market Instruments and Depositary Receipts Conversion of Foreign Corporation Shares into Shares Admitted to Trading in the Exchange ARTICLE 19 – (1) Regulations of the Board pertaining to conversion of shares unlisted in stock exchange into shares admitted to trading in the stock exchange are not applicable to foreign corporations the shares of which are admitted to trading in the stock exchange. Board’s Fee Relating to Foreign Securities and Depositary Receipts: ARTICLE 20 – (1) The Board’s fee relating to foreign capital market instruments/depositary receipts is required to be paid in accordance with the principles set down in the relevant regulations of the Board depending on the nature and kind of capital market instruments. In the
14 case of issuance of depositary receipts representing shares, the Board’s fee will be charged only on the depositary receipts to be sold. (2) The Board’s fee relating to foreign capital market instruments/depositary receipts shall be calculated as follows: a) Three months after offering for sales of foreign capital market instruments/depositary receipts which are already traded abroad:
15 (4) If the end of maturity of foreign capital market instruments does not coincide with the end of quarterly periods, the transactions referred to in the preceding third paragraph shall be conducted at the end of maturity. (5) In determination of sales price and maximum circulation day, the records of the exchange and of CRA shall be used. It is the responsibility of foreign corporation/depositary to calculate and deposit the Board’s fee. EIGHTH CHAPTER Provisions on Foreign Investment Fund Prerequisite Conditions on Funds and Their Fund Units to Be Sold: ARTICLE 21 - (1) Funds the units of which will be sold in Turkey are required to meet the following conditions: a) Units of foreign investment fund must be traded in Turkish Lira or in any one of foreign currencies the daily buying and selling exchange rates of which are published by the CBRT; b) A prior permission or consent of the relevant authority of home country of the issuer must have been taken for sales of the subject fund units; c) A minimum period of three years must have elapsed from the date of initiation of sales of fund units abroad, and current value of fund units to be sold must be minimum EUR 2,000,000 or its equivalent sum in any other currency as of the date of application; ç) Relevant laws of the issuer’s home country must not have imposed any restriction on sales of the subject fund units in Turkey and on execution of payments and conduct of transactions with regard to the resulting financial rights in Turkey; d) Net asset value of the fund must be minimum EUR 10,000,000 or its equivalent sum in any other currency; e) At least 80% of net asset value of the fund must be invested in assets other than money and capital market instruments and transactions of issuers resident in Turkey, and Turkish government debt instruments; f) If portfolio management service is purchased from an institution other than issuer, that institution must hold a portfolio management license in its home country; g) More than 10% of net asset value of the fund must not have been invested in money and capital market instruments of the same entity or corporation, provided that a limit of maximum 35% is applicable for money and capital market instruments issued by public entities and institutions;
16 ğ) The fund must not alone hold more than 10% of capital shares or all voting rights in any corporation; h) Regulations of the relevant country pertaining to indebtedness of the fund and lending of its assets must be compatible with the legislation applicable to investment funds founded in Turkey; ı) Financial statements of the fund prepared and issued at least annually within the frame of international accounting standards must be audited by an independent audit firm; i) A commitment letter issued by the fund’s authorized body and addressed to the Board must be provided, certifying that all kinds of information and documents which may be requested by the Board, also including public disclosure information and documents listed in Article 31 hereof, shall be provided and that the fund may be inspected by persons or entities to be designated by the Board, in the sole cost of fund and/or representative. (2) Fund units may be offered and sold to public in Turkey only if they have already been offered to public in the home country of the fund. (3) The Board may impose conditions in addition to those listed above for protection of investors or due to a similar other reason. (4) If and when a fund the units of which are to be sold in Turkey can no longer meet any one of the conditions imposed by this Communiqué any more, the Board may temporarily or permanently cease the sales thereof by clarifying the justification of it. If the Board orders to permanently stop the sales of foreign investment fund units, the representative is required to apply to the Board for deletion from the trade registry of information as to the place of publication of prospectus in connection therewith. Fund Representative and Representation Agreement ARTICLE 22 – (1) The fund must have a representative in Turkey, and a written agreement at least containing the items enumerated in Annex 3 must be signed between the fund and its representative. Upon expiration or termination of this agreement, all obligations and duties arising out of the agreement and this Communiqué shall remain in force until a new successor agreement is signed and is approved by the Board. (2) A decision must not have been taken pursuant to specific legislation to which the representative is subject or to capital markets legislation, for termination of activities entirely or for specific fields of business, or for suspension of activities for period of one month or longer during the recent one year. Liabilities of Fund Representative ARTICLE 23 – (1) Fund representative is liable:
17 a) to ensure that unit holders of the fund in Turkey have equal rights with unit holders resident abroad, and that all payments relating to such fund units are made in Turkey; b) to make sure that all information required to be disclosed to public are disclosed in a timely manner, and all notices and reports required to be submitted to the Board are delivered on time, and all documents, prospectuses and investor information notes to be attached to applications and all other information disclosed to public are true and accurate; c) for trading of foreign investment fund units in compliance with principles determined by the fund; ç) if and to the extent the fund fails to make payment for any reason whatsoever upon return of fund units to the foreign investment fund, to ensure that the price of fund units is paid fully in cash and the relevant fund units are repurchased from investors within maximum two business days following the end of the period of time granted for repurchase of fund units; d) to procure that records relating to fund units sold in Turkey, and identity of buyers thereof, and number of fund units traded as above, and dates of trading, are kept accurately, and records and information to be transmitted to the issuer are transferred accurately, and records kept in Turkey and records kept abroad are consistent with each other. Fund Custodian ARTICLE 24 – (1) Fund assets are required to be kept in custody in at least one fund custodian as defined in this Communiqué. Application to the Board for Sales of Foreign Investment Fund Units: ARTICLE 25 – (1) For sales of foreign investment fund units through or without public offering, the fund representative is required to apply to the Board for approval of the fund prospectus relating to sales of foreign investment fund units in Turkey, by submitting a prospectus, an investor information form and an application form, as specified by the Board, as well as all of other information and documents that may be requested by the Board. The Board may, if deemed necessary, ask the relevant authority of home country of the fund its opinion about the fund and its officials. (2) Information and documents required to be submitted for an application for approval of the fund prospectus relating to sales of foreign investment fund units are determined and announced by the Board. (3) In applications composed of multiple portfolios, each portfolio is considered and treated as a separate fund for the purposes of this Communiqué.
18 (4) In the case of application of a bank to the Board for approval of the fund prospectus relating to sales of foreign investment fund units in Turkey, a prior opinion of the Banking Regulation and Supervision Agency shall be taken. Sales of Foreign Investment Fund Units ARTICLE 26 – (1) The Board reviews the applications in accordance with principles of public disclosure by taking into consideration whether or not the prospectus contains all information relating to the fund and the sales of foreign investment fund units as specified in the related laws or other information relating thereto as requested by the Board, and whether or not representative and representation agreement meet all conditions sought for in this Communiqué. (2) Information contained in the prospectus must be consistent, understandable and complete according to the prospectus standards determined by the Board. The fund prospectus must be prepared in Turkish and in sufficient detail for clear representation of all information relating to the fund and the sales of foreign investment fund units as specified in the related laws or other information relating thereto as requested by the Board, and must be signed by representative and officials of the fund, and the information and statements must, if needed, be relied upon documentary evidences. (3) Approval of a prospectus relating to foreign investment fund units by the Board is subject to and governed by the following principles: a) Prospectus shall be examined and approved in the light of information and documents presented to the Board, within 20 business days, and the result shall be reported to relevant parties. The approved prospectus shall refer to the number of shares to be sold in Turkey. A prior consent or approval of the Board is required also for sales of new shares to be sold in excess of the number of shares referred to in the prospectus. However, in this case, minimum sales amount condition envisaged in subparagraph (c) of first paragraph of Article 21 hereof is not sought for. b) If all of the required information and documents are not presented, or additional information and documents are needed, the applicant shall be informed within 10 business days following the date of application. Missing information and documents must be completed within 20 business days. In this case, the period of 20 days referred to in subparagraph (a) hereinabove starts from the date of delivery of said information and documents to the Board. (4) Approval of prospectus does not construe as a warranty of the Board as to accuracy of information contained in this document, nor can it be accepted as recommendation about the relevant foreign investment fund units. Prospectus or relevant advertisements and statements may not contain any explicit or indirect phrase or expression which may lead to impression of the Board’s approval as a warranty provided by the Board or the public.
19 (5) If a review to be conducted under this Article reveals that statements provided in prospectus are inadequate, or do not reflect the truth fairly, thereby misleading the investors, or that the fund representative and representation agreement do not meet the conditions set forth in this Communiqué, then the Board may refrain from providing its consent or approval for the subject prospectus by justifying such decision. If prospectus is not approved, it shall be notified to the applicant together with reasons thereof. If the Board does not approve a prospectus, the relevant foreign investment fund units may not be sold in Turkey. (6) Prospectus and investor information form shall be published in PDP and in the fund representative’s official internet website within 10 business days following the date of receipt of the letter of permission, and are not separately registered in trade registry or announced in TTRG. However, the place of publication of prospectus is registered in trade registry and announced in TTRG. Said date of registration shall also be stated in investor information form. (7) If deemed fit by the Board, upon occurrence of such emergencies as war, natural disasters, economic crisis and collapse of communication systems, trading of foreign investment fund units may be stopped. (8) Foreign investment fund units sold in Turkey are required to be recorded collectively or individually by beneficiaries in accounts to be opened in the name of fund representative in the organization of registry where ownership records are kept abroad. In addition, foreign investment fund units are further required to be registered on dematerialized basis separately for beneficiaries in a sub-account of fund representative in CRA. Key Investor Information Document ARTICLE 27 – (1) Key investor information document shall be prepared and published in accordance with the principles set forth in regulations of the Board pertaining to investment funds. The fund representative is responsible for accuracy and currency of contents of this form. Changes in Fund Prospectus and Key Investor Information Document ARTICLE 28 – (1) Changes in, or additions to, the information disclosed to public through prospectus and key investor information document, which occur before initiation of sales or at any time after the date of sales, are, if and to the extent they do not conflict with the provisions of this Communiqué, required to be reported by the fund representative to the Board in no later than the business day immediately after the date of learning thereof. Said changes are, unless otherwise specified or requested by the Board, published in PDP and in the representative’s official Internet website within 10 business days following the date of registration of the notice thereof by the Board. (2) If and to the extent changes in the prospectus constitute a conflict with the provisions of this Communiqué, the Board may stop the sales of fund units by justifying such decision.
20 Trading of Foreign Investment Fund Units ARTICLE 29 – (1) Foreign investment fund units are required to be traded via the fund representative. (2) Purchased fund units may be sold back only to the fund or if authorized so by the fund, to the fund representative. Private Placement ARTICLE 30 – (1) Foreign investment fund units may be sold through private placement only to qualified investors. In applications to be filed to the Board for sales of these fund units, an issue document shall be prepared and issued instead of prospectus. (2) In funds the units of which are to be sold through private placement: a) Prerequisite conditions, except for subparagraph (e), of first paragraph of Article 21 hereof are not sought for. b) Provisions of Articles 25 and 26 hereof pertaining to prospectus are applied on issue document by analogy. c) Provisions of sixth paragraph of Article 26 pertaining to announcement and registration obligations and provisions of Articles 27 and 31 hereof shall not be applied. (3) Fund representative is under obligation to obtain and regularly keep all information and documents proving that investors to whom fund units are sold have the qualified investor qualifications set forth in this Communiqué. (4) Funds the units of which are to be sold through private placement may in no case make any advertisement or publish any announcement. Public Disclosure Principles ARTICLE 31 – (1) Originals and Turkish summaries of financial reports, independent audit report and other periodical reports issued and prepared in accordance with national laws and international accounting standards applicable on funds are required to be published in PDP. The fund representative is responsible for such reporting. (2) Furthermore, the table prepared by fund representative in the format shown in Annex-4 on monthly basis is required to be published in PDP during the first week of the subsequent month at the latest.
21 (3) If the Board finds the reporting made for public disclosure purposes inadequate, it may demand additional information, and may require them to be published. Principles on Announcements and Advertisements ARTICLE 32 – (1) Relevant regulations of the Board shall be complied announcements advertisements in relation to the fund. Notification on Transactions Executed Within the Frame of Legislation on Protection of Value of Turkish Currency ARTICLE 33 – (1) Information relating to trading of foreign investment fund units by persons resident in Turkey outside the scope of this Communiqué and within the frame of the Legislation on Protection of Value of Turkish Currency are required to be reported on monthly basis to the Board by institutions intermediating such transactions in the form of a table as shown in Annex-5 within six business days following the end of the relevant month. Board’s Fee for Foreign Investment Funds: ARTICLE 34 – (1) A fee calculated by fund representative as of the last business day of each quarterly period on calendar year basis pursuant to third paragraph of Article 130 of the Law by multiplying five per one hundred thousands of the portion of fund net asset value corresponding to the part thereof sold in Turkey by the then-current foreign exchange selling rate published by CBRT as of the same day, shall be deposited by the fund representative in the Board’s account within the subsequent 10 business days, and a copy of each of the relevant receipt and calculation chart shall be sent to the Board. NINTH CHAPTER Miscellaneous and Final Provisions Revaluation ARTICLE 35 – (1) Amounts referred to in this Communiqué may, if and to the extent deemed fit by the Board, be subject to revaluation. Revalued amounts shall be announced by the Board’s Bulletin. Repealed Legislation ARTICLE 36 – (1) The Communiqué on the Principles Regarding the Registration with the Board and Sales of Foreign Capital Market Instruments and Depositary Receipts (Serial: III, No: 44) published in the Official Gazette edition 27738 on 23/10/2010 is hereby repealed, and all and any references made to the Communiqué on the Principles Regarding the Registration with the Board and Sales of Foreign Capital Market Instruments and Depositary Receipts
22 (Serial: III, No: 44) in other regulations of the Board will hereafter be deemed to have been made to this Communiqué. (2) The Communiqué on Principles Regarding Registration with the Board and Sales of Foreign Investment Fund Units (Serial: VII, No: 14) published in the Official Gazette edition 23515 on 06/11/1998 is hereby repealed, and all and any references made to the Communiqué on Principles Regarding Registration with the Board and Sales of Foreign Investment Fund Units (Serial: VII, No: 14) in other regulations of the Board will hereafter be deemed to have been made to this Communiqué. Finalization of Pending Applications TEMPORARY ARTICLE 1 – (1) Applications which have not been resolved by the Board as of the date of enactment of this Communiqué shall be finalized in accordance with the provisions of this Communiqué. (2) Validity of prospectuses issued for foreign capital market instruments registered by the Board for public offering purposes during effective term of the repealed Capital Markets Law no. 2499 shall be governed by the provisions of the Communiqué on Prospectus and Issue Document (II-5.1). In sales of these foreign capital market instruments, during the validity time of prospectus the additional prerequisite conditions imposed by Article 5 hereof shall not be applied. (3) Funds the units of which are registered by the Board prior to the date of publication of this Communiqué are required to comply with the provisions of this Communiqué within one year following the effective date hereof, otherwise, the fund representative shall be liable to apply to the Board for deletion of fund prospectus from trade registry. (4) Amounts referred to in subparagraphs (c) and (d) of first paragraph of Article 21 are not applicable for funds the units of which are registered by the Board prior to the date of publication of this Communiqué. (5) In applications for approval of fund prospectus relating to sales of foreign investment fund units which have not been resolved by the Board prior to the date of publication of this Communiqué, amounts referred to in subparagraphs (c) and (d) of first paragraph of Article 21 are applied for current value of fund units to be sold and for net asset value of the fund. Transitional Provisions TRANSITIONAL ARTICLE 2 – Until relevant articles of this communiqué enter into force, corresponding provisions of the Communiqué on the Principles Regarding the Registration with the Board and Sales of Foreign Capital Market Instruments and Depositary Receipts (Serial: III, No: 44) published in the Official Gazette edition 27738 on 23/10/2010 shall be applied.
23 Effective Date ARTICLE 37 – (1) a) Articles 14 and 15 of this Communiqué become effective with effect from the date of financial reports issued for the period ending after 31/12/2013; b) Second paragraph of Article 36 and Articles 21 to 34, except for subparagraphs (c) and (d) of first paragraph of Article 21, become effective as of 1/7/2014; c) Subparagraphs (c) and (d) of first paragraph of Article 21 and all other provisions of this Communiqué become effective as of the date of publication hereof. Enforcement ARTICLE 38 – (1) The provisions of this Communiqué shall be enforced by the Board.
24 ANNEX/1 DOCUMENTS TO BE ATTACHED TO THE APPLICATION AT THE TIME OF APPLICATION TO THE BOARD WITH RESPECT TO FOREIGN CAPITAL MARKET INSTRUMENTS AND DEPOSITARY RECEIPTS (*) (**) (1) Information and documents set down in the Board’s communiqués pertaining to issue of foreign capital market instruments, depending on kind of instruments (shares, bonds, etc.); (2) Statement of foreign corporation/depositary certifying that holders of foreign capital market instruments/depositary receipts resident in Turkey have the same rights with holders resident abroad; (3) Statement of foreign corporation/depositary certifying that all kinds of disputes arising out of or in connection with legal nature, public offering, and sales of foreign capital market instruments sold pursuant to the provisions of this Communiqué and with acts and transactions of fund representatives shall, both in procedural matters and in merits of the case, be governed by and construed according to Turkish laws, and submitting to the jurisdiction of the Turkish courts and execution offices in resolution of such disputes; (4) Explanatory information about the legal system and regime governing the capital market instruments and the foreign corporation in their home country, and statement of foreign corporation/depositary certifying that the foreign corporation has properly and duly fulfilled all of the legal requirements applicable thereon in the relevant home country in terms of foundation and operations or of issuance of capital market instruments; (5) Statement of foreign corporation/depositary certifying that relevant laws of the home country of issuance of foreign capital market instruments do not impose any restriction on their sales in Turkey, and on execution of payments and conduct of transactions with regard to the resulting financial rights in Turkey, and on exercise of administrative rights associated thereto; (6) Statement of foreign corporation/depositary that foreign capital market instruments are not subject to any restrictions on their transfer or circulation or on exercise of associated rights by holders thereof, and whether or not they are encumbered by a right of usufruct; (7) Documents demonstrating listing or admission to trading in a stock exchange, if any, of the subject foreign capital market instruments;
25 (8) Information introducing the foreign stock exchange or exchanges, if any, where the subject foreign capital market instruments are listed or traded, and if not listed, information about reasons thereof; (9) Information introducing the custodian where foreign capital market instruments will be kept in custody in the case of sales of the subject foreign capital market instruments through depositary receipts; (10) All transactions and actions to be completed until the stage of sales in Turkey, and one copy of each agreement to be signed, and list of authorized signatories of contractual parties certified by relevant authorities, and information about all entities to be involved in this process; (11) Rating reports; (12) One copy of each of prospectuses, announcements, and other notices, if any, published abroad about the foreign capital market instruments; (13) Information on performance of capital market instruments of the issuer listed and traded in exchanges; (14) A certified copy of a statement of the relevant custodian certifying that all of the subject foreign capital market instruments represented by depositary receipts are kept in custody in the custodian in the name of depositary; (15) Electronic certificate application document filed by foreign corporation, fund representative and depositary to electronic certificate service provider. (*) Only the documents listed in items 1, 2, 4, 5, 6 and 14 are requested in sales through private placement or to qualified investors. (**) If and to the extent it is not possible to obtain any one of these information and documents in accordance with laws of the relevant home country, their equivalents deemed fit by the Board may also be accepted.
26 ANNEX/2 DEPOSITARY RECEIPTS MONTHLY STATEMENT FORM Title of Representative / Depositary : Title of Issuer of Foreign Capital Market Instruments Represented by Depositary Receipts: Title, Address & Telephone Number of Custodian : Total Nominal Value of Depositary Receipts Offered to Public in Turkey : Total Nominal Value of Depositary Receipts Held by Custodian as of the End of Month : Total Nominal Value of Foreign Capital Market Instruments Held by Custodian as of the End of Month: Total Nominal Value of Depositary Receipts Purchased During the Month : Total Nominal Value of Depositary Receipts Sold During the Month : Total Nominal Value of Depositary Receipts Exchanged by Foreign Capital Market Instruments During the Month :
27 ANNEX-3 MINIMUM CONTENTS OF FUND REPRESENTATION AGREEMENT (a) Trade name, nationality, registered office address, paid in capital, date of establishment, and fields of business of the fund issuer; (b) Title, registered office address and paid capital of the fund representative; (c) Groups and current value of foreign investment fund units; (ç) Principles as to method of determination of trading price, and trading venues, and announcement of price; (d) Principles of use of rights associated with foreign investment fund units, and method of fund-related payments, and method of determination of payment date; (e) Principles as to transfer of payments relating to foreign investment fund units in accordance with relevant legislation; (f) That the fund representative is authorized to sell and repurchase foreign investment fund units for the account of fund and/or on its own account in Turkey; (g) Principles as to daily disclosure of information about trading prices and if any, stock exchange prices of foreign investment fund units by fund issuer to fund representative, and of information about fund units traded in the name of fund by fund representative to fund issuer, similar requirements; (ğ) Date and agenda of general assembly meetings of fund issuer, and principles as to disclosure by fund issuer to fund representative of the legal amendments relating to fund issuer and fund, etc.; (h) Principles as to the obligation of fund issuer to disclose to fund representative all kinds of information required to be provided to the Board and disclosed to public pursuant to this Communiqué, and all kinds of developments that may affect the price of foreign investment fund units; (ı) That the information required to be disclosed to public as per the Board regulations will be published by fund representative in PDP; (i) Information deemed necessary by fund issuer to be disclosed to public, other than and in addition to the information required to be disclosed to public as per the Board regulations, and way of disclosure of such information; (j) Information on actions to be taken if the parties fail to perform their obligations; (k) Statement of fund issuer certifying that it will abide by the Board’s decisions if and when the agreement is terminated earlier than the end of its term and a new contract is not signed with another fund representative, and that obligations of the parties arising out of the provisions of this agreement will remain in force and be valid until completion of all transactions deemed fit by the Board; (l) Rate or amount of commissions to be charged in consideration of services of fund representative; (m) Principles on currency to be used in trading of fund units; (n) Names, titles and communication information of persons authorized to act for and on behalf of fund issuer, fund representative and other relevant entities and institutions;
28 (o) The party that will cover expenses of sales of foreign investment fund units, and expenses of advertisements and disclosures, and similar other expenses; (ö) That if an arbitration clause is not incorporated in the agreement signed by and between the parties, or if the parties have not entered into a separate arbitration agreement, all kinds of disputes arising out of or in connection with legal description, issue and/or sales of foreign investment fund units sold pursuant to the provisions of this Communiqué shall be governed by the Turkish laws, and the Turkish courts will have jurisdiction in resolution of such disputes.
29 ANNEX-4 TABLE TO BE USED FOR DISCLOSURE OF FUND-RELATED INFORMATION BY FUND REPRESENTATIVES FUND-RELATED INFORMATION: Name of Fund Net Asset Value of Fund Total Number of Fund Units in Circulation in Turkey Sales Price As of the End of Month Total Market Value of Fund Units in Circulation in Turkey
30 ANNEX-5 TABLE TO BE USED IN STATEMENTS BY INSTITUTIONS INTERMEDIATING THE TRADING OF FOREIGN INVESTMENT FUND UNITS BY PERSONS RESIDENT IN TURKEY, OUTSIDE THE SCOPE OF THIS COMMUNIQUÉ, AND WITHIN THE FRAME OF LEGISLATION ON PROTECTION OF VALUE OF TURKISH CURRENCY INFORMATION ABOUT INTERMEDIATED FUND TRANSACTIONS RELEVANT PERIOD: Date of Transaction Name of Fund Home Country of Fund Number of Fund Units Sold Number of Fund Units Returned Price Per Fund Unit Total Amount