Newsletter-21

82 NEWSLETTER 2016 contractual obligations” 2 . Through the expression “transactions caus- ing the obligation to transfer”, one should also understand unilateral transfer commitments, as well as the promise to transfer agreements. It is debated under the doctrine whether or not notarial certifica- tion is mandatory. According to the legal scholars arguing that notarial certification is not of mandatory nature, if the share transfer agree- ment is made in writing and approved by the general assembly without having a notarial certification, validity of the transfer is not affected. Whereas it is explicitly regulated under the former Commercial Code (“Former TCC”) that “ unless the transfer of shares and the agreement for the promise to transfer are made in writing and the signatures are certified by the notary, transfer shall not take effect even for the con- cerned parties ”; this provision is not included within the scope of the TCC. Nonetheless, there is no need to construe the certification of the signatures by the notary differently from the regulation under the For- mer TCC. The formal requirement in question is written form subject to official certification, just as in the certification of the signatures on the articles of association of the companies (TCCArt. 575). Therefore, a transfer agreement signatures of which have not been certified by a notary shall not gain validity with the general assembly decision. Content of the Agreement Under the share transfer agreement, additional payment and side obligations, non-competition obligation if aggravated or extended in such a way to cover all of the shareholders, rights to be addressed for suggestion, pre-emption rights, repurchase and option rights, as well as contractual penalties, shall be also specified. It is mandatory to explicitly include such numerus clausus condi- tions under the share transfer agreement. The reason for this, accord- ing to the Preamble, is to provide that the transferee is fully aware of its obligations, and to impose the burden upon the seller to inform the transferee in this regard 3 . According to the Preamble, again, non- inclusion of such conditions under the share transfer agreement does not invalidate the agreement; however, it leads to the liability of the 2 Preamble of Article 595 of the TCC. 3 Preamble of Article 595 of the TCC.