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NEWSLETTER 2011
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Provisions Concerning the Preference Shares on Voting
The New TCC regulates the voting rights of preference shares under
a special provision. Pursuant to Article 479 of the New TCC, multiple
voting preferences may be provided by granting unequal voting rights
to the shares of the same nominal value”. This option was unanimously
accepted by the doctrine. Therefore, the doctrine was reflected to the New
TCC. Another option of providing voting preference is granting equal
voting rights to the shares of the different nominal value. In this case,
the preference is granted in favor of the shares of lower nominal value.
However, the New TCC does not recognize this option.
The TCC does not provide any limitation as to the number of votes
that can be casted for per share. Whereas the New TCC limits the number
of votes attached to the preference shares. Pursuant to Article 479/2 of the
New TCC, maximum of fifteen shares confer the right to cast one share.
On the other hand, this limitation has some exceptions.
The limit set with regards to voting preference shares shall not apply
if the sound corporate governance principle requires to do so, or in the
presence of a valid reason. This provision depicts that the New TCC puts
the emphasis on improving and strengthening good and robust corporate
governance. Therefore, through the few shares that are held by professional
directors, the voting preference rights will ensure the possibility to go
beyond the voting power in the family-owned corporations and provide
professionalization.
The request concerning the non-application of the limit of voting
preference can be appealed against in the commercial court located in
the region of registered office of the company. The court should evaluate
the corporate project and decide on the non-application of the limitation.
The corporate project may only be amended by a court decision. The
New TCC regulates that the court may order to withdraw the decision
concerning the non-application of the limitation in the event that the
corporate project appears as non-applicable, or the valid reason ceases to
exist. Therefore, with this innovative provision of new TCC, it is intended
to prevent any exercise in bad faith concerning the non-application of the
limitation.