44 / 469
NEWSLETTER 2011
30
capital increase and the BoD resolution concerning the capital increase.
The aforesaid decisions cannot be applied unless approved by the
preference shareholders’ special committee (“PSSC”).
The New TCC filled several gaps of the TCC. The New TCC
clarified that the PSSC shall be summoned to meeting by the BoD. On
the other hand, considering the fact that the PSSC may not be summoned
to meeting by the BoD even though the relevant period had expired, each
preference shareholder is entitled to claim before the competent court to
be authorized to summon the committee to meeting.
Article 454/3 of the New TCC regulates the meeting and resolution
quorums of the PSSC. The TCC does not regulate these quorums but rather
make reference to Article 388, which regulates the meeting and resolution
quorums concerning the amendment of the articles of association. The
nonexistence of any reference in Article 390 of the TCC to quorums of
the PSSC concerning the approval of the resolution on capital increase
was a controversial issue under the TCC. The New TCC clarified all these
controversial issues.
Pursuant to Article 454/4 of the New TCC, in the event that the
preference shareholders or their representatives approved the amendment
of the articles of association in the GA meeting, it is not required to hold
a PSSC meeting. This subject was discussed by the doctrine, as the TCC
did not have any disposition concerning this subject. The New TCC has
put an end to these discussions through Article 454/4.
Pursuant to Article 454/7 of the New TCC, an action for annulment
can be initiated against the resolutions of the PSSC. The TCC did not
have any disposition on this issue, on the other hand, it was accepted
by the doctrine that the disposition concerning the annulment of GA
resolutions could be applied to the resolutions of the PSSC by analogy.
Pursuant to the aforesaid disposition, the BoD may initiate an action for
annulment against the resolution of the PSSC within one month from
the resolution date before the commercial court located at the place of
registered office of the company. The registration of the GA resolution
may also be requested from the court. This disposition is expected to
prevent the preference shareholders from abusing their rights.