NEWSLETTER 2011
46
share has been abandoned, and the system based on the total nominal
value of the shares held by a particular shareholder has been adopted. As
a result, the principle of taking part in the management in proportion to
the capital has been emphasized in the joint stock companies, which are
private equity companies.
Principles Concerning the Voting Right Granted in favor of the
Shareholder
Pursuant to Article 432/1 of the New TCC, in the event that there
is a co-ownership concerning the share, the voting right may only be
exercised by a joint representative. This provision is in line with the TCC.
Pursuant to Article 432/2 of the New TCC, in the event that the share is
subject to usufruct, the voting right shall be exercised by the holder of
the usufruct right, except agreed otherwise. However, the usufructuary
should act equitably, considering interests of the shareholder. Otherwise
he shall be liable to the shareholder. This provision is in line with Article
360/5 of the TCC. New TCC brings a different provision and allows the
owner to exercise the voting right with regards to an agreement concluded
between the parties.
The New TCC regulates, through Article 434/2, that each shareholder
shall hold at least one voting right even if he holds only one share. The
principle of
“no shareholder without voting right”
is maintained in New
TCC. However, shares without voting rights set forth under Article 14/A of
the Capital Markets Law (“CML”) are the exception to this rule. Pursuant
to CML, joint stock companies may issue shares without voting rights
by providing a privilege of dividend under condition to have a provision
in the articles of association and they may offer the share certificates
representing those shares to the public.
Pursuant to the second sentence of Article 434/2 of the New TCC,
number of votes to be granted in favor of the shareholders having more than
one share may be limited by the articles of association. Thus, the issue which
was controversial under TCC regarding the limitation of voting rights on
the basis of shareholder has been clarified. Within this framework, having
the majority of shares shall not be equal to having majority of voting rights,
and an exception may be adopted by the articles of association.