NEWSLETTER 2011
56
Article 456/4 of the New TCC makes reference to Article 353
which regulates the annulment lawsuit, and to Articles 354 and 355/1,
which regulate the general principles concerning the registration and
announcement. Therefore, in the event that the interests of shareholders
or public are endangered or infringed in the capital increase by disrespect
of legal provisions, an annulment lawsuit may be initiated.
Pursuant to Article 457 of the New TCC, the BoD shall prepare a
statement in accordance with the preferred method of capital increase.
While this statement is quite similar to the incorporators’ statement
prepared at the incorporation process, it is of significant importance as it
contains some information about the capital increase and it provides that
the capital increase is subject to regulatory supervision and control. In the
statement, essential terms of the capital increase are stipulated, such as
the commitment to pay the increased portion of capital, and the fact that
the portion that needs to be paid up is totally paid up.
Article 458 of the New TCC provides that the capital increase shall
be audited by the operation auditor. As the capital increase is among the
resolutions of significant importance for the company and shareholders,
this disposition is quite pivotal suitable to needs.
Capital Increase through Capital Subscription
Article 459 of the New TCC regulates the capital increase through
capital subscription. Pursuant to the relevant article, the shares
representing all of the increased capital shall be subscribed to authorized
shared capital in the AoA or participation covenants. Article 460 of the
New TCC regulates the capital increase in registered capital system and
regulates an important innovation concerning closely-held joint stock
companies. Pursuant to the aforesaid article, in the event that the authority
to increase the capital up to the authorized share capital is granted to
the BoD in a closely-held joint stock company, the BoD may realize the
capital increase within the legal provisions and the AoA. The authority of
the BoD may not be more than for five years.
With the New TCC, the preference rights of shareholders are
extended with safeguarding provisions. Pursuant to Article 461/2 of
the New TCC, the preference right may only be limited or abrogated