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clarified that the acquisition would be realized in accordance with law
(ipso iure)
.
Conditional Capital Increase
Another major innovation provided by the New TCC is that it
regulates the notion of conditional capital increase (“CCI”) which was
not regulated under the TCC. The CCI is a type of share capital increase,
which aims at the conversion of the creditors of credit instruments such
as debentures/bonds into shareholders, and which provides capital to the
company. In the CCI, the capital increase is not realized through new
capital commitments of the shareholders, but through the exercise of
exchange and preemptive rights. Therefore, this type of capital increase
is an exception of the principle of the capital to be determined.
Pursuant to Article 463/1 of the New TCC, in order for the CCI to
be realized, there should be an explicit article in the AoA, and the GA
should adopt a resolution. The article that is required to be included in
the AoA is not a general article that covers all the CCIs, but a specific
article dedicated to CCI. The article in the AoA which will serve as basis
to the CCI includes the details such as the nominal value of the CCI, the
number and types of shares and the groups that may exercise the right of
exchange or preemptive right. Creditors and employees of the company
may exercise the right of exchange or preemptive right.
The right of exchange or the preemptive right regulated under the
relevant article of the New TCC is a right creating a new legal status. This
means that the holders of the right may exercise their right of exchange
or preemptive right by their unilateral declaration of intention, as soon as
this declaration is received by the company. The capital shall be increased
by the exercise of the right, as soon as the capital commitment is fulfilled.
The New TCC provides a limitation concerning this type of capital
increase, which has an exceptional character. Pursuant to Article 464 of
the New TCC, the aggregate nominal amount of the increased capital
may not exceed half of the issued share capital.
The New TCC provides provisions that safeguard the interests of the
shareholders and holders of the right of exchange and preemptive right, in