40 / 521
do not require the approval of the special committee of preference
shareholders.
The first circumstance rises when the amendment of the articles of
association by the general assembly violates the rights of the prefer-
ence shareholders. This circumstance may occur as removal or restric-
tion of the privilege by the amendment of the articles of association.
For instance, if the articles of association withdraw the voting prefer-
ence of the preference shareholders by the amendment of the articles
of association, in order for this amendment to be implemented, the spe-
cial committee of preference shareholders must grant its approval of
such amendment. The circumstances regarding violation are not limit-
ed to this situation, and other circumstances where the rights of the
preference shareholders are violated are considered to be within this
scope.
Another circumstance is the general assembly’s resolution con-
cerning the authorization of the board of directors to increase the cap-
ital. In such a case, even though the board of directors has not yet
adopted a resolution based upon the general assembly resolution, the
possibility of adoption of a resolution is sufficient to convene the spe-
cial committee of preference shareholders. If the authorization resolu-
tion of the general assembly enables the board of directors to issue
preference shares, then it is probable that the rights of the preference
shareholders may be violated
1
.
The final circumstance that Art. 454/1 sets forth is the case where
the board of directors’ resolution to increase the capital infringes upon
the rights of the preference shareholders. This infringement may occur
when the registered capital system is in question.
In such cases, if the rights of the preference shareholders are vio-
lated, the resolution cannot be implemented unless the approval of the
special committee of preference shareholders is obtained. The special
committee of preference shareholders is comprised only of the prefer-
ence shareholders whose rights have been infringed. Preference share-
holders whose preferences are not infringed cannot attend the commit-
tee meeting.
24
NEWSLETTER 2014
1
Ünal Tekinalp
, Sermaye Ortaklıklarının Yeni Hukuku, p. 98.