26 January 2022 ( 21 views )

Operation of the Joint Stock Company According to Turkish Law

Şirketin organları, görev ve yükümlülükleri.

Yeni yasa ile denetçiler (denetçiler) artık bir organ değil.

Yönetim Kurulu
Şirketin daimi organıdır. Şirket var olduğu sürece var olur ve sürekli görev başındadır. Şirketi kendi sorumluluğunda yönetir ve temsil eder.

İlk yönetim kurulu esas sözleşme ile belirlenir ve seçilir.

TTK m. 408'de açıklanan genel kurul görevleri dışında yönetim kurulu her şeyi yapabilir.

Esas sözleşmede aksine hüküm yoksa yeniden seçilebilir.

Yeni kanunla anonim şirketlerde yönetim kurulunun en az bir kişiden oluşması gerekiyor.
Eski kanunda, yeni kanunla hem tüzel hem de gerçek kişiler olmak üzere sadece gerçek kişiler yönetim kurulu üyesi olabiliyor. Tüzel kişi, bir gerçek kişi temsilcisi tayin etmelidir. Bu gerçek kişinin tüzel kişi tarafından ticaret siciline tescil ve ilanı zorunludur. Yönetim kurulunu atamaya ve görevden almaya genel kurul yetkili iken, tüzel kişi temsilcisini her zaman görevden alabilir.

TTK m. 360 (Concession): Shares can be divided into groups and these groups can be given the right to represent in the board of directors. However, this total cannot exceed half of the members of the board of directors. Privileged shareholders' special assembly convenes before the general assembly and elects representatives among themselves. If the special committee does not make this election, the general assembly makes this choice. More than half of the privileges granted in the law prior to 2012 still apply.

Members of the board of directors are elected for a maximum of 3 years, unless the term is specified in the articles of association.
They are elected by the decision of the general assembly. This decision is TCC art. It is taken by following the nishaps in 418.

TTK m. 363 Cooptation: If the membership of one of the members of the board of directors elected for a period of 3 years becomes vacant (resignation, death), the current members of the board of directors can fill the vacant membership with a decision to be taken among themselves. This is called cooptation. In this case, it is not necessary to convene the general assembly for the election of a member of the board of directors. Until the next general assembly, this member of the board of directors has all the rights and powers given by the member of the board of directors. Even if the General Assembly approves, it can continue to trade for the remaining term of the member it has replaced. Cooptation is envisaged to prevent organlessness.

Teaching: In order for cooptation to be implemented, the board must not have lost its qualifications as a board. The meeting quorum must have enough members left.

Supreme Court: It can be filled if the decision quorum is provided without considering the meeting quorum. 5/2

Hodja's Opinion: The purpose of 363 articles is to prevent organlessness. It is not possible to talk about organlessness in a structure that can continue to function as a board. There is no need to apply the 363 item in the absence of organs. Even if there is only one person left, that person can fill the remaining vacancies. 12 23 34 45. Article 363 does not aim to employ a fullnumbered board that can continue to function. It aims to make an inoperable board functional until the first general assembly. A cooptation is an institution that exists to make an agency that has become disorganized in an exceptional situation operational. There is no cooptation in Germany and Switzerland, there are substitute members, this was taken from France.

Duties of the board of directors: Managing the company and representing it abroad. Once the board of directors meets, it can take its own decisions regarding management and representation. It can divide the tasks. If there is a division of labor, these members are called executive members. (For example: The chairman of the audit, where everyone's field is clear, etc.) Highlevel decisions must be taken as a board, and their execution can be left to executive members. Or, you can delegate matters other than senior management with an internal directive in accordance with TTK 367. Internal management came to us by taking a directive from Switzerland. We use a monist system, that is, a single system. One governing body is recognized. The dualist system recognizes two governing bodies adopted by the Germans. Aussicht Satz is elected by the general assembly and an executive committee is formed below which will execute the determined policies. With the internal directive, an executive board can be formed close to the German system. In the internal directive, there is a formal body stipulated by the law, there is a de facto organ that usurps the powers stipulated by the law, and a material body can also be formed by the internal directive. Material bodies that can act in accordance with the principles determined by the board of directors can be formed without the need for a meeting of the board of directors. (CEO, general manager, etc.) This is close to the transition to the dualist system. The material organs established in the internal directive do not remove the supervisory and surveillance obligation of the board of directors. In this sense, who reports to whom should be well defined.

The board of directors manages the company under its own responsibility. If the decisions taken are wrong and the company suffers a loss, it means that the board is compensated. If there are tangible organs, the responsibility of the board of directors disappears, but the audit and surveillance obligation of these selected tangible organs and the competence of the persons elected there are eliminated.

Even if the internal directive is not issued, the issue of representation should be resolved. It should be decided by whom the contracts that bind the company are made. If there is no regulation, the legislator stipulates that contracts binding the company can be made with the signatures of at least two members of the board of directors.

Signature circulars: It is possible to sign alone by registration and announcement in the trade registry.

TTK m. 408/2f: The sale of a significant portion of a company's assets is subject to the approval of the general assembly. In other words, the only transaction that the board of directors cannot do is a substantial wholesale sale of assets. This transaction cannot be carried out without the approval of the general assembly. Transactions made are considered invalid. Regardless of goodwill.

Significant Sales: Established in the new law. Holf muller doctrine,

**Limit of Representation Authority: Transactions that will actually liquidate the company cannot be made without the approval of the general assembly.

TTK m. 371:

Ultra Vires Principle: In the old law, the board of directors can only perform transactions within the scope of the business. If this interest could not be established, the transaction was invalid. It is against the ultra vires principle to carry out a transaction in this different scope. The new law has softened ultra vires. TTK m. 371: Works within the scope of the business can be done. (Ultra Vires) Even if it is done, the right of recourse of the company is reserved. (Smoothing Ultra Vires) That is, the transaction is valid, but the company can file a liability lawsuit against the board of directors if there is damage.

Paragraph 2: If there are bona fide third parties, this transaction also binds the company. If the board of directors performs transactions outside the business, if the other party of the transaction is in good faith, it may demand the price of the transaction. If there is any damage, the right of recourse of the company is reserved. Compensation for invalidity was sanctioned. The reason may be that third parties may not be familiar with the subject of the business. Not everyone can be familiar with the articles of association in which the subject of the business is stated. Even the actions of the board of directors against the articles of association are binding. TCC m.408 2f: In this case, making a different transaction under the articles of association is exceeding the authority of representation, while significant sales such as the sale of the factory are subject to TCC art. 408 violates 2f. In other words, there is a violation of the absolute imperative division of duties in the law. In one place, the authority is exceeded, while the other situation is the usurpation of authority. While goodwill may be binding in the overstepping of the authority, it is not in the usurpation of authority.
**This is the opinion of the teacher against the teaching. TTK m. 391 d : Superstitious Decisions. Decisions falling within the inalienable powers of other organs and regarding the transfer of these powers are invalid.

TTK m. 376: Some of the liabilities are equity. The amount of shares brought by the shareholders to the company is the basic capital. A certain percentage of the company's profit must be set aside as reserve capital. Every year, 5 percent of the profit should be backed up until 20 percent of the capital is reached. The company's main and reserve capitals are collectively referred to as equity. A significant portion of liabilities consists of equity capital. Other liabilities are the debts arising from the contracts entered into by the company while carrying out its activities. These liabilities are also classified as longterm and shortterm. Shortterm debts are debts that must be paid in that accounting period. General ledger and journal show payables and receivables. The inventory book shows the movable and immovable elements in the active part of the assets. In this way, the balance sheet is created.

Income Statement: The statement of expenses and incomes incurred as a result of operating activities in that year is the income statement. (Fixed (Personnel Costs, Rent) and Variable Costs (Electricity)). Profit and loss determination is determined by this table.

376 f1 : If the capital loss reaches half of the equity, the general assembly is invited to the meeting and the board of directors informs the general assembly about the situation.

The loss is written in the active column. The passives show where the resource comes from, where the actives use and where it goes.

With the profit obtained, the losses of previous years, if any, are covered. The resulting profit cannot be distributed without closing the loss.

376 f2: If the capital loss exceeds 2/3, then the general assembly convenes again and the information is not sufficient, the general assembly must take a decision. The general assembly may be content with 1/3 or it may say that we will complete the capital. If he does not make a decision, this means the dissolution of the company, that is, the company automatically ends.

376 f3: The board of directors closely monitors the financial situation of the company and should take measures if it is not in debt. Insolvent means that the company's debts are greater than its total assets. It means that the assets cannot meet the liabilities. In this case, the board of directors of the company should make a revaluation. If the debt continues as a result of this revaluation, he should apply to the court and request the bankruptcy of the company. If this bankruptcy request is not fulfilled, the board of directors commits the crime of not requesting bankruptcy.

Revaluation: While keeping the company's financial records, these are basically kept on 3 principles:
Principle of Acquisition: Applicable while keeping accounting records. How much you have acquired an asset element by paying that number is always included in the books. How many coins were obtained, that number is written and cannot be changed. Even if the value of the element increases, the typed value cannot be increased. With the principle of acquisition, therefore, the fact that the assets appear less when they are more are called hidden reserves.
The Precautionary Principle: Showing the worstcase scenario at hand. The legislator wants to see the worst possible situation when looking at the balance sheet. Act on the worst that can happen. Liabilities are written as soon as they are possible to occur legally, assets are written as soon as they are actually acquired. For example: Severance pay is written to the liabilities if there is a plan for the dismissal of the workers. For example: Administrative fines, which are likely to be paid in a competition institution lawsuit to be opened, are also written to liabilities.
True And Fair View Principle: When the moment of financial decision comes, you can set aside the principle of acquisition and discretion and show what the real state of this company is. Within the framework of this principle, all records are examined in revaluation. Hidden backups are activated.

**Revaluation is performed offbalance sheet. The values ​​in the balance sheet do not change.

Asking for bankruptcy does not mean going bankrupt. If measures are presented to the court to eliminate the insolvency and if it can be persuaded, the court does not decide on bankruptcy but approves the plan. He authorizes the implementation of the plan and requests that the court be notified. The plan is implemented under the supervision of the court.

End of Line: Shareholders can also agree to lend money to the company instead of bringing in capital. The court will not allow bankruptcy if the debtor who is ahead as of the due date is persuaded to go backwards as of the due date, enough to eliminate the insolvency.

In the case of insolvent, the total of debts and the total of assets are checked.
In the case of capital loss, it is checked how much of the period loss comes from the equity capital.

Acquisition of Own Shares of the Company: Share acquisition is made between the shareholders and the company. The board of directors represents the company.

TTK 379,380,381,382,383,384,385

In the previous law it was forbidden to acquire its own share. There is a prohibition on the return of capital in the joint stock company. The sale of shares to the company means the purchase of the return of the share prices. The former legislator is completely against the acquisition of shares.

The new legislator allows this with some conditions because it can be done for another reason and not for the purpose of returning the capital.
Hostile Takeover Hostile Takeover: Another company may want to take your control by taking your shares off the market and do whatever they want. Companies can buy their own shares in order to maintain their economic independence. With the Poison Pill method, the share cost is increased and hostile takeover is prevented.
Preventing Manipulation

Ivazli Acquisition
A company may acquire its own share not exceeding 10 percent.
Requires the general assembly to authorize the board of directors. If there is an imminent and serious danger, the permission of the general assembly is not required, but if this is done, information is given at the first general assembly.

After the acquisition of a share and the return of the share price, the shares must be disposed of and the capital must be replaced within 6 months.

The company cannot become in debt as a result of the money spent while acquiring its shares.

Gracious Acquisition
Any desired share can be acquired so that it does not become a sole shareholder company. Not all shares can be acquired as a single shareholder company.

TTK m. 393 Prohibition of Participating in Negotiations: A board member cannot participate in negotiations in cases where there is a conflict of interest. !!Not participate in the voting, attention!! Nishaps are calculated over the remaining members. If he participates in the negotiation, other members demand their exit, if they do not, their own responsibility arises.

If a member of the board of directors is a shareholder, he cannot vote in the general assembly where his release is discussed.

TTK m. 394 Financial Rights of the Board of Directors: The board of directors is paid an honorarium for the work they do. In the previous law, they determined their own money. In the new law, it is said that the general assembly decides on the financial rights granted to the board of directors. Contracts to the contrary are null and void.
TTK m. 395396 Prohibition of Transaction and Competition with the Company: Members of the board of directors cannot transact with the company. The issue of double representation is prohibited under the law of obligations. Double representation is not an absolute prohibition. According to 396, this can be done with the permission of the general assembly, but if there is no permission, the transaction is void.

According to the prohibition of competition, it is forbidden for a member of the board of directors to be a member of the board of directors in other companies related to the company's field of activity, to be a partner with unrestricted liability, and to assume other administrative duties there. It is also forbidden to establish a company in the same field of activity. This ban can also be lifted with the permission of the general assembly.

In both cases, consent can also be given implicitly. Not making a sound before is an implied consent.

It also spreads to the board of directors in the joint stock companies that have a fight, that is, in the joint stock companies where there is a fight between the shareholders. Implied permission should be checked.

General Assembly (TTK 408 Duties): It is not a permanent body. It is an organ that is collected once a year. He is grateful to the shareholders. A shareholder is a member of the general assembly.

If the actual management** interferes with the board of directors, it also makes the member of the general assembly responsible.

In the old law, it was said that it is the highest level organ, but it does not exist in the new law. There is a paradigm shift.

With the new law, there is not a hierarchical relationship between the general assembly and the board of directors, but a relationship of distribution of duties.

The general assembly cannot give instructions to the board of directors and cannot patronize.

The general assembly elects, releases and dismisses the members of the board of directors, and these powers cannot be taken away.

If there is an auditor, the general assembly elects it. As an exception, if the auditor has terminated his own contract, the board of directors may appoint a new auditor until the next general assembly. Same logic as TTK 363.

It approves the financial statements. (Income Statement, Balance Sheet)

Approval of the balance sheet may mean implied discharge. Approval of the balance sheet and financial statements may mean implied discharge, even if it is not released explicitly, but it is necessary that the event revealing the liability can be understood from the balance sheet.
The general assembly decides on the dissolution and liquidation of the company.

408 2f wholesale of substantial company assets actual liquidation

The main task of the general assembly is to change the articles of association. It is its exclusive jurisdiction. 408/a

In case of a change in the articles of association, the general assembly convenes and an amendment text is prepared. When we want to add an item, when we want to remove an item, when we want to change an item, we go to the general assembly.

Changing the articles of association is subject to aggravated nishaba. TTK m. 421

If there is no further reference to 421 in the law in cases other than that, it takes decisions with the nishabs in the general article 418.

The general assembly consists of the shareholders. Whoever is the shareholder of the company has the right to attend the general assembly and to vote. The company keeps track of who the shareholders are in the company through a book called the share book. When the board of directors invites the general assembly, it looks at the names in this book. He sends a registered letter with return receipt to their registered address. It's like we'll be meeting here at this hour with this agenda.

Adherence to the agenda is essential in joint stock company general assemblies. It is not possible to go beyond the determined agenda, and no agenda other than that day can be discussed, negotiated or voted. The only exception is the dismissal of the board of directors. The agenda is set by the members of the board of directors. Shareholders representing at least 1/10 of the capital, called minority, may request an item to be included in the agenda. Minority in public is 5%, 10% in closed. If the board of directors does not consider this request, the minority may apply to the commercial court of first instance and request that the issue be included in the agenda.

Invited Gathering
As a rule, the general assembly convenes by invitation. TTK 410 Call of the board of directors. The agenda is set,
There must be 15 days between the two, excluding the day of the call and the day of the meeting. How the call can be made can be determined in the articles of association, and it is usually made in the Turkish Trade Registry Gazette. 23 weeks for public anonymous, 3 weeks after the announcement to be made in the container.

Uninvited Gathering
If all the shareholders are ready, the general assembly of the company may convene without following the announcement procedure. Even if it gathers in the tea garden, if the shareholders make their decision into a protocol, they will convene an uninvited general assembly. The majority thinks the opposite, they say that the board of directors sets the agenda and still announces it.

Ordinary Gathering
Hesap döneminin bitiminden itibaren en geç üç ay içinde ve TTK m. 408. maddede yazılı konuları görüşmek üzere toplantı.

Olağanüstü Buluşma
Gerektiğinde oldukça toplayıcı. Örneğin: Esas sözleşmede ani değişiklik vb.

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