Joint stock company general assembly meeting

The general assembly meeting of a joint stock company is held in two ways: ordinary and extraordinary meeting. The ordinary general assembly is held within 3 months following the end of each activity period. In accordance with the legislation, the activity period is considered to end in December. Failure to hold the ordinary general assembly on time will result in liability. 409/1 of the Turkish Commercial Code. Pursuant to the article, the agenda of the ordinary general assembly consists of negotiations regarding the election of organs, financial statements, the annual report of the board of directors, the method of using the profit, the determination of the rates of profit and profit shares to be distributed, the acquittal of the members of the board of directors and other issues that concern the activity period and are deemed necessary.

Extraordinary general assembly meeting refers to the meeting that is required in accordance with the provision of Turkish Commercial Code 409/2 and is held outside the ordinary meeting times. Extraordinary general assembly meeting call is made by the board of directors. Article 411 of the Turkish Commercial Code states: "Shareholders who constitute at least one tenth of the capital, or one twentieth of the capital in public companies, may request the board of directors to call the general assembly to a meeting by stating the necessary reasons and agenda in writing, or, if the general assembly is to be held anyway, to put the issues they want to be decided on on the agenda. The right to call may be granted to shareholders with a smaller number of shares by the articles of association." With this regulation, minority shareholders are given the authority to call the general assembly to a meeting in certain cases. Minority shareholders can make the call through the board of directors or by court decision.

There is a regulation regarding the place of general assembly meetings of joint stock companies in Article 8 of the Regulation on the Procedures and Principles of General Assembly Meetings of Joint Stock Companies and the Representatives of the Ministry of Customs and Trade to Attend These Meetings. According to this provision of the Regulation, general assembly meetings are held within the borders of the civil administration unit where the company's headquarters is located, unless there is a contrary provision in the articles of association. In order for the meeting to be held in a place other than the borders of the civil administration unit where the company headquarters is located or abroad, this must be clearly regulated in the articles of association.

JOINT STOCK COMPANY GENERAL ASSEMBLY MEETING AGENDA

The agenda of the general assembly is determined by the body that calls the general assembly to the meeting. The bodies authorized to call the general assembly to a meeting are listed under separate headings below.

No discussion can be held at the general assembly except for matters not written on the agenda. The agenda items for the ordinary general assembly are listed as a minimum in the law. In these meetings, discussions are held and decisions are taken regarding the election of organs, financial statements, the annual report of the board of directors, the way of using the profit, the determination of the rates of profit and profit shares to be distributed, the acquittal of the members of the board of directors and issues related to the activity period. In addition, since it is stated in the article that the general assembly is authorized to make decisions on other matters deemed necessary, it is understood that the legislator did not limit the agenda of the ordinary meeting. If an issue other than those specified in the law will be discussed at the general assembly, this issue must be stated and announced in the agenda.

In a decision of the 11th Civil Chamber of the Supreme Court dated 2017, "In joint stock companies, the meeting agenda must be included in the announcement and invitation letters regarding the invitation to the general assembly meeting. The agenda expresses all the issues to be discussed in the general assembly. Determining the agenda belongs to the body that decides on the general assembly meeting. The agenda forms the basis of the general assembly meeting. Accordingly, the partners decide whether to attend the general assembly meeting or not, make the necessary preparations and research, collect information and documents, and other matters." They have the opportunity to determine their decisions, such as acting together with partners.

In the concrete case, the 6th item of the agenda announced regarding the general assembly decision requested to be annulled was determined as "Opening the final status of the construction contract for the Civas land for negotiation", and there is no agenda item regarding the authorization of the board of directors regarding the real estate belonging to the defendant company. In accordance with Article 413 of the Turkish Commercial Code No. 6102, issues that are not on the agenda cannot be discussed and decided at the general assembly. As a rule, in accordance with the principle of "sticking to the agenda", the issue to be discussed must be determined in advance and clearly written on the agenda. It is stated as follows.

The agenda of extraordinary general assembly meetings is not specified in the law. The agenda is determined by the bodies that call the general assembly to the meeting. As a rule, in accordance with the principle of adherence to the agenda, the issue to be discussed must be determined in advance and clearly written on the agenda. Taking a decision on an issue that is not on the agenda will render the decision invalid. In such cases, not all general assembly decisions are annulled.

EXCEPTIONS TO THE AGENDA COMMITMENT PRINCIPLE IN JOINT STOCK COMPANIES

The general assembly agenda must be determined in advance. 413/2 of the Turkish Commercial Code. Pursuant to this article, it is forbidden to discuss issues that are not on the agenda at the general assembly and to make decisions regarding these issues. The agenda of the ordinary general assembly consists of negotiations regarding the election of organs, financial statements, the annual report of the board of directors, the way of using the profit, the determination of the rates of profit and profit shares to be distributed, the acquittal of the members of the board of directors and other issues that concern the activity period and are deemed necessary. If a meeting will be held on another issue, it must be stated in the agenda. The fact that an issue that is not on the agenda cannot be discussed arises from the principle of adherence to the agenda. The principle of adherence to the agenda aims to enable shareholders to use their rights more effectively.

There are some exceptions to the principle of adherence to the agenda. These exceptions are;

1- Dismissal of board members in case of justified reasons (TTK 364)

2- Postponement of the general assembly meeting, (TTK 420)

3- Shareholders' request for special audit, (TTK 438)

4- If any of the shareholders has been informed about a subject outside the general assembly due to this capacity, upon the request of another shareholder, the same information should be given in the same scope and detail, even if it is not related to the agenda. (TTK 437)

5- In case of insufficient capital, it should be discussed in the general assembly, even if it is not on the agenda (TTK 437/2)

THOSE AUTHORIZED TO CALL THE GENERAL ASSEMBLY MEETING IN JOINT STOCK COMPANIES

Board of Directors

As a rule, the authority to call the general assembly to a meeting belongs to the board of directors. Article 410 of the Turkish Commercial Code states: "The general assembly may be called to a meeting by the board of directors, even if its term has expired." It is shaped like.

Minority Shareholders

TTK 411

1- Shareholders who constitute at least one-tenth of the capital, or one-twentieth in public companies, may request the board of directors to call the general assembly to a meeting by stating the necessary reasons and agenda in writing, or, if the general assembly is already to be held, to put the issues they want to be decided on on the agenda. The right to call may be granted to shareholders with a smaller number of shares through the articles of association.

2- The request to add an item to the agenda must reach the board of directors before the date of payment of the announcement fee for the publication of the call announcement in the Turkish Trade Registry Gazette.

3- The call and the request to add an item to the agenda are made through a notary.

4- If the board of directors accepts the call, the general assembly is called to a meeting to be held within forty-five days at the latest; Otherwise, the call is made by the applicants.

3. In the paragraph, it is regulated that the request should be made through a notary public, and this situation is stated in the justification of the article as follows: "In practice, whether an application is made to the board of directors for the call and the date of application creates a problem, and this issue creates a problem in terms of the court's permission. Because in order for the court to give permission, the application to the board of directors must be exhausted. In addition, the delay of the board of directors in responding is important for the permission of the court. For this reason, in the Bill, the request for the call and adding an item to the agenda must be made through a notary." It is stated as follows.

Again, the 4th paragraph states, "In practice, most of the time the board of directors accepts the request, but the meeting is held months later, so that the expected benefit from the meeting cannot be obtained. For this reason, it has been made mandatory for the meeting to be held within forty-five days from the date of acceptance, otherwise the call will be made by the requesters. In this case, there is no need for the minority to apply to the court and take a decision; the general assembly is called to the meeting by the requesters." It is justified as follows.

Article 412 of the Turkish Commercial Code is as follows.

If the shareholders' requests for a call or adding an item to the agenda are rejected by the board of directors or if the request is not answered positively within seven business days, upon the application of the same shareholders, the commercial court of first instance where the company headquarters is located may decide to call the general assembly for a meeting. If the court deems a meeting necessary, it appoints a trustee to organize the agenda and make the call in accordance with the provisions of the Law. In its decision, it indicates the trustee's duties and powers regarding preparing the necessary documents for the meeting. Unless there is necessity, the court makes a decision by examining the file. The decision is final.

The verdict states that the decision is final. As a matter of fact, the 14th Civil Chamber of the Istanbul Regional Court of Justice stated in one case, "The case concerns the request for appointment of a trustee to call an extraordinary general assembly meeting of the defendant company. The decision of the first instance court is final. In other words, the legal remedy of appeal against the decision of the first instance court is not permissible. In order for even the issues that are contrary to public order to be examined, the legal remedy of appeal must be open. In our case, since the legal remedy of appeal was closed, no cause of appeal could be examined." He ruled as follows.

A Shareholder

If the board of directors cannot meet or call the general assembly for any reason, the legislator has granted the shareholders the right to call by obtaining permission from the court. This situation is stated in Article 410/2 of the Turkish Commercial Code. In the article "In cases where the board of directors cannot meet regularly, it is not possible to form a meeting quorum or it is not available, a single shareholder may call the general assembly to a meeting with the permission of the court. The decision of the court is final." It is arranged as follows.

Liquidators

TTK's 410/1. Article "Liquidators may also call the general assembly to a meeting for matters related to their duties." It is shaped like.

Tasfiye halinde de yetki yönetim kurulundadır. Liquidators can only call the general assembly to a meeting for matters related to their duties. Trustee If a trustee is appointed to a joint stock company by the court, it becomes possible for the trustee to call the general assembly to a meeting.

PROCEDURE FOR CALLING THE GENERAL ASSEMBLY MEETING IN JOINT STOCK COMPANIES

The general assembly meets in two ways: invited and uninvited. Since the procedures and principles of the two forms are different from each other, they will be examined under separate headings.

INVITED GENERAL ASSEMBLY MEETINGS OF JOINT STOCK COMPANIES

Article 339 of the Turkish Commercial Code includes the mandatory elements that must be included in the articles of association. According to the article, how general assemblies will be called to meetings must be specified in the articles of association.

The general assembly meeting is called by the announcement published on the company's website and in the Turkish Trade Registry Gazette, as shown in the articles of association. This call is made at least two weeks before the meeting date, excluding announcement and meeting days. Shareholders listed in the share ledger and shareholders who have previously notified their addresses to the company by submitting a share certificate or a document proving their shareholding are notified by registered letter of the meeting date, agenda and newspapers in which the announcement has been published or will be published.

29/1 of SerPK. According to the article; Public partnerships are obliged to call their general assemblies to the meeting, as indicated in the articles of association, by an announcement published on the partnership's website, the Public Disclosure Platform and other places determined by the Board. This call is made at least three weeks before the meeting date, excluding announcement and meeting days.

UNCALLED GENERAL ASSEMBLY MEETINGS IN JOINT STOCK COMPANIES

In order to hold an uninvited general assembly, all shareholders must be present. As a matter of fact, Article 416 of the TCC states, "The owners or representatives of all shares may convene as a general assembly and make decisions as long as the quorum for this meeting is present, without complying with the procedure regarding the call, provided that the provisions regarding participation in the general assembly and holding general assembly meetings are reserved, unless one of them raises an objection." It is shaped like.

A shareholder leaving the meeting eliminates the ability of the uncalled general assembly to make decisions. Because the decision-making capacity of the general assembly without invitation is required not only at the opening of the meeting but also throughout the meeting. On the other hand, an objection regarding the meeting being held without a call cannot be made later; This does not remove the general assembly's decision-making capacity. The objection in question must be made until it is put on the agenda.

In the second paragraph of the article, it is regulated that an item can only be added to the agenda by unanimous vote. Adding an item to the agenda is only possible in uninvited general assembly meetings. The opposite of adding an item to the agenda cannot be agreed upon in the articles of association.

JOINT STOCK COMPANY GENERAL ASSEMBLY DECISION QUORUM

Simple Quorums

Article 418 of the Turkish Commercial Code is as follows.

1- General assemblies convene with the presence of the owners or representatives of shares that cover at least one quarter of the capital, except in cases where a higher quorum is stipulated in this Law or the articles of association. This quorum must be maintained throughout the meeting. If the said quorum is not reached in the first meeting, no quorum is required to hold the second meeting.

2- Decisions are made by the majority of the votes present at the meeting.

The quorum for the meeting is determined according to the basic or issued capital. The collection rate is different for amendments to the articles of association. The validity of the decisions depends on the ratio specified in the law being maintained throughout the meeting period. If one person leaves the meeting, the general assembly decisions become null and void.

Special Quorums

General Amendments to the Articles of Association

According to Article 421 of the Turkish Commercial Code; "Unless there is a provision to the contrary in the law or the articles of association, decisions amending the articles of association are taken by the majority of the votes present at the general assembly, where at least half of the company's capital is represented. If the meeting quorum stipulated in the first meeting is not achieved, a second meeting can be held within one month at the latest. The meeting quorum for the second meeting is that at least one third of the company's capital is represented at the meeting. Those who reduce the quorum stipulated in this paragraph or "Provisions of the articles of association stipulating a relative majority are invalid."

According to the provision, ½ of the capital must be present at the first meeting and 1/3 of the capital must be present at the second meeting.

By Unanimous Decisionsr

In the following cases, the validity of decisions depends on unanimity.

- Increasing the commitment of shareholders,

- Imposing secondary obligations,

- Moving the company headquarters abroad.

Decisions that can be taken with a 75% majority

In order for the following decisions to be taken, at least 75% of the capital must vote positively.

- Completely changing the subject of the business,

- Creating privileged shares - Limiting the transfer of registered shares,

- Reduction of basic capital.

Some Decisions of Companies whose Shares Are Traded on Stock Exchanges

TTK 421/5. Pursuant to this article, in the general assembly meetings to be held in companies whose shares are traded on the stock exchanges, in order to take decisions on the following issues, the meeting quorum in Article 418 shall be applied, unless there is a contrary provision in their articles of association:

a) Amendments to the articles of association regarding increasing the capital and increasing the registered capital ceiling.

b) Decisions regarding merger, division and change of type.

29/3 of SerPK. Situations Specified in Article

In the general assembly meetings of publicly held partnerships, except for decisions that impose obligations and secondary liabilities for relocating the headquarters of the partnership abroad and for covering balance sheet losses, unless heavier quorums are foreseen by clearly stating the ratio in this Law or articles of association, Article 418 of Law No. 6102 shall apply. In articles of association, merely referring to Law No. 6102 or the relevant article number without writing the content of the provision in Law No. 6102 will not be considered a contrary provision. The provision of the sixth paragraph is reserved.