The Establishment of a Joint Stock Company and the Differences Between a Joint Stock Company and a Limited Liability Company

1. I. INTRODUCTION

The subject of this information note generally covers the establishment of joint stock companies and the fundamental differences between a joint stock company and a limited liability company.

GENERAL OVERVIEW OF THE ESTABLISHMENT OF A JOINT STOCK COMPANY

1. The establishment of joint stock companies is regulated by the Turkish Commercial Code No. 6102. (“TTK”) It is regulated between Articles 332 and 356 of the Turkish Commercial Code No. 6102.

2. Joint-stock companies are established by one or more persons through the method of immediate establishment according to Article 337 of the Turkish Commercial Code (TCC). According to this, immediate establishment occurs when the shareholders commit to the entire capital.

3. Immediate establishment, Cash establishment and Qualified establishment It can be realized in the form of a qualified establishment. The cash establishmentrefers to the situation where the entire capital committed by the shareholders in the company’s establishment is in cash. Qualified establishment refers to the situation where in the company’s articles of association, certain assets are brought as capital, or certain goods are purchased on behalf of the company.

4. According to Article 337 of the Turkish Commercial Code (TTK), the real and/or legal persons who sign the articles of association and commit to contribute capital are the founders of the company.

5. In order for the company to be established, according to Article 336 of the Turkish Commercial Code (TTK), the founders must

• The articles of association,
• Founders statement,
• Evaluation reports,
• Contracts concluded with the joint stock company, founders and other persons and related to the organization

It is necessary to prepare the establishment documents in the form of. These establishment documents are placed in the registration file and copies are sent by the company 5 years it is stored for a while.

6. In order for a joint stock company to acquire a legal entity;

• Preparation and signing of the articles of association or the articles of association,
• Notary public's confirmation that the founders have committed the entire capital,
• Declaration of the founders that they have committed the entire capitalfounders statement),
• Paying in part or in full of the capital,
• If necessary, the permission of the Ministry of Customs and Trade,
• Registration in the trade registry and announcement in the Turkish Trade Registry Gazette

it is necessary to complete the establishment procedures that are counted as follows.

7. The articles of association of the company are Article 339 of the TCC. It is prepared according to the procedures and principles specified in the article. In this context, the following issues should be included in the articles of association:

• The company's trade name and the place where its headquarters will be located.
• The company's business subject matter, the main points of which are specified and defined in a way.
• The capital of the company and the nominal value of each share, the forms and conditions of paying them.
• Whether the share certificates will be registered or written to bearer; privileges granted to certain shares; transfer restrictions.
• Rights and months invested as capital other than money; their values; the amount of shares to be reciprocated for them, if there is a transfer of a business and a month, the cost of them and the cost of goods and rights purchased by the founders on the company's account to establish the company, as well as the amount of wages, allowances or awards that should be given to those whose services were provided in the establishment of the company.
• The benefits to be provided to the founders, members of the board of directors and others from the profits of the company.
• The number of members of the board of directors, including those authorized to sign on behalf of the company.
• How the general assemblies will be called to the meeting; voting rights.
• If the company is limited to a certain period of time, this period.
• How to make company-owned ads.
• Types and amounts of capital shares pledged by shareholders.
• The accounting period of the company.

8. Founders can put in-kind capital or cash capital into the company capital. According to this, 342 of the TCC. All elements of assets that can be evaluated and transferred in cash, which do not have any rights limiting their use, in accordance with the Article capital in kind it can be put as. Even intellectual property rights and virtual environments are included in this capital. In contrast, 344 of the TCC. In accordance with the article, at least 25% of the paid provided that before registration capital from cash it is possible to put.

9. Cash payments, 345 of the TCC. In accordance with the article, it is deposited into a special bank account to be opened on behalf of the company in a way that only the company can use.

10. Anonim şirketlerin asgari sermaye tutarı TTK’nın 332. Maddesi uyarınca 50.000,00 TL olabilmektedir. Anonim şirketlerde kayıtlı sermaye sistemini benimsemiş ise başlangıç sermayesi en az 100.000,00 TL olabilmektedir. En az sermaye miktarı Cumhurbaşkanı kararı ile arttırılabilir. Anonim şirketlerde sermaye artırımı kararı, esas sermaye sistemine göre genel kurul; kayıtlı sermaye sisteminde, esas sözleşmede belirlenen tavan miktarına kadar yönetim kurulu karar verir.

3. BOARD OF DIRECTORS

1. Joint stock company, board of directors and general assembly there are two organs, namely.

2. The board of Directors, 359 of the TCC. According to the article, it consists of one or more persons appointed by the articles of association or elected by the general assembly. The term of office of these persons is 362 of the TCC. According to the article, it is determined as a maximum of 3 years.

3. Joint stock company, 365 of the TCC. In accordance with the article, it is managed and represented by the board of directors. However, 370 of the TCC. According to the Article, the power of representation of joint stock companies belongs to the board of directors, to be used with double signatures as a rule. The board of directors shall exercise its administrative authority pursuant to Article 367 of the TCC. In accordance with Article 370 of the TCC; the authority of representation. In accordance with the Article, he has the right to transfer to one or more members of the board of directors or to a third party.

4. 390 of the TCC. According to the article, the board of directors, -unless there is an aggravating provision to the contrary in the articles of association it meets with the majority of the total number of members and takes its decisions with the majority of the members present at the meeting. This rule also applies if the board of directors is held in electronic environment. Members of the board of directors may not vote at the board of directors meeting on behalf of each other and may not participate in the meetings through a proxy.

4. GENERAL ASSEMBLY

1. The general assembly is the decision-making body of the joint stock company. In this context, 407 of the TCC. in accordance with the article, all shareholders exercise their rights at the general assembly. As a rule, all duties and powers other than management, executive, representation and audit are within the scope of the duties and powers of the general assembly.

2. General assembly meetings 409 of the TCC. According to the article, it is collected in two ways, ordinary and extraordinary. An ordinary meeting is a meeting held every year within the first three months following the accounting period. An extraordinary meeting, on the other hand, is a meeting convened when necessary and the agenda of which is formed by reasons that require a meeting to be held.

3. General assembly meetings may be subject to various distinctions: ordinary meeting-extraordinary meeting in terms of the time of holding; summoned meeting-non-summoned meeting in terms of whether a call is made; physical meeting-electronic meeting.

4. A physical meeting is held by way of physical gathering of shareholders or their representatives. Dec. The electronic meeting is 1527 of the TCC. According to the article, participation in general meetings in joint stock companies electronically, making suggestions, expressing opinions, voting; physical participation and voting have all legal consequences.

5. If the general assembly is convened without following the call procedure in the event that all shareholders or their representatives are present and one of them does not object, Dec. general assembly meeting without callIf the call is duly collected summoned general assembly meeting it is called as.

6. The call procedure for ordinary and extraordinary general assembly meetings is the same and the call agent is announcement and letter 410 of the TCC. in the article, those who are authorized to call the general assembly to a meeting; the board of directors, shareholders, liquidators are considered as minority restrictions. The list signed by the participants of the general assembly, list of those present he gets his name.

7. General assemblies are convened with the presence of the owners or representatives of the shares that meet at least one quarter of the capital, except in cases where a heavier quorum is stipulated in this Law or the articles of association to the contrary. It is essential that this quorum is preserved during the meeting. If the quorum mentioned in the first meeting is not reached, the quorum is not sought in order to hold the second meeting. Decisions are made by a majority of the votes present at the meeting.

8. 408 of the TCC. in accordance with the article, the inalienable duties and powers of the general assembly;

• Amendment of the articles of association,
• Determination of the election of the members of the board of directors, their terms, wages and rights such as the right to peace of mind, bonuses and bonuses, making decisions about their release and dismissal,
• Dismissal of the auditor by election with exceptions provided for in the law,
• Making decisions on the use of financial statements, the annual report of the board of directors, saving on annual profit, determining dividends and earnings shares, including the inclusion of reserve funds in capital or profit to be distributed,
• Termination of the company with the exceptions provided for in the law,
• Wholesale sale of a significant amount of company assets,

it has been counted as such and the rule of Decoupling functions and authority between the dominant organs has been adopted.

5. THE AUDITOR

1. The audit of joint stock companies is carried out by independent audit institutions, certified public accountants or certified public accountants according to the company's scale, who are connected to the company by a contractual relationship after the bodies have been formed in the organization, depending on the election decision of the general assembly, who are third parties to the company, depending on the company's scale.

2. The powers of auditors are limited to financial issues and their supervision. The subject of the audit is the audit of the year-end financial statements of the company and the group of companies, as well as annual reports and all accounting, including inventory.

6. SHARE TRANSFER

1. In joint stock companies, the transfer of the fully paid, untethered bearer and registered share in the year is made as if you were assigned to receive.

2. 491 of the TCC. Pursuant to the Article, the approval of the joint stock company is mandatory for the transfer of the share written to the bearer and registered, which is not bound in a fully paid-up year in joint stock companies. In addition, in both cases, a share transfer agreement is made in writing, but it is recorded in the share ledger.

3. In the share deed written to the bearer, the related rights are also transferred in the year if the deed is transferred; however, at this point, the person who inherits the share deed written to the bearer along with the new regulation must notify the Central Registry Agency.

4. 490 of the TCC. according to the article, registered shares may be transferred in principle without any restrictions. The transfer process in question takes place by the turnover of registered share certificates and then the possession of the share certificate is transferred to the transferee. In the transfer of registered share certificates, this is done by handing over the transferred share certificate to the transferee and registering it in the share ledger.

5. 492 of the TCC. In accordance with the Article, it can be determined that registered shares can only be transferred with the approval of the company by the articles of association.

7. CAPITAL INCREASE

1. Capital increase is regulated by Article 459 of the TCC in the basic capital system. In accordance with Article 460 of the TCC, the general assembly; in the registered capital system. in accordance with the article, it is decided by the board of directors. If the relevant provisions of the Articles of Association have been amended and adopted by the general assembly in a different form, the permission of which has been obtained if necessary, it must be approved by the Ministry of Customs and Trade.

8. DIFFERENCES BETWEEN JOINT STOCK COMPANY AND LIMITED LIABILITY COMPANY

1. The joint stock company must have a general assembly, a board of directors and an auditor. In a limited liability company, there must be a general assembly and a board of directors.

2. A joint stock company is established with at least 1 person. If the number of shareholders exceeds 250, the company becomes publicly traded. A limited liability company can be established with at least 1 person and a maximum of 50 people. Also, the company cannot be publicly traded.

3. A joint stock company is established with a capital of at least 50.000,00 TL. A limited Liability Company is established with a capital of at least TL 10,000.00.

4. Transfer of shares in a joint stock company VI. it is performed in the manner specified in the article. In this context, there is no obligation to make the transfer in the presence of a notary, especially when transferring shares in a joint stock company. On the other hand, in order for a share transfer to be made in a limited liability company, the share transfer agreement made in writing must be signed in the presence of a notary. Then, the transfer must be approved by the general assembly in order for it to become valid against the company. However, the approval of the general assembly may be revoked by the company's articles of association. In such a way, if it is clearly regulated in the company's articles of association that the transfer of shares will not be subject to the approval of the general assembly, the share transfer transaction will be completed with the transaction made at a notary.

5. Companies are obliged to keep a daily ledger, a ledger, an inventory ledger, a share ledger, a board of directors/directors decision ledger, a general assembly meeting and a negotiation ledger.

6. If the share deed is transferred to a joint stock company after 2 years from the date of acquisition, the Income Tax Law is repeated 80 in terms of income received. According to the article, income tax does not arise. On the other hand, income tax arises in every case where the share deed is transferred in a limited liability company.

7. The company's partners are not responsible for the company's debt to third parties in either a joint stock company or a limited liability company. However, in terms of public debts, a joint stock company and a limited liability company contain different elements. Accordingly, in case of non-paying of public debts in the joint stock company members of the board of directors he is responsible for the company's debts with his personal assets. In case of non-paying of public debts in a limited liability company, on the contrary company partners it is directly responsible for the company's debts in proportion to its shares.

8. Capital increase in joint stock companies is carried out by the general assembly in the basic capital system and by the board of directors up to the ceiling amount determined in the articles of association in the registered capital system. On the other hand, in limited liability Companies, the capital can only be increased by a decision of the General assembly.