Communiqué
Concerning the Principles of Procedures
for the Establishment and Amendments in
Articles of Associations of Joint Stock
Companies and Limited Liability Companies |
(Domestic
Trade 2003/3)
(From the Ministry of
Industry and Trade:)
Article
1. The objective of this
Communique is to designate the principles and procedures
for the establishment of joints stock companies and
limited liability companies and the amendments in
the articles of association of these, in line with
the amendments made in Turkish Commercial Code by
Law 4884 that came into effect and published in the
Offical Gazette No.: 25141, on 17 June 2003.
Article
2. This Communique has
been prepared in accordance with Article 274 of Turkish
Commercial Code (TCC), Article 33 of Law 3143 and
Article 2 of Law 4884.
Article
3.The minimum capital required
for the establishment of a joint stock company is
TRL 50 billion and there should be at least 5 founding
shareholders, provided that there is no adverse provision
in the special laws associated.
A)
Establishment Procedures
The
establishment steps of joints stock companies, notwitstanding
the special provisions of TCC and Capital Markets
Law with regard to the gradual establishment of
joint stock companies, are described as below:
a)
The Preparation of the Articles of Association and
its Notarization
It is obligatory that the articles of association
of the company should contain the subjects stipulated
in Article 279 of TCC, that it should be put down
in written form and that it should be notarized
after being signed by the founders.
The following
points have, particularly, to be taken into account
while preparing the articles of association:
aa.
Founders
The names, surnames
and addresses of the founders, and in case there
are citizens of foreign countries among founders,
the citizenship of these founder(s) have to be listed.
bb.
Trade Name
The trade name
has to be determined in accordance with Article
45 of TCC so as to indicate the business activity
of the company. It is obligatory that the trade
name has to incorporate the phrasing; “Anonim
Sirketi (Joint Stock Company).” In case it
contains the name and surname of the real person,
the phrasing that indicates the company type cannot
be abbreviated or displayed in symbols.
Since trade
names of legal entities are protected all over Turkey,
the designated trade name should not have been registered
beforehand at any registry office.
The trade name
should not carry an essence to mislead third parties
with regard to the scope of activities, significance
or financial status of the company, nor should contradict
facts and public order.
The words “Türk,
Türkiye, Cumhuriyet and Milli” can only
be used in trade names provided that there is a
decree of Council of Ministers approving such usage.
The trade name
has to be in Turkish language. Any fictitious names
present in the trade name have to be in Turkish
language as well. The presence of foreign words
in the trade name of a company may be permitted
in cases, where these words do not contradict the
law, the national, cultural and historical benefits;
the name or brand promoting the goods or services
constituting the business activity of the company
is in a foreign language or there is/are foreign
shareholder/s in the company.
cc. Headquarter
The name of
the province and district of the province in which
the headquarter of the company is located, has to
be specified in the articles of association. Furthermore,
the open address of the company has to be written
in the articles of association. Thus, the article
denoting the headquarter of the company should read
as;
“The headquarter
of the company is located in ……….
. It’s address is; …………….
. In case of a change of address, the new address
has to be registered at the Trade Registry and announced
in the Trade Registry Gazette. Any notice served
to the registered and announced address is deemed
to have been served to the company. In case the
company leaves its registered and announced address
and does not register its new address within the
stipulated period, the case is considered as the
cause for termination.”
It is not obligatory
to make amendments in the articles of association
only for a change of address if the new address
is within the same registry district. However, an
amendment in the articles of association is necessary
if the new address is located at a registry center
different than the previous one.
dd.
Objective and Field of Activity
The field of
activity in which the company is planning to operate
should not have been prohibited by Article 271 of
TCC.
A specific field
of activity in which the company will actually be
operating should be written in the articles of association,
at least on sectoral basis. The articles of association
should not be written so as to cover all kinds of
field of activity. Objectives and subjects of activity
that can be written in the articles of association
are limited with the subject specifed in the trade
name of the company.
ee.
Capital
The capital
of the company should be minimum TRL 50 billion.
In accordance
with Articles 279 and 300 of TCC, it is obligatory
that the capital amount, the nominal value of each
share and the method and terms concerning the payment
of the capital shall be paid, has to be specified
in the articles of association.
Accordingly,
notwithstanding the provisions of special laws,
it must be written in the capital clause of the
articles of association of the company that the
capital has been fully committed - free of any collusion
- and that 1/4th of the cash capital has been fully
paid up or that it will be paid up latest within
three months following the establishment of the
company, and that the remaining portion will be
paid up latest within three years.
Capital clause
of the articles of association of companies which
are obligated by special laws for payment of the
whole or a fraction larger than 1/4th of their capital
will be arranged accordingly.
In the event
that any rights, movable and immovable assets are
being subscribed as capital at company establishment
stage, this commitment has to be fulfilled latest
within three months following the registration date
of the company. In case the goods and rights put
in as capital are registered at a special registry
(such as land registry office, registry of ships,
traffic registry, industrial property registry),
these have to be registered on the behalf of the
company, latest within three months of establishment.
b)
The Registration of the Company at the
Trade Registry and its Announcement
The articles
of association are first notarized and then registered
at the Trade Registry Office where the company headquarter
is located in or where the location of headquarter
is associated with, within 15 days after notarization.
The company becomes a legal entity by this registry.
Items that require announcement after registry are
announced in the Trade Registry Gazette. Documents
indicated in Annex 1 of
this Communique have to be attached to the registration
application.
B)
Procedures for Amendments in Articles of Association
The steps for
making amendments in the articles of association
of joint stock companies, with the exception of
those specified in Article 5 of this Communique,
are described below:
a)
Board Resolution for Amendments in Articles
of Association and the Preparation of the Amendment
Text
aa.
In General
The board of directors resolves the amendments to
be made in the articles of association, in compliance
with the procedures and principles stipulated by
the TCC and the articles of association; the amendment
text is prepared so as to include the previous and
new versions of the related article/s.
The amendment
texts are signed by the company officials authorized
to represent the company.
bb.
Increase of Capital
With regard
to the amendments to be made in articles of association
involving capital increase, notwithstanding the
provisions of special laws, it must be written in
the capital clause of the amended text that the
previous capital has been fully paid up and the
that capital increase has been fully committed -
free of any collusion - and that 1/4th of the capital
in cash has been fully paid up or at this portion
capital increase will be paid up latest within three
months following the registration of the capital
increase and the remaining will be paid up latest
within three years.
Amendments in
the capital clause of the articles of association
of companies which are obligated by special laws
for payment of the whole or a fraction larger than
1/4th of their capital increases will be arranged
accordingly.
The capital
in cash portion of the subscribed capital increase
that is specified in the articles of association
of the company, has to be deposited in a company
account opened at a bank or a private finance institution
before the registration of the capital increase.
In the event
that any rights, movable and immovable assets are
being subscribed for capital increase, this commitment
has to be fulfilled latest within three months following
the registration date of the capital increase. In
case the goods and rights put in as capital are
registered at a special registry (such as land registry
office, registry of ships, traffic registry, industrial
property registry), these have to be registered
on the behalf of the company, latest within three
months following the registration date of the capital
increase.
b)
Review of Amendments in Articles of Association
in Shareholders’ Meeting and its Resolution
In case the
shareholders are summoned for a meeting for amendments
in the articles of association, the amended text
has to be announced and notified to the relevant
persons together with the original text in accordance
with Article 368 of TCC and the amendments in the
articles of association have to be resolved in compliance
with the principles stipulated by the TCC and the
articles of association.
c)
Registry of the Amendments in Articles
of Association at the Trade Registry and its Announcement
Amendments in
the articles of association, with the exception
of increase or reduction of capital have to be registered
at the Trade Registry Office where the company headquarter
is located, within 15 days following the shareholders’
meeting. In case these amendments violate the rights
of preferential stockholders, this 15-days period
starts upon approval of the shareholders’
resolution by the preferential stockholders. Documents
indicated in Annex 2 of
this communique have to be attached to the registration
application for the amendments in articles of association.
Amendments in
the articles of association for a reduction of capital
have to be registered at the Trade Registry Office
within 15 days after finalizing the transactions
specified in Articles 397 and 398 of TCC following
the resolution of the shareholders’ meeting.
Amendments in
the articles of association have to be registered
at the Trade Registry Office within 15 days after
finalizing the transactions in capital-in-cash increases,
whereas this 15-days period starts on the date of
the shareholders’ meeting in non-cash capital
increases.
When the capital
increase needs some other legal or administrative
procedures due to its special legislation, the 15
days period begins after these procedures.
With the exception
of publicly held joint stock companies, once the
whole capital increase is subscribed, a list prepared
in accordance with the examplar form given in Annex
5 of this Communique, duly signed by the Company
officials have to be announced in the Trade Registry
Gazette together with the amendment texts, after
the registration of the capital increase.
In case the
capital increase process cannot be achieved, the
Trade Registry Office is authorized to refund the
relevant persons for the money deposited at the
special account opened at a bank or a private finance
institution for the subscribed capital shares before
the capital increase process.
| Limited
Liability Companies |
Article
4. The minimum capital required
for the establishment of a limited liability company
is TRL 5 billion and there should be at least 2 founding
shareholders as real persons or legal entities, provided
that there is no adverse provision in the special
laws associated. The number of the shareholders should
not be more than 50.
A-
Establishment Procedures
The establishment steps of limited liability companies
are described below:
a)
The Preparation
of the Articles of Association and its Notarization
It is obligatory that the articles of association
of the company should contain the subjects stipulated
in Articles 506 and 511 of TCC, it should be put
down in written form and the signatures of all founders
should be notarized.
aa.
Founders
The names, surnames
and addresses of the founders, and in case there
are citizens of foreign countries among founders,
the citizenship of these founder(s) have to be listed.
bb.
Trade Name
The trade name
of the company has to be determined in accordance
with Article 45 of TCC so as to indicate the business
activity of the company. It is obligatory that the
trade name has to incorporate the phrasing; “Limited.”
In case it contains the name and surname of the
real person, the phrasing that indicates the company
type cannot be abbreviated or displayed in symbols.
Since the trade
names of legal entities are protected all over Turkey,
the designated trade name should not have been previously
registered at any registry office.
The trade name
should not carry an essence to mislead third parties
with regard to the scope of activities, significance
or financial status of the company, nor should contradict
facts and public order.
The words “Türk,
Türkiye, Cumhuriyet and Milli” can be
used in trade names provided that there is a decree
of Council of Ministers approving such usage.
The trade name
has to be in Turkish language. Any fictitious names
present in the trade name have to be in Turkish
language as well. The presence of foreign words
in the trade name of a company may be permitted
in cases, where these words do not contradict the
law, the national, cultural and historical benefits;
where the name or brand promoting the goods or services
constituting the business activity of the company
is in a foreign language or there is/are foreign
shareholder/s in the company.
cc. Headquarter
The name of
the province and district of the province at which
the headquarter of the company is located, has to
be specified in the articles of association. Furthermore,
the open address of the company has to be written
in the articles of association. Thus, the article
denoting the headquarter of the company should read
as;
“The headquarter of the company is located
in ………. . It’s address is;
……………. . In case of
a change of address, the new address has to be registered
at the Commercial Registry and announced in the
Commercial Registry Gazette. Any notice served the
registered and announced address is deemed to have
been served to the company. In case the company
leaves its registered and announced address and
does not register its new address within the stipulated
period, the case is considered as the cause for
termination.”
It is not obligatory
to make amendments in the articles of association
only for a change of address if the new address
is within the same registry district. However, an
amendment in the articles of association is necessary
if the new address is located at a registry center
different than the previous one.
dd.
Objective and Field of Activity
The field of
activity in which the company is planning to operate
should not have been prohibited by Article 271 of
TCC. (TCC Art. 503)
Limited liability
companies cannot deal in banking and insurance business.
A specific field
of activity in which the company will actually be
operating should be written in the articles of association,
at least on sectoral basis. The articles of association
should not be written so as to cover all kinds of
field of activity. Objectives and subjects of activity
that can be written in the articles of association
are limited with the subject specifed in the company
title.
ee.
Capital
The capital
of the company should be minimum TRL 5 billion.
Capital amounts to be put in by shareholders can
be of diverse amounts. Yet, the capital to be provided
by shareholders should be at least TRL 25 million
or multiples of this amount.
In accordance
with Articles 506 and 510 of TCC, it is obligatory
that the principal capital of the company, capital
amounts subscribed by each shareholder and the method
and terms of how this capital shall be paid has
to be specified in the articles of association.
Accordingly,
notwithstanding the provisions of special laws,
it must be written in the capital clause of the
articles of association of the company that the
capital has been fully subscribed - free of any
collusion - and that 1/4th of the cash capital has
been fully paid up or that it will be paid up latest
within three months following the establishment
of the company and that the remaining portion will
be paid up latest within three years.
Capital clause
of the articles of association of companies which
are obligated by special laws for payment of the
whole or a portion larger than 1/4th of their capital
will be arranged accordingly.
In the event
that any rights, movable and immovable assets are
being subscribed as capital at company establishment
stage, this commitment has to be fulfilled latest
within three months following the registration date
of the company. In case the goods and rights put
in as capital are registered at a special registry
(such as land registry office, registry of ships,
traffic registry, industrial property registry),
these have to be registered on the behalf of the
company, latest within three months of establishment.
b) The Registration
of the Company at the Trade Registry and its Announcement
The articles
of association are first notarized and then registered
at the Trade Registry Office where the company headquarter
is located in or where the location of headquarter
is associated with, within 15 days after notarization.
The company becomes a legal entity by this registry.
Items that require announcement after registry are
announced in the Trade Registry Gazette. Documents
indicated in Annex 1 of
this Communique have to be attached to the registration
application.
B) Procedure for Amendments
in Articles of Association
The steps for
making amendments in the articles of association
of limited liability companies are described below:
a)
Resolution of Board of Shareholders for Amendments
in Articles of Association and the Preparation of
the Amendment Text
aa.
In General
The board of shareholders resolves for amendments
to be made in the articles of association in compliance
with the procedures and principles stipulated by
the TCC and the articles of association; the amendment
text is prepared so as to include the versions of
the previous and new article/s.
bb.
Increase of Capital
With regard
to amendments to be made in articles of association
involving capital increase, notwithstanding the
provisions of special laws, it must be written in
the capital clause of the amendement text that the
previous capital has been fully paid up and that
the capital increase have been fully committed -
free of any collusion - and that 1/4th of the cash
capital has been paid up or at this portion the
capital increase will be paid up latest within three
months following the registration of the capital
increase and the remaining will be paid up latest
within three years.
Amendments in
the capital clause of the articles of association
of companies which are obligated by special laws
for payment of the whole or a fraction larger than
1/4th of their capital increases will be arranged
accordingly.
The cash capital
portion of the subscribed capital increase that
is specified in the articles of association of the
company has to be deposited in a company account
opened at a bank or a private finance institution
before the registration of the capital increase.
In the event
that any rights, movable and immovable assets are
being subscribed for capital increase, this commitment
has to be fulfilled latest within three months following
the registration date of the capital increase. In
case the goods and rights put in as capital are
registered at a special registry (such as land registry
office, registry of ships, traffic registry, industrial
property registry), these have to be registered
on the behalf of the company, latest within three
months following the registration date of the capital
increase.
b) Registry
of the Amendments in Articles of Association at
the Trade Registry and its Announcement
Amendments in
the articles of association have to be registered
at the Trade Registry Office where the company headquarter
is located, within 15 days following the date of
the resolution of board of shareholders. Documents
indicated in Annex 2 of
this communique have to be attached to the registration
application for the amendments in articles of association.
Amendments in
the articles of association for a reduction of capital
have to be registered at the Trade Registry Office
within 15 days after finalizing the transactions
specified in Articles 397 and 398 of TCC.
In case the
capital increase process cannot be achieved, the
Trade Registry Office is authorized to refund the
relevant persons for the money deposited at the
special account opened at a bank or a private finance
institution for the subscribed capital shares during
the capital increase process.
| Joint
Stock Companies which are Subject to the
Permit of the Ministry of Industry and Trade
for Establishment and Amendment in Their
Articles of Association: |
Article
5. Article 273 of TCC as
revised by Article 2 of Law 4884 stipulates that,
establishment and amendments in articles of association
of banks, private finance institutions, insurance
companies, financial leasing companies, factoring
companies, holding companies, companies operating
foreign currency exchange offices, companies dealing
in public warehousing, publicly held companies subject
to the Capital Markets Law, companies that are founders
and operators of free zones are subject to permit
from the Ministry of Industry and Trade.
In order to establish
a company of the type listed above, an application
has to be made to the Ministry (General Directorate
of Internal Trade) so as to receive a permit before
registering at the Trade Registry Office. As for amendments
in articles of association this permit has to be received
before the shareholders’ meeting at which the
amendments will be resolved. Other transactions for
the establishment of these companies and amendement
in articles of association thereof will be carried
out in accordance with the procedures and principles
specified in Article 3 of this Communique.
| Payment
of the Capital in Cash |
Article
6. Payments of shareholders
against their capital subscriptions in cash during
the establishment or the capital increase process
have to be made to the accounts opened by the company
at a bank or a private finance institution.
Article
7. Communique No: “Domestic
Trade 1995/1” which was published in the Official
Gazette No: 22373 on 13 August 1995 and the entire
circular authorizing the Provincial Industry and Trade
Directorates for finalizing the establishment transactions
of joint stock companies and limited liability companies
and the amendments in the articles of association
thereof have been repealed.
Article
8. Any issue not regulated
by this Communique will be subject to the provisions
of Turkish Commercial Code and the Trade Registry
Regulation.
Article
9. This Communique comes
into effect on the date it is publishment.
Article
10. The provisions of this
Communique will be executed by the Ministry of Industry
and Trade.
| ANNEX
1 |
DOCUMENTS
REQUIRED FOR THE ESTABLISHMENT PROCEDURES
OF JOINT STOCK AND LIMITED LIABILITY COMPANIES |
| ANNEX
2 |
DOCUMENTS
REQUIRED FOR AMENDMENTS IN ARTICLES OF ASSOCIATION
OF JOINT STOCK AND LIMITED LIABILITY COMPANIES |
| ANNEX
3 |
AUDITOR/COUNSELOR
REPORT
VERIFYING THAT THE CAPITAL HAS BEEN PAID
UP |
| ANNEX
4 |
COMPANY
ESTABLISHMENT PETITION AND NOTICE FORM |
| ANNEX
5 |
CAPITAL
INCREASE FORM |
