"COMMUNIQUÉ AMENDING THE COMMUNIQUÉ ON THE PROCEDURES AND PRINCIPLES REGARDING THE IMPLEMENTATION OF ARTICLE 376 OF THE TURKISH COMMERCIAL CODE NUMBERED 6102" WAS PUBLISHED IN THE OFFICIAL GAZETTE ON 26.12.2020 AND ENTERED INTO FORCE AT THE SAME DATE.
"Communiqué on the Procedures and Principles Regarding the Implementation of Article 376 of the Turkish Commercial Code No. 6102" published by the Ministry of Trade in the Official Gazette dated 15 September 2018 and numbered 30536 aimed to regulate the procedures and principles to be followed in cases of capital loss or being heavily in debt of joint-stock companies, limited liability companies and limited partnerships.
The amendments made by the "Communiqué on the Amendment of the Communiqué on the Procedures and Principles Regarding the Implementation of Article 376 of the Turkish Commercial Code numbered 6102", which was published and entered into force on 26.12.2020, can be listed as follows:
- The first paragraph of Article 6 of the Communiqué titled "General Assembly meetings if at least half of the total amount of the capital and legal reserves remain unrequited", which aims to stipulate the duties of the management body in case of a loss of capital by 1/2 and the resolutions that can be taken at the general assembly has been amended.
Within the scope of the Communiqué, the wording “if at least half of the total capital and legal reserves are unrequited” will mean “the loss will be equal to or more than half of the sum of the capital and legal reserves and less than two thirds.”
- The term of “loss” mentioned within the scope of the Article 7 of the Communiqué, which regulates the decisions that can be taken by the general assembly in case of a loss of 2/3 of the capital is now redefined as “loss equal to or more than two-thirds of the sum of capital and legal reserves.” In addition, the right to decide to be confined with one-third of the capital which was granted to the general assembly within the scope of article 7 has been abolished.
- The provision of being confined with one-third of the capital, which is included within the scope of Article 8 of the Communiqué that regulates in detail the right to capital decrease granted to the General Assembly, has been removed and the provision of being confined with the remaining capital has been added to the article. In addition, it has been regulated that the capital can be decreased to the minimum amount of capital designated, provided that at least half of the total of capital and legal reserves are preserved within equity.
- The last paragraph of Article 9, which regulates the right to complete the capital which is granted to the General Assembly within the scope of Article 7, has been amended. Accordingly, it is stipulated that the payments made pursuant to the obligations to cover the balance sheet losses will be collected and followed up in the “capital completion fund account” within the equity and this fund account can only be used through offsetting the losses.
- Article 10 of the Communiqué, which regulates the capital increase right granted to the general assembly within the scope of Article 7, has undergone a comprehensive change. Accordingly,
- Within the scope of subparagraph a, it has been stated that articles 344 and 585 of the TCC will be taken into account instead of the requirement to pay 1/4 of the capital increased in simultaneous capital increase held together with the capital decrease. From this provision; it is understood that cash capital commitments made by the joint-stock companies, at least 1/4 percent of the nominal value of the committed shares will be paid before the registration and the rest will be paid within twenty-four months following the registration where, in limited liability companies, the payment condition of 1/4 is not required.
- Under subparagraph b; in cases where it is decided to increase the capital directly without decreasing it, the amount that will ensure that at least half of the total of the registered capital and legal reserves are preserved in the company's equity has to be paid before the capital increase is registered.
- In addition, article 10 of the Communiqué introduced a new provision which brings the option to increase the capital at the desired level and then decrease it, by paying the costs in full, without seeking the condition in clause (b) with also stating that “at least half of the total of the registered capital and legal reserves must be preserved in equity after such transactions are completed.”
- Within the scope of Provisional Article 1 of the Communiqué, in the implementation of article 376 of the TCC, not only the exchange rate differences (all) in 2020 and 2021; but 50% of the rent, depreciation and personnel expenses may not be taken into account in the calculation of being highly in debt.
You may kindly find the Communiqué below;
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