Two Alternatives to Physical Board Meetings: Circulation Method and Electronic Board Meetings

April 2020 Hazel Coşkun Baylan
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Introduction

While the whole world is struggling with the Covid-19 pandemic, lockdowns and physical contact limitations are being imposed, the management and fast-paced decision-making processes of companies should not be negatively affected, whilst the attendance to the decision-making processes should not be a threat to the health of the board members. Boards of directors (“BOD”) may use two alternative methods instead of holding a physical meeting. The first means is the circulation method, which allows to take a resolution without holding a meeting, and the second is the electronic BOD meeting system, which was developed as a requirement for the digital age and for the management of multinational companies and allows to hold a meeting in a virtual environment. This article examines these two methods, showing how BOD members can make legally valid resolutions without physically convening.

Circulation Method

The first and easiest alternative to physical BOD meetings is to take BOD resolutions by using the circulation method without physical BOD meetings. The circulation method, as an exceptional decision-making procedure, is set forth under Article 390/4 of the Turkish Commercial Code (“TCC”). Pursuant to this Article, if none of the board members request a physical meeting, a board member may propose on a certain issue that is written in the form of a BOD resolution. Then, the written proposal is conveyed to all BOD members, and if written approval of the majority of the total number of BOD members is obtained, and the proposal containing the related signatures is affixed to the BOD resolutions book, such written proposal becomes a valid BOD resolution.

BOD members may negotiate the proposal among themselves by a phone call or a videoconference. However, none of the BOD members shall request to hold a physical BOD meeting in order to obtain a valid BOD resolution by using the circulation method. If any BOD member requests a physical meeting, this method may not be used to take a resolution.

Signatures of BOD members are not required to be on the same sheet of paper upon which the resolution is typed. BOD members may print the resolution that has been drafted by the BOD member who made the proposal, from their present environments, such as in their homes, offices or any other place (i.e. countersigning). As well, provided that the proposal is uploaded to an electronic BOD meetings system, it can also be signed by secure electronic signature in an electronic BOD meetings system. Nevertheless, collecting all signed resolutions from each board member, and affixing them to the BOD resolution book is a condition of validity.

Electronic Meetings of the Board of Directors

Another alternative to physical BOD meetings is to convene an electronic meeting. By holding an electronic BOD meeting, participation of all BOD members in the electronic meeting anywhere around the world is secured. On the other hand, if the meeting will be a physical one, then some BOD members may participate in such meeting by using an electronic BOD meeting system.

Electronic BOD meetings are designated under Article 1527/2 of the TCC, whereas its procedures and principles are regulated by the Communiqué on Electronic Meetings of Equity Companies Except General Assemblies of Joint Stock Companies[1] (“Communiqué”). Following the companies’ fulfillment of the terms and conditions to convene an electronic BOD meeting as designated by the law, and the establishment of an electronic meeting system (“Electronic Meeting System”), the BOD meetings may be held in an electronic environment.

Obligations of the Company

The Company shall complete the following steps in order to convene a BOD meeting in an electronic environment:

  • The following clause allowing for electronic BOD meetings is required to be included in the company’s articles of association. If the articles of association does not comprise the following clause, the general assembly shall convene and decide on the addition thereof to the articles of association.

“Pursuant to Article 1527 of the TCC, persons who are entitled to attend to the board of directors meetings may attend the meeting in an electronic environment. Within the scope of the Communiqué on the Electronic Meetings of Equity Companies Except General Assemblies of Joint Stock Companies, the company may establish an Electronic Meeting System, which shall allow the right holder to attend to the meeting, and to vote or buy services from the systems created for this purpose. Within the framework of the Communiqué, the Company shall ensure that the right holders use their rights designated in related legislations during the meeting, from the system and established by the company, or the system being used by the company.”

However, the Ministry of Trade published an announcement on March 20, 2020 for the purpose of preventing the expansion of the Covid-19 pandemic. The announcement stated that if companies wish to hold a BOD meeting, but the above-stated clause is not already included in their articles of association, such companies may conduct electronic meetings by securing the services of Merkezi Kayıt Kuruluşu Anonim Şirketi, and using its system called the “Electronic Board of Directors System”[2] and the amendment of articles of association may be completed in the next general assembly meeting.[3]

  • To convene the BOD meetings in an electronic environment, the company shall establish a system that provides multi-sound and image transfers, and enable the members to vote and sign the resolutions by using secure electronic signatures. The Company may create its own system for this purpose or obtain support services from another company providing such services. For instance, as stated above, Merkezi Kayıt Kuruluşu Anonim Şirketi, has an information system called the “Electronic Board of Directors System,” which can be used to hold an electronic meeting.
  • Following the installation of the system, the company shall obtain a technical report to show the system’s compliance with the TCC and the Communiqué from The Scientific and Technological Research Council of Turkey (TUBITAK), Information and Communication Technologies Authority, or other companies that recruit employees with the CISA certificate minimum, and are authorized to conduct inspections. The technical report to be prepared by such authorities shall be registered and announced by the related trade registry.[4] Electronic Meeting System shall possess the security criteria and technical specifications designated under Article 15 of the Communiqué.[5]
  • The Company shall make all required technical preparations including, but not limited to, providing computers at the place of the meeting and, where a BOD member is present, which allows voting and transferring voice and image in an electronic environment, to establish internet connection, to ensure the sound operability of the webcam, sound card, microphone and software that allows for negotiations and discussions in a meeting style.[6]
  • The Company shall publish the Electronic Meeting System’s terms of use on its website.
  • The Company shall preserve all records of any action conducted on the Electronic Meeting System, identification information of the BOD members attendant at the meeting in the electronic environment, for ten (10) years, in an electronic environment, and ensure their confidentiality and integrity.

Execution of Electronic Board Meetings

As per Article 9 of the Communiqué, electronic BOD meetings are to be executed as follows:

  • All information and documents related to participating and voting in an electronic environment are to be made available on the company’s website, concurrently, with the call for the BOD meeting.
  • The BOD member who wishes to attend the meeting in an electronic environment shall send the attendance request form, to be accessible through the company’s website, signed by using a secure electronic signature to the company’s registered mail address at least one (1) day prior to the meeting. Attendance of the BOD member at the meeting in an online environment is not subject to the approval of the chairman or any other BOD members, and it is sufficient for the BOD member to inform the BOD of the form of his/her attendance.[7]
  • After the company receives the attendance request form, it is to make the identifications required for the BOD member’s access to the Electronic Meeting System, and is to inform the BOD member, accordingly.
  • Electronic Meeting System is opened to access one (1) hour prior to the BOD meeting.
  • The BOD member will enter into the system by using his/her secure electronic signature.
  • The BOD member will deliver his/her opinions on the agenda orally, or in writing, and will make suggestions and vote on the agenda items.
  • The chairman adds the voting results and dissenting opinions to the BOD resolution.
  • BOD resolutions may either be signed by secure electronic signature, or a physical signature to be obtained after the meeting.[8]
  • The resolutions that are required to be registered are inserted in the Central Registration System by the company, and are registered and announced by the related trade registry.

The BOD may determine principles other than the above-stated procedural actions that are regulated under the Communiqué, by taking a resolution.

Convening a BOD meeting in an electronic environment does not affect the meeting and decision quorums designated under the TCC or articles of association of the company. Unless otherwise provided in the articles of association, a BOD meeting in an electronic environment is also convened with the majority of the members, and resolutions are taken with the affirmative votes of the majority of the attending members.

Conclusion

The TCC envisages two other means for the BOD members to convene aside form physical BOD meetings. These are the circulation method, and electronic meetings.

If none of the BOD members request to convene a physical meeting, a BOD member may send his/her proposal in the format of a BOD resolution to the other members. Each member may print and sign this written proposal from their present environments. All signed copies are gathered together, and then added to the BOD resolution book. The circulation method is the easiest way to take a resolution when it is not possible to hold a physical meeting. However, an aggravated decision quorum applies since no physical meeting is convened, and according to which the affirmative votes of the majority of all BOD members must be taken.

The second alternative to physical BOD meetings is electronic meetings. In order to conduct an electronic meeting, the articles of association of the company shall contain the related clause,[9] and the company shall establish an Electronic Meeting System, or secure support services from a third party in this regard. Convenience of the efficient participation to an Electronic Meeting System shall be proven through a technical report, and this report shall be registered and announced by the trade registry. Additionally, the company shall satisfy the other conditions set forth under the TCC and the Communiqué, and shall offer all required means to the BOD members.

[1] Official Gazette, No. 28396, 29.08.2012.

[2] Electronic Board of Directors System is an information system of Merkezi Kayıt Kuruluşu A.Ş., which allows conducting boards of directors’ meetings in an electronic environment.

[3] The Turkish version of the announcement: https://covid19.ticaret.gov.tr/ic-ticaret/duyuru/sirket-sozlesmelerinde-kurul-toplantilarinin-elektronik-ortamda-gerceklestirilmes

[4] The technical report shall be renewed for three years in row, and be registered and announced by the related trade registry.

[5] As per Article 15 of the Communique, an Electronic Meeting System shall have the design and capacity to conduct all necessary actions, have a backup and disaster recovery plan, and have a network and system security to guard against unauthorized accesses and attacks, an infrastructure that enables messaging, voice and image transfers from the place of meeting to the electronic environment, supports block and parallel usage of more than one secure electronic signature and all actions to be signed, as well as gives responses to the requests of the system accession at the earliest time possible.

[6] Gürpınar: “Anonim Şirket Yönetim Kurulu Toplantılarının Şekli ve Elektronik Toplantı Sistemi”, Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi 19 / 2, December 2013, p.1116

[7] Gürpınar, p. 1115.

[8] Justification of the Turkish Commercial Code, Article1527, https://www.lexpera.com.tr/mevzuat/gerekceler/turk-ticaret-kanunu-madde-gerekceleri/1/madde-1527, Access date: 19.04.2020

[9] As explained above, pursuant to the declaration of the Ministry of Trade, even if the articles of association does not contain the related clause, companies may hold electronic BOD meetings via Electronic Board of Directors System by obtaining support services from Merkezi Kayıt Kuruluşu A.Ş. during the Covid-19 pandemic. The articles of association may be amended in the subsequent general assembly meeting.

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