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Alteration of Memorandum of Association (MOA)

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Last Updated on June 8, 2024 by Kanakkupillai

MOA is a legal document that characterizes the constitution and scope of an organization’s activities. It incorporates the important requirements and rules that oversee the agency’s issues and unites its goals, powers, and obstacles.

The MOA is a critical file that forms the reason for the agency’s dating with its buyers, banks, and different stakeholders. It is also required for the incorporation of a company. It must be registered with the Registrar of Companies (ROC) at the hour of joining.

The MOA should be drafted and completed in line with the organization’s Act 2013 preparations and any modifications. Any exchange to the MOA needs to additionally observe the provisions of the Act and require the approval of the buyers and the ROC.

Clauses Mentioned Under MOA

The MOA contains key provisos as per Section 4 of the said Act are as per the following:

  • Name clause
  • Registered office clause
  • Objective clause
  • Liability clause
  • Share capital clause
  • Association clause

1. Name Clause

This Clause expresses the company’s name. It should be novel and not identical to or similar to any existing company.

2. Registered Office Clause

This Clause expresses the company’s registered office. That is the company’s authority address and the place where all official communications activities and notices will be sent.

3. Objective Clause

This Clause characterizes the primary goals and extent of the company’s activities. It also frames the objects that the company is approved to seek after and the exercises that it isn’t approved to undertake.

4. Liability Clause

This Clause expresses the degree of obligation of the company’s shareholders if the company faces any monetary losses or liabilities.

5. Share Capital Clause

This Clause sets out the company’s approved offer capital, the maximum amount of capital the company is authorized to issue to its shareholders.

6. Association Clause

This statement confirms the intention of the company’s subscribers to become its members.

When is an Alteration of a Memorandum Of Association Allowed?

Alteration of a MOA is permitted in the following conditions:

  • Change in Objectives: If a company wants to change or expand its business exercises, it might have to modify its MOA to reflect the new objectives or exercises.
  • Change in Name: If a company wants to change its name, its MOA should reflect the new name.
  • Change in Registered Office: If a company wants to change its registered office, starting in one state and moving to the next, it should adjust its MOA to reflect the new location.
  • Change in Authorized Share Capital:  If a company wants to increase its authorized share capital, it should adjust its MOA to reflect the increase.
  • Any other legally necessary change: The Companies Act, 2013, or some other law might require a company to modify its MOA to comply with legal requirements.

Documents Needed for Alteration of MOA

The documents required for a company’s MOA change might vary depending on the modification. However, as a rule, the following documents are expected for the change of MOA:

  • Notice of the General Meeting: A notice of the company’s general meeting and an explanatory statement should be sent to all the company’s shareholders.
  • Draft Resolution: A draft goal proposing the change of the MOA should be prepared and included in the notice of the general meeting.
  • Modified MOA: The modified MOA should be prepared and circulated to the shareholders with the proposed changes highlighted or underlined.
  • Board Goal: A board goal should be passed by the company’s directorate approving the proposed change of the MOA.
  • Shareholders’ Goal: The company’s shareholders should pass a unique goal, approving the proposed alteration of the MOA.
  • Minutes of the General Meeting: The minutes of the company’s general meeting should be prepared, signed by the meeting director, and filed with the Registrar of Companies (ROC).
  • Form MGT-14: Structure MGT-14, a notice of a goal passed by the company, should be filed with the ROC within 30 days of passing the goal.
  • Any other document as required by the ROC: The ROC might require additional documents to be submitted along with the application for the change of the MOA, depending on the kind of alteration being made.

Procedure of Alteration of Memorandum Of Association

A company might have to modify its MOA to accommodate changes in its goals or scope of operations. In such a case, coming up next is a bit by bit alter the Memorandum of Association:

  • Held an Executive Gathering: The first way forward should, therefore, be to have a board meeting discussing the change that is about to take place and then pass a resolution. In a majority of cases, most board members attending the conference should support the resolution.
  • Held a Board Meeting: It is then assumed that the board has approved the proposal, and a general meeting should follow with the purpose of getting the approval of shareholders. The right notice is to forward the meeting request to all shareholders at least 21 days before.
  • Pass a Special Resolution: An extraordinary resolution, if passed, shall authorize the requisite change to the MOA, which requires the vote of not less than three-quarters of shareholders at a general meeting. The special resolution should be reproduced with the ROC within 30 days of the time it was passed.
  • Prepare an Amendment to the MOA: After the special resolution has been passed, a correction to the MOA should be prepared, incorporating the proposed changes. The change should be signed by two heads of the company and witnessed by an individual approved to sign the witness signature.
  • File the Amendment with the ROC: The signed and witnessed Amendment should be filed with the ROC along with the required documents, such as the original MOA, duplicate of the special resolution, and copy of the board resolution. The ROC might need as long as 30 days to approve the change.
  • Obtain Certificate of Registration: After the ROC approves the change, a certificate of registration will be given, and the amended MOA will be considered effective from the date mentioned in the certificate.

Why is the MOA Necessary within the Context of the Company Act Of 2013?

  • Legal Basis for Company Formation: The MOA is one of the fundamental documents expected for the incorporation of a company. It sets out the primary objectives and exercises that the company will take part in. With a very much-drafted MOA, the company can be formed.
  • Scope of Activities: The MOA characterizes the scope of activities the company is approved to undertake. It specifies the business activities the company can engage in and prevents it from engaging in activities beyond its authorized scope.
  • Binding on the Company: The MOA ties the company and its individuals (shareholders) to the activities and objectives framed in the document. The company is lawfully committed to working within the system of its MOA.
  • Third-Party Interaction: External parties, including clients, providers, and creditors, can refer to the company’s MOA to understand the extent of its activities and its lawful ability to go into contracts.
  • Creditor Protection: The MOA gives a level of insurance to leasers by framing the limits of the limits company’s activities. Creditors can depend on the MOA to guarantee that the company’s exchanges are inside its authorized scope.
  • Alteration of MOA: The Company Act of 2013 imposes specific limitations on modifying the MOA. Any MOA adjustment requires shareholders’ approval through a special resolution. This guarantees transparency and prevents arbitrary changes to the company’s objectives.
  • The doctrine of Ultra Vires: The Companies were limited by the doctrine of ultra vires, which implied that actions beyond the extent of the MOA were considered void. The Company Act of 2013 limits the doctrine, but the MOA assumes a part in characterizing the company’s authorized actions.
  • Protection of Shareholders: The MOA clarifies the company’s planned activities and helps shareholders make informed venture choices. Shareholders can understand the company’s focus and arrangement in accordance with their interests.
  • Lawfully Enforceable: The MOA is a legitimately enforceable record (document). Assuming the company participates in exercises past its authorized scope, the scope shareholders or third parties affected by those activities can look for lawful remedies.
  • Transparency and Accountability: The MOA improves transparency and accountability by plainly stating the objectives and activities for which the company was framed. This clarity helps prevent arbitrary choices by the company’s administration.

Conclusion

The change of MOA includes a multiplex method. The entire method comprises meaningful conversations and deliberate understanding to ensure the company’s improvement without tingling the interests of individuals. By following the procedure for the MOA change and complying with the legal system, companies can guarantee that they stay in compliance with the law and work within the constraints of their objectives. The adjustment of MOA gives companies the flexibility to adjust to changing business needs, and companies need to make informed choices while making changes to their MOA.

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G.Durghasree B.A.B.L (Hons)

G Durghasree B.A.B.L (Hons) is a registered trademark attorney with extensive experience as an Advocate for a period of 8 years. She possesses expertise in trademark law, including trademark filing and trademark hearings. Additionally, she is skilled in contract drafting and reviewing, providing legal advice and opinions, particularly in the areas of Company Law, Insolvency and Bankruptcy Code (IBC), and Goods and Service Tax Law (GST). Her experience encompasses both litigation and non-litigation aspects of these laws.