Changes to Memorandum of Association (MOA) can be made through a special resolution at the shareholders meeting. Changing the MOA of a company is a complex and extensive procedure, hence due professional care must be taken during the procedure.
Changes to the name of a company would require an alteration to the MOA by passing a special resolution. In case changes to the name of a private limited or public limited company is made, consent or authorization of Central Government is not required. In any other case, the consent of Central Government would be required. Further, in the event of a company being registered with a name that bears a resemblance to a name of an existing company, the Central Government might ask it to alter its name. In such a case ordinary resolution is adequate.
A company must make changes to the MOA for transfer of registered office from one state to another. Usual reasons for changing registered office from one state to another include:
In the event of registered office has to be shifted from one State to another State, a special resolution has to be approved and approval from the Company Law Board has to be acquired by the company. The changed memorandum must be filed with the Registrar of the State from which the company is changing and also to the Registrar of the State to which the company is shifted. On approval of the Registrar of Companies (ROC), changes must be made in the MOA of the company to reflect the new state where the registered office is situated.
Changes to the object clause of a private limited company can be effected easily with minimal hassles. However, changing the objects of a company that has raised money from public will require a special resolution. Further, the special resolution must be published in newspapers both in English and another in local language which are in circulation at place where the registered office of the company is located. The details should also be displayed on the company’s web site, if any along with the justification for modification in objects of the company.
Finally, all dissenting shareholders should be given an opportunity to exit by the promoters and shareholders possessing control of the company. This opportunity must be given in accordance with regulation specified by the Securities and Exchange Board of India (SEBI).
The liability clause can be changed so as to make the liability of the directors unlimited. In any case, the liability of the shareholder cannot be made unlimited. The liability clause can be modified by passing a special resolution. A copy of the resolution should be filed with the Registrar within a period of 30 days.
A company can change its capital clause by the passing of an ordinary resolution in a general meeting. Alteration of capital may relate to:
Within a period of thirty days of passing a resolution, the altered Articles and Memorandum have to be submitted to the Registrar.
A Company looking for the issue shares must check the current authorized capital of the company, as the issue cannot be in excess of the amount of authorized capital. Therefore, in the view of the above, a company may have to increase the authorised capital and make modifications to the MOA of the company.
Referred to as the constitution or charter of a company, a Memorandum is an essential primary document for the incorporation of a company. The “Memorandum of Association” is a document, which is to be formulated and signed by the founder members on the registration and establishment of a company. It provides details such as details of initial shareholders, the name of the company, the state in which the company is located, the purpose of formation of the company, the authorized capital (if any), and the liability of its members.
For the incorporation of an entity, the founding members of an entity, which could number seven or more in the case of a public limited company, two or more in the case of a private company, and one in the case of a One Person Company, must subscribe their names to the Memorandum. Subscribing is the process of appending one’s signature or mark to a document, for the purpose of approval or attestation of its contents.
The following persons can subscribe to the Memorandum: Individual, Foreign citizens and Non Resident Indians, Minor (courtesy a natural guardian), Company incorporated under the Companies Act, Company incorporated outside India, Society registered under the Societies Registration Act, 1860, Limited Liability Partnership, Body corporate incorporated under an Act of Parliament or State Legislature.
Every subscriber needs to affix his signature, and a person must bear witness to it. The witness must write his /her name, address, description and occupation. If the signature of the subscriber or witness is in any other language other than English, an affidavit must be filed declaring that the signature is the actual signature of the subscriber/witness. In certain cases, the subscriber may authorize another person to affix the signature by granting a power of attorney to the concerned person. The subscriber or the agent, should also write his/her name, address, description and occupation in the presence of at-least one witness.
Rule 16 of the Companies (Incorporation) Rules, 2014, specifies that the following particulars of every subscriber to the Memorandum shall be filed with the Registrar:
If the subscriber to the Memorandum is a body corporate, then the following particulars must be filed with the registrar: