Alteration of Memorandum of Association
The Memorandum of Association (MOA) of the Company consist 6 clauses i.e. Name Clause, Registered office Clause, Objective Clause, Liability Clause, Capital Clause and Subscription Clause.
After the incorporation, the company can alter any of the clauses of Memorandum of Association at any time for whatsoever reason.
Section 13 of the Companies Act, 2013 deals with the alteration of Memorandum of Association of the Company. Changes to the Memorandum of Association of a company would require the passing of a Board Resolution and shareholders consent by Special Resolution, and in case of Capital Clause Ordinary Resolution.
The name of the company must be stated with the last word ‘Limited’ in case of limited companies and with the last two words ‘Private Limited’ in case of private limited company. The Companies Act, 2013 states that a company should not be registered with an undesirable name.
The Memorandum of Association must mention the State in which the registered office of the company will be located. The domicile of the company must be stated for determination of jurisdiction of Court, tax authorities and ROC.
Lawful objects can be stated and included in the objects clause of the memorandum of association, whether the company engages in all those activities or not. From a legal view-point, any activity which offends the objects clause and is not expressly stated in the Memorandum of Association would be considered ultra-vires, i.e. beyond the powers of the company.
The Memorandum of Association must state whether the company is limited by shares or by guarantee. Also, the Memorandum of Association must state that the liability of its members is limited. A company cannot increase the liability of its members without their written consent.
The Memorandum of Association of a company having share capital is required to show the amount of share capital with which the company is going to be registered, and the division therefor into shares of fixed value.
Provisions relating to alteration of Memorandum
The following are the provisions related to alteration in Name Clause, Objects Clause, Liability Clause, Capital Clause and Subscription Clause.
1. Alteration of Name Clause in Memorandum of Association
A company may by passing a special resolution alter is name with the approval of the Central Government. If the alteration involves change of the name to private limited or public limited, permission of Central Government is not required.
In case a company has been registered with a name which resembles a name of an existing company, the Central Government may ask it to change its name. In such case ordinary resolution is sufficient.
The intimation of name change should be given to the Registrar who will issue a fresh certificate of incorporation. Alteration of Situation clause
- In case registered office has to be shifted within the same city, town or village, a notice has to given to the Registrar within thirty day of the change.
- In case registered office has to be shifted from one town to another town or one village to another village, a special resolution has to be passed.
- A company can change its registered office from one State to another State for the following reasons:
- to carry on business more efficiently and economically;
- to achieve the important purpose of the company by sophisticated means;
- to expand its operations in the current location;
- to control any of the existing objects;
- to sell whole or part of the business undertaking;
- to amalgamate with other business or person.
In case, registered office has to be shifted from one State to another State, a special resolution has to be passed and approval from the Company Law Board has to be obtained by the company. The altered memorandum should be filed with the Registrar of the State from which the company is shifting and also to the Registrar of the State to which the company is shifted.
2. Alteration of Objects Clause in Memorandum of Association
A company can alter is objects clause by passing a special resolution. Alteration of objects clause can be done for the following reasons:
- For the purpose of carrying on its business more economically and efficiently.
- For the purpose of obtaining the main business of the company by new and improved means
- For the purpose of enlarging or changing the local area of its operations.
- For the purpose of carrying on some business, which may be conveniently or advantageously combined with the existing business.
- For the purpose of abandoning any of the objects specified in the memorandum.
- For the purpose of selling the whole or any part of the undertaking.
- For the purpose of amalgamating with any other company.
3. Alteration of Liability Clause in Memorandum of Association
The liability clause can be altered only when a public company is converted to a private company.
4. Alteration of Capital Clause in Memorandum of Association
A company can alter its capital clause by passing an ordinary resolution in a general meeting. Alteration of capital may relate to:
- Sub division of shares
- consolidation of shares
- conversion of shares into stock and cancellation of unsubscribed capital.
Within thirty days of passing a resolution, the altered Articles and Memorandum have to be submitted to the Registrar.
5. Alteration of subscription clause in Memorandum of Association
The company can alter is subscription clause to make the liability of the directors appointed subsequent to the alteration as unlimited.
Memorandum of association is the charter of the company and defines the scope of its activities. Memorandum of association defines the relation of the company with the rights of the members of the company interest and also establishes the relationship of the company with the members.
Any Company which intended to make any change to the Memorandum of Association (MOA) of its company, will have to comply with the provisions of Section- 13 of Companies Act, 2013 and any other applicable provisions of the Act and applicable rules.
Company can alter its Memorandum by way of alteration in following clause of Memorandum of Association:
- Name Clause
- Object Clause
- Capital Clause
- Registered Office Clause
- Liability Clause
- Subscription Clause
Note: * Every alteration made in the memorandum of a company shall be noted in every copy of the memorandum or articles, as the case may be.
A company may alter any contents of its memorandum by a special resolution and complying with the procedure specified in this section. However section 61 will be complied with for alteration of the capital clause of the memorandum.
“Alteration”. The expression ‘alter’ means to modify, change or vary; to make or become different; to change in character, appearance, etc; to change in some respect.
STEPS FOR ALTERATION IN MEMORANDUM OF ASSOCIATION:
STEP – I: Convey Board Meeting of Directors: (As per section 173 and SS-1)
- Issue Notice of Board Meeting to all the directors of company at least 7 days before the date of Board Meeting.
- Attach Agenda
- Notes to Agenda
- Draft Resolution
STEP – II: Held Board Meeting: (As per section 173 and SS-1)
- At the Board meeting, the given resolutions in respect of alteration in MOA must be passed.
- Get Approval to Alteration in Memorandum of Association and recommending the proposal for members’ consideration by way of special resolution.
Fixing the date, time, and venue of the general meeting and authorizing a director or any other person to send the notice for the same to the members.
STEP- III: Issue Notice of General Meeting: (Section 101)
Notice of EGM shall be given at least 21 days before the actual date of EGM. EGM can be called on Shorter Notice with the consent of at least majority in number and ninety five percent of such part of the paid up share capital of the company giving a right to vote at such a meeting:
- All the Directors.
- Auditors of Company
The notice shall specify the place, date, day and time of the meeting and contain a statement on the business to be transacted at the EGM.
STEP- IV: Hold General Meeting: (Section 101)
- Check the Quorum.
- Check whether auditor is present, if not. Then Leave of absence is Granted or Not. (As per Section- 146).
- Pass Special Resolution.[Section-114(2)]
- Approval of Alteration in MOA.
STEP- V: Filing of form with ROC: (Section 117)
File Form MGT-14 (Filing of Resolutions and agreements to the Registrar under section 117) with the Registrar along with the requisite filing within 30 days of passing the special resolution, along with given documents:-
- Certified True Copies of the Special Resolutions along with explanatory statement;
- Copy of the Notice of meeting send to members along with all the annexure;
- A printed copy of the Altered Memorandum of Associations.
- Whether Stamp Duty required to pain on Alteration in Memorandum of Association (MOA)?The Act does not contemplate new memorandum of association, and where it purports to be so, it is nothing more than a special resolution and as such does not require to be stamped.
- Whether Company can alter its ‘Subscription Clause’?A Company in its life spam can’t alter the ‘Subscription Clause’ or can’t alter the ‘Subscriber Sheet’. Subscriber Sheet use at the time of Incorporation of Company shall be used for the life span of the Company.