A company is born when several people come together to achieve a specific purpose or work together towards a particular goal or objective. They are generally formed for the earning of profit from business activities. Seven or more persons coming together forms a public company, whereas two or more persons can join hands to form a private company and where there is one person only then it becomes a One Person Company. The companies so formed may be either a company limited by shares, or a company limited by guarantee or an unlimited company.
To incorporate a company an application must be filed with the Registrar of Companies (ROC). Along with this several documents must be submitted. One of the most important documents to be submitted is the Memorandum of Association or shortly called the MOA.
Memorandum of Association is defined under Section 2(56) of the Companies Act, 2013 as the original framework that is made during the incorporation of the company and is altered from time to time.
In addition to this, the memorandum is kept with the ROC. A copy of this can be retrieved by any person to refer while making decisions regarding investing in the company and can be submitted as documentary evidence in the court of law as and when required.
PARTS OF MEMORANDUM OF ASSCOCIATION
- Name Clause
The basic clause in incorporation of a company. Rule 8 of The Companies (Incorporation) Rules, 2014 clearly states that no two companies can have same and closely similar names. It is clearly stated that all the private companies should have “Private/ PVT Limited.” And all public companies should have “Limited” Respectively at the end of their names.
- Registered Office Clause
In this clause the company’s registered office address is mentioned. It is stated under Section 12 of Companies Act, 2013.This is critical as all legal documents and correspondence materials will be sent to this address. It is mandatory that once a company is incorporated it should have a proper registered office until closed.
- Objective Clause
Section 4(c) of the Act, subtleties the item clause. Object Clause is the main provision of Memorandum of Association. It expresses the reason for which the organization is framed. The article condition contains both, the fundamental items and matters which are vital for accomplishing the expressed articles otherwise called coincidental or auxiliary articles. The expressed items should be all around characterized and legitimate as indicated by Section 6(b) of the Companies Act, 2013.
It gives an assurance to investors, banks and is also in public interest.
- Capital Clause
It states the total amount of share capital in the company and how it is divided into shares. The way the amount of capital is divided into what kind of shares. The shares can be equity shares or preference shares.
- Subscription Clause
The Subscription Clause states who are marking the update. Every subscriber should express the quantity of shares he is buying in to. The subscribers need to sign the notice within the sight of two witnesses. The subscriber must take at least 1 share.
ALTERATION OF MEMORANDUM OF ASSOCIATION
The alteration of memorandum is quite a long and lengthy process. It is a fundamental document, so it is always recommended that its is not altered at regular intervals. Alter is defined under Section 2(3) of Companies Act, 2013 as making additions, omissions and substitutions.
As stated under provisions of Section 13 of Companies Act 2013, alteration can be made in the following areas-
- Change of name
It is done with accordance to Section 13 read with Section 4 of the Act by passing of Special Resolution. The change of name must be approved by the ROC.
- Alteration of Authorized Capital
Alteration of authorized capital can be done with an ordinary resolution as mentioned in Section 13 read with Section 61.
- Change in Object
The object of a company can be changed in accordance to Section 13, by passing of a special resolution. However, according to Section 13(8), no object can be changed that has already raised money from the public through prospectus. If there is a certain amount still unutilized then without passing a special resolution and the details of the resolution must be published in one vernacular and one English medium newspaper along with a proper justification for that change in subject.
- Change of Registered Office.
A company can change its registered office address from its present location within the local limits of the city, town, or village. Otherwise, it can go beyond the aforementioned limits but should be within the limits of jurisdiction of Registrar of Companies.
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