MOA & AOA Amendments
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MOA & AOA Amendments
- Name Clause: Specifies the company’s name, with “Private Limited” for private companies and “Limited” for public companies, as per Section 4(2) of the Companies Act, 2013.
- Registered Office Clause: Specifies the state where the company’s registered office is located, determining the jurisdiction of the Registrar of Companies (ROC).
- Object Clause: Defines the company’s purpose, covering main, incidental, and ancillary objectives necessary for its operations.
- Liability Clause: Specifies member liabilities:
- Limited by shares
- Limited by guarantee
- Unlimited liability
- Capital Clause: Details authorized share capital, share values, and subscriber commitments, including specifics for One Person Companies.
- Share capital
- Share transfers and transmissions
- Dividends and reserves
- General meetings and resolutions
- Board meetings and managerial roles
- Borrowing powers and winding up
Amendment Procedure
MOA Amendment Procedure
The process for MOA amendments varies:
Change in Name: Requires a special resolution passed in a general meeting, filed using Form INC-24. Central Government approval is needed unless changing from private to public or vice versa.
Change in Registered Office: Uses Form INC-23 for approval, requiring Central Government consent if the office shifts states. Stakeholder consent or security arrangements are also required.
Change in Objects: Publicly funded companies cannot alter objects without:
- Special resolution
- Public notification
- Provision for dissenting shareholders
- Registrar certification within 30 days
Procedure for Alteration of MOA and AOA
Similar to MOA, AOA amendments require:
- Board resolution, followed by shareholder approval via special resolution
- Central Government approval in certain cases
- Filing Form MGT-14 with the registrar along with required documents
Difference Between MOA and AOA
MOA and AOA serve distinct purposes:
Hierarchy: MOA precedes the Companies Act, 2013; AOA is subordinate to both MOA and the Act.
Purpose: MOA defines fundamental company details; AOA governs internal management and operational procedures.
Clauses: MOA has fixed clauses; AOA covers detailed regulations.
Filing: MOA must be filed at incorporation; AOA drafting at incorporation is optional.
Retrospective Amendment: MOA amendments are non-retrospective; AOA amendments can be retrospective.
These documents are crucial for company governance and operations, defining their legal framework and operational flexibility as businesses evolve.
FAQs
A subscriber to MOA is a person who subscribes to the shares of the company at the time of its incorporation.
There is no limit to the number of times the name of the company can be altered. However, at least one year should elapse from the last name change.
As per Section 13(11), any alteration of the memorandum in a company limited by guarantee and not having a share capital, purporting to give any person a right to participate in the divisible profits of the company otherwise than as a member, shall be void.
As per Section 15, the alteration of the MOA and AOA shall be noted in every copy of the MOA and AOA, respectively. Failure to comply results in a penalty of Rs. 1000 for each copy issued without such alteration, applicable to the company and every defaulting officer.
As per Section 14, if the articles of the company are altered to convert a private limited company to a public limited company or vice versa, it requires a special resolution passed in a general meeting. Conversion to a private company from a public company necessitates tribunal approval, with a printed copy of the altered articles and tribunal approval filed with the registrar within 15 days.
With the advent of digitization, e-MOA and e-AOA are filed with the MCA at the time of incorporation of the company.
