A company who is desirous of altering its Memorandum of Association (MOA) will have to comply with the provisions of section 16 of the companies act 2013, also subject to the provisions as mentioned in section 61.
Requirements for altering the MOA
o Shareholders’ approval by passing of special resolution at a general meeting;
o Central Government approval in case alteration is for change in place of the registered office from one State to another. Company has to file certified copy of the order of the Central Government approving the alteration with the Registrar of each of the States. Registrar of the State where the registered office of the company is being shifted to, shall issue a fresh certificate of incorporation indicating the alteration.
o Central Government before giving its approval as mentioned above (within 60 days) may satisfy itself that the alteration has the consent of the creditors, debenture-holders and other persons concerned with the company or that the sufficient provision has been made by the company either for the due discharge of all its debts and obligations or that adequate security has been provided for such discharge;
o Company has to file with the ROC the special resolution and the approval of CG (here company must do additional compliance as prescribed under section 64);
o ROC shall register any alteration of the MOA with respect to the objects of the company and certify the registration within 30 days from the date of filing of the special resolution by the company.
o In case of change in the name of a company, Central Government approval is required and additional compliances as provided in subsections (2) and (3) of section 4 have to be done.
~ Exception: No approval is required where the only change in the name is deletion or addition of the word “Private” in the name of the company, consequent to a conversion the company from one class to another.
o A company, which has raised money from public through prospectus and still has some unutilised amount, shall not change its objects for which it raised the money through prospectus unless a special resolution is passed by the company and—
~ the details, as may be prescribed, in respect of such resolution shall also be published in one in English newspaper and another one in newspaper of vernacular language which is in circulation at the place where the registered office of the company is situated and shall also be placed on the website of the company, if any, indicating therein the justification for such change;
~ promoters and shareholders having control, shall give an exit opportunity to the dissenting shareholders, in accordance with regulations to be specified by the SEBI.
o Every alteration to be effective must be registered.
Alteration of the MOA to be void:
In the case of a company limited by guarantee and not having a share capital, any alteration of the MOA giving any person (otherwise than as a member) a right to participate in the divisible profits of the co., shall be void.