Memorandum of Association (MOA) is a legal document that specifies the scope of business activities of the company and information about the shareholding of the company. The MoA is a document prepared for the Company registration procedure. Sometimes, it is called the charter of the company, other times, it is just called a memorandum.
In most countries, the MOA has to be filed as a ROC Compliance which also includes articles such as MGT-7 and AOC-4 in India. In an attempt to ease the compliance of company incorporation in India, the Ministry of Corporate Affairs (MCA) has introduced online filing for company registration.
Format of Memorandum of Association
Section 4(5) of the Companies Act states that a memorandum should be in form as given in Tables A, B, C, D, and E of Schedule 1. The Tables are of different kinds because of different kinds of companies.
Table A – It is applicable to a company limited by shares.
Table B – It is applicable to a company limited by guarantee and not having a share capital.
Table C – It is applicable to a company limited by guarantee and having a share capital.
Table D – It is applicable to an unlimited company not having a share capital.
Table E – It is applicable to an unlimited company having a share capital.
The memorandum should be printed, numbered and divided into paragraphs. It should also be signed by the subscribers of the company.
Importance Of Memorandum Of Association
- The Memorandum of Association (MoA) helps establish the extent and scope of the business activities that a particular company can carry out.
- The company can perform business activities that they have specified in the Memorandum of Association (MoA). If you wish to expand your business activities into other areas of the market, you will have to make changes to the memorandum accordingly.
- A Memorandum of Association (MOA) is a legal document applicable to limited liability companies. Limited Liability Companies include Private Limited Company (Pvt Ltd) and Limited Liability Partnership (LLP).
- MOA is used to define the company’s relationship with the shareholders.
- The MOA is a document of public record i.e. anyone who wishes to see a company’s MoA can do so under the Right to Information (RTI) Act.
- MoA also describes the company’s name, the physical address of the registered office, the names of shareholders and the distribution of shares.
- Sometimes, MoA also contains the exemptions and tweaks for a particular company. For eg: Private Limited Companies have a lot of exemptions as compared to other companies. Read Exemptions Private Limited Company.
- The MOA and the Articles of Association (AOA) put together, serve as the constitution of the company.
Clauses In Memorandum Of Association
Memorandum of Association Clauses
Memorandum of Association (MOA) includes six different clauses as mentioned below:
The name of the company is its first unique identity. Thus the name clause of the memorandum consists of the authentic, legal and approved name of the company. Company names should not bear any similarities to a company registered with a similar name because many times these companies protect the name of their companies via a Trademark Registration procedure.
The domicile clause comprises all possible details of the registered office of the company. It has the name of the State or Union Territory of the registered office and may and may not have the exact address of the office. It also has the names of the registrars enrolled.
Objects Clause constitutes the main body of the memorandum. It provides a list of all the operations of the company. Every motive and operation the company indulges in must be mentioned in the object clause. Also, any such operation which is not mentioned in the object clause is considered to be beyond the reach of the company.
The objects of a company fall into two categories as prescribed below:
- The proposed objects of the company for which it is being incorporated.
- Matters considered necessary in furtherance thereof
Liability Clause mentions the liability of every member of the Company. It simply states that every member of the company has limited liability. The clause also specifies the amount of contribution agreed upon for each individual participant in case the company is closing or winding up.
This clause mentions the share capital with which the company is registered. In addition to this, the capital clause should also mention the types of shares, the number of each type of share, and the face value of each share.
Private companies and public companies not intended to be listed in the stock exchange may assume any face value depending on a number of factors; however, public companies to be listed will have a prescribed face value of the shares.
The last and final clause of the Memorandum of Association is called the subscription clause. The subscription clause basically lists down the motives of the shareholders behind the incorporation of the company and also states that the subscribers are agreeing to take up shares in the company. It also specifies the number of shares taken up by each subscriber. It is all according to the details specified in the MoA Subscriber Sheet.
Subscription of Memorandum of Association
Subscribers are the first shareholders of the company. They are the people who agreed to come together and form the company. The name of each subscriber along with their particulars are mentioned in the memorandum.
Different kinds of companies require different numbers of subscribers for incorporation.
Private Company: In case of a private company, the minimum number of subscribers required are 2.
Public Company: In case of a public company, 7 or more subscribers are required.
One-Person-Company: In case of one-person-company, only one person is required.
Who can Subscribe?
Rule 13 of the Companies (Incorporation) Rules, 2014 describes the provisions of subscribing to the memorandum.
There are specific kinds of persons (natural or artificial) who can subscribe to the memorandum. These are:
- Individuals: An individual or a group of individuals can subscribe to the memorandum.
- Foreign citizens and Non Resident Indians: Rule 13(5) of the Companies (Incorporation) Rules, states that for a foreign citizen to subscribe to a company in India, his signature, address and proof of identity will need to be notarized. The foreign national must have visited India and should have a Business Visa.
- Minor: A minor can only be a subscriber through his guardian.
- Company incorporated under the Companies Act: The company can be a subscriber to the memorandum. The Director, officer or employee of the company or any other person authorized by the board of resolution.
- Company incorporated outside India: Foreign Company is defined in Section 2(42) of the act, it states that a foreign company is a company incorporated outside India. A company registered outside India can also subscribe to the memorandum by fulfilling the additional formalities.
- Society registered under the Societies Registration Act, 1860.
- Limited Liability Partnership: A partner of a limited liability partnership can sign the memorandum with the agreement of all the other partners.
- Body corporate incorporated under an Act of Parliament or State Legislature can also be a subscriber to the memorandum.
In the end, we’d like to say that the Memorandum Of Association is a very important document without which the company cannot be incorporated. It is a charter document of the company and MOA and AOA both act as a constitution of the company.
However, the MOA is not applied in the U.S. but is a legal requirement for limited liability companies in European countries including the United Kingdom, France, and the Netherlands, as well as some Common wealth nations