HOW TO DRAFT OBJECTS OF MOA (MEMORANDUM OF ASSOCIATION) OF A PRIVATE LIMITED/LIMITED COMPANY UNDER THE COMPANIES ACT, 2013?
MOA (MEMORANDUM OF ASSOCIATION)
What is a MOA (Memorandum of Association)?
Section 4 of the Companies Act, 2013 deals with the provisions of Memorandum of Memorandum of Company;
The Word Memorandum is define under section 2(56) of the companies Act, 2013
“Memorandum” means the memorandum of association of a Company as originally framed or as altered from time to time in pursuance of any previous company law or of this Act;
According to Justice Lord Cairns-
“The MOA (Memorandum of Association) of a Company is its charter and defines the limitations of the powers of the company established under this Act.”
Thus, the MOA (Memorandum of Association) of a Company is known as constitution documents of that Company.
As per Schedule I of the Companies Act, 2013 following tables are prescribed for the Companies on the basis of their classification:
|
TABLE
A |
Memorandum of
association of a company limited by shares. |
|
TABLE
B |
Memorandum of
association of a company limited by guarantee and not having a share capital. |
|
TABLE
C |
Memorandum of
association of a company limited by Guarantee and having a share capital. |
|
TABLE
D |
Memorandum of association
of an unlimited company and not having share capital. |
|
TABLE
E |
Memorandum of
association of an unlimited company and having share capital. |
The MOA (Memorandum of Association) of the
Company Shall state the contents as per the provisions of Section 4 of the
Companies Act, 2013 and may be divided in following parts:
Ø
Name Clause
Ø
Registered
office Clause
Ø
Objects Clause
Ø
Liabilities
Clause
Ø
Capital Clause
Ø
Subscription
Clause
Ø Nominee Clause (Only in the Case of One Person Company)
How to Draft objects of a Private Limited/Limited Company?
As per the provisions of section 4(1) (c) of the Companies Act, 2013 the object of a company shall be divided into two parts only -
1. Main Objects of the Company:- These are the objects for which the company is proposed to be incorporated.
2. Other Objects:- These are the objects (matters) which are necessary for furtherance of the objects specified in main objects.
Sample of draft object of an IT(Information Technology) Company
MAIN
OBJECTS:
1. To carry on the business of Information Technology and give complete support to Automation Industry in the terms of IT Hardware, Software and Software requirements.
2. To carry on the business of Software designing, development, customisation, implementation, maintenance, testing and benchmarking, designing, developing and dealing in computer software and solutions, and to import, export, sell, purchase, distribute, host (in data centers or over the web) or otherwise deal in own and third party computer software packages, programs and solutions, and to provide internet / web based applications, services and solutions, provide or take up Information technology related assignments on sub- contracting basis, offering services on-site/ offsite or through development centers using owned /hired or third party infrastructure and equipment, providing recruitment and HR related services, providing and taking personnel / consultants/ human resources to / from other organizations, providing solutions/ Packages/ services through applications services provider mode via internet or otherwise, to undertake IT enabled services like call Centre Management, Medical and legal transcription, data processing, Back office processing, Accounting, HR and payroll processing, Insurance claims processing, credit card processing, loans and letters of credit processing, cheque processing, data warehousing and database management, to carry on the business of manufacturing, dealing and maintenance of computer hardware, computer systems and assemble data processors, program designs and to buy, sell or otherwise deal in such hardware and software packages and all types of tabulating machine, accounting machines, calculators, computerized telecommunication systems and network, their components, spare parts, equipments and devices and to carry on the business of establishing, running and managing institutions, school, and academics for imparting education in computer technology, offering equipment, solutions and services for Networking and network management, data centre management and in providing consultancy services in all above mentioned areas.
3. To develop, provide, undertake, design, import, export, distribute and deal in Systems and application software for microprocessor based information systems, off shore software development projects, internet service provider, and solutions in all areas of application including those in Emerging niche segments like Internet and Intranet website applications solutions software enterprise, resource planning, e-commerce, value added products and other business applications either for its own use for sale in India or for export outside India and to design and develop such systems and application software for and on behalf of manufacturers owners and users of computer, telecom, digital, electronic equipments in India or elsewhere in the world.
4. To manufacture, sell, export, import all kinds of electric & electronic components capable of being used in Electrical & mechanical and electronic Industries including Computers telecommunications to carry our software research and development, to design and develop system software, application software and any other software in India and abroad to start Integrated services Digital Local Network ( ISDLAN ) dial for data Centers technology parks, wide area network Internet, user net, cyber café services in India and abroad.
OTHER
OBJECTS:
1. To purchase, exchange or otherwise any
movable or immovable property and any rights or privileges which the Company
may deem necessary or convenient for the purpose of its main business.
2. To enter into partnership or into any
arrangement for sharing profits, union of interest, joint venture, reciprocal
concession or co-operation with persons or companies carrying on or engaged in
the main business or transaction of this Company.
3. To import, buy, exchange, alter,
improve and manipulate in all kinds of plants, machinery, apparatus, tools and
things necessary or convenient for carrying on the main business of the
Company.
4. To vest any movable or immovable
property, rights or interests required by or received or belonging to the
Company in any person or company on behalf of or for the benefit of the Company
and with or without any declared trust in favor of the Company.
5. To purchase, build, carry out, equip,
maintain, alter, improve, develop, manage, work, control and superintend any
plants, warehouse, sheds, offices, shops, stores, buildings, machinery,
apparatus, labor lines, and houses, warehouses, and such other works and
conveniences necessary for carrying on the main business of the Company.
6. To undertake or promote scientific
research, R&D, customization relating to the main business or class of
business of the Company.
7. To take over the whole or any part of
the business, goodwill, trade-marks properties and liabilities of any person or
persons, firm, companies or undertakings either existing or new, engaged in or
carrying on or proposing to carry on business this Company is authorized to
carry on, possession of any property or rights suitable for the purpose of the
Company and to pay for the same either in cash or in shares or partly in cash
and partly in shares or otherwise.
8. To negotiate and enter into
agreements and contracts with Indian and foreign individuals, companies,
corporations and such other organizations for technical, or any other such
assistance for carrying out all or any the main objects of the Company or for the
purpose of activity research and development of manufacturing projects on the
basis of know-how, or technical collaboration and necessary formulas and patent
rights for furthering the main objects of the Company.
9. Subject to the Provisions of the
Companies Act 2013, to amalgamate with any other company of which all or any of
their objects companies having similar to the objects of the Company in any
manner whether with or without the liquidation.
10. Subject to any law for the time
being in force, to undertake or take part in the formation, supervision or
control of the business or operations of any person, firm, body corporate,
association undertaking carrying on the main business of the Company.
11. To apply for, obtain, purchase or
otherwise and prolong and renew any patents, patent-rights, brevets,
inventions, processes, scientific technical
or other assistance, manufacturing processes know-how and other
information, patterns, copyrights, trade-marks, licenses concessions and the
like rights or benefits, conferring an exclusive or non-exclusive or limited or
unlimited right of use thereof, which may seem capable of being used for or in
connection with the main objects of the Company or the acquisition or use of
which may seem calculated directly or indirectly to benefit the Company on
payment of any fee royalty or other consideration and to use, exercise or
develop the same under or grant licenses in respect thereof or otherwise deal
with same and to spend money in experimenting upon testing or improving any
such patents, inventions, right or concessions.
12. To apply for and obtain any order
under any Act or Legislature, charter, privilege concession, license or
authorization of any Government, State or other Authority for enabling the
Company to carry on any of its main objects into effect or for extending any of
the powers of the Company or for effecting and modification of the constitution
of the Company or for any other such purpose which may seem expedient and to
oppose any proceedings or applications which may seem expedient or calculated
directly or indirectly to prejudice the interest of the Company.
13. To enter into any arrangements with
any Government or Authorities or any persons or companies that may seem
conducive to the main objects of the Company or any of them and to obtain from
any such Government, authority, person or company any rights, charters,
contracts, licenses and concessions which the Company may think desirable to
obtain and to carry out, exercise and comply therewith.
14. To acquire, take over the part of
business or the whole, goodwill, trademark, procure the Company or corporations
to be registered or recognized in or under the laws of any place inside or
outside India and to do all act necessary for carrying on in any foreign
country for the business or profession of the Company.
15. To draw, make, accept, discount,
execute and issue bills of exchange, promissory notes, bills of exchange, bills
of lading, warrants, debentures and such other negotiable or transferable
instruments, of all types or securities and to open Bank Accounts of any type
and to operate the same in the ordinary course of the Company.
16. To open an account in bank / banks,
financial institutions, payment banks, to draw, make, accept, endorse, discount
and execute any financial transaction related to business activity of the
company.
17. To advance money either with or
without security, and to such persons and upon such terms and conditions as the
Company may deem fit and also to deal with the money of the Company not
immediately required.
18. To undertake and execute any trusts,
the undertaking of which may seem to the Company desirable, either gratuitously
or otherwise. 19. To establish, or promote or concur in establishing or promote
any company for the purpose of dealing all or any of the properties, rights and
liabilities of the Company.
20. To sell, mortgage, exchange, grant
licenses and other rights improve, manage, develop and dispose of undertakings,
properties, assets and effects of the company or any part thereof for such
consideration as may be expedient and in particular for any shares, stocks,
debentures or other securities of any other such company having main objects
altogether or in part similar to those of the Company.
21. Subject to the Provisions of
Companies Act 2013, to distribute among the members in specie or otherwise any
property of the Company or any proceeds of sale or disposal of any property of
the Company in the event of winding up.
22. To distribute as dividend or bonus
among the member or to place to reserve or otherwise to apply, as the Company
may, from time to time, determine any money received by way of premium on
debentures issued at a premium by the Company and any money received in respect
of forfeited shares, money arising from the sale by the Company of forfeited
shares subject to the provisions of Sec. 52 of the Companies Act, 2013.
23. To employ staff, agents or experts
to investigate and examine into the conditions, prospects value, character and
circumstances of any business concerns and undertakings and generally of any
assets properties or rights which the Company purpose to acquire.
24. To provide Welfare of the employees
or ex-employees (Including Directors and other officers) of the Company,
spouses and families / dependents by partly contributing to building of
dwellings, housing by grant of money, allowances and bonuses and from time to
time creating or contributing to provident fund or trusts.
25. To create any reserve fund, sinking
fund, or any other such special funds whether for depreciation, repairing,
improving, research, extending or maintaining any of the properties of the
Company or for any other such purpose conducive to the interest of the Company.
26. Subject to the provisions of Section
179, 182 & 183 of Companies Act, 2013, to subscribe contribute, gift or
money, rights or assets for any national educational, religious, charitable,
scientific, public, general or usual objects or to make gifts or such other
assets to any institutions, clubs, societies, associations, trusts, scientific
research associations, funds, universities, college or any individual, body of
individuals or bodies corporate.
27. To establish and maintain or procure
the establishment and maintenance of any contributory or non-contributory
pension or superannuation, provident or gratuity funds for the benefit of and
give of procure the giving of the gratuities pensions, allowances, bonuses or
emoluments of any persons who are or were at any time in the employment or
service of the company or any company which is a subsidiary of the Company or
is allied to or associated with the Company or with any such subsidiary company
or who are or were at any time Directors or officers of the Company or any
other company as aforesaid and the wives, widows, families and dependents of
any such persons and also to establish and subsidize and subscribe to any
institutions, associations, club or funds calculated to be for the benefit of
or advance aforesaid and make payments to any such persons as aforesaid and to
do any of the matters aforesaid, either alone or in conjunction with any such
other company as aforesaid.
28. To establish, for any of the main
objects of the Company, branches or to establish any firm or firms at places in
or outside India as the Company may deem expedient.
29. To pay for any property or rights
acquired by or for any services rendered to the Company and in particular to
remunerate any person, firm or company introducing business to the company either in cash or fully or partly-paid up
shares with or without preferred or deferred rights in respect of dividend or
repayment of capital or otherwise or by any securities which the company has
power to issue or by the grant of any rights or options or partly in one mode
and partly in another and generally on such terms as the company may determine.
30. To pay out of the funds of the
company all costs, charges and expenses of and incidental to the formation and
registration of the company and any company promoted by the company and also
all costs, charges, duties, impositions and expenses of and incidental to the
acquisition by the company of any property or assets.
31. To send out to foreign countries,
its director, employees or any other person or persons for investigation
possibilities of main business or trade procuring and buying any machinery or
establishing trade and business connections or for promoting the interests of
the company and to pay all expenses incurred in the connection.
32. To compensate for loss of office of
any Managing Director or Directors or other officers of the Company within the
limitations prescribed under the Companies Act or such other statute or rule
having the force of law and to make payments to any person whose office of
employment or duties may be determined by virtue of any transaction in which
the Company is engaged.
33. To agree to refer to arbitration any
dispute, present or future between the Company and any other company, firm,
individual or any other body and to submit the same to arbitration in India or
abroad either in accordance with Indian or any foreign system of law.
34. To carry on business of purchasing
and letting on lease, sub-let or hire any part of the factory or industrial
unit in any part of India.
35. To invest in, acquire, hold, sell
shares, stocks, debentures, bonds, negotiable instruments, securities of any
company, Government body, Municipal or local bodies in India and abroad.
36. To carry on the business of
marketing, advertising, get advertising agents and contractors both outdoor and
in newspapers, magazines, books and other print or digital media.
37. To apply for, and obtain any order
or other authority for enabling the company to carry on any of its objectives
into effect or for effecting any modifications of the company’s constitution or
for any other purpose, which may seem expedient, and to make representations
against any proceedings or applications which may seem calculated directly or
indirectly to prejudice the Company’s interest.
38. To appoint agents, sub-agents, dealers, managers’ canvassers, sales, representatives or salesmen for transacting all or any kind of the main business of which this Company is authorized to carry on and to constitute agencies of the Company in India or in any other country and establish depots and agencies in different parts of the world.
39. Subject to the provisions of Section 73 and other relevant sections of the Companies Act, 2013 and rules made there under and Directives of Reserve Bank of India to receive money on deposit with or without allowances of interest, to borrow or raise money with or without security and/or secure the payment of money by mortgage or by the issue of bond mortgages, hypothecation, lien or any other security founded or based or charged upon all or any of the property or rights of the company or in such other manner as the company shall think fit and for the purposes aforesaid to charge all or any of the Company's property or assets movable or immovable liquid or otherwise present secure and securities of the company by a trust deed or other assurance and redeem, purchase or pay off any such security, provided that the company shall not do banking business as defined in the Banking Regulations Act, 1949. To take financial assistance, loan guarantee from Bank/Financial Institutions and such other organizations as the board of Directors may deem it beneficial and in the interest of the Company for the furtherance of the main objects of the Company.
Author:-
CS Vinay Pandey
(CS, LLB, B.COM)
Contact: 8920574428
Email: cs.vinaypandey@gmail.com
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