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Shreya Shah (Company Secretary)     21 March 2008

Adoption of new set of articles of association

Dear All,

Ours is a private limited company incorporated under the provisions of the Companies Act, 1956. Since our operations are expanding in the international markets, the clauses represented by our articles of association are very funny. So, we are planning to adopt a new set of Memorandum and Articles of Association for our company.

It would be helpful if somebody can provide with a complete checklist for the same alongwith the copy of the resolutions in relation to the same.

 thanks & regards

shreya shah

 

 



Learning

 7 Replies

Dhrumil (CS Professtion)     24 March 2008

SECRETARIAL PRACTICE I. Procedure for alteration of articles 1. Drafting alterations Draft the proposed alterations in three parts: (a) Existing provision(s) in the articles; (b) Proposed alteration(s) to the articles; and (c) Reasons for the proposed alteration(s). A brief note may be prepared explaining the background and reasons for the proposed alterations to be included in the agenda for the Board meeting. Keep in view the guidelines for drafting the articles and the provisions of the Act, which require specific regulations to be included in the articles. Ensure that as a result of an amendment in the articles, no member of the company is required to take or subscribe for more shares than the number held by him at the date of the alteration or that increases his liability, to contribute to the share capital of the company or to otherwise pay more money to the company, except in the specified cases [S. 38]. An alteration inconsistent with the order made by the CLB, under section 397 or 398 shall be ineffective, unless the leave of the CLB has been obtained [S. 404(1)]. In the case of a company, to which a license has been granted under section 25, any alteration in the articles shall be subject to the previous approval of the Central Government (Regional Director). 2. Board resolution Convene a Board meeting to pass the following resolutions: (a) A resolution approving the alterations and recommending the proposal for consideration and approval of the members at a general meeting; (b) A resolution approving the draft of the special resolution to be passed at the general meeting. If the said special resolution is to be passed at an extraordinary general meeting, the date, time and place thereof should be fixed at the Board meeting and the secretary/director should be authorised to issue the notice of the meeting. A specimen resolution is given below. Specimen Board resolution for alteration of articles RESOLVED THAT, subject to the approval of the Company by a special resolution to be passed at a general meeting under section 31 of the Companies Act, 1956 and other required approvals, the articles of association of the Company be altered in the manner set out below: (a) By inserting in the articles the following new articles [here state the articles to be inserted]: (b) By deleting in article [number] the words ['words to be deleted']; (c) By substituting for the existing article [number] the following article: [here state the article to be inserted]; and (d) By deleting in article [number] the words ['words to be deleted'] and substituting therefor the words ['words to be inserted']. If the company requires any approvals or permissions for alteration of the articles, the resolution should state that it is subject to such approvals/permissions, such as financial institutions, banks, Stock Exchange, Securities and Exchange Board of India, etc., as may be necessary. It is advisable to obtain the previous approval of the concerned authority to the proposed alteration. If a proposed alteration requires the leave (permission) of the CLB granting approval under section 404(1) of the Act, the resolution should state that it is subject to such leave. A specimen resolution is given below. 3. Approval of the Regional Director A company, which has been granted a license under section 25 of the Act, must submit a draft of the proposed alterations to the Regional Director before convening a general meeting for passing a special resolution to approve the alterations. 4. Leave of CLB If a proposed alteration requires the leave of the CLB granting approval under section 404(1) of the Act, the company should make an application to the Principal Bench of the CLB for an order granting leave. 5. Filing of order granting leave File a copy of the order of the CLB granting leave under section 404(1) to alter the articles as an attachment to e-Form No. 21 prescribed under the Companies (Central Government's) General Rules & Forms, 1956, electronically with the Registrar within 30 days of receipt of the order and simultaneously file a certified copy of the order in physical form. 6. Notice of general meeting Send out the notice of the general meeting together with the explanatory statement to the members, in accordance with the provisions of the Act and the articles of the company. Ensure that the explanatory statement contains the three-part statement and the note mentioned above. The new set of regulations proposed to be adopted should form part of the special resolution, and the explanatory statement to be annexed to the notice of the general meeting under section 173(2) of the Act should set out all the material facts concerning the proposed alterations in the existing articles. Specimen Special resolution for alteration of articles of association 1. To adopt new articles RESOLVED THAT the regulations contained in Annex I to the notice of the meeting be and the same are approved and adopted as the articles of association of the Company in substitution for and to the exclusion of all existing articles thereof. 2. To amend articles of association RESOLVED THAT, subject to such approvals as may be required, the articles of association of the Company be altered in the manner set out below: (a) By inserting in the articles the following new articles [here state the article to be inserted]: (b) By deleting in article [number] the words ['words to be deleted']; (c) By substituting for the existing article [number] the following article: [here state the article to be inserted]; and (d) By deleting in article [number] the words ['words to be deleted'] and substituting therefor the words ['words to be inserted']. 7. Intimation to the Stock Exchange In the case of a listed company send to all the Stock Exchanges on which the securities of the company are listed (a) three copies of the notice of the general meeting; (b) six copies (one of them to be a certified copy) of the special resolution passed for altering the articles immediately after the meeting. 8. Filing of special resolutions After the special resolution has been passed at the general meeting, e-Form 23 should be filed electronically with the Registrar within 30 days of the general meeting alongwith the following attachments: (a) A true copy of the special resolution; (b) True copies of the explanatory statement [S. 192 of the Act]; (c) A copy of the articles as altered; (d) A copy of the order of the CLB granting leave under section 404(1) to alter the articles, where applicable. 9. Noting amendment in articles Note the alteration in every copy of the articles, whether the alteration has been made by the company of its own motion or by the CLB [S. 40] Dear shraya i have paste cheklist for your refrence, but formate here might be unreadable so if you want then i ll mail Dhrumil Shah dhrumil08@gmail.com

Shreya Shah (Company Secretary)     24 March 2008

Hi Dhrumil, thanks for the reply. i have formatted the contents. will revert in case i have other queries relating to the same. thanks & regards shreya shah

Nisha Naker (Company Secretary)     25 March 2008

Step to be followed:
1. Hold a Board Meeting and pass following resolutions i.e. a) for adoption of new set of Memorandum of Association, b)for adoption of new set of Articles of Association, c) conveying of Extra Ordinary General Meeting of the Company, lay down and approve draft notice along with explanatory Statement annexed thereto pursuant to section-173(2) of the Companies act, 1956 and agenda of EOGM and fix date, time and place of the EOGM, c) provide authorisation to directors to sign and submit necessary forms and Docs. in the given matter.
2) Convey EOGM and approve the resolution as special resolution for adoption of new set of Memorandum of Association and Articles of Association in place of existing Memorandum and Article.
3) Prepare E-Form-23 and attach certified true copy of special resolution of EOGM along with explanatory Statement annexed thereto pursuant to section-173(2) of the Companies act, 1956 and BOARD Meeting and amended copy of Memorandum and Article of association in it in PDF format and file it with RoC within 30 days of passing resolution in EOGM.

Required Resolution:

Board Meeting:

1. Adoption of Memorandum of Association in place of existing Memorandum:
"RESOLVED THAT, pursuant to provisions of section-16 and other applicable provisions of Companies Act, 1956, if any and subject to approval of members ,a new set of Memorandum of Association of _________ Pvt. Ltd., be and is hereby amended and substituted in place of existing Memorandum of Association as placed before the Board and duly initialed by the Chairman for identification purpose."

2. Adoption of Article of Association in place of existing Article:
"RESOLVED THAT, pursuant to provisions of section-31 and other applicable provisions of Companies Act, 1956, if any and subject to approval of members ,a new set of Article of Association of _________ Pvt. Ltd., be and is hereby amended and substituted in place of existing Article of Association as placed before the Board and duly initialed by the Chairman for identification purpose."

3. Conveying of EOGM:
"RESOLVED THAT an Extra Ordinary General Meeting of the members, be conveyed on _________(Date)(Day) at ___(time) at____(Place) to transact the business specified in the Notice along with Explanatory Statement placed before the Board and initialed by the Chairman for the purpose of identification and any one Director is hereby authorised to do all incidental and necessary acts for convening and holding the Extra-Ordinary General Meeting of the company."

4. To authorise signing and filling various E-Forms and other deeds and documents with RoC:
“RESOLVED THAT Directors of the Company be and hereby authorized to authenticate and sign all E-forms and deeds for and on behalf of the Company and also authorized to do all incidental and necessary acts.”

EOGM - Special Resolutions:

1. Adoption of Memorandum of Association in place of existing Memorandum:
"RESOLVED THAT, pursuant to provisions of section-16 and other applicable provisions of Companies Act, 1956, if any ,a new set of Memorandum of Association of _________ Pvt. Ltd., be and is hereby amended and substituted in place of existing Memorandum as placed before the Board and duly initialed by the Chairman for identification purpose."

2. Adoption of article of Association in place of existing Article:
"RESOLVED THAT, pursuant to provisions of section-31 and other applicable provisions of Companies Act, 1956, if any ,a new set of Article of Association of _________ Pvt. Ltd., be and is hereby amended and substituted in place of existing Article of Association as placed before the Members and duly initialed by the Chairman for identification purpose."

SANJAY DIXIT (Advocate)     31 March 2008

Thanks dear Dhrumil & Nisha for the valuable informations.

antara singh (company secretary)     20 January 2010

Dear All,

Ours is a private limited company incorporated under the provisions of the Companies Act, 1956. Since our operations are expanding in the international markets, the clauses represented by our articles of association are very funny. So, we are planning to adopt a new set of Memorandum and Articles of Association for our company.

It would be helpful if somebody can provide with a complete checklist for the same alongwith the copy of the resolutions in relation to the same.

 thanks & regards

antara singh

 

Suresh CSLLM (Service)     23 January 2010

A Articles of Association can not be replaced by new documents. However a regulations contained in the AoA can be substituted by new set of regulations/artices in the AoA.

Suresh

 

 

 

Srinivas G (Company Secretary)     20 July 2015

If we adopt new set of MOA, can the names of Directors and subscribers  be the  same as original subscribers


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