EXPLANATORY NOTES FOR THE CUSTOMISED MEMORANDUM OF INCORPORATION TO BE USED WHEN AMENDING THE EXISTING MOI OR ARTICLES AND MEMO OF ASSOCIATION OF AN EXISTING SMME PRIVATE COMPANY

PLEASE ENSURE YOU’VE READ THE FAQs BEFORE PURCHASING AN AGREEMENT.

Note: This memorandum of incorporation (“MOI”) is purely for use by Existing SMME Private Companies (small businesses) that wish to amend their articles and memorandum of association (as such was referred to under the previous Companies Act), to bring such in line with the (new) Companies Act, 2008.

It may be used where the smme private company has any number of shareholders and any number of directors, for example, it can be used in the following scenarios:

  • many shareholders and many directors;
  • one shareholder and many directors;
  • many shareholders and one director;
  • one shareholder and one director;
  • situations where all shareholders are also directors.

This SMME PRIVATE COMPANY MOI FOR EXISTING SMME PRIVATE COMPANIES:

  • does not contain ring-fencing provisions, as it does not allow for any restrictions or prohibitions to a company’s MOI;
  • restricts the transferability of securities;
  • prohibits the company from offering its securities to the public;

To effect amendments to your SMME Private Company’s memorandum of incorporation, please visit the CIPC website. Register as a customer. Note that since ring-fencing is not envisaged in this MOI, it will NOT be necessary to complete CoR 15.2, Annexure A. Do not forget the shareholders’ resolution that will be required where there is more than 1 shareholder.

For more information on MOIs, shareholder agreements and the setting up of companies, purchasing shelf companies etc., please visit www.sitlbusiness.co.za.

For your convenience, we have drafted a shareholders’ agreement that is compatible with the SMME PRIVATE COMPANY MOI FOR EXISTING SMME PRIVATE COMPANIES, should you need such. It is available for purchase here.Read our article here as to why it will be necessary for a new shareholders’ agreement to be concluded.

The cost of this MOI includes VAT. This is really good value for money. You receive a custom MOI that protects shareholders’ rights. There are no substantive drafting changes that you need to make, and with the benefit of this site you learn more about the MOI and why it is so important.

By amending your own company MOI, you:

  • get to engage with each clause of the MOI and understand the implications thereof;
  • get to know what must and must not be in your shareholders’ agreement; remember in terms of the new Companies Act, the MOI CANNOT be amended by a shareholders’ agreement and should the latter conflict with the MOI, it will be void to the extent of the conflict;
  • ensure that you hold your company’s legal affairs in your own hands; as a small business owner it is imperative for you to understand the legal and regulatory framework that impacts your business to the best of your ability; why not start with your MOI and shareholders’ agreement;
  • get to engage and register with CIPC; it is best- as a small business owner- to start engaging with CIPC as soon as you are able to and to understand the workings of CIPC. This will help you when it comes to registering annual returns and handling the company secretarial and governance work related to your small business; it really is best to start sooner rather than later.

Should you wish to have your company MOI amended by a party that operates in this area, we exhort you to please ensure that the party handling the amendment on your behalf is a suitably qualified legal practitioner. SITL Legal is able to amend MOIs for you should you so desire. Please e-mail info@sitllegal.co.za in this regard.

We’ll continue making informative articles and e-learning available around the MOI and shareholders’ agreement so that you can apprise yourself of the workings of these documents and how they could/should be amended as your business grows.

Constructive feedback is always welcome. Please use the contact form on this site.