Commonwealth Consolidated Acts

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CORPORATIONS ACT 2001 - SECT 246B

Varying and cancelling class rights

If constitution sets out procedure

             (1)  If a company has a constitution that sets out the procedure for varying or cancelling:

                     (a)  for a company with a share capital--rights attached to shares in a class of shares; or

                     (b)  for a company without a share capital--rights of members in a class of members;

those rights may be varied or cancelled only in accordance with the procedure. The procedure may be changed only if the procedure itself is complied with.

Note:          A CCIV must have a minimum of 1 class of shares per sub-fund: see section 1230A.

If constitution does not set out procedure

             (2)  If a company does not have a constitution, or has a constitution that does not set out the procedure for varying or cancelling:

                     (a)  for a company with a share capital--rights attached to shares in a class of shares; or

                     (b)  for a company without a share capital--rights of members in a class of members;

those rights may be varied or cancelled only by special resolution of the company and:

                     (c)  by special resolution passed at a meeting:

                              (i)  for a company with a share capital of the class of members holding shares in the class; or

                             (ii)  for a company without a share capital of the class of members whose rights are being varied or cancelled; or

                     (d)  with the written consent of members with at least 75% of the votes in the class.

Note:          This subsection applies to a CCIV in a modified form: see section 1227J.

             (3)  The company must give written notice of the variation or cancellation to the members of the class within 7 days after the variation or cancellation is made.

             (4)  An offence based on subsection (3) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .



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