Australian Securities and Investments Commission Class Order [CO 00/0044] (Cth)

ASIC Class Order [CO 00/44]

Electronic disclosure documents, electronic application forms and dealer personalised applications

This instrument has effect under paragraph 741(1)(a) of the Corporations Act 2001.

This compilation was prepared on 4 October 2005 taking into account amendments up to [CO 02/261].

Prepared by the Australian Securities and Investments Commission.

Australian Securities and Investments Commission
Corporations Act 2001 — Subsection 741(1) — Exemption

Pursuant to paragraph 741(1)(a) of the Corporations Act 2001 (“the Act”), the Australian Securities and Investments Commission (“Commission”) hereby grants the following exemptions, on the following conditions.

Persons exempted

This exemption applies to a person who issues, or is involved in the issue of, an electronic disclosure document or an electronic application form if a purpose of the issue is to make an offer of securities.

Provisions affected

1. A person to whom this exemption applies is exempt from all of the provisions of Parts 6D.2 and 6D.3 of the Act other than provisions dealing with the lodgment of documents, to the extent that those provisions may require:

(a)   a disclosure document issued under Chapter 6D to be a true copy, printed on paper, of a disclosure document which has been lodged with the Commission (a “paper original”); or

(b)   a notice or other document to be printed on paper,

and may not be satisfied by the provision of a document (an “electronic copy”) which:

(c)   is stored or transmitted by electronic means; and

(d)   if it must be a copy of an original document, differs from the relevant original only in the ways contemplated in this instrument.

2.    An issuer or transferor of securities (an “issuer”) to whom this exemption applies is also exempt from section 723 to the extent that it requires the issuer when issuing or transferring securities in response to an application form to have reasonable grounds to believe that:

(a)   the form was included in, or accompanied by, a copy of the original paper disclosure document when the form was distributed by the issuer (“issuer original form”); or

(b)   the form was copied or directly derived by the person making the application from an issuer original form,

and may not be satisfied by issuing or transferring the securities in response to:

(c)   an electronic application form issued by the issuer and distributed with an electronic disclosure document (or a copy or direct derivation of that electronic application form); or

(d)   an electronic application form issued and partly completed by a financial services licensee (“licensee form”) where the issuer had reasonable grounds to believe that the licensee form was distributed with an electronic disclosure document.

Definitions

In this instrument:

“electronic” includes facsimile, optical, and similar technologies;

an “electronic address” includes a universal resource locator, an electronic mail address and the telephone number of a facsimile machine;

an “electronic application form” is:

(a)   a form of application for securities which is stored or transmitted by electronic, optical or similar means, whether or not the application is partly completed; or

(b)   software by means of which a person can apply for securities; or

(c)   a printed copy of a form to which paragraph (a) applies or of an application generated by software to which paragraph (b)  applies, whether or not the application is partly completed;

an “electronic disclosure document” is an electronic copy of a paper original disclosure document (including a supplementary or replacement document). A printed copy of an electronic disclosure document is also an electronic disclosure document;

“financial services licensee” includes, during the transition period (within the meaning of subsection 1431(1) of the Act) for a regulated principal, a reference to a regulated principal described in item 1 of the table set out in section 1430 of the Act.

“publisher” means a person who publishes electronic disclosure documents in the course of a business; and

Conditions

1.    Except as permitted by this exemption, each person to whom the exemption applies complies with Parts 6D.2 and 6D.3 as those Parts would apply to the person, if each electronic disclosure document, electronic application form or other electronic document or copy were the corresponding paper original document or issuer original form.

2.    An issuer of securities, a financial services licensee and a publisher must take all reasonable measures to ensure that a person to whom an electronic application form is issued (an “offeree”) is given access, at the same time and by the same means, to the relevant disclosure document.

If a replacement document has been lodged in relation to the relevant paper original disclosure document, the disclosure document to which the offeree is given access must be the replacement document.

If a supplementary document has been lodged in relation to the relevant paper original disclosure document, the issuer, financial services licensee or publisher must give the offeree access to the supplementary document, at the same time and by the same means as the offeree is given access to the application form and the disclosure document or replacement document.

3.    A person may not issue or transfer securities in response to an application made by means of an electronic application form, unless the person has reasonable grounds to believe that condition 2 has been complied with in relation to the applicant and condition 7 in relation to the form.

4.    A person who gives another person access to a disclosure document by electronic means must display a statement which the other person will see no later than the application form to the effect that securities to which the disclosure document relates will only be issued or transferred on receipt of an application form issued together with the disclosure document. Where relevant, the statement must add that the form may be generated by software accessible by the same means as the disclosure document.

5.    An electronic copy of a document must be a substantially faithful copy of the relevant paper original, but may differ from the original:

(a)   in content, if the differences are trivial (for instance, typographical and spelling mistakes, and corrections of those mistakes, if they do not affect the sense); or

(b)   in presentation (for instance, its general layout and formatting), if the differences do not result in a person breaching section 728, and in each case if those differences are not likely to:

(c)   cause a reasonable person to confuse part or all of another document with the electronic copy; or

(d)   reduce the likelihood of a reasonable person reading any part of the electronic copy.

Subject to paragraphs 5(c) and (d), further examples of permissible differences in presentation under paragraph 5(b) include any or all of the following:

(e)   immaterial differences in the arrangement of material;

(f)    prompts to assist a person to read the electronic copy;

(g)   hypertext links:

(i)    within the electronic copy;

(ii)   from the electronic copy to another document under Part 6D.2 (for instance, an electronic supplementary document or a document incorporated by reference under section 712);

(iii)  to assist a person to apply for, or pay for, securities;

(h)   the absence from (or simplification in) the electronic copy of graphics of a promotional or decorative nature (as opposed to those presenting substantive information, including headings, graphs and tables); and

(i)    the use in the electronic copy of codes to control the display of the document, which are not themselves intended to be displayed.”; and

6.    An electronic disclosure document:

(a)   must contain a prominent statement to the effect that the offer or invitation to which it relates is available to persons receiving the electronic disclosure document in this jurisdiction  (whether or not it also indicates that it is available to persons in other places); and

(b)   may contain any information which was set out in the relevant issuer original form.

7.    An electronic application form must contain:

(a)   particulars of the relevant securities and disclosure document and the expiry date of the disclosure document;

(b)   a prominent warning that:

(i)    there is a disclosure document with information about investing in the securities;

(ii)   it is advisable to read the disclosure document before applying for the securities; and

(iii)  a person who gives another person access to the application form must at the same time and by the same means give the other person access to the relevant disclosure document and any supplementary document;

(c)   a statement that, while the disclosure document is current, the issuer of the relevant securities or a financial services licensee who has provided an electronic copy of the disclosure document will send paper copies of the disclosure document, any supplementary document and the application form, on request and without charge;

(d)   all the information disclosed in the relevant issuer original form for the purpose of compliance with Part 6D.2, except where information is disclosed in the relevant electronic disclosure document instead, pursuant to paragraph 6(b) above.

If the relevant electronic application form is software which generates an application, the software must display the matter mentioned in this condition to a person using the software to apply for securities.

8.    Before issuing an electronic disclosure document or electronic application form, the issuer of the relevant securities or the person who proposes to issue the electronic application must provide to the Commission:

(a)   a complete and unaltered print out of the disclosure document or form;

(b)   if the disclosure document or form will be issued on any disk, tape, CD-ROM or other article, a copy of that article; and

(c)   if the disclosure document or form will be made available on an internet site:

(i)    the address of the site; and

(ii)   an electronic copy of the disclosure document or form.

9.    Where one person by electronic means gives another person a notice or document to which this exemption applies, the person sends the notice or document to an electronic address currently nominated by the other person for the purpose.

If Part 6D.2 requires any other document to be sent with the document or notice, the person complies with the requirement by sending with the notice or document one or more of the following:

(a)   an electronic copy of the other document;

(b)   advice that an electronic copy of the other document is available at a specified electronic address;

(c)   advice that a paper copy of the other document is available, by making a request to a specified telephone number or electronic address.

10.  A person who sends or provides by electronic means a document to which this exemption applies must take all reasonable measures to ensure that it is received complete and unaltered.

11.  A person who, in compliance with a condition of this exemption, states that a paper document will be provided on request, provides the copy, without charge and within a reasonable time after a request is received.

12.  Where these conditions require one person (“A”) to have reasonable grounds for a belief that a fact exists, or to take reasonable measures to ensure that a fact exists at a particular time, A may rely on a representation or agreement by another person (“B”) that the fact exists or will exist at the proper time, if:

(a)   B is more directly responsible than A for ensuring that the fact exists at the proper time; and

(b)   A has no reason to doubt that the fact exists or will exist at the proper time.

This includes reliance by a financial services licensee, publisher or other person concerned in the distribution of an electronic disclosure document on information provided by the issuer of the relevant securities as to what, if any, supplementary or replacement documents have been lodged, or that an electronic disclosure document complies with the requirements of this exemption.

13.  A person who distributes electronic disclosure documents (as an issuer of securities, a financial services licensee or as a publisher) and to whom this exemption applies keeps for seven years:

(a)   records adequate to demonstrate that it has complied with these conditions.

(b)   if the issuer or financial services licensee enables a person to apply for securities by using software — a copy of each screen which would be displayed to a person using the software to apply for securities, in any durable and legible medium.

Notes

Application of Class Order to electronic disclosure documents made generally available during the exposure period under subsection 727(3)

Note 1: This Class Order only applies to a person who issues, or is involved in the issue of, an electronic disclosure document or an electronic application form, where a purpose of the issue is to make an offer of securities. A person does not make an offer of securities by only making an electronic disclosure document generally available during the exposure period contemplated by subsection 727(3) if they:

(a)   do not make an electronic application form available with the electronic disclosure document during the exposure period; and

(b)   display a prominent statement that will be seen no later than the electronic disclosure document to the effect that securities are not being offered on the basis of the electronic disclosure document displayed and securities will only be issued or transferred on the basis of an application form to be issued together with the disclosure document.

Application of condition 5 to electronic application forms

Note 2: Electronic application forms to which this Class Order applies are not required by this Class Order to be copies of any paper counterparts. Condition 5 does not apply to those electronic application forms.

Content of electronic application forms

Note 3: An electronic application form may contain links and information relevant to making an application. They should not distract the applicant from reading and understanding the disclosure document and form.

This jurisdiction

Note 4: In this instrument, “this jurisdiction” means Australia: Act, ss 5 and 9 (definition of “this jurisdiction”).

Notes to ASIC Class Order [CO 00/44]

Note 1

ASIC Class Order [CO 00/44] (in force under paragraph 741(1)(a) the Corporations Act 2001) as shown in this compilation comprises that Class Order amended as indicated in the Tables below.

Table of Instruments

Instrument number	Date of making or FRLI registration	Date of commencement	Application, saving or transitional provisions
[CO 00/44]	14/2/2000	14/2/2000	-
[CO 00/1116]	7/6/2000	7/6/2000	-
[CO 02/261]	3/3/2002	11/3/2002	-

Table of Amendments

ad. = added or inserted     am. = amended     rep. = repealed     rs. = repealed and substituted

Provision affected	How affected
‘Persons exempted’	am. [CO 00/1116]
‘Provisions affected’ para 2d	rs. [CO 02/261]
Definitions	am. [CO 02/261]
Condition 5	rs. [CO 00/1116]
Condition 6a	am. [CO 02/261]
Note 1	ad. [CO 00/1116]
Note 4	ad. [CO 02/261]
Class order	am. [CO 02/261]