ASIC Class Order [CO 00/0217]

ASIC Class Order [CO 00/217]

Additional investment applications

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

This compilation was prepared on 4 October 2005 taking into account amendments up to [CO 01/586].

Prepared by the Australian Securities and Investments Commission.

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

A  Application form relief

Pursuant to subsection  741(1) of the Corporations Law (Law), the Australian Securities and Investments Commission (ASIC) hereby exempts each responsible entity of a registered scheme other than a Master Fund (“Responsible Entity”) from subsection  723(1) of the Law in the case of application moneys received:

(a) from a Holder;

(b) as a result of an Application; and

(c) in accordance with an Arrangement,

for as long as and on condition that:

1. The Responsible Entity does not accept an Application from a Holder unless it believes on reasonable grounds that, at the time the Application was made, the Holder has received a copy of a Current Prospectus or Current Profile Statement for the registered scheme to which the Application relates that:

(a) describes the Arrangement;

(b) describes how and when all information required by this instrument (including Transaction Statements and copies of prospectuses or profile statements) will be provided to Holders;

(c) contains prominent statements located in proximity to the description of the Arrangement:

(i) that persons who enter into an Arrangement should keep the Current Prospectus or Current Profile Statement (as the case requires) and any information that updates the prospectus or profile statement for future reference when making Applications;

(ii) that a copy of the Current Prospectus or Current Profile Statement (as the case requires) is available from the Responsible Entity free of charge to a Holder who asks for it; and

(iii) explaining the Holder's entitlement to a Transaction Statement both periodically and on request.

2. Subject to section C below, the Responsible Entity sends a Transaction Statement:

(a) to a person who has made an Application, not more than 3 calendar months after accepting or rejecting that Application; and

(b) to a Holder on request (free of charge and as soon as practicable after the request) for the period between the Holder's last Transaction Statement and the request.

3. The Responsible Entity keeps records adequate to:

(a) prepare Transaction Statements; and

(b) demonstrate that each Application is dealt with in  accordance with the requirements of this instrument and the Law.

4. The Responsible Entity provides, free of charge, to any Holder who requests it, a copy of the Current Prospectus or Current Profile Statement for a registered scheme the subject of an Arrangement. Where the Current Prospectus includes an Updating Supplementary Prospectus, the Responsible Entity must also provide the Holder, free of charge, with a copy of the Current Prospectus which does not include an Updating Supplementary Prospectus.

5. If, at the time a Holder makes an Application:

(a) the Responsible Entity has lodged with ASIC a replacement or supplementary prospectus in respect of the Current Prospectus described in paragraph 1 or a replacement or supplementary profile statement in respect of the Current Profile Statement described in paragraph 1 (other than an Updating Supplementary Prospectus or a part-2 of a Two-part Prospectus); and

(b) the Responsible Entity does not believe on reasonable grounds that the most recent replacement prospectus and every supplementary prospectus relating to the Current Prospectus or that the most recent replacement profile statement and every supplementary profile statement relating to the Current Profile Statement (as the case requires) included in the class described in clause (a) of this paragraph has been received by the Holder (any such replacement and supplementary prospectuses or replacement and supplementary profile statements which the Responsible Entity does not believe on reasonable grounds to have been received by the Holder are together the “missing documents”),

 the Responsible Entity, as soon as practicable after receiving the Application, must comply with the applicable procedure:

(c) where the Application is an Application to Top-up:

(i) give the Holder the missing documents; and

(ii) if any change described in the missing documents is materially adverse from the point of view of the investor — follow the procedure described in subsection  724(2) of the Law; and

 (d) where the Application is an Application to Switch:

(i) in any case, give the Holder the missing documents together with:

(A) where the interests being disposed of by the applicant are under an approved deed — a notice that the applicant may immediately apply to have their current investment redeemed in accordance with the buy-back covenant of the relevant deed; and

(B) where the interests are in a registered scheme and there is a right to withdraw in the constitution of the registered scheme — a notice that the applicant may immediately make a withdrawal request; and

do whichever of the following is applicable;

(ii) if none of the changes described in the missing documents is materially adverse from the point of view of the investor, the Responsible Entity must choose one of the following options:

(A) issue the securities to the Holder in accordance with the Application; or

(B) treat the Application as having been withdrawn and leave the current investment in place;

(iii) if any change described in the missing documents is materially adverse from the point of view of the investor, the Responsible Entity must choose one of the following options:

(A) give the Holder one month to withdraw the Application and not accept the Application until the expiration of that period; or

(B) treat the Application as having been withdrawn and leave the current investment in place.

B  Election form and notice relief

And pursuant to subsection  741(1) of the Law ASIC hereby exempts the Responsible Entity and anyone acting for or on behalf of the Responsible Entity from section  734 of the Law in relation to sending to a person who holds interests in a registered scheme operated by the Responsible Entity, a notice which contains the following information and no more:

(a) identification of the Responsible Entity;

(b) a description of the proposed Arrangement;

(c) a description of how and when all ongoing information required by the Application Form Relief in section A of this instrument (including Transaction Statements and copies of prospectuses or profile statements) will be provided to Holders;

(d) a prominent statement located in proximity to the description of the proposed Arrangement:

(i) that persons who enter into an Arrangement should keep each prospectus and profile statement and any information that updates the prospectus or profile statement (as the case requires) for future reference when making Applications;

(ii) that a copy of the Current Prospectus or Current Profile Statement (as the case requires) is available from the Responsible Entity free of charge to a Holder who asks for it; and

(iii) of the Holder's entitlement to a Transaction Statement both periodically and on request; and

(e) if relevant, information about how the person receiving the notice may elect to enter into an Arrangement and a place to indicate whether the Holder is in possession of a copy of the Current Prospectus or Current Profile Statement.

C   Transaction statements for IDPS-like schemes

If the scheme is an IDPS-like scheme to which Class Order [CO 00/212] applies:

(a) the Responsible Entity does not have to send a person a Transaction Statement referred to in paragraph 2(a) in section A of this instrument for so long as the Responsible Entity complies with paragraphs 2(h) and 2(k) of Class Order [00/212] in relation to the person; and

(b) for the purposes of paragraph 2(b) in section A of this instrument, the Transaction Statement must be for the period starting on the date of the last:

(i) Transaction Statement; or

(ii) quarterly report under paragraph 2(h) of Class Order [00/212]; or

(iii) annual report under paragraph 2(k) of Class Order [00/212], whichever was most recently given to the Holder, and ending on the date of the request; and

(c) for the purposes of subparagraph 1(c)(iii) in section A of this instrument and subparagraph (d)(iii) in section B of this instrument, instead of explaining or stating the Holder's entitlement to a periodic Transaction Statement the Responsible Entity may explain or state the Holder's entitlement to receive reports and information under paragraphs 2(h) and 2(k) of Class Order [CO 00/212].

Interpretation

In this instrument the following terms have the stated meanings:

“Arrangement”: a written arrangement between the Responsible Entity and a Holder that sets out the circumstances in which applications for:

(a) prescribed interests in relation to which the Responsible Entity is the management company under an approved deed; or

(b) interests in registered schemes operated by the Responsible Entity, may be accepted;

“Holder”: a person who holds prescribed interests in a prescribed interest scheme managed by the Responsible Entity or is a member of a registered scheme operated by the Responsible Entity;

“Application”:

(a) a request from a Holder to the Responsible Entity to issue interests in a registered scheme pursuant to an Arrangement; or

(b) each payment in a series of periodic payments (effected by periodic debits to a bank account or by deductions from wages or salary, or otherwise) where those payments are made pursuant to a  request of the kind referred to in paragraph (a);

“Updating Supplementary Prospectus”: the meaning given to that term in ASIC's instrument under subsection  741(1) (if any) that relates to the scheme and modifies the Law to provide for an updating supplementary prospectus;

“Two-part Prospectus”: the meaning given to that term in ASIC's instrument under subsection  741(1) (if any) that relates to the scheme and modifies the Law to provide for a two-part prospectus;

“Current Prospectus”: means a prospectus which complies with Part 6D.2 of the Law and includes a Two-part Prospectus and, where an Updating Supplementary Prospectus has been lodged, the original prospectus together with all related Updating Supplementary Prospectuses;

“Current Profile Statement”: a disclosure document that complies with section  714 of the Law;

“Transaction Statement”: a written report that describes, for the period covered by the report:

(a) how each of the applicant's Applications have been dealt with (including the number and type of securities issued, if applicable); and

(b) the opening and closing balance of the applicant's  holding in each relevant scheme;

“Top-up”: application for further interests in a registered scheme operated by the Responsible Entity;

“Switch”: redemption of prescribed interests in a prescribed interest scheme in relation to which the Responsible Entity is the management company under an approved deed or interests in a registered scheme operated by the Responsible Entity and reinvestment of the proceeds in interests in a registered scheme operated by the Responsible Entity;

“Master Fund”: a scheme in which a person who subscribes for interests may direct that an amount of money corresponding to part or all of the amounts subscribed or to money available for distribution from the undertaking be invested in specified securities other than interests in the scheme; but not including an IDPS-like scheme to which Class Order [00/212] applies.

Notes to ASIC Class Order [CO 00/217]

Note 1

ASIC Class Order [CO 00/217] (in force under subsection 741(1) of the Corporations Act 2001) as shown in this compilation comprises that Class Order amended as indicated in the Tables below.

Table of Instruments

Table of Amendments

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