(1) An AIF management company may carry out pre-marketing, except where the information presented to potential professional and semi-professional investors 1. is sufficient to allow investors to commit to acquiring units or shares of a particular AIF, 2. consists of subscription forms or comparable documents, whether in draft or final form, or 3. consists of constituent documents, prospectuses, or offering documents of an AIF not yet authorised, in final form. Where drafts of prospectuses or offering documents are provided, these may not contain information sufficient for investors to take an investment decision, and must clearly and unambiguously set out that 1. they do not constitute an offer or invitation to subscribe for units or shares of an AIF, and 2. the information set out in them should not be relied upon because it is incomplete and may still be changed.
(2) The AIF management company must ensure that investors do not acquire units or shares of an AIF through pre-marketing, and that investors contacted in the course of pre-marketing acquire units or shares of that AIF only in the course of marketing authorised under this Act. Subscription, by professional or semi-professional investors, within 18 months of the AIF management company commencing pre-marketing, for units or shares of an AIF named in the information provided in the course of pre-marketing, or of an AIF registered as a result of the pre-marketing, is regarded as a result of marketing and is subject to the notification procedures applicable under this Act. The AIF management company must ensure that the pre-marketing is appropriately documented.
(3) The AIF capital management company must notify the Federal Institute of the commencement of pre-marketing within two weeks of its commencement. The notification must contain the following particulars: 1. the Member States in which the pre-marketing is taking place or has taken place, 2. the relevant periods, 3. a brief description of the pre-marketing, including information on the investment strategies presented, 4. where applicable, a list of the AIF and sub-funds of AIF that are or were the subject of the pre-marketing, and 5. where applicable, a statement that the AIF capital management company has not notified a revocation of marketing, effective within the last 36 months before the commencement of the pre-marketing, in relation to the AIF named under point 4, in the Member States in which the pre-marketing is taking place or has taken place, and that the investment strategies presented under point 3 are not comparable investment strategies or investment concepts relating to the AIF affected by the marketing cessation. The Federal Institute informs the competent authorities of the Member States in which the AIF capital management company is carrying out or has carried out pre-marketing without delay. The Federal Institute provides, on request by the competent authorities of a Member State in which the pre-marketing is taking place or has taken place, further particulars of the pre-marketing taking place or having taken place in its territory.
(4) A foreign AIF management company carrying out pre-marketing within the scope of this Act must notify the Federal Institute of this within two weeks of its commencement. The notification must contain the following particulars: 1. the relevant periods of the pre-marketing, 2. a brief description of the pre-marketing, including information on the investment strategies presented, and 3. where applicable, a list of the AIF and sub-funds of AIF that are or were the subject of the pre-marketing.
(5) Where the Federal Institute becomes aware, through notification by the competent authority of a Member State, that an EU AIF management company is carrying out or has carried out pre-marketing within the scope of this Act, it may request the competent authority of the EU AIF management company's home Member State to provide further particulars of the pre-marketing taking place or having taken place within the scope of this Act.
(6) A third party may carry out pre-marketing within the scope of this Act in the name of an AIF management company only where it acts as a tied agent within the meaning of section 2(10), first sentence, of the Banking Act, or under section 3(2) of the Securities Institutions Act, or is authorised 1. as an investment firm within the meaning of section 2(10) of the Securities Trading Act, 2. as a credit institution within the meaning of section 1(1) of the Banking Act, 3. as a UCITS management company, or 4. as an AIF management company. This third party is subject to the conditions of this section.