Mandatory notification of pre-marketing
A manager of an alternative investment institution, EuVECA fund or EuSEF fund that wants to engage in pre-marketing must notify the AFM. This obligation does not apply to a manager that uses the registration regime and does not manage or want to manage an EuVECA fund or EuSEF fund.
What is pre-marketing?
Pre-marketing means providing information on investment strategies or investment ideas, directly or indirectly, to potential professional investors in the EU, either itself or through a third party. The aim is to determine whether these investors are interested in an investment fund (AIF) that, or compartment or subfund that, has not yet been established or registered or notified.
Obligation to notify
A manager of an AIF, EuVECA fund or EuSEF fund that is required to report pre-marketing must notify the AFM no later than two weeks after it starts pre-marketing by sending the completed notification form via Cryptshare the email address meldingenaifmd@afm.nl.
The following information should be provided with the pre-marketing notification:
• in which Member States and during which periods pre-marketing takes place or has taken place;
• a brief description of the pre-marketing, including information on the investment strategies presented, and, where relevant, a list of AIFs and subfunds of AIFs that are or were the subject of pre-marketing.
If the pre-marketing takes place in another Member State, the AFM will notify the competent regulatory authority. We prefer to receive the information in English if the pre-marketing will also take place outside the Netherlands.
EU managers wishing to pre-market an AIF, EuVECA or EuSEF in the Netherlands must send this notification to the regulatory authority of the country where they are established.
Pre-marketing disclosure requirements
The information to potential professional investors provided in the context of pre-marketing may not:
• be sufficient to allow investors to commit to acquiring units or shares in a particular AIF, EuVECA or EuSEF;
• amount to subscription forms or similar documents, whether in draft or final form; or
• amount to constitutional documents, a prospectus or offering documents of a not-yet-established AIF, EuVECA or EuSEF in a final form.
• contain sufficient information to enable investors to make an investment decision, when a draft prospectus or offering document is provided.
The document clearly states that the document does not constitute an offer or invitation to subscribe for units or shares of an AIF, and that the information contained therein should not be relied upon as it is incomplete and subject to change.
Engaging third parties for pre-marketing
Third parties may only engage in pre-marketing on behalf of a manager under the CBDF Directive if it is licensed as an investment firm, as a credit institution, as a UCITS management company, as an AIF manager, or as a tied agent of an investment firm. The same (aforementioned) conditions apply to these third parties.
Notification obligation
If within 18 months of the commencement of pre-marketing, professional investors subscribe to units or shares of an AIF referred to in the information provided in the context of the pre-marketing, or of an AIF, EuVECA or EuSEF established as a result of the pre-marketing, this will be considered to be the result of marketing, The AIF, EuVECA or EuSEF must then be registered with the AFM or notified for a European passport at the time of marketing. In addition, for a period of 36 months after denotification, no pre-marketing may be performed in relation to the denotified AIF, EuVECA or EuSEF.