Continuation of Companies (Amendment) Regulations, 2003

L.N. 352 of 2003

COMPANIES ACT

(CAP. 386)

Continuation of Companies (Amendment) Regulations, 2003

IN exercise of the powers conferred by subarticle (4) of article

425 of the Companies Act, the Minister of Finance and Economic Affairs

has made the following regulations>-

(1) The title of these regulations is the Continuation of Citation and

commencement.

Companies (Amendment) Regulations, 2003 and shall be read and

construed as one with the Continuation of Companies Regulations, 2002, L.N. 344 of 2002

hereinafter referred to as “the principal regulations”.

(2) These regulations shall come into force on the 14

November, 2003.

In subregulation (2) of regulation 2 of the principal Amends regulation

2 of principal

regulations, immediately after the definition of “approved country or regulations.

jurisdiction”, there shall be inserted the following new definition>

“ “Authority” means the Malta Financial Services Authority”.

Immediately after regulation 5 of the principal regulations, Addition of new

regulation 5A to the

there shall be added the following new regulation 5A>

principal

regulations.

(1) The provisions of this regulation shall apply

“Authorisation

nominee or to a foreign company which is to be registered as continued

in Malta, the shares of which are held by a foreign nominee

or trustee on behalf and in the interest of other persons entitled

to the beneficial ownership thereof, hereinafter referred to as

“a foreign trustee”.

(2) No foreign trustee shall act as trustee in Malta

in relation to shares in foreign companies which have applied

to be registered as continued in Malta unless such foreign

trustee is authorised to act as a trustee in Malta.

(3) (a) The Authority may authorise a foreign

trustee to act as a trustee in Malta solely in relation to shares

in foreign companies which have applied to be registered as

continued in Malta, in so far as such foreign trustee, prior to

acting as trustee in respect of such foreign companies>

i. has applied in writing to the Authority for

authorisation<

ii. is in possession of a valid licence or

authorisation to act as trustee issued by the relevant

regulatory authority in an approved jurisdiction< and

iii. pays to the Authoriy an annual

authorisation fee of Lm500.

(b) An application under this regulation shall outline

the proposed trustee activities and shall be accompanied by

such information as may be required by the Authority.

(c) The Authority, in granting authorisation, may

impose any restrictions or conditions it deems fit.

(d) The Authority shall be entitled to monitor the

activities of the foreign trustee in Malta as the Authority deems

fit and shall require the foreign trustee to provide the Authority

from time to time with such information as the Authority

considers necessary.

(e) Where the foreign trustee fails to comply with

any request for information made by the Authority in the

exercise of its functions under these regulations, the Authority

may revoke the authorization of such foreign trustee forthwith.

(4) The requirement for authorisation under this

regulation shall not apply to a foreign trustee acting as trustee

in respect of one or more shares in a foreign company where

such shares do not have any special voting rights and they do

not exceed in the aggregate one lira in nominal value or its

equivalent in any other currency.

(5) No foreign trustee shall be in violation of the

provisions of this regulation provided>

(i) he obtains authorisation to act as trustee in

Malta under article 51A of the Malta Financial Services

Centre Act< the Investment Services Act or this

regulation< or

(ii) transfers the shares held in the foreign

company to a person who is so authorised,

within 15 days of the date of the Provisional Certificate

of Continuation issued in terms of regulation 6.

(6) A breach or non-observance by a foreign trust of

any provision of this regulation relating to the authorisation

of such trustee to act as a trustee in Malta shall not in any

manner prejudice the validity or enforceability of a trust or

affect the duties and responsibilities of such trustee in terms

of applicable law or of the registration of the company as

continued in Malta.

(7) Authorisation under this regulation to act as a

trustee shall constitute an authorisation for the purposes of

subarticle (9) of article 51A of the Malta Financial Services

Centre Act and shall be deemed to satisfy the requirements

of the said subarticle and of subarticle (10) of article 127 of

the Act.

(8) Any authorisation issued in terms of this

regulation, and any renewal thereof, shall remain in force

until such time as the foreign trustee remains in possession of

the valid licence or authorization referred to in paragraph (ii)

of subregulation (3) of this regulation and until such time as

may be determined by the Authority in virtue of any provision

of any law relating to the regulation of trustees.”

4. Immediately after regulation 7 of the principal regulations, Addition of new

regulation 7A to the

there shall be added the following new regulation 7A>

principal

regulations.

(1) Where shares in a foreign company which

is to be continued in Malta in terms of these regulations are

subject to a pledge, charge, assignment by way of security or

other similar security, hereinafter referred to as “pledge”, in

the country or jurisdiction where the foreign company was

formed and incorporated or registered, such pledge shall

continue to be valid and effective under the laws of Malta,

and following the registration of the company as continued

in Malta shall be fully enforceable as a pledge of shares in

terms of article 122 of the Act subject to the following

conditions>-

(i) that the pledge has been validly created in

writing as a right of security and preference over shares

under the laws of the country or jurisdiction where the

foreign company was formed and incorporated or

registered<

(ii) that the pledge is valid and effective as of the

date of issue of the Provisional Certificate of Registration

in Malta<

(iii) that a notice of pledge be delivered to the

Registrar for registration in terms of sub-article (2) of

article 122 of the Act within 14 days of the date of issue

of the Provisional Certificate of Registration in Malta.

(2)

A pledge of shares as mentioned in

subregulation (1) of this regulation>

(i) shall continue to be regulated by the law

chosen by the parties and such law shall apply to all the

rights, including rights of enforcement thereof, and

obligations of the parties thereto, except to the extent

the pledge is enforced in Malta in which case the relevant

provisions of article 122 of the Act shall apply<

(ii) shall continue to be subject to any

submission made by the parties to the jurisdiction of any

foreign court or arbitration which submission shall be

valid and effective and shall remain fully in force.

(3) The party delivering the notice of pledge to

the Registrar in Malta in terms of this regulation shall also

notify the other party to the pledge agreement by serving him

with a true copy of the said notice within fourteen days of

notification to the Registrar.

(4) On termination of the pledge, a notice of

termination of the pledge shall be delivered to the Registrar

for registration in accordance with the provisions of subarticle

(15) of article 122 of the Act.”

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press