COMPANIES ACT (SICAV INCORPORATED CELL COMPANIES) REGULATIONS

SUBSIDIARY LEGISLATION 386.14

COMPANIES ACT (SICAV INCORPORATED

CELL COMPANIES) REGULATIONS

1st February, 2011 *

LEGAL NOTICE 559 of 2010, as amended by Legal Notice 291 of 2025.

The title of these regulations is the Companies Act (SICAV

Incorporated Cell Companies) Regulations.

(1)

In these regulations, unless the context otherwise

requires -

"the Act" means the Companies Act;

"collective investment scheme" shall have the same meaning as

that assigned to the term in article 2 of the Investment Services Act;

"the competent authority" means the Malta Financial Services

Authority established by article 3 of the Malta Financial Services

Authority Act and appointed under article 2A of the Investment

Services Act;

"the Continuation Regulations" means the Companies Act

(Continuation of Companies) Regulations;

"Financial Services Tribunal" means the Tribunal referred to in

article 21 of the Malta Financial Services Authority Act, and the

term "Tribunal" shall be construed accordingly;

"incorporation agreement" means an agreement setting out the

terms upon which a non-cellular company becomes an incorporated

cell of an incorporated cell company in accordance with the

provisions of regulation 23(5)(a);

"incorporated cell" means a cell of an incorporated cell company

created in accordance with the provisions of these regulations;

"incorporated cell company" means a SICAV formed and

registered as, continued as or transformed or divided into, an

incorporated cell company in accordance with the provisions of

these regulations and any other applicable law;

"non-cellular company" means a company which is not an

incorporated cell company, an incorporated cell or a segregated

multi-fund company;

"relocation agreement" means an agreement setting out the terms

upon which the relocation of an incorporated cell from one

incorporated cell company to another is to take place in accordance

with the provisions of regulation 24;

"segregated multi-fund company" means a multi-fund SICAV

with one or more segregated sub-funds, each treated for all intents

and purposes of law as a patrimony separate from the assets and

liabilities of each other sub-fund of the company in accordance

with the provisions of regulation 9 of the SICAV Regulations;

*see regulation 1(2) as originally promulgated, and Legal Notice 28 of 2011.

"SICAV" means an investment company with variable share

capital established under the Act and the SICAV Regulations;

"SICAV Regulations" means the Companies Act (Investment

Companies with Variable Share Capital) Regulations.

(2) Words and expressions used in the Act shall, in these

regulations, have the same meaning as in the Act.

A SICAV may be formed or constituted as an incorporated

cell company and may establish incorporated cells in accordance

with these regulations.

(1) Subject

to

the

provisions

of

the

Continuation

Regulations

(a) a body corporate with variable share capital,

registered, incorporated or constituted under the laws

of an approved country or jurisdiction outside Malta

and carrying on the activity of a collective investment

scheme, which is similar in nature to an incorporated

cell company as known under the laws of Malta may

be continued as an incorporated cell company

Provided that if such body corporate as aforesaid has a

cell or cells which are similar in nature to incorporated

cells as known under the laws of Malta, the

continuation of the body corporate shall require the

simultaneous continuation of all such cells as

incorporated cells;

(b) a body corporate, registered, incorporated or

constituted under the laws of an approved country or

jurisdiction outside Malta, and carrying on the activity

of a collective investment scheme, which is similar in

nature to a non-cellular company as known under the

laws of Malta may be continued as an incorporated cell

of an incorporated cell company;

(c) an incorporated cell company may be continued as a

body corporate similar in nature to an incorporated cell

company as known under the laws of Malta under the

laws of a country outside Malta

Provided that if such incorporated cell company has an

incorporated cell or incorporated cells in existence, the

continuation of the incorporated cell company shall

require the simultaneous continuation of all such

incorporated cells under the laws of such country

outside Malta; or

(d) an incorporated cell may be continued as a body

corporate under the laws of a country outside Malta.

(2) For the purpose of sub-regulation (1), the expression

"approved country or jurisdiction" means such country or

jurisdiction as may be established from time to time by guidelines

issued by the Registrar of Companies pursuant to the Continuation

Regulations.

(1) No event described in regulation 3 or 4 shall take place

except in accordance with the terms and conditions of the prior

written approval of the competent authority which shall only be

granted in the case of a body corporate which is or which is to be

licensed which is or which is to be

(a) licensed in accordance with article 4 of the Investment

Services Act as a collective investment scheme; or

(b) included in the List of Notified AIFs or the List of

Notified PIFs, as the case may be, as defined in, and in

accordance with, the Investment Services Act

(Notified CISs) Regulations.

(2) The competent authority may in terms of article 6 of the

Investment Services Act issue Investment Services Rules

applicable to incorporated cell companies and incorporated cells.

The memorandum of an incorporated cell company shall,

in addition to the matters required by articles 69 and 84 of the Act,

state that it is an incorporated cell company.

The name of an incorporated cell company shall, in

addition to compliance with the provisions of article 70 of the Act,

include the expression "Incorporated Cell Company" or its

abbreviation "ICC".

(1) The Act shall, subject to the provisions of these

regulations, and unless the context requires otherwise, apply to an

incorporated cell company and to an incorporated cell.

(2) In so far as the provisions of the Act are inconsistent with

the provisions of the Investment Services Act or these regulations,

the provisions of the Investm ent Services Act and of these

regulations shall prevail and the provisions of the Act shall, to the

extent of the inconsistency, not apply to an incorporated cell

company or to an incorporated cell.

(1) An incorporated cell company may establish an

incorporated cell by virtue of a resolution of the board of directors

(the "cell resolution") which

(a) approves the name of the incorporated cell being

established;

(b) approves the terms of the memorandum and articles of

association of the incorporated cell and resolves that

the said memorandum and articles of association are to

be entered into by the incorporated cell company; and

(c) authorises, if applicable, the subscription by the

incorporated cell company of a share or shares in the

incorporated cell.

(2) An incorporated cell shall not be validly constituted unless

a copy of the resolution shall be delivered to the Registrar and the

memorandum and articles is entered into as is described in sub-

regulation (3) and a certificate of registration is issued in terms of

the Act in respect thereof.

(3) The memorandum and articles of association of an

incorporated cell shall be entered into by

(a) the incorporated cell company, whether the

incorporated cell company is subscribing to a share or

shares in the incorporated cell or otherwise; and

(b) such persons, other than the incorporated cell

company, subscribing to shares in the incorporated

cell.

(4) The memorandum of association of an incorporated cell

shall state that it is an incorporated cell.

(5) The memorandum or articles of association of an

incorporated cell shall contain a provision that the incorporated cell

may not own shares in its incorporated cell company.

(6) Without prejudice to article 110 of the Act and unless

expressly prohibited by the articles of association of the

incorporated cell, an incorporated cell shall be permitted to own

shares in any other incorporated cell of its incorporated cell

company.

Without prejudice and in addition to compliance with the

provisions of article 70 of the Act, the name of an incorporated

cell

(a) shall include the expression "Incorporated Cell"; and

(b) may be similar to that of the incorporated cell

company of which it forms part but shall not be so

similar as, in the opinion of the Registrar, it could

create confusion.

(1) An incorporated cell is a limited liability company

with separate legal personality.

(2) An incorporated cell is not a subsidiary of its incorporated

cell company solely by virtue of the fact of it being an incorporated

cell of its incorporated cell company.

(3) An incorporated cell may not itself be an incorporated cell

company or a segregated multi-fund company.

(4) An incorporated cell established in terms of regulation 9

may be a SICAV or an investment company with fixed share

capital.

(5) An incorporated cell shall have the same registered office

as its incorporated cell company at all times.

(6) Without prejudice to the requirements of article 6 of the

Act, an incorporated cell company and an incorporated cell shall

also indicate in a suitable manner in all of their business letters and

forms that they are an incorporated cell company or an

incorporated cell, as applicable.

(1) It shall be the duty of the directors of an incorporated

cell company and of the directors of each incorporated cell, as

applicable

(a) to keep the assets and liabilities of the incorporated

cell company separate and separately identifiable from

the assets and liabilities of its incorporated cells;

(b) to keep the assets and liabilities of each incorporated

cell separate and separately identifiable from the

assets and liabilities of the other incorporated cells of

the incorporated cell company.

(2) The duty imposed by sub-regulation (1) is not breached by

reason only that the directors cause or permit assets of the

incorporated cell company or of any of its incorporated cells to be

collectively invested, or collectively managed by an investment

manager

Provided that the assets so invested or managed shall

remain separately identifiable in accordance with sub-regulation

(1).

(1) An incorporated cell company shall have no power, by

virtue of its position as an incorporated cell company, to enter into

transactions on behalf of any of its incorporated cells.

(2) An incorporated cell shall have no power, by virtue of its

position as an incorporated cell, to enter into transactions on behalf

of its incorporated cell company.

(3) The directors or officers of an incorporated cell company or

of an incorporated cell shall ensure that, in respect of every

transaction entered into, it is identified or specified whether that

transaction is being entered into by the incorporated cell company

or by the incorporated cell, and if the transaction is entered into by

an incorporated cell, which incorporated cell.

Save as otherwise provided by these regulations, the

provisions of the Act and the Investment Services Act shall apply

to an incorporated cell company and to an incorporated cell as if a

reference in the Act and in the Investment Services Act

(a) to a company were a reference to an incorporated cell

company or an incorporated cell;

(b) to the directors of a company were a reference to the

directors of the incorporated cell company or an

incorporated cell;

(c) to the memorandum or articles of association of a

company were a reference to the memorandum or

articles of the incorporated cell company or an

incorporated cell;

(d) to the members of a company were a reference to the

members of the incorporated cell company or an

incorporated cell;

(e) to shares in a company were a reference to shares in

the incorporated cell company or an incorporated cell;

(f)

to assets and liabilities of a company were a reference

to the assets and liabilities of the incorporated cell

company or an incorporated cell; and

(g) to the share capital of a company were a reference to

the share capital of the incorporated cell company or

an incorporated cell.

(1) Notwithstanding anything contained in the definition

"company secretary" in article 2 and in article 138(3) of the Act,

the company secretary of an incorporated cell company and of an

incorporated cell may be a body corporate.

(2) Notwithstanding the provisions of the Act, an incorporated

cell may have its incorporated cell company as its only member and

the provisions of articles 212 and 214(2)(b)(i) of the Act shall not

apply in relation thereto in such case.

An incorporated cell company and an incorporated cell

shall each submit an annual return containing the information

required by the Seventh Schedule to the Act.

The financial statements of an incorporated cell shall not

be consolidated with those of an incorporated cell company or of

other incorporated cells except when the incorporated cell is a

subsidiary of the incorporated cell company and only to such

extent.

In addition to the requirements of article 177 of the Act,

the directors’ report of the incorporated cell company shall also

include the names and registration numbers of all of its

incorporated cells.

(1) An incorporated cell company shall be dissolved and

wound up in accordance with Title II of the Act and any regulations

issued thereunder.

(2) An incorporated cell company that has been dissolved and

wound up shall not be struck off the register until each of its

incorporated cells have been either -

(a) transformed into non-cellular companies in accordance

with regulation 23; or

(b) relocated to another incorporated cell company under

regulation 24; or

(c) expelled under regulation 25; or

(d) continued as a body corporate under the law of another

jurisdiction under regulation 4; or

(e) struck-off,

and the Registrar has obtained the consent of the competent

authority.

(1) Without prejudice to the provisions of regulation

19(1), the appointment of a liquidator in respect of an incorporated

cell company shall not affect the position of its incorporated cells

subject to any direction to the contrary given during the course of a

winding up by

(a) the Court; or

(b) the competent authority.

(2) The competent authority may make an application to the

Court for the Court to give a direction under sub-regulation (1).

The competent authority may be heard on any application

to the Court requesting the dissolution and winding up of an

incorporated cell company or an incorporated cell.

The memorandum and articles of association of an

incorporated cell may be amended by an extraordinary resolution of

th e i n c o r p o ra t e d ce ll f o ll o w in g th e w r i t te n a p pr o v a l o f i t s

incorporated cell company.

(1) A SICAV may, by extraordinary resolution in

accordance with article 79 of the Act and any other applicable

provisions of the Act, and in compliance with these regulations,

and provided it is authorised to do so by its memorandum of

association, be transformed

(a) from a non-cellular company into an incorporated cell

company or into an incorporated cell;

(b) from an incorporated cell company having no

incorporated cells or from an incorporated cell, into a

non-cellular company;

(c) from a segregated multi-fund company established

under the Act and regulation 9 of the SICAV

Regulations having no segregated sub-funds, into an

incorporated cell company;

(d) from an incorporated cell company having no

incorporated cells into a segregated multi-fund

company.

(2)

(a) A segregated multi-fund company established under

the Act and regulation 9 of the SICAV Regulations

which has one or more segregated sub-funds may, in

accordance with Part IX of the Act and any other

applicable provisions of the Act, and in compliance

with these regulations, be divided into an incorporated

cell company and one or more incorporated cells.

(b) Where a segregated multi-fund company is divided in

accordance with paragraph (a), the non-cellular assets,

rights, liabilities and obligations of the company and

all claims, actions and legal proceedings concerning

the non-cellular part of the company shall be allocated

and delivered to the recipient incorporated cell

company; and the assets, rights, liabilities and

obligations of each segregated sub-fund and all claims,

actions and legal proceedings concerning each

segregated sub-fund shall be allocated and delivered to

a separate recipient company constituting an

incorporated cell.

(3)

(a) A company shall not carry out any of the operations

menti oned i n sub-regulat ion (1) except wi th t he

approval of the board of directors.

(b) In a division of a segregated multi-fund company as is

mentioned in sub-regulation (2), each of the directors

of the company shall sign a declaration stating that he

has made a full enquiry into the affairs of the company

and each of its segregated sub-funds, and that, having

so done, he is of the opinion that the company and

each of its segregated sub-funds are able to discharge

their liabilities as they fall due and that there are no

creditors of the company or of the segregated sub-

funds whose interests will be unfairly prejudiced by

the division.

(4) The operations mentioned in sub-regulations (1) and (2)

shall not be carried out except with the prior written approval of the

competent authority and in accordance with such terms and

conditions as the competent authority may establish and such

directives as the competent authority may issue.

(5)

(a) A non-cellular company that intends to transform itself

into an incorporated cell shall enter into an

incorporation agreement with an incorporated cell

c o m p a n y. T h e i n c o r p o r a t i o n a g r e e m e n t s h a l l b e

approved by

(i)

the board of directors and by an extraordinary

resolution of both the non-cellular company and

the incorporated cell company; and

(ii) the competent authority.

(b) An incorporated cell that intends to transform itself

into a non-cellular company shall, within fourteen

days of the extraordinary resolution taken to so

transform, notify its incorporated cell company in

writing of such decision.

(6) In addition to any document which is required to be

delivered to the Registrar for registration in accordance with the

applicable provisions of the Act, a company which intends to carry

out -

(a) any of the operations mentioned in sub-regulations (1)

and (2), shall deliver to the Registrar for registration

evidence of the written approval of the competent

authority required under sub-regulation (4);

(b) any of the operations mentioned in sub-regulation (1),

shall deliver to the Registrar for registration evidence

of the approval by the board of directors required

under sub-regulation (3)(a);

(c) the operation mentioned in sub-regulation (2), shall

deliver to the Registrar for registration the declaration

mentioned in sub-regulation (3)(b).

(1) An incorporated cell that intends to relocate from one

incorporated cell company (the "Exiting ICC") to another

incorporated cell company (the "Recipient ICC") shall notify the

competent authority of its intention. The competent authority may

impose such conditions and issue such directives as it may deem

necessary in the circumstances.

(2)

The relocation of the incorporated cell shall only take place

(a) it has the written consent of the competent authority to

so relocate;

(b) the incorporated cell passes an extraordinary

resolution to so relocate and amends its memorandum

and articles of association accordingly; and

(c) a relocation agreement has been entered into between

the incorporated cell and the Recipient ICC and is

approved in accordance with sub-regulation (3).

(3)

(a) A relocation agreement shall be submitted to the

competent authority for prior approval.

(b) A relocation agreement shall also be approved by

(i)

the board of directors and an extraordinary

resolution of the incorporated cell;

(ii) the board of directors and an extraordinary

resolution of the Recipient ICC; and

(iii) the board of directors of the Exiting ICC.

(4) An Exiting ICC shall, within seven days of the approval by

its board of directors of the relocation agreement, ensure that all

records, documents and other information pertaining to the

incorporated cell are duly transferred to the Recipient ICC.

(5) The Recipient ICC shall, within fourteen days of a

relocation agreement, deliver to the Registrar for registration

(a) evidence of the competent authority’s written consent;

(b) a copy of the extraordinary resolution described in

sub-regulation (2)(b) together with the memorandum

and articles of association of the incorporated cell

being relocated;

(c) a copy of the relocation agreement and the respective

resolutions approving such agreement;

(d) a declaration made in accordance with sub-regulation

(6), signed by each director of the incorporated cell

which is being relocated; and

(e) the incorporated

cell’s

original

certificate

of

registration.

(6) The declaration referred to in sub-regulation (5)(d) shall

state that each such director believes on reasonable grounds that

(a) the incorporated cell being relocated is able to

discharge its liabilities as they fall due;

(b) there are no creditors of the incorporated cell being

relocated whose interests will be unfairly prejudiced

by the transfer; and

(c) the relocation agreement has been approved and

COMPANIES ACT

(SICAV INCORPORATED CELL COMPANIES)

executed in accordance with this regulation.

(7) Upon delivery to the Registrar of the documents referred to

in sub-regulation (5), the Registrar shall, if those documents

comply with this regulation

(a) register the relocation of the incorporated cell and the

new memorandum and articles of the incorporated

cell;

(b) issue to the incorporated cell a new certificate of

registration indicating the name of the Recipient ICC;

and

(c) record that the incorporated cell has ceased to be an

incorporated cell of the Exiting ICC.

(8) Upon the issue of the new certificate of registration as

aforesaid

(a) the incorporated cell ceases to be an incorporated cell

of the Exiting ICC;

(b) the incorporated cell becomes an incorporated cell of

the Recipient ICC;

(c) all property and rights to which the incorporated cell

was entitled immediately before the issue of the new

certificate remain the property and rights of the

incorporated cell;

(d) all liabilities and all contracts, debts and other

obligations to which the incorporated cell was subject

immediately before the issue of the new certificate

remain the liabilities, contracts, debts and other

obligations of the incorporated cell; and

(e) all actions and other legal proceedings which,

immediately before the issue of the new certificate

were pending by or against the incorporated cell may

be continued by or against the incorporated cell.

(9)

The operation of sub-regulation (8) shall not be regarded

(a) as a breach of any contractual provision prohibiting,

restricting or regulating the assignment or transfer of

rights or liabilities or change of control; or

(b) as giving rise to any remedy by a party to a contract or

other instrument, as an event of default under any

contract or other instrument or as causing or

permitting the termination of any contract or other

instrument, or of any obligation or relationship.

(10) An incorporated cell may not be relocated under this

regulation if the relocation were to be inconsistent with the

memorandum or articles of association of

(a) the incorporated cell; or

(b) the Recipient ICC.

(1) An incorporated cell company may, subject to

approval by the competent authority and on the grounds listed in

sub-regulation (2), expel an incorporated cell.

(2)

The grounds referred to in sub-regulation (1) are

(a) that the affairs of the incorporated cell are being or

have been conducted in a manner which is unfairly

prejudicial to its incorporated cell company or any

incorporated cell of that company or its incorporated

cells;

(b) that the incorporated cell is being or has been used for

fraudulent purposes; or

(c) that to fail to do so would have a serious adverse effect

upon the members of the incorporated cell.

(3) In determining whether to approve an expulsion in terms of

s ub -r e g ul a t io n (1 ) , t he c om p e t e nt a ut ho ri ty s h a l l ta ke in to

consideration any representations made to it by the incorporated

cell company, the liquidator (where applicable), the incorporated

cell and any other party deemed to have a material interest in the

business of the relevant incorporated cell, and may give such

directions as it deems fit.

(4) The provisions of this regulation are without prejudice to

any and all powers granted to the competent authority under the

Investment Services Act.

(1) Any person who feels aggrieved by a decision of the

competent authority -

(a) to refuse to issue an approval for a company to be

formed or constituted as an incorporated cell company;

(b) to refuse to issue an approval to an incorporated cell

company to establish incorporated cells;

(c) to refuse to issue an approval for a non-cellular

company carrying on the activity of a collective

investment scheme to transform itself into an

incorporated cell company;

(d) to refuse to issue an approval for a segregated multi-

fund company to be divided into an incorporated cell

company and incorporated cells;

(e) to refuse to issue an approval for an incorporated cell

to transform itself into a non-cellular company

carrying on the activity of a collective investment

scheme;

(f)

to refuse to issue an approval for an incorporated cell

to relocate from one incorporated cell company to

another incorporated cell company; and

(g) to refuse to issue an approval for a non-cellular

company carrying on the activity of a collective

investment scheme to transform itself into an

incorporated cell,

may appeal against the decision to the Financial Services Tribunal.

(2) The provisions of article 21 of the Malta Financial Services

Authority Act shall apply mutatis mutandis to appeals that may be

brought before the Tribunal under this regulation.