Recognised Incorporated Cell Companies

Background

By virtue of the Companies Act (Investment Companies with Variable Share Capital) Regulations, it has been possible, since 2003, to set up a multi-fund company licensed as a collective investment Scheme in Malta. The distinguishing feature of this type of umbrella-structure company is that several sub-funds can be set up within the company, with each sub-fund having its own segregated assets and liabilities. The assets and liabilities of each sub-fund are distinct from the assets and liabilities of the other sub-funds under the same umbrella structure. Furthermore, each sub-fund obtains its own licence as, for instance, a professional investors fund or a UCITS fund, as the case may be.

While this remains a very popular structure in Malta, the only legal person in the structure is the company itself. Thus, despite the segregation of the assets and liabilities of each sub-fund the sub-funds do not have their own separate legal personality and there is one board of directors and one set of financial statements.

The Companies Act (SICAV Incorporated Cell Company) Regulations that came into force in 2012 went a step further and provided for the registration and licensing of schemes as "Incorporated Cells" with separate legal personality under the umbrella of the Incorporated Cell Company (ICC).

Later that year, the Companies Act (Recognised Incorporated Cell Companies) Regulations came into force.

The RICC Concept

A Recognised Incorporated Cell Company ("RICC") is a limited liability company that can be formed, continued as, transformed or divided into one or more incorporated cells ("ICs"). Each IC has its own legal personality, distinct from that of the RICC and other ICs within the RICC. The RICC must provide one or more of the following services to its ICs, all of which are of an administrative nature:

(i) Provision of administrative services related to the establishment of incorporated cells;

(ii) Procurement of external service providers and approval of any changes thereto;

(iii) Negotiation of service provision agreements and changes thereto;

(iv) Submission of any model agreements to be used by incorporated cells of a recognised incorporated cell company;

(v) Submission to the Malta Financial Services Authority ("the MFSA") of any changes or amendments to model agreements and submission of any new model agreements negotiated with service providers for the approval of the MFSA;

(vi) Signature of tripartite agreements between service providers, the recognised incorporated cell company and an incorporated cell based on the model agreements;

(vii) Standardisation of any other documentation to be used by incorporated cells;

(viii) Approval and joint signature of any applications for licences (including variations, extensions thereof) to be submitted by or on behalf of incorporated cells which are in the course of being formed;

(ix) Provision of written declarations identifying any changes to model agreements already submitted to the MFSA, including a NIL declaration confirming that no changes have been made;

(x) Provision of ancillary services as may be approved by the MFSA.

Furthermore, in order to be incorporated and to undertake any of the above activities, the RICC is required to obtain a Recognition Certificate in terms of Article 9A of the Investment Services Act.

Distinguishing Features

  • a.In view of the fact that each IC has its own corporate legal personality, there is a significant amount of flexibility with respect to the ICs that can be hosted on the RICC platform. The following mixed use ICs may be allowed:

§ SICAVs/ Closed ended funds: Some ICs can be open ended whilst other may be set up as closed ended.

§ Third party/ Self-managed: Some ICs may be self managed whilst others may have a third party external investment manager.

§ Listed/ non-listed: Some ICs may opt to be listed on an exchange.

§ UCITS/AIF/PIFs: Each IC will have its own licence to act as a collective investment scheme and consequently one IC may be licensed as a UCITS whilst another IC of the same RICC may be licensed as a professional investor fund or an AIF.

b. The Board of Directors of the RICC and the Board of Directors of the IC must have one director in common. Notwithstanding this, the MFSA would expect the boards to be independent of one another.

c. The RICC and each individual IC are responsible for their respective financial statements. The different ICs may also have different financial year ends.

d. The procedure for an IC to leave the RICC and operate as a separate company are relatively simple and do not require a division of the company.

Compliance

Every RICC must have a Sponsoring Agent with responsibility for all aspects of compliance and for acting as the RICC's main point of contact with the MFSA.

Fees

The application fee for a Recognition Certificate is €3,000 and the annual supervisory fee for a Recognition Certificate is €1,200.

The application fees and supervisory fees of each IC depend on the type of collective investment scheme licence they require.

Application Documents

A request for recognition to the MFSA must be supported by the following documents:

i. a duly completed application form for recognition as a RICC;

ii. a business plan, including a description of the administration services to be provided and details as to the type of ICs to whom such services will be provided;

iii. memorandum & articles of Association of the RICC;

iv. a copy of the most recent audited accounts of the applicant or in the case of a new entity, three year financial projections;

v. a duly completed personal questionnaire by each director and qualifying shareholder(s) of the applicant as well as by the applicant's proposed Sponsoring Agent;

vi. resolution of the directors of the applicant confirming their intention to apply for a recognition as a in terms of article 9A of the Investment Services Act on behalf of the applicant;

vii. address of the premises in Malta from where the administration services will be rendered, including the relevant contact details;

viii. memorandum and articles of association and most recent audited accounts of any qualifying corporate shareholders of the applicant;

ix. a chart which illustrates the internal operational structure of the applicant with respect to its proposed administration business (this should show names, reporting lines and roles);

x. where the applicant forms part of a group, a diagram showing the relationships between the applicant and other members of the group. The "family tree" submitted should give details up to the ultimate beneficial owner(s), showing percentage sizes of holdings in each entity unless:

a. the entity has one ultimate beneficial owner with a holding of over 50% of the voting rights; or

b. the entity has no less than fifty ultimate beneficial owners who between them account for over 50% of the voting rights.

If (a) or (b) apply, it will only be necessary to give details of the ultimate beneficial owners with holdings of 10% or more; 

xi. an application fee of €3,000

Notwithstanding the above, the MFSA may require an applicant to submit to the MFSA whatever additional information it deems appropriate.

Disclaimer 

This document does not purport to give legal, financial or tax advice. Should you require further information or legal assistance, please do not hesitate to contact Dr. Katya Tua or Dr. Nicholas Micallef.

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Friday, 20 July 2018

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