The concept of cell companies was first introduced in Malta in 2004, and has since evolved into a number of different types of cell company structures. The cellular concept provides for the establishment of a cluster of incorporated cells grouped under an incorporated cell company structure. Assets and liabilities are attributed either to the incorporated cell company itself, or to a particular separate cell of the cell company.
Maltese legislation already provided for the concept of a segregated multi-fund company, even prior to the introduction of the cell concept itself. The fundamental difference between the segregated multi-fund company and the traditional non-cellular company is that the latter provides a flexible corporate vehicle within which assets and liabilities can be ring-fenced, or segregated, so as only to be available to the creditors and shareholders of each particular sub-fund. The incorporated cell company enhances the feature of ‘segregation’ within the multi-fund structure.
The possibility of setting up a multi-fund company licensed as a collective investment scheme containing multiple, segregated sub-funds with ring-fenced assets and liabilities has existed under Maltese law, since 2003. The pertinent legislation also provides for the registration and licensing of schemes as incorporated cells with separate legal personality under the umbrella of the Incorporated Cell Company (ICC). The overall scheme has to function as a collective investment scheme but can still be structured in a way which allows it to achieve high efficiency levels.
The launch of the SICAV ICC generated a lot of interest. Most of the demand revolved around a ‘platform’ model that would involve an ICC providing administrative services to any number of incorporated cells licensed as collective investment schemes. These requests further led to the development of Recognised Incorporated Cell Companies (‘RICCs’).
|Key Features of an ICC|
|Separation of assets and liabilities||The SICAV Regulations provide that a segregated multi-fund company may elect to have the assets and liabilities of each sub-fund treated as a patrimony separate from the assets and liabilities of each other sub-fund. Similarly, both the SICAV ICC and RICC Regulations provide for separation of assets and liabilities between the cell company and each cell.
The difference between the two structures lies in the fact that in an ICC, liability is limited through the separate legal identity of each cell, whereas in a segregated multi-fund company, limitation of liability is achieved through the option of segregation of assets and liabilities of each sub-fund stipulated by virtue of the company’s memorandum of association
|Separate Legal Personality||The main difference between an ICC and a segregated multi-fund company structure lies in the legal status of their parts. The incorporated cells enjoy a separate legal personality in the same way as their ICC does.
Conversely, in a segregated multi-fund company structure, the SICAV and its sub-funds together represent one legal entity. Thus due to this lack of legal personality a sub-fund in a segregated multi-fund company structure cannot transact in its own name.
Categories of ICCs
An ICC can take one of two forms, either:
- SICAV ICC – This would operate as a collective investment scheme with a collective investment scheme licence. An Incorporated Cell Company is defined as a SICAV formed and registered as, continued as, transformed or divided into, an incorporated cell company. The establishment of an ICC structure under these Regulations is limited to the carrying out of the activity of a collective investment scheme.
- Recognised Incorporated Cell Company (RICC) – This would provide purely administrative services to incorporated cells within the platform structure. A Recognised Incorporated Cell Company is a limited liability company formed, continued as, transformed or divided into an incorporated cell company and recognised by the MFSA. The RICC is required to obtain a recognition certificate to operate as a pure platform not carrying out any activity amounting to a licensable activity. The RICC does not qualify as a Recognised Fund Administrator and the range of activities an RICC may carry out is different to that of a Recognised Fund Administrator.
Common Features of ICCs
The two categories of ICCs referred to above have very different purposes but enjoy many common features as far as their structure and mechanics are concerned. These are examined in further detail below.
Establishment of a Cell
An incorporated cell is created by virtue of a resolution of the board of directors which:
- approves the name of the incorporated cell being established;
- 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 authorises, if applicable, the subscription by the incorporated cell company of a share or shares in the incorporated cell.
Once the resolution has been passed, the memorandum and articles of association adopted by the resolution of the board of directors are filed with the Registrar of Companies and a certificate of registration is issued in terms of the Companies Act.
An ICC or a similar structure domiciled outside Malta may continue as a SICAV ICC or RICC in Malta. For further details on the re-domiciliation / continuation of companies process click here.
A limited liability company may, by extraordinary resolution and provided it is authorised to do so by its memorandum of association, go through a transformation. A limited liability company may, be transformed:
- From a non-cellular company into an ICC or into an incorporated cell;
- From an ICC having no incorporated cells or from an incorporated cell into a non-cellular company.
The transformation must be approved by the board of directors. Furthermore, a transformation cannot be carried out except with the prior written consent of the Authority and it has to be carried out in accordance with the terms and conditions stipulated by the Authority.
Incorporation of Cells
A non-cellular company may transform itself into an incorporated cell by entering into an incorporation agreement with an ICC. The incorporation agreement must be approved by the board of directors and by an extraordinary resolution of both the non-cellular company and the ICC. Furthermore, the incorporation agreement must also be approved by the Authority.
A segregated multi-fund company which has one or more segregated sub-funds may be divided into an ICC and one or more incorporated cells. In a division of a segregated multi-fund company, each of the directors of the company shall sign a declaration stating that he/she 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. A division can only occur with the approval of the Authority.
An incorporated cell of an ICC may enter a relocation agreement and move from one ICC structure to another subject to approval by the Authority. The incorporated cell must pass an extraordinary resolution to relocate and must amend its memorandum and articles of association accordingly. The relocation agreement must be entered into between the incorporated cell and the receiving ICC structure.
The relocation agreement has to be submitted to the Authority for prior approval. Furthermore, it will also have to be approved by:
- the board of directors and an extraordinary resolution of the incorporated cell;
- the board of directors and an extraordinary resolution of the receiving ICC Structure; and
- the board of directors of the exiting ICC.
There are certain distinctions between the two types of ICCs that one must bear in mind when choosing the right structure: