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Companies Act (Cap. 386) 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. (1) The title of these regulations is the Continuation of Companies (Amendment) Regulations, 2003 and shall be read and construed as one with the Continuation of Companies Regulations, 2002, hereinafter referred to as “the principal regulations”.
(2) These regulations shall come into force on the 14
November, 2003.
2. In subregulation (2) of regulation 2 of the principal regulations, immediately after the definition of “approved country or jurisdiction”, there shall be inserted the following new definition>
“ “Authority” means the Malta Financial Services Authority”.
3. Immediately after regulation 5 of the principal regulations, there shall be added the following new regulation 5A>

Citation and commencement.

L.N. 344 of 2002

Amends regulation

2 of principal regulations.

Addition of new regulation 5A to the principal regulations.

“Authorisation to act as nominee or trustee“

5A. (1) The provisions of this regulation shall apply 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>
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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, there shall be added the following new regulation 7A>
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Addition of new regulation 7A to the principal regulations.

“Shares subject to pledge

7A. (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<
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(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.”

Ippubblikat mid-Dipartiment ta’ l-Informazzjoni (doi.gov.mt) — Valletta — Published by the Department of Information (doi.gov.mt) — Valletta

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

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