INSTRUMENT AMENDING AND RESTATING THE TERMS GOVERNING
THIS INSTRUMENT is made the 14 day of november 2017,
"Trustee"); 2) FIORELLA CAGNONI, bearer of Italian passport numbered YA1526609, MARIAGRAZIA PELLERINO, bearer of Italian passport numbered YA9945650, SYLVIE COYAUD, bearer of French passport numbered 14DT10327, LUCILLA PAGNANI, bearer of Italian passport numbered YA5001725, EMILIA AMABILE COSTA, bearer of Italian passport numbered AA2095230, MADDALENA CLAUDIA DEL RE, bearer of Italian passport numbered YA8090209, and STEFANIA TOMASINI, bearer of Italian passport numbered YA9051189(hereinafter together the "Protectors"); and
3) GIOVANNA FOGLIA, bearer of Maltese passport numbered 1230251 and residing at C3003,Balluta Terrace, St Julian's Ramp, St Julian's STJ 1062, Malta (hereinafter the "Settlor").
A. This instrument (hereinafter the/this"Instrument") is supplementary to the:
a)founding instrument of the Trust called "Nel Nome della Donna Trust" (hereinafter the "Trust") established on 1 July, 2004, between Giovanna Foglia (then Giovanna Foglia
Fonda but since divorced and no longer bearing the double surname "Foglia Fonda" and accordingly referred to herein by her maiden and current full name "Giovanna Foglia"),
Fiorella Cagnoni, Rosa Maria Lettieri and Serena Foglia Fonda as the Settlors of the Trust on the one hand, and Baring Trustees (Guernsey) Limited (later known as Northern Trust Fiduciary Services (Guernsey) Limited) on the other (hereinafter the "First Trustee of the Trust");
b) instrument of Change of the Trust signed on 12 October, 2004, by the First Trustee of theTrust in which the Trust rules were amended and restated;
c) letter of resignation from the office of Protector dated 11 February, 2011, by virtue of which Laura Maltini Lepetit resigned as Protector of the Trust;
d) instruments dated 11 February, 2009, and 29 April, 2014, by virtue of which Mariagrazia Pellerino, on the one hand, and Lucilla Pagnani and Emilia Amabile Costa, on the other, were designated as the new Protectors of the Trust, which office they hold from the respective dates mentioned above;
e) letter dated 15
September, 2010, in which the office of trustee relating to the First
Trustee of the Trust was revoked by the Protectors and the new trustee
of the Trust, Studio ST Consulting s.r.l. with registered offices in
Milan in via Camperio 9, (hereinafter the
f) instrument of Indemnity dated 9 December, 2010, between the First Trustee of the Trust and the Second Trustee of the Trust;
g) instrument of Rectification, Change and Resignation of 29 June, 2012, containing14 november important changes to the Trust and, in particular, the removal of Rosa Maria Lettieri, the change to article 17 of the terms of the Trust instrument applicable at the time and the replacement of the Fifth Schedule;
h) instrument dated 9 July 2012 in which the Second Trustee of the Trust submitted its resignation from the office of trustee of the Trust to the Protectors. In the same instrument the Protectors appointed the company Southern Italian Trust Company s.r.l. with registered offices in Lecce in via Imbriani 24 as the new trustee of the Trust (hereinafter the"Third Trustee of the Trust");
i) instrument dated 27 June 2014, which restated the terms of the Trust (hereinafter the"Current Trust Instrument");
dated 9 November, 2017, by virtue of which: (i) the Settlors for the
time being (Giovanna Foglia and Fiorella Cagnoni) approved and recorded
their decision to appoint and designate the abovementioned Maddalena
Claudia del Re as Protector of the Trust
k) letter dated , 2017, by virtue of which the Third Trustee of the Trust formally tendered its resignation from the office of trustee of the Trust to the Protectors;
l) instrument of appointment dated , 2017, by virtue of which: (i) the Protectors appointed Giovanna Foglia as the new trustee of the Trust; (ii) Giovanna Foglia accepted her appointment as trustee of the Trust; and (iii) the Protectors approved and ratified, without reservation, the terms of the instrument referred to above in paragraph (j).
B. Giovanna Foglia is accordingly, as at the date hereof, the sole Settlor of the Trust and the sole Trustee of the Trust.
C. Fiorella Cagnoni, Mariagrazia Pellerino, Sylvie Coyaud, Lucilla Pagnani, Emilia Amabile Costa, Stefania Tomasini and Maddalena Claudia del Re are, as at the date hereof, the Protectors of the Trust.
D. Anna Leone, Azzurra Schirosi, Mariangela Bursomanno, Paola Mastella and Nicoletta Potenza are the first members of the Board of Force and they have separately and respectively confirmed that they accept their appointment as such.
E. According to article 44 of the Current Trust Instrument, the Trustee may at any time during the Trust Period and with the written consent of the Protectors, amend, by instrument in writing, the provisions of the Current Trust Instrument if she considers that the amendments are necessary to better achieve the purpose of the Trust and in such circumstance may also change the governing law of the Trust.
F. The current governing law of the Trust is the law of Guernsey, Channel Islands.
G. The Trustee wishes to change the governing law of the Trust to that of the Republic of Malta insofar as no person involved with the Trust has any connection whatsoever with Guernsey whilst she is a citizen of and resident in the Republic of Malta and she has, accordingly, ready access to legal and other professionals who may be called upon to assist as may be required in connection with the Trust.
H. The Trustee also wishes to streamline and ameliorate the terms and provisions governing the Trust in terms of the Current Trust Instrument whilst preserving the substance and effect of such terms and provisions to the extent permissible in terms of the Trusts and Trustees Act, Chapter 331 of the laws of Malta (hereinafter the"Act"), and any other applicable laws of the Republic of Malta.
I. The Protectors are also appearing on and executing this Instrument by way of confirmation of their consent and approval of the change of the governing law of the Trust to that of the Republic of Malta and of all changes to the terms and provisions governing the Trust as shall be restated hereunder.
J. The change of the governing law of the Trust to that of the Republic of Malta and such amendments to the Current Trust Instrument as are approved hereby (including such amendments as are necessary for the purposes of ensuring the validity of the Trust in terms of the laws of Malta) shall not affect the continuity of the Trust which shall, notwithstanding such change and amendments, remain extant for all intents and purposes.
K. This Instrument is executed pursuant to article 44 of the Current Trust Instrument, restates the terms upon which the Trust Assets shall be held by the Trustee, and shall be deemed as superseding the terms of the Current Trust Instrument- such that the terms and provisions set out in this Instrument shall govern the Trust without prejudice to the requirements of any applicable law.
NOW THEREFORE, THIS INSTRUMENT WITNESSETH AS FOLLOWS:
ARTICLE 1 - CHARITABLE PURPOSE OF THE TRUST
The Trust is constituted for the advancement, protection and promotion of women, women's rights and women's freedom(hereinafter the "Charitable Purpose").
The Charitable Purpose may be implemented by: (i) the provision of support, aid, facilities and anyother assistance or resources to women's projects and to women generally including by assisting and financing such women's projects, women's groups and women's associations; (ii) establishing and/or supporting local information centres; (iii) funding projects for the support, development, education and protection of women, including such projects carried on or undertaken by other organisations; (iv) establishing and/or supporting counselling centres; (v) establishing and/or supporting centres for the provision of psychological support; and (vi) establishing, maintaining and fostering relationships with national and international organizations working for women's rights and freedom. Achieving the Charitable Purpose will require volunteers and funds which may be secured even by means of awareness-raising initiatives.
ARTICLE 2 - DEFINITIONS AND INTERPRETATION
2.1 In addition to the capitalised terms defined in this Instrument, the following terms shall have the following meanings respectively assigned to them:
"absence" shall, in relation to the person to whom or which it refers, mean and refer to:
a) the death of
that person; or
"incapable" and "incapacity" shall mean and include:
incapacity to act; or
"person" means and includes natural persons, legal entities and any entity or body of persons which, according to any applicable law, has legal capacity to contract and to sue or be sued.
2.2 All words and expressions defined in the course of this Instrument shall apply, unless otherwise indicated, to all its provisions and to the acts that constitute its execution or that are expressly linked to it.
2.3 Words importing one gender shall include all other genders and words importing the singular shall include the plural and vice versa.
2.4 The Recitals to this Instrument shall be construed as constituting an integral part of this Instrument.
ARTICLE 3 - THE SETTLOR
3.1 The term "Settlor" refers to Giovanna Foglia, bearer of Maltese passport numbered 1230251
and residing at C3003, Balluta Terrace, St Julian's Ramp, St Julian's STJ 1062, Malta.
3.2 Any reference to the Settlor in this Instrument shall be disregarded:
a) should the Settlor relinquish her status as such by instrument in writing delivered to the Trustee and to the Protectors; or
b) in the event of the Settlor's incapacity.
In the circumstances referred to in paragraphs (a) and (b) of this article 3.2, any decision which the Settlor may be entitled or required to make in terms of this Instrument shall be made by the Protectors and as contemplated in any relevant provision of this Instrument.
ARTICLE 4 - THE TRUST, THE NAME AND IRREVOCABILITY
4.1 The term "Trust" shall refer to the trust arising and subsisting pursuant to the terms and conditions set forth in this Instrument.
4.2 The Trust shall be known as the "NEL NOME DELLA DONNA TRUST" in Italian or the"IN THE NAME OF THE WOMAN TRUST" in English as the context may require. Provided that when the Trust is referred to by its name in one language (Italian or English) in writing or otherwise on any medium (including any electronic medium), a reference shall also be made to the name of the Trust in the other language.
4.3 The Trust is constituted for an indefinite duration and is irrevocable.
ARTICLE 5 - THE TRUSTEE
5.1 The term "Trustee" shall refer to any person who from time to time holds the office of trustee of the Trust. In the event of several persons being appointed as Trustees, the term "a Trustee" shall refer to each of such Trustees.
5.2 Pursuant to the abovementioned instrument of appointment dated , 2017, the current Trustee is Giovanna Foglia, bearer of Maltese passport numbered 1230251 and residing at C3003, Balluta Terrace, St Julian's Ramp, St Julian's STJ 1062, Malta.
Upon her appointment as aforesaid, the Trustee was not required to draw up an inventory of Trust Assets.
ARTICLE 6 - THE PROTECTORS
6.1 The term "Protector" identifies and refers to each person holding the office of Protector of the Trust in terms of this Instrument. In the event that several Protectors are in office, the term "Protectors" shall indicate such Protectors collectively.
6.2 The current Protectors of the Trust are:
Cagnoni born in Milan on 4 December 1947;
ARTICLE 7 - THE BOARD OF FORCE
7.1 The term "Board of Force" refers to the body of women appointed by the Settlor, if she is alive and capable, and otherwise by the Protectors.
7.2 The members of
the Board of Force shall be appointed from amongst women who:
Any woman who accepts an appointment as a member of the Board of Force shall communicate her acceptance by notice in writing addressed and delivered to the Trustee.
7.3 The current members of the Board of Force are:
a) Anna Leone born
in Vieste on 11 May, 1969;
7.4 The Board of Force shall support the Protectors in the performance of their tasks, and shall assist in securing the Charitable Purpose of the Trust when required and in terms of the provisions of this Instrument.
ARTICLE 8 - PROJECTS
8.1 The term "Project" refers to each initiative or the organization of any event which the Trustee pursues in furtherance of the Charitable Purpose by using or otherwise applying all or part of the Trust Assets.
8.2 The Settlor and/or any Protector and/or any member of the Board of Force may make recommendations to the Trustee as regards any new or existing Project which may benefit from the Trust Assets or from additional Trust Assets in furtherance of the Charitable Purpose.
8.3 Should any of the persons referred to in the immediately preceding article 8.2 wish to make a recommendation as referred to in the said article 8.2 in respect of any new Project, any such person shall be required to prepare or procure a feasibility study to enable the Trustee to evaluate the merits of the recommendation. Any such feasibility study should at least disclose and describe:
a) the financial
requirements of the proposed Project;
Provided that the Trustee shall be entitled, in its exclusive discretion, to dispense with any feasibility study or to require any alternative (whether lesser or greater) information in connection with a proposed Project.
8.4 The Trustee shall keep separate records and accounts in respect of each Project.
Where an expense is not directly attributable to a single Project, such expense shall be apportioned amongst all the Projects benefitting therefrom in such proportions to be determined by the Trustee and which, in its discretion, best reflect the extent to which each relevant Project benefitted as such.
8.5 The Trustee shall use its best endeavours to ensure that the goals identified in respect of each Project shall be effectively achieved
Provided that any Trustee acting as such on a voluntary basis shall not be held to account and shall have no liability for any perceived or actual failure or default in terms of this article. A Trustee remunerated nominally and whose expenses are reimbursed shall be deemed to be acting as such on a voluntary basis.
8.6 If a Project is not feasible:
a) due to
insufficiency of funds raised or otherwise comprised or available in the
the Trustee, at its own initiative, and possibly pursuant to a proposal of the Settlor or of any Protector, shall allocate any funds which were initially designated for application to the relevant Project to: (i) any other Project; and/or (ii) to any initiative undertaken by another organisation and which has, broadly, the same purposes of the said relevant Project.
ARTICLE 9 - THE TRUST ASSETS
9.1 The term "Trust Assets" refers to the capital and income held by the Trustee in its capacity as such under trusts pursuant to the terms of this Instrument and the Act and includes:
a) assets settled,
transferred or otherwise vested in the Trustee and accepted by it, in
its capacity as Trustee of the Trust, as an addition to the Trust
9.2 In the absence of specific limitations set forth in this Instrument and/or in any applicable law, the Trustee shall have all the faculties and rights of an owner of the Trust Assets.
Provided that the
Trustee shall use and apply the Trust Assets in the implementation of
Projects and generally in furtherance of the powers and in fulfilment of
9.3 Without prejudice to the generality of the provisions of article 9.2, the Trustee:
a) has authority
to institute and defend proceedings with respect to any of the Trust
Provided that the Trustee may transfer any Trust Assets to any other trustee or fiduciary companies or professional financial intermediaries, or wholly owned subsidiaries of the Trustee in the case of a corporate Trustee and the Trustee may deposit assets and documents with banks and professional custodians which undertake to take custody of the same.
Provided further that the Trustee shall not be liable for any loss or depreciation in value or loss of profits howsoever caused which may be suffered in respect of the Trust Assets, unless such loss or depreciation in value or loss of profit is caused by fraud, wilful misconduct or gross negligence attributable to the Trustee.
9.4 The Trust Assets are separate from the wealth and patrimony of the Trustee, cannot be attacked by its personal creditors and, if a Trustee is a natural person, do not form part of any patrimonial regime resulting from marriage or part of her inheritance.
A Trustee shall accordingly keep the Trust Assets separate and distinctly identifiable from its own assets and from any other assets for which it acts as trustee in terms of a separate trust. Moreover, a Trustee shall:
f) in the case of
assets which may or should be registered in any public or private
register, request the registration of such assets in its name acting as
Trustee of the Trust or in any another manner which confirms that the
Trustee holds the relevant assets in its capacity as Trustee of the
9.5 The Trustee shall safeguard and secure the integrity of the Trust Assets and shall not take or otherwise derive any personal benefit (whether directly or indirectly via intermediaries by way of commissions or otherwise) from its office, save for any remuneration which the Trustee may be entitled to receive pursuant to article 22.1 of this Instrument.
9.6 Without prejudice to the generality of the immediately preceding article 9.5 and article 11.2, the Trustee shall not: (i) procure or allow any other person to directly or indirectly derive any personal profit from the Trust or from the office of the Trustee outside the scope of the Charitable Purpose; and (ii) perform any transaction with or otherwise apply the Trust Assets in any manner which may give rise to personal benefit outside the scope of the Charitable Purpose.
9.7 When circumstances so require, and upon obtaining any approvals and/or opinions, proposals or recommendations as may be prescribed by this Instrument, the Trustee may transfer a portion of the Trust Assets which had been originally budgeted for use or application in a Project to any other Project/s.
9.8 The Trustee, in the case of continuing Projects, shall in its absolute discretion, budget and reserve a portion of the Trust Assets for eventual allocation or application for the benefit of each such continuing Project, taking into consideration any recommendations provided to it by the Settlor and/or the Protectors, and shall use any such reserve in favour of the designated Projects.
ARTICLE 10 - DONATIONS OR ADDITIONS TO THE TRUST ASSETS
10.1 The Trustee may accept, as additions to the Trust Assets, additional money, investments or other property or assets, of whatever nature and wherever situated, as may from time to time be donated inter vivos or bequeathed causa mortis. Such additional money, investments or other property or assets shall, subject to any contrary direction and subject to the provisions of the following article 10.2, be held upon the trusts and with and subject to the powers and provisions of this Instrument.
10.2 Any person who donates or bequeaths to the Trust any additional money, investments or other property or assets as referred to in the immediately preceding article 10.1, shall be entitled to propose to or otherwise direct the Trustee that such property be applied for the benefit of a specified Project in existence and active at the time and, generally, to impose any condition upon the Trustee for the use and application of such additional money, investments or other property or assets. For the avoidance of any doubt, the Trustee shall be entitled to decline any additional money, investments or other property or assets should any proposal, direction or condition made in terms of this article be deemed unacceptable.
ARTICLE 11 - CONFLICT OF INTEREST
11.1 Save as otherwise provided in this Instrument in relation to any specific transaction or transactions, any decision concerning the use and application of any part or all of the Trust Assets shall be taken at the sole discretion of the Trustee.
Provided that the Trustee may not proceed with any operation or transaction related to the Trust Assets which may give rise to a conflict of interest except with the prior written approval of the Protectors and after having heard the opinion of the Board of Force.
Provided further that for so long as Giovanna Foglia is a Trustee, she shall not be deemed to have any conflict of interest in relation to any Project.
11.2 The Trustee shall, with the consent in writing of the Protectors, be entitled to do anything contemplated in the provisions of Article 21(3) of the Act.
ARTICLE 12 - DEVOLUTION OF THE TRUST ASSETS
12.1 Should the Settlor, the Trustee and the Protectors (acting in terms of article 31.2 hereunder) and a majority of persons for the time being members of the Board of Force agree that, in their considered opinion, it is no longer possible to pursue or to achieve the Charitable Purpose by means of the Trust or that a more suitable legal form or arrangement should be established for the pursuit and achievement of the Charitable Purpose, the Trust Assets shall be: (i) allocated and applied by the Trustee proportionally to each Project supported at that time by the Trust; (ii) and/or assigned gratuitously to any such legal form or arrangement established for the pursuit and achievement of the Charitable Purpose; (iii) and/or assigned gratuitously to entities or non-profit organisations having objectives similar to the Charitable Purpose.
Provided that the
Trustee shall only allocate, apply and/or assign Trust Assets in the
circumstances set out in this article after:
12.2 The Trustee shall do anything which may be necessary and/or required for the purposes of validly allocating, applying and/or assigning the Trust Assets in terms of the immediately preceding article 12.1 and completing any processes and formalities as may be prescribed by applicable law with a view to making such allocations, application and/or assignments legally enforceable against third parties.
ARTICLE 13 - THE GOVERNING LAW
13.1 The governing law of the Trust is the law of the Republic of Malta.
13.2 The Trustee
may, for the sole purpose of ensuring a more effective pursuit of the
Charitable Purpose of the Trust, and having obtained the prior written
consent of the Protectors:
13.3 Any dispute relating to the establishment, validity or the effects of the Trust or its administration or the rights or obligations of any person mentioned in this Instrument shall be referred to the jurisdiction of the courts of the Republic of Malta.
13.4 In the event of any inconsistency arising in the interpretation of the terms governing the Trust as set out in this Instrument, the English language version of this Instrument shall take precedence over any translation of this Instrument into the Italian language or any other language from time to time.
13.5 Notwithstanding anything to the contrary expressed or implied in any other provision of this Instrument, none of the provisions, powers, discretions or authorities conferred by this Instrument shall at any time be exercisable in such a manner as to infringe any provision of the laws of the Republic of Malta, and in the event that any such provision, power, discretion or authority shall not be valid in terms of the said law, the same shall, insofar as it is capable in terms of law of being separated and severed, be so severed and separated from the remaining provisions of this Instrument and shall not affect the validity of the Trust or of the other provisions of this Instrument.
ARTICLE 14 - POWERS AND THEIR EXERCISE, WAIVER OF A POWER
14.1 All powers related to the functions of Trustee, Protectors or the Board of Force are fiduciary powers.
14.2 The holder of
a fiduciary power:
ARTICLE 15 - DIRECTIONS IN EXERCISING FIDUCIARY POWERS
Whenever this Instrument obliges any person to follow the directions which another person may give concerning the method, timing and object of an exercise of a fiduciary power or the fulfilment of an obligation, it shall be relieved from liability for having followed any such directions, unless the person receiving such directions had or should have had, using due diligence, knowledge of facts which contradicted or otherwise attested to the incorrectness of such directions, or should any such liability arise due to the fraud, wilful misconduct or gross negligence of the person receiving such directions.
ARTICLE 16 - IMPROPER EXERCISE OF A FIDUCIARY POWER
Save as may otherwise be provided by any applicable law (including in particular, any statutory protection of a third party contracting in good faith), acts carried out in the exercise of a fiduciary power which is not within the competence of the person who acted, and acts carried out in the exercise of a fiduciary power in violation of any provision of this Instrument, are invalid, are not enforceable against any person who may be entitled to set aside any such acts, and their effects shall be reversed to the status quo ante by the person who carried out such acts.
ARTICLE 17 - FORM OF ACTS AND METHOD OF COMMUNICATION
17.1 Every manifestation or communication of the intention of the Trustee is valid only if made in writing. For the avoidance of doubt, electronic forms of communication shall be valid for the purposes of this Instrument.
17.2 Any communication which may be required to be made or given by this Instrument shall be sent to the relevant recipient in a manner that ensures the provision by the recipient to the sender of proof of receipt of the relevant communication.
17.3 In the event that any applicable law prescribes any particular or specific form, authentication or other formality for the purposes of the Trustee formalising, executing and completing any act pursuant to this Instrument, the Trustee shall ensure that any such form, authentication or other formality is satisfied and complied with by the Trustee.
ARTICLE 18 - REVOCABLE ACTS
Any act of the Trustee shall, unless the Trustee specifies otherwise or unless otherwise prescribed in terms of any applicable law, be presumed to have been carried out on the basis that it may be revocable.
ARTICLE 19 - DELEGATION OF POWERS
The Trustee shall have power, but with the prior approval of the Protectors, to delegate to any person (including in cases where there is more than one (1) Trustee, to any one (1) of the Trustees) at any time for any period and in any manner (including without prejudice to the generality of the foregoing by power of attorney) and upon any terms whatsoever, all or any of the powers or discretions, whether dispositive, administrative or otherwise imposed on or given to the Trustee pursuant to this Instrument or by applicable law or otherwise (including the management and administration of this Trust) without being liable for any loss to the Trust Assets arising from the acts or defaults of any such person.
Provided that in delegating any powers or discretions as aforesaid, the Trustee shall not: (i) authorise the appointed person to sub-delegate any powers or discretions; (ii) provide for any limitation of the appointeeÕs liability in the course of any such appointment; (iii) permit the relevant appointee to act in the event of the said appointee having any conflict of interest.
ARTICLE 20 - LIMITATIONS OF LIABILITY OF THE TRUSTEE
20.1 A Trustee is not liable for any loss caused to the Trust Assets as a consequence of its acts or omissions unless these derive from its fraud or wilful misconduct or gross negligence.
20.2 If the Trustee, in good faith and without neglect, makes a delegation or an appointment in accordance with the provisions of article 19 of this Instrument, the Trustee shall not be liable for any loss arising to the Trust in consequence thereof.
20.3 Any liability arising under or in connection with the Trust is limited to and can be enforced limitedly against the Trustee in respect of its role as trustee of the Trust and only to the extent to which it can be satisfied out of property of the Trust Assets.
The Trustee shall be indemnified out of the Trust Assets for such liabilities (including any tax liabilities) as well as any damages, claims, actions, suits or proceedings (civil, criminal, administrative, legislative, investigative or other, including appeals), including, withoutlimitation, legal fees, costs, judgments, amounts paid in settlement, fines, penalties and other liabilities whatsoever, suffered or incurred by the Trustee in connection with or as a result of its acting as Trustee of the Trust except where any of the foregoing is attributable to any fraud, wilful misconduct or gross negligence on the part of the Trustee or, in the case of a corporate Trustee, any of its directors, officers or employees.
20.4 No party may sue the Trustee in any capacity other than as trustee of the Trust.
20.5 No party shall have recourse against any personal assets of the Trustee, or, in the case of a corporate Trustee, of its directors, officers or employees, and/or any assets of the Trustee held by the Trustee as trustee of other trusts and/or any assets of the Trustee held by the Trustee for the benefit or on behalf of third parties.
20.6 In the exercise of the powers herein contained, the Trustee shall not be under any duty to see that the value of the Trust Assets or any part or parts thereof is enhanced in any way nor shall the Trustee be liable for any failure in that respect whatsoever.
20.7 Nothing shall imply in any manner whatsoever any breach of trust or improper performance or failure by the Trustee to perform its obligations in terms of this Instrument or any applicable law, to the extent that one or more of the following circumstances prevents or limits the Trustee's performance of its obligations:
(i) the Trustee is dependent on receiving consent or advice from any Protectors and/or the Board of Force in terms of this Instrument, and despite the Trustee's reasonable efforts to do so, the Trustee shall have either not received such consent or advice, or have received the same in an incomplete, ambiguous or incomprehensible state or format, or received the same subsequent to the lapse of any applicable statutory or other deadline, or received the same at a time when it was reasonably not possible for the Trustee to comply with any applicable statutory or other deadline; or
(ii) the Trustee is not in possession of sufficient funds to enable the Trustee to effect any reasonable payment due to any person providing services.
ARTICLE 21 - MANAGERIAL POWERS OF THE TRUSTEE
21.1 The Trustee may, subject to any other provision of this Instrument, after having obtained the consent of the Protectors and after having heard the opinion of the Board of Force:
a) borrow money by
way of loan;
21.2 The Trustee shall be entitled to invest or to procure the investment of any monies comprised in the Trust Assets. The Trustee shall appoint any investment advisors and/or managers for the purposes. Provided that any investment of Trust Assets shall be made within the scope and parameters of any investment strategy, profile and restrictions set by the Settlor and communicated to the Trustee in writing. Provided further that no deviation shall be permitted from any such investment strategy, profile and restrictions set by the Settlor except with the written consent of the Settlor. Provided moreover that should the Settlor be absent or otherwise incapable of giving her consent to any deviation from any such investment strategy, profile and restrictions as aforesaid, the Trustee may apply to the competent court in the Republic of Malta and in terms of the Act for authorisation to implement and execute any such proposed deviation.
21.3 The Trustee shall be entitled to engage executors, accountants, advocates, notaries, attorneys, stockbrokers, market makers, investment managers, brokers, agents, property agents and any other any person/s providing professional services in Malta and in any other country to provide advice or any such professional services to the Trustee in connection with the performance of any obligations of the Trustee as are referred to in this Instrument and any applicable laws in Malta or elsewhere. The Trustee shall be entitled to rely on the advice of any such person and to debit the Trust Assets in settlement of all and any fees and expenses incurred in connection with any professional services procured by the Trustee in terms of this clause.
ARTICLE 22 - REMUNERATION AND COSTS OF THE TRUSTEE
22.1 For so long as Giovanna Foglia is a Trustee, she shall not be entitled to receive any remuneration for her services rendered as such. Any other Trustee who may from time to time be appointed as such pursuant to this Instrument may be entitled to receive remuneration for services rendered as such to the Trust and as may be approved by the
22.2 The Trustee may use the income generated by the Trust Assets and, if insufficient, the capital comprised in the Trust Assets:
a) to support the
operating and management costs of the Trust; and
The costs attributable to the Trust shall include any remuneration and expenses as may be payable to any professional or other third party as may from time to time be appointed by the Trustee pursuant to this Instrument, and the costs of any legal proceedings in which the Trustee may be involved, unless the competent court provides otherwise.
ARTICLE 23 - REPORTING
23.1 The Trustee shall keep and maintain accurate accounts and documentation and records in respect of the Trust and, specifically, in relation to each transaction and act relating to each Project.
Without prejudice to the requirement of any applicable law, such accounts may include a balance sheet, a capital account, an income account, and such notes and schedules as are considered appropriate by the Trustee (such as statements of accounting policies, an inventory of assets comprised in the Trust Assets, a schedule of investments and distributions, and cash accounts, administration expenses and their apportionment between income and capital accounts). Unless mandated in terms of applicable law, the Trustee shall have the absolute discretion and the power to cause the accounts of this Trust to be audited annually or at such intervals as the Trustee deems fit by such professional accountant or accountants as the Trustee may appoint for the purpose. Such accounts shall be deposited at such address as the Trustee may from time to time designate for such purposes and communicated to the Settlor and the Protectors.
23.2 Without prejudice to the requirement of any applicable law, the Trustee shall provide the Settlor and Protectors with a report on the performance of the Trust and each Project:
a) annually within
30 (thirty) days of the end of each calendar year;
Provided that for so long as Giovanna Foglia is a Trustee she shall not be required to prepare any report whatsoever except when the Protectors request the same.
23.3 The annual report referred to in paragraph (a) of the immediately preceding article 23.2 shall: (i) set out and describe the general criteria on the basis of which such report is prepared; (ii) describe the main events which occurred during the relevant period in respect of which the annual report is prepared and, specifically, those events which had an economic and financial impact on the Trust; (iii) describe the criteria adopted and applied by the Trustee for the purposes of valuing the Trust Assets; (iv) provide information in relation to each Project and any reserves or amounts set aside or otherwise budgeted by the Trustee for the purposes of each Project during the relevant period; (v) provide a statement of reconciliation between the operating result and the fiscal income with an indication of the taxable income of the Trust; (vi) provide a statement of changes in the capital comprised in the Trust during the relevant calendar year; (vii) set out the TrusteeÕs conclusions in respect of the relevant calendar year in respect of which the annual report has been prepared as well as strategies proposed for implementation during the following calendar year; and (viii) be approved by the Protectors.
ARTICLE 24 - SUCCESSION IN THE OFFICE OF TRUSTEE
24.1 New or additional Trustees shall be appointed by the Protectors by instrument in writing.
24.2 Trustees, whether present or future, shall remain in office until resignation, removal, or:
a) in the case of
a natural person, until death or incapacity of the Trustee to act as
such or until such person has attained eighty (80) years of age,
whichever occurs the earliest; or
24.3 The resignation of a Trustee shall become effective on the lapse of thirty (30) days following receipt by the Protectors of a written notification of such resignation or until the appointment of a new Trustee to replace the outgoing Trustee should any such appointment take place prior to the lapse of the aforementioned period of thirty (30) days.
Provided that, in the case of the resignation of a sole Trustee, the outgoing Trustee shall remain responsible and liable to provide services as such in terms of this Instrument until such time as the Trust Assets shall have been properly vested in a new Trustee and all duties and responsibilities under this Instrument shall have been assumed by the new Trustee.
24.4 A Trustee may be removed by the Protectors at any time by instrument in writing with effect on and from the date on which the outgoing Trustee shall receive written notice of its removal. Provided that, in the case of the removal of a sole Trustee, the outgoing Trustee shall remain responsible and liable to provide services as such in terms of this Instrument until such time as the Trust Assets shall have been properly vested in a new Trustee and all duties and responsibilities under this Instrument shall have been assumed by the new Trustee.
24.5 A new Trustee shall accept its appointment as such:
a) if the Trust
Assets include immovable property, by virtue of a public deed duly
published by a notary public or any other equivalent instrument duly
executed and/or published by a competent officer or official as may be
prescribed in the jurisdiction in which any such immovable property is
24.6 Any appointment, resignation or removal of a Trustee shall be noted in the "Book of Events" by the new or remaining Trustee/s.
24.7 If the Protectors fail to appoint a Trustee within thirty (30) days following the resignation or removal of a sole or the last remaining Trustee, the Protectors shall refer the matter to the Chairman of the Society of Trust and Estate Practitioners (STEP) in Malta who shall be requested to recommend the appointment of a new Trustee to the Protectors who shall, in turn, be bound to accept the aforementioned recommendation and shall proceed with formalising the appointment of the recommended new Trustee.
ARTICLE 25 - TRANSFER OF TRUST ASSETS IN CASE OF CHANGE OF TRUSTEE
25.1 An outgoing Trustee loses any rights over the Trust Assets and shall promptly transfer and vest the Trust Assets in the name and under the control of the new Trustee (should the outgoing Trustee be the sole Trustee at the time) or any one (1) or more or all of the Trustees remaining in office as Trustees of this Trust (should the outgoing Trustee not be the sole Trustee), as the case may be.
25.2 Without prejudice to the generality of the provisions of the immediately preceding article
25.1, the outgoing Trustee:
a) shall transfer
and deliver to the new or remaining Trustee/s (as the case may be) all
Trust Assets, the Book of Events and all documents pertaining to the
Trust and the Trust Assets which may be in the possession of the
25.3 Any obligations incurred or assumed by the outgoing Trustee, acting in its capacity as trustee of the Trust, towards third parties shall be taken over and assumed by the new or remaining Trustee/s, and the outgoing Trustee and the new or remaining Trustee/s shall do anything that may be necessary and/or required for the purposes of formalising the same. The outgoing Trustee shall be released from liability for any act or omission in relation to the Trust Assets or its duty as a trustee, except in respect of actions arising from breach of trust to which the outgoing Trustee was a party or to which it was privy.
Provided that the outgoing Trustee shall continue to be liable for the recovery from such outgoing Trustee of any Trust Assets or the proceeds thereof in the possession of the outgoing Trustee or converted to the outgoing Trustee's own use or not surrendered as required pursuant to this Instrument and any applicable law.
ARTICLE 26 - ADMINISTRATION OFFICES
26.1 The administration of the Trust shall be carried out from C3003, Balluta Terrace, St Julian's Ramp, St Julian's STJ 1062, Malta, and/or from any other location as may from time to time be designated by the Trustee appointed at the time. All accounts, reports, instruments or other documents which the Trustee shall be required to prepare, keep or otherwise maintain pursuant to this Instrument shall be kept at C3003, Balluta Terrace, St Julian's Ramp, St JulianÕs STJ 1062, Malta, or at any other location as may from time to time be designated by the Trustee appointed at the time.
26.2 The Trustee may at any time change the address referred to in the preceding article 26.1 by instrument in writing, which shall be notified to the Protectors and to the Board of Force.
ARTICLE 27 - THE BOOK OF EVENTS
27.1 The Trustee shall maintain and update a "Book of Events" in which the Trustee shall record every event that this Instrument may prescribe to be recorded and every other event which the Trustee may deem appropriate to record from time to time.
27.2 The Trustee is also required to record in the Book of Events the details and content of acts for which any authenticated or public form is prescribed in this Instrument or by virtue of applicable law, or which the Trustee otherwise considers appropriate to register, publish or authenticate.
27.3 Any interested third party who deals with the Trustee in its capacity as Trustee of the Trust shall be entitled to fully rely upon the contents of the Book of Events, which shall be made available by the Trustee to the relevant third party upon request.
ARTICLE 28 - TRUSTEE RESOLUTIONS AND MEETINGS
28.1 Where two (2) or more persons (whether individuals and/or legal entities) are Trustees, every decision, resolution or exercise of a power or discretion required to be or capable of being made by the Trustees shall be validly made if it is approved by a majority of the Trustees, and any document or other instrument executed in pursuance of any such decision, resolution or exercise shall have binding legal effect (as if executed by all Trustees) if it shall be executed by a majority in number of the Trustees.
Any one (1) of the Trustees may convene a meeting of the Trustees with reasonable notice being given to all other Trustees. The Trustees may meet in any appropriate form or forum and including, without limitation, by means of telephone or video conferencing or by such other similar means of communication allowing, in either case, all the Trustees participating in the meeting to hear and speak to each other. Where meetings of the Trustees are held by telephone or video conference or by such other similar means of communication as aforesaid such that the Trustees are not present together in the same place, the chairwoman of the meeting shall, in such cases, first verify the identity of the participating Trustees, and shall make a record of such verification once he is satisfied of the identity thereof. The chairperson of any meeting of the Trustees shall be the longest serving Trustee at the time of the meeting or, in its absence, any one (1) of the Trustees as may be appointed by the Trustees for such purposes.
28.2 The chairwoman of a meeting of the Trustees shall cause minutes of all proceedings of such meeting to be entered in the Book of Events, including details of the Trustees in attendance at the relevant meeting, matters discussed during the meeting, resolutions approved or rejected at the meeting, and opinions or dissent expressed by any Trustee during the meeting.
28.3 Where there is more than one (1) Trustee, all Trustees shall participate and cooperate in the performance or implementation of any resolution approved by the Trustees in terms of the provisions of article 28.1, notwithstanding that any such resolution is approved by a majority of the Trustees. Should a Trustee fail to participate and cooperate with the other Trustees as aforesaid, the said defaulting Trustee shall resign from his office as such by instrument in writing which shall be delivered by the defaulting Trustee to the other Trustees and to the Protectors. Should the defaulting Trustee fail to resign from its office as aforesaid and persists in its failure to participate and cooperate with the other Trustees, the Protectors shall remove the relevant Trustee in terms of article 24.4 of this Instrument.
ARTICLE 29 - THE PROTECTORS
29.1 There shall at all times be a minimum of three (3) female Protectors in office at any given time.
29.2 A Protector:
a) may be
appointed at any time by instrument in writing by the Settlor or, in her
absence, by the Protectors;
29.3 If a member of the Board of Force is appointed as a Protector, the relevant member of the Board of Force shall immediately tender her resignation from the Board of Force or shall otherwise be removed from the Board of Force.
29.4 The Protectors are not liable with respect to the Trust other than for their fraud or wilful misconduct or gross negligence.
29.5 The Protectors shall:
a) monitor and
supervise the work of the Trustee with a view to ensuring that the
Trustee acts in furtherance of the Charitable Purpose of the Trust and
in the most efficient manner possible;
29.6 The Protectors shall also be required to monitor the Projects and the Protectors shall be entitled to engage any person or persons (including from amongst themselves) to monitor one (1) or more of the Projects and to report any findings in writing to the Settlor, the Trustee and the Protectors.
Any such person or
persons engaged by the Protectors may be remunerated by the Trustee out
of the Trust Assets as may be directed by the Protectors. Provided that:
29.7 The Protectors may express an opinion in relation to any activity of the Trust, even if such opinion has not been requested by the Trustee.
29.8 In the event that the Trustee requests the Protectors' opinion, any such opinion shall be provided within any period which the Trustee may set and prescribe for such purposes but in any case not earlier than three (3) days and no later than fifteen (15) days (excluding public holidays in Malta) following the relative request of the Trustee.
29.9 The Protectors shall be entitled to take legal action against any Trustee in case of any breach of its obligation or in case of breach of the governing law of the Trust or of any other law which may be applicable to a specific act of the Trustee.
ARTICLE 30 - REMUNERATION OF THE PROTECTORS
30.1 The Protectors are not entitled to receive any remuneration for the work performed by them in such capacity.
30.2 The costs incurred by the Protectors in the fulfilment of their duties shall be borne by the Trust provided that the Trustee considers them to be (in its reasonable opinion) adequatelyjustified and documented by any Protectors seeking reimbursement.
ARTICLE 31 - RESOLUTIONS OF THE PROTECTORS
31.1 The Protectors may, at their discretion, take into account the opinion of the Board of Force on any matter which may from time to time require the consideration, opinion or approval of the Protectors pursuant to this Instrument.
31.2 The Protectors must do everything possible to ensure that their decisions are taken unanimously. The Board of Force shall promote and facilitate discussion among the Protectors in order for the same to unanimously approve their decisions. If, notwithstanding the best efforts of the Board of Force, the Protectors shall fail to achieve unanimity in their decisions for any reason whatsoever (including as a result of the absence or unavailability of any Protector at the time), any matter requiring the approval of the Protectors shall be decided by a majority of the Protectors available at the time. In the event of an equality of votes, the matter shall be conclusively determined by the Trustee in its sole discretion.
For the avoidance of any doubt, the absence or other unavailability of one or more Protectors shall not invalidate a decision of the majority of the other Protectors. Provided that a matter shall only be approved by the Protectors if it is considered by at least three (3) Protectors and approved by two (2) of them. If any matter cannot be considered by at least three (3) Protectors owning to the absence and/or unavailability of Protectors, the matter shall be deemed to have been decided in the negative.
ARTICLE 32 - SUCCESSION IN THE OFFICE OF PROTECTOR
32.1 A Protector remains in office until resignation, removal, death, incapacity to act or until such time as the Trust terminates in terms of applicable law.
32.2 A resigning Protector shall deliver notice in writing of her resignation to the Trustee. The resignation of a Protector shall become effective upon receipt by the Trustee of the aforementioned notice of resignation.
32.3 Additional or substitute Protectors may be appointed at any time in accordance with the provisions contained in this Instrument. The appointment of any Protector may be subject to such a term and/or to conditions as may be prescribed by the Settlor or the Protector/s appointing such Protector in terms of this Instrument as the case may be.
32.4 A newly appointed Protector shall notify the Settlor, the Trustee, the Protectors and the Board of Force of her acceptance of such appointment by notice in writing.
32.5 The Trustee, the Settlor, the Protectors and the Board of Force shall be immediately notified in writing of any removal or appointment of a Protector by the subject exercising such power.
ARTICLE 33 - THE BOARD OF FORCE
33.1 The Board of Force shall at all times consist of a minimum of three (3) and a maximum of nine (9) members, all being women, and always in an odd number.
33.2 The members of the Board of Force:
a) shall remain in
office for five (5) years;
33.3 The Board of Force may meet whenever it deems fit, and shall be required to meet whenever the Trustee or the Protectors request so by any means and even with very short notice, depending on the circumstances.
33.4 The eldest member of the Board of Force or, in her absence, any member of the Board of Force as may be designated by the Board of Force, shall:
a) chair meetings
of the Board of Force;
33.5 The Board of Force shall provide its advice to the Trustee and the Protectors as may be required from time to time and:
a) shall give its
opinion to the Trustee and the Protectors in the circumstances provided
for by this Instrument or as the Board of Force may otherwise deem in
necessary in fulfilment of its obligations at law;
ARTICLE 34 - CONFIDENTIALITY
34.1 All documents and information relating to the Trust shall be confidential, unless their disclosure is required in order to:
a) comply with any
obligations which may be prescribed in terms of applicable law;
34.2 The Trustee, Protectors and members of the Board of Force shall not disclose or discuss any document or information concerning or related to the Trust to anyone, unless:
a) any such
disclosure or discussion is permitted by a provision of this Instrument
or is otherwise required by applicable law; or
TO THE MASTER PORTAL