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FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/03/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
ALBERTO JOSEPH SAFRA,
Plaintiff, Index No.: 650710/2023
-against- AFFIRMATION OF ALBERTO
JOSEPH SAFRA
SNBNY HOLDINGS LIMITED, CARLOS
ALBERTO VIEIRA, CARLOS CESAR
BERTACO BOMFIM, SIMONI PASSOS
MORATO, VICKY SAFRA, JACOB
JOSEPH SAFRA, AND DAVID JOSEPH
SAFRA,
Defendants.
Alberto Joseph Safra hereby affirms the following under the penalties of perjury and
pursuant to CPLR Section 2106:
1. I am a businessman based in Brazil and the son and legal heir of Mr. Joseph Yacoub
Safra. 1 From 2006 to 2019, I was one of the executive management leaders at Banco Safra S.A.
("Banco Safra") .. In 2019, I founded ASA Investments, a multi-strategy asset management fund,
of which I am currently Chief Executive Officer. I submit this affirmation in support of my motion
for an Order enjoining Defendants SNBNY Holdings Limited ("SNBNY"), Carlos Alberto Vieira,
Carlos Cesar Bertaco Bomfim, Simoni Passos Morato, Vicky Safra, Jacob Joseph Safra, and David
Joseph Safra from preventing recognition of my appointed or elected director to SNBNY' s board
1
My father, Mr. Joseph Safra ("Joseph") was married to my mother, Vicky Safra ("Vicky"), and
my parents had 4 children: (i) myself, (ii) Jacob Joseph Safra ("Jacob"), (iii) Esther Safra Dayan
("Esther") and (iv) David Joseph Safra ("David").
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of directors, pursuant to SNBNY's Articles of Association (the "Articles"). A copy of the Articles
is annexed hereto as Exhibit 1.
2. As explained below, Defendants have acknowledged that, based on the terms of the
Articles, SNBNY is obligated to recognize the appointment of my director to SNBNY's board of
directors. However, Defendants have refused to recognize that appointment, despite the fact that
I have taken the requisite actions to exercise my right to appoint a director.
I. FAMILY AND BUSINESS BACKGROUND
3. Our family-the Safra family-originated in Lebanon and Syria and immigrated to
Brazil in 1952. In 1955, my late father, Joseph Safra, founded Banco Safra, which is headquartered
in Sao Paulo, Brazil, and has become one of the largest private banks in Latin America and is now
part of the Safra Group. Joseph Safra served as the leader of the Safra Group from 1963 until his
death on December 10, 2020. In addition to Banco Safra, the Safra Group's holdings include,
among other entities, SNBNY, a holding company for Safra National Bank of New York, a
nationally chartered United States bank headquartered in New York City. The Safra Group's
diverse portfolio includes finance, real estate, and agribusiness companies. Vicky, Jacob, Esther,
and David, and I are all joint heirs to the Safra Group.
4. I joined the management of the Safra Group in 2004 and helped lead Banco Safra
beginning in 2006. My work was consistently appreciated by bank management, including my
father, Joseph Safra.
5. In 2008, approximately four years after I joined the management of the Safra
Group, my brother David also joined the management of Banco Safra.
II. MY FAMILY PUSHES ME OUT OF THE FAMILY BUSINESS
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6. Since 2008, when he joined the management of Banco Safra, my brother David
never accepted the role that our father selected for him. David wanted to increase his control over
areas of the bank for which I was responsible. David's ambition for more power and influence
were damaging to Banco Safra, resulting in increased costs and a loss of synergies, coordination,
and administrative efficiency. David and I began to have substantial professional and personal
disagreements. These disagreements were ordinarily resolved by our father, Joseph Safra, who
valued my leadership and upheld the previously defined division of responsibilities.
7. My father battled a number of health ailments during the later stages oflife, and his
decline became increasingly evident over the second half of 2019. During the course of my
father's medical treatments, my family members, including my mother, my siblings, and myself,
exchanged electronic group chat messages on the WhatsApp platform to discuss the deterioration
of my father's physical and mental state. Some of his physicians in Brazil were included in or
referenced during these conversations to discuss my father's array of physical and neurological
ailments, as well as the heavy medications prescribed to him.
8. When my father's health deteriorated significantly in 2019, the disagreements
between me and David deepened and intensified. The absence of my father's leadership
substantially changed the dynamics of the family's decision-making at the bank, and my father
became increasingly unable to ensure a unified working environment and prevent David's
campaign to oust me from my management role at Banco Safra. These circumstances gradually
led to the reduction ofmy management powers to the point that I was precluded from performing
my functions at the bank. I had no option but to leave the management of Banco Safra in October
2019, remaining only as a shareholder in the company. I subsequently began to devote myself to
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my personal projects, including founding ASA Investments, a multi-strategy asset management
company that operates a wide range of investment funds, with offices in Sao Paulo and New York.
III. DEFENDANTS ACT COLLECTIVELY TO DILUTE MY INTEREST
9. Following my departure from Banco Safra, certain family members continued their
consolidation of power by opposing my attempts to visit my father. They isolated me from the
various family businesses, and, as I later found out, attempted to dilute my interest and harmed my
rights in Safra Group companies, including SNBNY.
10. In December of 2019, following a range of suspicious financial and accounting
maneuvers by SNBNY, my shareholding interest in SNBNY was significantly diluted through
improper resolutions, purportedly executed by my father, who was severely cognitively impaired
at the time. To my knowledge, these acts were apparently undertaken without proper board
approvals. Instead, these acts were undertaken by my brothers David and Jacob and my mother,
Vicky. Their actions resulted in the improper reduction of my shareholding interest and voting
rights in SNBNY from approximately 15.5% to approximately 7.4%. In addition, as a result of
the dilution, I lost my right, under the Articles to: (1) block the exercise of various powers
conferred on the holder of 90% of the voting shares; (2) prevent the other shareholders, acting
together, from delegating power of the director to a committee; and (3) appoint a second director
to SNBNY's board of directors. The current directors of SNBNY, Defendants Carlos Alberto
Vieira, Carlos Cesar Bertaco Bomfim, and Simoni Passos Morato, assisted my brothers and mother
with their actions against me, have been working for the Safra Group for many years, and have a
direct relationship of trust with my brothers and mother. A copy of SNBNY's Written Resolutions
of the Sole Member of the Company Entitled to Vote, dated December 4, 2019, which were used
to dilute my ownership share of SNBNY, are annexed hereto as Exhibit 2. In connection with and
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following these acts undertaken to dilute my interest in SNBNY, the company engaged in
numerous suspect financial maneuvers that appeared to be conducted for the purpose of facilitating
that dilution.
11. SNBNY's 2018 audited consolidated financial statements, dated December 19,
2019, are annexed hereto as Exhibit 3. It is my understanding that these were prepared according
to U.S. GAAP accounting standards.
12. In November 2019, SNBNY reportedly decided to switch from the U.S. GAAP
accounting standard to the International Financial Reporting Standards ("IFRS") for the
preparation of its financial statements. See Ex. 3, p. 55. SNBNY provided no explanation for the
sudden change. Id.
13. SNBNY's 2019 audited financial statements, dated June 24, 2021, are annexed
hereto as Exhibit 4. Although SNBNY's 2019 audited financial statements purport to have been
prepared in accordance with IFRS, the notes state that the financial statements "do not reflect all
the requirements of [the IFRS] framework." Ex. 4, p. 8. They also do not include any comparative
account of asset values, under either US GAAP or IFRS, relative to SNBNY' s 2018 position. See
Ex. 4. A copy of SNBNY's 2019 audited consolidated financial statements, which were not filed
until June 28, 2021, are annexed hereto as Exhibit 5. A copy of Safra National Bank of New
York's 2019 annual report is annexed hereto as Exhibit 6.
14. In 2019, SNBNY reported a substantial, unexplained jump in income of
$872,116,000, on the purported basis of "changes in fair value of subsidiaries." See Ex. 4, p. 6.
As a result, SNBNY's total equity more than doubled to $1,674,571,000. Id. Notably, in 2019,
SNBNY's main subsidiary, Safra National Bank of New York, experienced a modest decrease in
profits from the previous year, from $92,998,000 to $78,999,000, undermining any economic basis
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for the dramatic increase in income reported by SNBNY. See Ex. 6, p. 4. It is my belief that this
increase in income was used to enable SNBNY and my family members to pass a series of
resolutions that could be used to dilute my interest in SNBNY. Although this occurred in 2019, I
was not told of the transactions at the time, and SNBNY did not disclose the increase in income in
its financial filings until June 24, 2021, when it finally filed its 2019 audited financial statements.
15. A copy of SNBNY's Financial Position and Organization Chart, dated December
31, 2020, is annexed hereto as Exhibit 7. In 2020, one year after SNBNY reported the
aforementioned increase in income caused by a change in the value of its subsidiaries, SNBNY
inexplicably reported a "loss from revaluation on subsidiaries" of $325,040,528, representing
almost half the amount of the prior year's write up. See Ex. 7, p. 1-2. SNBNY did not provide
any rationale for the write down in 2020, which was unsupported by the actual performance of
SNBNY' s primary asset, Safra National Bank of New York.
16. A copy of SNBNY's 2020 audited consolidated financial statements, which were
not filed until January 31, 2022, are annexed hereto as Exhibit 8. As of February 1, 2023, SNBNY
has not yet filed audited financial statements for 2021.
17. A copy of SNBNY' s June 30, 2021 quarterly filing with the Federal Reserve is
annexed hereto as Exhibit 9. Prior to this filing, SNBNY's regulatory filings did not reflect the
changes to SNBNY caused by SNBNY's 2019 reported increase in income, or SNBNY's 2019
transactions that diluted my interest in SNBNY.
18. In 2020, while SNBNY wrote down the fair value of its subsidiaries, SNBNY's
principal subsidiary-Safra National Bank of New York-had total income increase, as compared
to 2019. A copy of Safra National Bank of New York's 2020 annual report is annexed hereto as
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Exhibit 10. In 2019, consolidated profit for Safra National Bank of New York was $78,999,000;
by 2020, it was $79,759,000. See Ex. 10, p. 43.
19. Based on interim disclosures provided to me by SNBNY, in 2021, the reported
value of SNBNY appears to have significantly declined even further.
20. Without my appointed director, I am unable to exercise control over SNBNY,
effectively oversee its operations, or allow my appointed representative to access governance
information which may shed light on SNBNY' s financial irregularities.
IV. MY RIGHT TO APPOINT A DIRECTOR TO SNBNY'S BOARD OF DIRECTORS
21. The Articles, which govern the conduct of SNBNY, provide that I can appoint a
director to SNBNY's board of directors. Article 61(a) of the Articles, provides as follows:
Each Significant Shareholder shall, for so long as it remains a
Significant Shareholder, have the right at any time to elect a number
of Directors (who qualify to act as such under Article 53) equal to
the number obtained by (1) first dividing the number of votes that
such Significant Shareholder is entitled to cast based on the Voting
Shares then owned by that Significant Shareholder by the total
number of votes that all Shareholders are entitled to cast based on
the Voting Shares that are then in issue, (2) second, dividing the
quotient from the preceding clause (1) by seventy-two one-
thousandths (.072) while Vicky is alive, and by eighty-five one-
thousandths (.085) after Vicky is no longer alive, and (3) if the
quotient from the preceding clause (2) is not a whole number, then
rounding the resulting quotient down to the nearest whole number .
See Ex. 1, art. 61(a).
22. A copy ofSNBNY's register of members and share ledger, which provides a record
of SNBNY' s shareholders, is annexed hereto as Exhibit 11. At the time of my father's death, on
December 10, 2020, my father (or his estate) held 1,273 Class A shares in SNBNY, my brothers
David and Jacob each held 73,219,342 Class B shares, my sister Esther held 33,226,416 Class B
shares, and I held 28,000,000 Class B shares. See Ex. 11, pp. 1, 13-17.
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23. My father's death constituted a "Class B Trigger Event" under the Articles, causing
the 28,000,000 Class B Shares I held to become "Voting Shares." Article 1 of the Articles defines
these terms as follows:
"Class B Trigger Event" shall mean the death of [Joseph];
"Voting Shares" shall mean (x) prior to the occurrence of the Class B Trigger Event,
the Class A Shares only, (y) after the occurrence of the Class B
Trigger Event and prior to the occurrence of the Class A Redemption
Event, the Class A Shares and the Class B Shares, and (z) after the
occurrence of the Class A Redemption Event, the Class B Shares
only;
"Class A Redemption Event" shall mean the later to occur of (x) the death of
[Joseph] and (y) the death of [Vicky];
See Ex. 1, art 1.
24. Beginning at the time of my father's death, there were 377,610,600 maximum
number of votes entitled to be cast by the holders of all Voting Shares then in issue. See Ex. 11.
As a Shareholder owning 28,000,000 Voting Shares, at the time of my father's death, I became
entitled to cast approximately 7.4% of the maximum number of votes then in issue. This qualified
me as a "Significant Shareholder" under the Articles, as a Shareholder owning Voting Shares
entitling me to cast more than 7 .2% of the maximum number of votes entitled to be cast by the
holders of all Voting Shares then in issue. Article 1 of the Articles defines "Significant
Shareholder" as follows:
at any time, any Shareholder who owns Voting Shares that entitle such Shareholder
to cast, while Vicky is alive, at least 7.2% (seven and two- tenths of a percent) of
the maximum number of votes then entitled to be cast by the holders of all Voting
Shares then in issue, and after Vicky is no longer alive, at least 8.5% (eight and
five-tenths of a percent) of the maximum number of votes then entitled to be cast
by the holders of all Voting Shares then in issue
See Ex. 1, art 1.
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25. Based on my status as a Significant Shareholder with approximately 7.4% of the
maximum number of total votes, I may appoint one director to SNBNY' s board under Article
61(a). Had my interest in SNBNY not been improperly diluted from approximately 15.5% of the
maximum number of total votes prior to my father's death, I would have been entitled to appoint
two directors to SNBNY.
V. DEFENDANTS' REFUSAL TO RECOGNIZE MY DIRECTOR APPOINTMENT
26. I first attempted to exercise my right to appoint a director on June 7, 2021, when
Triay Lawyers Limited, a Gibraltar law firm, acting at my instruction, sent a letter to SNBNY, a
copy of which is annexed hereto as Exhibit 12. The letter notified SNBNY of my election and
appointment of Mr. Andre Franco de Moraes as a director of SNBNY, with such appointment
being effective on and from 11:59 pm on June 7, 2021. See Ex. 12, p. 1-2.
27. In response, on July 2, 2021, Peter Caruana & Co., acting at the instruction of
SNBNY, sent a letter to Triay Lawyers Limited, a copy of which is annexed hereto as Exhibit 13.
The letter acknowledged that I was "entitled to elect 1 board director based on [my] shareholding
and applying the formula set out in article 61(a)." See Ex. 13, p. 4. However, SNBNY claimed
that such appointment had yet to become effective, and that it received "advice from lawyers in
the United States" that controlling persons in SNBNY must be "approved by the Federal Reserve"
before properly nominating and appointing directors, in reference to the Safra Family's pending
application before the Federal Reserve to retain control of SNBNY. See Ex. 13, pp. 4-5.
28. On July, 5, 2021, Hassans law firm, acting on behalf of Vicky, Jacob, and David,
sent a letter to Triay Lawyers Limited, a copy of which is annexed hereto as Exhibit 14. The letter
rejected the contention that my appointment of Mr. Moraes had taken affect and claimed that the
Federal Reserve must be informed "of any intention by any shareholders to nominate any
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additional directors to the board of the Company prior to the formal appointment of such
individuals." See Ex. 14, pp. 1-3.
29. On March 31, 2022, Triay Lawyers Limited, acting at my instruction, sent a letter
to SNBNY, a copy of which is annexed hereto as Exhibit 15. The letter reiterated that my
appointment of Mr. Moraes was validly exercised and that SNBNY' s refusal to recognize my
appointment based on pending regulatory approval was merely a pretextual excuse. See Ex. 15,
p. 2. SNBNY did not respond to this letter.
VI. THE PRESENT ACTION
30. On May 10, 2022, I filed a request for arbitration with the London Court of
International Arbitrators against my family members Vicky, Jacob, David, and Esther, and two
Safra Group assets: SNBNY and JS International Holdings Limited (the "London Arbitration").
The relief requested in the present motion-that SNBNY, its directors and my family members
recognize my appointment of Mr. Moraes to the SNBNY board-was included among the London
Arbitration requests. 2 Following SNBNY's objection to jurisdiction in the arbitration, however,
the parties agreed that claims regarding SNBNY would be withdrawn from the London
Arbitration.
31. FGllowing the parties' agreement to withdraw claims regarding SNBNY from the
London Arbitration, on February 6, 2023, I commenced the present action.
VII. THE BRAZILIAN INJUNCTION
32. On February 14, 2023, in a Brazilian proceeding regarding the rights of the directors
that I appointed to Banco Safra's board, the Court of Justice of the State of Sao Paulo granted a
2
My family similarly thwarted my attempts to appoint a director to the board of JS
International Holdings Limited. Recognition of my director appointment at JS International
Holdings Limited was also included among the London Arbitration requests.
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preliminary injunction in favor of the directors that I had appointed to Banco Safra, Andre Franco
de Moraes and Ricardo Chol bi Tepedino, against Banco Safra. A certified translated copy of the
request for preliminary injunction is annexed hereto as Exhibit 16. A certified translated copy of
the February 14, 2023 ruling of the Court of Justice of Sao Paulo is annexed hereto as Exhibit 17.
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I affirm this third day of March 2023, in Sao Paulo, Brazil, under the penalties of perjury under
the laws of New York, which may include a fine or imprisonment, that I am physically located
outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin
Islands, or any territory or insular possession subject to the jurisdiction of the United Sta es, that
the foregoing is true, and I understand that the foregoing may be used in an action
in a court of law.
Dated: March 3, 2023
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CERTIFICATION OF COMPLIANCE WITH WORD LIMIT
I certify that this affirmation complies with the 7 ,000-word limit under Commercial
Division Rule 17. This affirmation was prepared using Microsoft Word, and based on Microsoft
Word's word count function, the total number of words in this affirmation, including of point
headings and footnotes and exclusive of the caption and signature block is 3316.
Dated: March 3, 2023
New York, New York Jonathan B. Oblak
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Preview
FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/03/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ALBERTO JOSEPH SAFRA, Plaintiff, Index No.: 650710/2023 -against- AFFIRMATION OF ALBERTO JOSEPH SAFRA SNBNY HOLDINGS LIMITED, CARLOS ALBERTO VIEIRA, CARLOS CESAR BERTACO BOMFIM, SIMONI PASSOS MORATO, VICKY SAFRA, JACOB JOSEPH SAFRA, AND DAVID JOSEPH SAFRA, Defendants. Alberto Joseph Safra hereby affirms the following under the penalties of perjury and pursuant to CPLR Section 2106: 1. I am a businessman based in Brazil and the son and legal heir of Mr. Joseph Yacoub Safra. 1 From 2006 to 2019, I was one of the executive management leaders at Banco Safra S.A. ("Banco Safra") .. In 2019, I founded ASA Investments, a multi-strategy asset management fund, of which I am currently Chief Executive Officer. I submit this affirmation in support of my motion for an Order enjoining Defendants SNBNY Holdings Limited ("SNBNY"), Carlos Alberto Vieira, Carlos Cesar Bertaco Bomfim, Simoni Passos Morato, Vicky Safra, Jacob Joseph Safra, and David Joseph Safra from preventing recognition of my appointed or elected director to SNBNY' s board 1 My father, Mr. Joseph Safra ("Joseph") was married to my mother, Vicky Safra ("Vicky"), and my parents had 4 children: (i) myself, (ii) Jacob Joseph Safra ("Jacob"), (iii) Esther Safra Dayan ("Esther") and (iv) David Joseph Safra ("David"). 1 of 13 FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/03/2023 of directors, pursuant to SNBNY's Articles of Association (the "Articles"). A copy of the Articles is annexed hereto as Exhibit 1. 2. As explained below, Defendants have acknowledged that, based on the terms of the Articles, SNBNY is obligated to recognize the appointment of my director to SNBNY's board of directors. However, Defendants have refused to recognize that appointment, despite the fact that I have taken the requisite actions to exercise my right to appoint a director. I. FAMILY AND BUSINESS BACKGROUND 3. Our family-the Safra family-originated in Lebanon and Syria and immigrated to Brazil in 1952. In 1955, my late father, Joseph Safra, founded Banco Safra, which is headquartered in Sao Paulo, Brazil, and has become one of the largest private banks in Latin America and is now part of the Safra Group. Joseph Safra served as the leader of the Safra Group from 1963 until his death on December 10, 2020. In addition to Banco Safra, the Safra Group's holdings include, among other entities, SNBNY, a holding company for Safra National Bank of New York, a nationally chartered United States bank headquartered in New York City. The Safra Group's diverse portfolio includes finance, real estate, and agribusiness companies. Vicky, Jacob, Esther, and David, and I are all joint heirs to the Safra Group. 4. I joined the management of the Safra Group in 2004 and helped lead Banco Safra beginning in 2006. My work was consistently appreciated by bank management, including my father, Joseph Safra. 5. In 2008, approximately four years after I joined the management of the Safra Group, my brother David also joined the management of Banco Safra. II. MY FAMILY PUSHES ME OUT OF THE FAMILY BUSINESS 2 2 of 13 FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/03/2023 6. Since 2008, when he joined the management of Banco Safra, my brother David never accepted the role that our father selected for him. David wanted to increase his control over areas of the bank for which I was responsible. David's ambition for more power and influence were damaging to Banco Safra, resulting in increased costs and a loss of synergies, coordination, and administrative efficiency. David and I began to have substantial professional and personal disagreements. These disagreements were ordinarily resolved by our father, Joseph Safra, who valued my leadership and upheld the previously defined division of responsibilities. 7. My father battled a number of health ailments during the later stages oflife, and his decline became increasingly evident over the second half of 2019. During the course of my father's medical treatments, my family members, including my mother, my siblings, and myself, exchanged electronic group chat messages on the WhatsApp platform to discuss the deterioration of my father's physical and mental state. Some of his physicians in Brazil were included in or referenced during these conversations to discuss my father's array of physical and neurological ailments, as well as the heavy medications prescribed to him. 8. When my father's health deteriorated significantly in 2019, the disagreements between me and David deepened and intensified. The absence of my father's leadership substantially changed the dynamics of the family's decision-making at the bank, and my father became increasingly unable to ensure a unified working environment and prevent David's campaign to oust me from my management role at Banco Safra. These circumstances gradually led to the reduction ofmy management powers to the point that I was precluded from performing my functions at the bank. I had no option but to leave the management of Banco Safra in October 2019, remaining only as a shareholder in the company. I subsequently began to devote myself to 3 3 of 13 FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/03/2023 my personal projects, including founding ASA Investments, a multi-strategy asset management company that operates a wide range of investment funds, with offices in Sao Paulo and New York. III. DEFENDANTS ACT COLLECTIVELY TO DILUTE MY INTEREST 9. Following my departure from Banco Safra, certain family members continued their consolidation of power by opposing my attempts to visit my father. They isolated me from the various family businesses, and, as I later found out, attempted to dilute my interest and harmed my rights in Safra Group companies, including SNBNY. 10. In December of 2019, following a range of suspicious financial and accounting maneuvers by SNBNY, my shareholding interest in SNBNY was significantly diluted through improper resolutions, purportedly executed by my father, who was severely cognitively impaired at the time. To my knowledge, these acts were apparently undertaken without proper board approvals. Instead, these acts were undertaken by my brothers David and Jacob and my mother, Vicky. Their actions resulted in the improper reduction of my shareholding interest and voting rights in SNBNY from approximately 15.5% to approximately 7.4%. In addition, as a result of the dilution, I lost my right, under the Articles to: (1) block the exercise of various powers conferred on the holder of 90% of the voting shares; (2) prevent the other shareholders, acting together, from delegating power of the director to a committee; and (3) appoint a second director to SNBNY's board of directors. The current directors of SNBNY, Defendants Carlos Alberto Vieira, Carlos Cesar Bertaco Bomfim, and Simoni Passos Morato, assisted my brothers and mother with their actions against me, have been working for the Safra Group for many years, and have a direct relationship of trust with my brothers and mother. A copy of SNBNY's Written Resolutions of the Sole Member of the Company Entitled to Vote, dated December 4, 2019, which were used to dilute my ownership share of SNBNY, are annexed hereto as Exhibit 2. In connection with and 4 4 of 13 FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/03/2023 following these acts undertaken to dilute my interest in SNBNY, the company engaged in numerous suspect financial maneuvers that appeared to be conducted for the purpose of facilitating that dilution. 11. SNBNY's 2018 audited consolidated financial statements, dated December 19, 2019, are annexed hereto as Exhibit 3. It is my understanding that these were prepared according to U.S. GAAP accounting standards. 12. In November 2019, SNBNY reportedly decided to switch from the U.S. GAAP accounting standard to the International Financial Reporting Standards ("IFRS") for the preparation of its financial statements. See Ex. 3, p. 55. SNBNY provided no explanation for the sudden change. Id. 13. SNBNY's 2019 audited financial statements, dated June 24, 2021, are annexed hereto as Exhibit 4. Although SNBNY's 2019 audited financial statements purport to have been prepared in accordance with IFRS, the notes state that the financial statements "do not reflect all the requirements of [the IFRS] framework." Ex. 4, p. 8. They also do not include any comparative account of asset values, under either US GAAP or IFRS, relative to SNBNY' s 2018 position. See Ex. 4. A copy of SNBNY's 2019 audited consolidated financial statements, which were not filed until June 28, 2021, are annexed hereto as Exhibit 5. A copy of Safra National Bank of New York's 2019 annual report is annexed hereto as Exhibit 6. 14. In 2019, SNBNY reported a substantial, unexplained jump in income of $872,116,000, on the purported basis of "changes in fair value of subsidiaries." See Ex. 4, p. 6. As a result, SNBNY's total equity more than doubled to $1,674,571,000. Id. Notably, in 2019, SNBNY's main subsidiary, Safra National Bank of New York, experienced a modest decrease in profits from the previous year, from $92,998,000 to $78,999,000, undermining any economic basis 5 5 of 13 FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/03/2023 for the dramatic increase in income reported by SNBNY. See Ex. 6, p. 4. It is my belief that this increase in income was used to enable SNBNY and my family members to pass a series of resolutions that could be used to dilute my interest in SNBNY. Although this occurred in 2019, I was not told of the transactions at the time, and SNBNY did not disclose the increase in income in its financial filings until June 24, 2021, when it finally filed its 2019 audited financial statements. 15. A copy of SNBNY's Financial Position and Organization Chart, dated December 31, 2020, is annexed hereto as Exhibit 7. In 2020, one year after SNBNY reported the aforementioned increase in income caused by a change in the value of its subsidiaries, SNBNY inexplicably reported a "loss from revaluation on subsidiaries" of $325,040,528, representing almost half the amount of the prior year's write up. See Ex. 7, p. 1-2. SNBNY did not provide any rationale for the write down in 2020, which was unsupported by the actual performance of SNBNY' s primary asset, Safra National Bank of New York. 16. A copy of SNBNY's 2020 audited consolidated financial statements, which were not filed until January 31, 2022, are annexed hereto as Exhibit 8. As of February 1, 2023, SNBNY has not yet filed audited financial statements for 2021. 17. A copy of SNBNY' s June 30, 2021 quarterly filing with the Federal Reserve is annexed hereto as Exhibit 9. Prior to this filing, SNBNY's regulatory filings did not reflect the changes to SNBNY caused by SNBNY's 2019 reported increase in income, or SNBNY's 2019 transactions that diluted my interest in SNBNY. 18. In 2020, while SNBNY wrote down the fair value of its subsidiaries, SNBNY's principal subsidiary-Safra National Bank of New York-had total income increase, as compared to 2019. A copy of Safra National Bank of New York's 2020 annual report is annexed hereto as 6 6 of 13 FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/03/2023 Exhibit 10. In 2019, consolidated profit for Safra National Bank of New York was $78,999,000; by 2020, it was $79,759,000. See Ex. 10, p. 43. 19. Based on interim disclosures provided to me by SNBNY, in 2021, the reported value of SNBNY appears to have significantly declined even further. 20. Without my appointed director, I am unable to exercise control over SNBNY, effectively oversee its operations, or allow my appointed representative to access governance information which may shed light on SNBNY' s financial irregularities. IV. MY RIGHT TO APPOINT A DIRECTOR TO SNBNY'S BOARD OF DIRECTORS 21. The Articles, which govern the conduct of SNBNY, provide that I can appoint a director to SNBNY's board of directors. Article 61(a) of the Articles, provides as follows: Each Significant Shareholder shall, for so long as it remains a Significant Shareholder, have the right at any time to elect a number of Directors (who qualify to act as such under Article 53) equal to the number obtained by (1) first dividing the number of votes that such Significant Shareholder is entitled to cast based on the Voting Shares then owned by that Significant Shareholder by the total number of votes that all Shareholders are entitled to cast based on the Voting Shares that are then in issue, (2) second, dividing the quotient from the preceding clause (1) by seventy-two one- thousandths (.072) while Vicky is alive, and by eighty-five one- thousandths (.085) after Vicky is no longer alive, and (3) if the quotient from the preceding clause (2) is not a whole number, then rounding the resulting quotient down to the nearest whole number . See Ex. 1, art. 61(a). 22. A copy ofSNBNY's register of members and share ledger, which provides a record of SNBNY' s shareholders, is annexed hereto as Exhibit 11. At the time of my father's death, on December 10, 2020, my father (or his estate) held 1,273 Class A shares in SNBNY, my brothers David and Jacob each held 73,219,342 Class B shares, my sister Esther held 33,226,416 Class B shares, and I held 28,000,000 Class B shares. See Ex. 11, pp. 1, 13-17. 7 7 of 13 FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/03/2023 23. My father's death constituted a "Class B Trigger Event" under the Articles, causing the 28,000,000 Class B Shares I held to become "Voting Shares." Article 1 of the Articles defines these terms as follows: "Class B Trigger Event" shall mean the death of [Joseph]; "Voting Shares" shall mean (x) prior to the occurrence of the Class B Trigger Event, the Class A Shares only, (y) after the occurrence of the Class B Trigger Event and prior to the occurrence of the Class A Redemption Event, the Class A Shares and the Class B Shares, and (z) after the occurrence of the Class A Redemption Event, the Class B Shares only; "Class A Redemption Event" shall mean the later to occur of (x) the death of [Joseph] and (y) the death of [Vicky]; See Ex. 1, art 1. 24. Beginning at the time of my father's death, there were 377,610,600 maximum number of votes entitled to be cast by the holders of all Voting Shares then in issue. See Ex. 11. As a Shareholder owning 28,000,000 Voting Shares, at the time of my father's death, I became entitled to cast approximately 7.4% of the maximum number of votes then in issue. This qualified me as a "Significant Shareholder" under the Articles, as a Shareholder owning Voting Shares entitling me to cast more than 7 .2% of the maximum number of votes entitled to be cast by the holders of all Voting Shares then in issue. Article 1 of the Articles defines "Significant Shareholder" as follows: at any time, any Shareholder who owns Voting Shares that entitle such Shareholder to cast, while Vicky is alive, at least 7.2% (seven and two- tenths of a percent) of the maximum number of votes then entitled to be cast by the holders of all Voting Shares then in issue, and after Vicky is no longer alive, at least 8.5% (eight and five-tenths of a percent) of the maximum number of votes then entitled to be cast by the holders of all Voting Shares then in issue See Ex. 1, art 1. 8 8 of 13 FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/03/2023 25. Based on my status as a Significant Shareholder with approximately 7.4% of the maximum number of total votes, I may appoint one director to SNBNY' s board under Article 61(a). Had my interest in SNBNY not been improperly diluted from approximately 15.5% of the maximum number of total votes prior to my father's death, I would have been entitled to appoint two directors to SNBNY. V. DEFENDANTS' REFUSAL TO RECOGNIZE MY DIRECTOR APPOINTMENT 26. I first attempted to exercise my right to appoint a director on June 7, 2021, when Triay Lawyers Limited, a Gibraltar law firm, acting at my instruction, sent a letter to SNBNY, a copy of which is annexed hereto as Exhibit 12. The letter notified SNBNY of my election and appointment of Mr. Andre Franco de Moraes as a director of SNBNY, with such appointment being effective on and from 11:59 pm on June 7, 2021. See Ex. 12, p. 1-2. 27. In response, on July 2, 2021, Peter Caruana & Co., acting at the instruction of SNBNY, sent a letter to Triay Lawyers Limited, a copy of which is annexed hereto as Exhibit 13. The letter acknowledged that I was "entitled to elect 1 board director based on [my] shareholding and applying the formula set out in article 61(a)." See Ex. 13, p. 4. However, SNBNY claimed that such appointment had yet to become effective, and that it received "advice from lawyers in the United States" that controlling persons in SNBNY must be "approved by the Federal Reserve" before properly nominating and appointing directors, in reference to the Safra Family's pending application before the Federal Reserve to retain control of SNBNY. See Ex. 13, pp. 4-5. 28. On July, 5, 2021, Hassans law firm, acting on behalf of Vicky, Jacob, and David, sent a letter to Triay Lawyers Limited, a copy of which is annexed hereto as Exhibit 14. The letter rejected the contention that my appointment of Mr. Moraes had taken affect and claimed that the Federal Reserve must be informed "of any intention by any shareholders to nominate any 9 9 of 13 FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/03/2023 additional directors to the board of the Company prior to the formal appointment of such individuals." See Ex. 14, pp. 1-3. 29. On March 31, 2022, Triay Lawyers Limited, acting at my instruction, sent a letter to SNBNY, a copy of which is annexed hereto as Exhibit 15. The letter reiterated that my appointment of Mr. Moraes was validly exercised and that SNBNY' s refusal to recognize my appointment based on pending regulatory approval was merely a pretextual excuse. See Ex. 15, p. 2. SNBNY did not respond to this letter. VI. THE PRESENT ACTION 30. On May 10, 2022, I filed a request for arbitration with the London Court of International Arbitrators against my family members Vicky, Jacob, David, and Esther, and two Safra Group assets: SNBNY and JS International Holdings Limited (the "London Arbitration"). The relief requested in the present motion-that SNBNY, its directors and my family members recognize my appointment of Mr. Moraes to the SNBNY board-was included among the London Arbitration requests. 2 Following SNBNY's objection to jurisdiction in the arbitration, however, the parties agreed that claims regarding SNBNY would be withdrawn from the London Arbitration. 31. FGllowing the parties' agreement to withdraw claims regarding SNBNY from the London Arbitration, on February 6, 2023, I commenced the present action. VII. THE BRAZILIAN INJUNCTION 32. On February 14, 2023, in a Brazilian proceeding regarding the rights of the directors that I appointed to Banco Safra's board, the Court of Justice of the State of Sao Paulo granted a 2 My family similarly thwarted my attempts to appoint a director to the board of JS International Holdings Limited. Recognition of my director appointment at JS International Holdings Limited was also included among the London Arbitration requests. 10 10 of 13 FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/03/2023 preliminary injunction in favor of the directors that I had appointed to Banco Safra, Andre Franco de Moraes and Ricardo Chol bi Tepedino, against Banco Safra. A certified translated copy of the request for preliminary injunction is annexed hereto as Exhibit 16. A certified translated copy of the February 14, 2023 ruling of the Court of Justice of Sao Paulo is annexed hereto as Exhibit 17. 11 11 of 13 FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/03/2023 I affirm this third day of March 2023, in Sao Paulo, Brazil, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that I am physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United Sta es, that the foregoing is true, and I understand that the foregoing may be used in an action in a court of law. Dated: March 3, 2023 12 12 of 13 FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/03/2023 CERTIFICATION OF COMPLIANCE WITH WORD LIMIT I certify that this affirmation complies with the 7 ,000-word limit under Commercial Division Rule 17. This affirmation was prepared using Microsoft Word, and based on Microsoft Word's word count function, the total number of words in this affirmation, including of point headings and footnotes and exclusive of the caption and signature block is 3316. Dated: March 3, 2023 New York, New York Jonathan B. Oblak 13 13 of 13