Preview
FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 03/03/2023
EXHIBIT 13
FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 03/03/2023
PETER CARUAP4A & Co
BARRIS IL RS &S0IICI IORS
Suite 933, Europo氏 Gibratar
十350 200 65799 / info@caruaria习
Www、 caru3na习i
By email and by hand delivery
Triay Lawyers
28 Irish Town
Gibraltar
For the attention of Alan Buchanan
2 July 2021
Dear Sirs,
Ref: SNBNY Holdings Limited
We are instructed by SNBNY Holdings Limited（小e 'Company').
We refer to your letters dated 7th June 2021 and 9th June 2021 (toge出er "your letters")
in which, among other things, you request certain information and documents on
behalf of your client, Albert时oseph Safra ('AJS').
Your requests for information
We acknowledge 出at your letters are formulated as requests, but they nevertheless
tend to convey a sense of entitlement on AJS's part to receive the requested
information and documents, and a corresponding obligation on the Company's part
to provide it. These things are true only of some of what you request. In this letter we
clani勿 the distinction between the two, as the Company sees it. If your client considers
otherwise, please specify the legal basis on which he does so, for our client's further
consideration.
In relation to that information and/or documents which the Company considers that
AJS is not legally entitled to receive, or the Company obliged to provide, the directors
will (in necessarily slower order) consider, by reference to the Company's interests,
whether or not the Company is nevertheless minded to provide it. This may result in
you receiving additional information shortly.
That said, the Company does not accept that the requests can be justified by reference
to your stated reason, namely, "to ensure that Lyourll client can adequately exercise his
rights and/or entitlements with respect to SNUNY and/or its Subsidiaries, both
pursuant to the Articles of Association and/or any and all applicable law". Please
丁卜elton. Sir PetorC,ru,no K.C.M.众，Q.C Chrsto的erAIIin LL.B (Hons) Pitrick Caru,n 刁 LLB 峨 Hons)
PkU( ・ i ！「“ "J' ra.gi chrisaiian@can.i口na.gi patriCk@cnrunn月 gi
Geor口比nDobbsBA(Hons) Ph山p Dumas BA (Hcn5)
gnorgln&dobb 姻‘amana;gi philip油inias@caruana.乡
FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 03/03/2023
PETER CARUANA & CO
specify (i) which such rights your client claims to enjoy and (ii) what provision of the
Articles or the law support his contention in that respect.
Each item requested is addressed below:
上（二Oinplete corporate organisation c/ia珠 indicating all direct and indirect interests held by
SN召 N丫 and by any one or more of its subsidiaries
The Company is not under an obligation to provide AJS with a corporate
orgariisation chart. Nor is it obliged to indicate all direct and indirect interests held
by 出e Company save to the extent that this information is required to be include氏
and is included, in the Company's balance sheet and/or audited reports, on which
see point 5 below.
2. All corporate acts and resolutions of SNBN丫 and of each of its Subsidiaries performed
over the last 4 years, include, in particular but without limitation to the generality of the
foregoing, resolution to create, issue, reclassify, sub-divide, consolidate, forfeit, cancel,
surrender, purchase, transfer, transmit and/or 巧sue shares whether at par at a premium
and/or otherwise, and to make and/or declare distributions of whatsoever nature.
材S is entitled to inspect the minutes book of proceedings of any general meeting
of the Company. However, this does not extend to the Company's subsidiaries.
You should make arrangements for such inspection with the Company Secretary,
who will also agree to provide you with copies.
3. All documents (including memoranda and/or articles of association, shareholders'
agreemen 亡 and other similar/analogous documents, and respective amendments, relating
勿 (i) voting rights; (ii) conduct and management of companies etc.; and (iii) distributions
of profits and/or by SNBNY and each of its subsidiaries
We enclose a copy of the Company's Memorandum and Articles of Association.
AJS is not entitled to a copy of the same in respect of the Company's subsidiaries.
We confirm that there is no shareholders agreement 讯 place to which the
Company is privy.
AJS does not have any ri沙t to receive information about the conduct and
management of the Company other than to such information as is provided by
出e Directors to the shareholders at a shareholders' meeting, and to such
information as is disclosed in the Directors' report and/or financial statements
The distributions of profits by the Company will be visible to 盯S upon inspection
of the shareholders' minutes and resolutions, however this will not include any
interim dividend payments, which are decided by the board of directors.
Wi出 regards to 小e Company's subsidiaries, 叮S is only entitled to the
information that is contained in the group's financial statements, on which see
point 5 below.
Page 2 of 5
FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 03/03/2023
PETER CARUANJA &CO
4. 几 complete list 咖ii other board members (or equivalents) of SBNBYand each of its
subsidiaries
习S is entitled to inspect the Register of Directors at the registered address. We
understand that you have already requested to do this on his behalf and confirm
that the Company does not object to that request. The Company is not obliged to
state who the directors of its subsidiaries are.
5. 八 list of all transactions carried out between SNBNY and/or itsSubsidiaries and any
related and/or connect parties of the last 4 years
The Company is not required to set out a list of all transactions it may have entered
into with a connected party.In any event, the audited financial statements of the
Company will include a section on connected party transactions to the extent that
they have occurred.
6. Financial statements of SBNBY and each of its subsidiaries 户r the last 4 years
We hereby enclose the Company's consolidated financial statements for the years
2016-2019, and the Company's standalone financial statement for the year ended
31 December 2019,
又 A full description of, and detailed information in respect of, any and all dividens and/or
distributions declared and/or made by SNBNY and/or any one or more of its Subsidiaries
at any time(s加ver the last4years
AJS will have visibility of all dividends paid by the Company from the
shareholders' minutes and resolutions (to the extent 出ey were declared by a
shareholders' resolution rather than declared as interim dividends by 出e board
of directors). 材S is not entitled to the same information in respect of the
subsidiary companies, however distributions, received from subsidiaries will be
reflected in the Company's consolidated financial statements.
Compliance with article 79
The Company confirms that it shall comply with article 79 of the Articles and convene
a general meeting. AJS shall receive the required notice of the same in due course.
Appointment of a director
The Company agrees that the circumstances required for AJS to exercise his ri沙ts
(such as they may be) under article 61 of the Articles have been met, namely:
a) The Class B Trigger Event has occurred;
b) One or more of the Permitted Transferees (as defined in the articles) directly or
indirectly legally or beneficially own any Voting Share in issue that entitle
Page 3 of 5
FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 03/03/2023
PETER CARUANA & Co
them in aggregate to cast at least a majori妙 of the maximum number of votes
then entitled to be cast by the holders of all 出e Voting Shares then in issue;
c) AJS is a Significant Shareholder (as defined in the Articles of Association)
The Company further accepts that 习S is entitled to elect I director based on his
shareholding and applying the formula set out in article 61(a). However, your
contention that Mr Moraes's appointment has already taken effect is denied. The
Company's position is that the proper interpretation of article 61 is that it sets out the
number of directors that each Significant Shareholder is entitled to elect based on their
shareholding. It does not comprise the procedure or process for the appointment of
directors to the Company, whether by virtue of a right set out 认 that Article or
otherwise. This is reflected by the fact that article 61 refers to the right to "elect" a
director to the board as opposed to the ri沙t to "appoint" a director to the board.
The procedure which governs the appointment of a director is that set out in article 55,
which reads:
"Subject 勿 article 61, the Company may 加” 2time 勿 time in general meeting increase or
reduce the number of DirectorsrSubject 勿 Article 61, Directors shall only be capable of
being appointed to the Board by Ordinary Resolution.Subject to Article 61, any casual
vacancy occuthng in the board of Directors may only be filled by an ordinary resolution.
Article19of the Model Articles shall be deemed 勿 be amended accordingly"
Article 55 requires Directors to be appointed at general meetings. The use of the words
"su场ect to article 61" throughout is intended to ensure that the general power to
appoint directors under article 55 is curtailed by the restrictions and ri沙ts of election
set out in article 61. 印ecifically, the restriction set out in article 61(c), which reads:
"At any time when the Significant Shareholders have the rig/it to elect Directors
pursuant to Article6了 (a), neither the Board nor the Shareholders may vote any of their
Shares, or take any other action, to change the size of the Board except as necessary to
cause the number of Directors constituting the entire Board 亡口 equal the aggregate
凡 umber of Directors that the Significant Shareholders are entitled 勿 elect at such time
pursuant 亡。article62(a尸
This provision is intended to ensure the general power under article 55 is not used to
frustrate the regime set out 加 article 61, which is designed to spread 比e control of 由e
company via directorship appointments in accordance with each member's
shareholding. It is not intended to render article 61 as an exception to the proper
process and procedure for appointing a director the Company.
The Company's position is that article 61 does not provide a mechanism whereby
Significant Shareholders directly appoint directors without intervention of the board
or shareholders in general meeting. Whatever may be the extent of lack of clani妙 in
the drafting of those provisions in the Articles, the Company is confident that a court
would prefer that view to the contrary view for which your client contends. It follows
that Mr Moraes has not yet been appointed as a director of the Company.
Page 4 of S
FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 03/03/2023
PETER CARUANA&Co
Regardless of what we say above, the Company would urge 村S to have regard to the
interests of the Company, and all its shareholders (including 习5), as the directors
must do. Your client is aware of the regulatory Notices that have been filed in the
United States, given the Company's status as holding company of a US bank. We are
instructed that the Notices filed with the Federal Reserve are still pending because
小ey are incomplete. We also understand the shareholders (including 材S) must still
provide information (personal details, financial details and other data) to the Federal
reserve and commit to provide it with additional information as required in order to
be approved by 比e Federal Reserve as controlling persons of the Company.
We are instructed that the Company is also in receipt of advice from lawyers in the
United States to the effect that any change to the Board of Directors of the Company
must be similarly notified to the Federal Reserve, and should not occur until approved
Only once approved as controlling persons of the Company can the shareholders
properly nominate and appoint directors to the Company's board subject to the
approval of the Federal Reserve.
Our client is confident that 坷S will not wish to exercise his rights in manner that will
place the Company, and its subsidiary in jeopardy of the Federal Reserve.
The Special Resolution
With specific reference to your letter dated 9呵une 2021, the Company r肖ects all your
allegations that there may have been some improprie妙，failure to comply with
required notice or other requirements or breach of any right enjoyed by AJS. Please
note in this regard that on the 4th December 2019, the Class B Trigger Event had not
yet occurred, and that your client enjoyed none of the rights that you claim may have
been violated. This includes (but is not 'imited to) the fact that, in accordance with
article 6.6, 习S had no right to vote at any shareholder meeting or to receive notice
thereof, or to vote on any consensual written resolution of the shareholders.
We acknowledge on behalf of the Company that a resolution to increase the share
capital of the Company was passed on the 4t1 December 2019, by Mr 扣seph Safra, as
he was entitled to do without the participation of or account to AJS.
As you copied your letters to the other shareholders of the Company. we too are
copying this letter to them though their Gibraltar lawyers, Hassans.
Yours faithfull 孰～／歹“
Peter Caruana&Co.
Page 5 of 5
Preview
FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 03/03/2023 EXHIBIT 13 FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 03/03/2023 PETER CARUAP4A & Co BARRIS IL RS &S0IICI IORS Suite 933, Europo氏 Gibratar 十350 200 65799 / info@caruaria习 Www、 caru3na习i By email and by hand delivery Triay Lawyers 28 Irish Town Gibraltar For the attention of Alan Buchanan 2 July 2021 Dear Sirs, Ref: SNBNY Holdings Limited We are instructed by SNBNY Holdings Limited（小e 'Company'). We refer to your letters dated 7th June 2021 and 9th June 2021 (toge出er "your letters") in which, among other things, you request certain information and documents on behalf of your client, Albert时oseph Safra ('AJS'). Your requests for information We acknowledge 出at your letters are formulated as requests, but they nevertheless tend to convey a sense of entitlement on AJS's part to receive the requested information and documents, and a corresponding obligation on the Company's part to provide it. These things are true only of some of what you request. In this letter we clani勿 the distinction between the two, as the Company sees it. If your client considers otherwise, please specify the legal basis on which he does so, for our client's further consideration. In relation to that information and/or documents which the Company considers that AJS is not legally entitled to receive, or the Company obliged to provide, the directors will (in necessarily slower order) consider, by reference to the Company's interests, whether or not the Company is nevertheless minded to provide it. This may result in you receiving additional information shortly. That said, the Company does not accept that the requests can be justified by reference to your stated reason, namely, "to ensure that Lyourll client can adequately exercise his rights and/or entitlements with respect to SNUNY and/or its Subsidiaries, both pursuant to the Articles of Association and/or any and all applicable law". Please 丁卜elton. Sir PetorC,ru,no K.C.M.众，Q.C Chrsto的erAIIin LL.B (Hons) Pitrick Caru,n 刁 LLB 峨 Hons) PkU( ・ i ！「“ "J' ra.gi chrisaiian@can.i口na.gi patriCk@cnrunn月 gi Geor口比nDobbsBA(Hons) Ph山p Dumas BA (Hcn5) gnorgln&dobb 姻‘amana;gi philip油inias@caruana.乡 FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 03/03/2023 PETER CARUANA & CO specify (i) which such rights your client claims to enjoy and (ii) what provision of the Articles or the law support his contention in that respect. Each item requested is addressed below: 上（二Oinplete corporate organisation c/ia珠 indicating all direct and indirect interests held by SN召 N丫 and by any one or more of its subsidiaries The Company is not under an obligation to provide AJS with a corporate orgariisation chart. Nor is it obliged to indicate all direct and indirect interests held by 出e Company save to the extent that this information is required to be include氏 and is included, in the Company's balance sheet and/or audited reports, on which see point 5 below. 2. All corporate acts and resolutions of SNBN丫 and of each of its Subsidiaries performed over the last 4 years, include, in particular but without limitation to the generality of the foregoing, resolution to create, issue, reclassify, sub-divide, consolidate, forfeit, cancel, surrender, purchase, transfer, transmit and/or 巧sue shares whether at par at a premium and/or otherwise, and to make and/or declare distributions of whatsoever nature. 材S is entitled to inspect the minutes book of proceedings of any general meeting of the Company. However, this does not extend to the Company's subsidiaries. You should make arrangements for such inspection with the Company Secretary, who will also agree to provide you with copies. 3. All documents (including memoranda and/or articles of association, shareholders' agreemen 亡 and other similar/analogous documents, and respective amendments, relating 勿 (i) voting rights; (ii) conduct and management of companies etc.; and (iii) distributions of profits and/or by SNBNY and each of its subsidiaries We enclose a copy of the Company's Memorandum and Articles of Association. AJS is not entitled to a copy of the same in respect of the Company's subsidiaries. We confirm that there is no shareholders agreement 讯 place to which the Company is privy. AJS does not have any ri沙t to receive information about the conduct and management of the Company other than to such information as is provided by 出e Directors to the shareholders at a shareholders' meeting, and to such information as is disclosed in the Directors' report and/or financial statements The distributions of profits by the Company will be visible to 盯S upon inspection of the shareholders' minutes and resolutions, however this will not include any interim dividend payments, which are decided by the board of directors. Wi出 regards to 小e Company's subsidiaries, 叮S is only entitled to the information that is contained in the group's financial statements, on which see point 5 below. Page 2 of 5 FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 03/03/2023 PETER CARUANJA &CO 4. 几 complete list 咖ii other board members (or equivalents) of SBNBYand each of its subsidiaries 习S is entitled to inspect the Register of Directors at the registered address. We understand that you have already requested to do this on his behalf and confirm that the Company does not object to that request. The Company is not obliged to state who the directors of its subsidiaries are. 5. 八 list of all transactions carried out between SNBNY and/or itsSubsidiaries and any related and/or connect parties of the last 4 years The Company is not required to set out a list of all transactions it may have entered into with a connected party.In any event, the audited financial statements of the Company will include a section on connected party transactions to the extent that they have occurred. 6. Financial statements of SBNBY and each of its subsidiaries 户r the last 4 years We hereby enclose the Company's consolidated financial statements for the years 2016-2019, and the Company's standalone financial statement for the year ended 31 December 2019, 又 A full description of, and detailed information in respect of, any and all dividens and/or distributions declared and/or made by SNBNY and/or any one or more of its Subsidiaries at any time(s加ver the last4years AJS will have visibility of all dividends paid by the Company from the shareholders' minutes and resolutions (to the extent 出ey were declared by a shareholders' resolution rather than declared as interim dividends by 出e board of directors). 材S is not entitled to the same information in respect of the subsidiary companies, however distributions, received from subsidiaries will be reflected in the Company's consolidated financial statements. Compliance with article 79 The Company confirms that it shall comply with article 79 of the Articles and convene a general meeting. AJS shall receive the required notice of the same in due course. Appointment of a director The Company agrees that the circumstances required for AJS to exercise his ri沙ts (such as they may be) under article 61 of the Articles have been met, namely: a) The Class B Trigger Event has occurred; b) One or more of the Permitted Transferees (as defined in the articles) directly or indirectly legally or beneficially own any Voting Share in issue that entitle Page 3 of 5 FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 03/03/2023 PETER CARUANA & Co them in aggregate to cast at least a majori妙 of the maximum number of votes then entitled to be cast by the holders of all 出e Voting Shares then in issue; c) AJS is a Significant Shareholder (as defined in the Articles of Association) The Company further accepts that 习S is entitled to elect I director based on his shareholding and applying the formula set out in article 61(a). However, your contention that Mr Moraes's appointment has already taken effect is denied. The Company's position is that the proper interpretation of article 61 is that it sets out the number of directors that each Significant Shareholder is entitled to elect based on their shareholding. It does not comprise the procedure or process for the appointment of directors to the Company, whether by virtue of a right set out 认 that Article or otherwise. This is reflected by the fact that article 61 refers to the right to "elect" a director to the board as opposed to the ri沙t to "appoint" a director to the board. The procedure which governs the appointment of a director is that set out in article 55, which reads: "Subject 勿 article 61, the Company may 加” 2time 勿 time in general meeting increase or reduce the number of DirectorsrSubject 勿 Article 61, Directors shall only be capable of being appointed to the Board by Ordinary Resolution.Subject to Article 61, any casual vacancy occuthng in the board of Directors may only be filled by an ordinary resolution. Article19of the Model Articles shall be deemed 勿 be amended accordingly" Article 55 requires Directors to be appointed at general meetings. The use of the words "su场ect to article 61" throughout is intended to ensure that the general power to appoint directors under article 55 is curtailed by the restrictions and ri沙ts of election set out in article 61. 印ecifically, the restriction set out in article 61(c), which reads: "At any time when the Significant Shareholders have the rig/it to elect Directors pursuant to Article6了 (a), neither the Board nor the Shareholders may vote any of their Shares, or take any other action, to change the size of the Board except as necessary to cause the number of Directors constituting the entire Board 亡口 equal the aggregate 凡 umber of Directors that the Significant Shareholders are entitled 勿 elect at such time pursuant 亡。article62(a尸 This provision is intended to ensure the general power under article 55 is not used to frustrate the regime set out 加 article 61, which is designed to spread 比e control of 由e company via directorship appointments in accordance with each member's shareholding. It is not intended to render article 61 as an exception to the proper process and procedure for appointing a director the Company. The Company's position is that article 61 does not provide a mechanism whereby Significant Shareholders directly appoint directors without intervention of the board or shareholders in general meeting. Whatever may be the extent of lack of clani妙 in the drafting of those provisions in the Articles, the Company is confident that a court would prefer that view to the contrary view for which your client contends. It follows that Mr Moraes has not yet been appointed as a director of the Company. Page 4 of S FILED: NEW YORK COUNTY CLERK 03/03/2023 12:45 PM INDEX NO. 650710/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 03/03/2023 PETER CARUANA&Co Regardless of what we say above, the Company would urge 村S to have regard to the interests of the Company, and all its shareholders (including 习5), as the directors must do. Your client is aware of the regulatory Notices that have been filed in the United States, given the Company's status as holding company of a US bank. We are instructed that the Notices filed with the Federal Reserve are still pending because 小ey are incomplete. We also understand the shareholders (including 材S) must still provide information (personal details, financial details and other data) to the Federal reserve and commit to provide it with additional information as required in order to be approved by 比e Federal Reserve as controlling persons of the Company. We are instructed that the Company is also in receipt of advice from lawyers in the United States to the effect that any change to the Board of Directors of the Company must be similarly notified to the Federal Reserve, and should not occur until approved Only once approved as controlling persons of the Company can the shareholders properly nominate and appoint directors to the Company's board subject to the approval of the Federal Reserve. Our client is confident that 坷S will not wish to exercise his rights in manner that will place the Company, and its subsidiary in jeopardy of the Federal Reserve. The Special Resolution With specific reference to your letter dated 9呵une 2021, the Company r肖ects all your allegations that there may have been some improprie妙，failure to comply with required notice or other requirements or breach of any right enjoyed by AJS. Please note in this regard that on the 4th December 2019, the Class B Trigger Event had not yet occurred, and that your client enjoyed none of the rights that you claim may have been violated. This includes (but is not 'imited to) the fact that, in accordance with article 6.6, 习S had no right to vote at any shareholder meeting or to receive notice thereof, or to vote on any consensual written resolution of the shareholders. We acknowledge on behalf of the Company that a resolution to increase the share capital of the Company was passed on the 4t1 December 2019, by Mr 扣seph Safra, as he was entitled to do without the participation of or account to AJS. As you copied your letters to the other shareholders of the Company. we too are copying this letter to them though their Gibraltar lawyers, Hassans. Yours faithfull 孰～／歹“ Peter Caruana&Co. Page 5 of 5