FILED: NEW YORK COUNTY CLERK 03/27/ :48 PM INDEX NO /2017 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 03/27/2017

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Susanna Hunt
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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK TOM KJAER, KJAER HOLDING LIMITED (a Dubai limited company), K FOUNDATION (a Hong Kong foundation), v. Plaintiffs, SRT CAPITAL SPC LIMITED (a Cayman Islands limited company), Index No /2017 Hon. Saliann Scarpulla IAS Part 39 Motion Seq. No. 001 AFFIRMATION OF BULENT TOROS Defendants. Bulent Toros states: 1. I am the sole Director of SRT Capital SPC Ltd. ( SRT ). I am a Turkish citizen and am based in Istanbul, Turkey. I submit this affirmation in support of SRT s motion to dismiss. 2. SRT is a segregated portfolio company organized under Cayman law. SRT Has No New York Presence 3. The Complaint alleges that SRT s principal place of business is New York, New York and that SRT maintains an office in New York County. (Compl. 4, 8.) Neither is correct. SRT does not own, use, or possess any real property in New York County or in New York State. 4. Nor does SRT have an office, a mailing address, or telephone listing in New York. SRT s address is 31 The Strand, 46 Canal Point Drive, Grand Cayman KY1-1105, Cayman Islands. SRT was served with the Complaint at that address. 1 of 5

2 5. I understand that in a lawsuit SRT commenced in 2015, SRT s counsel wrote incorrectly in a complaint that SRT had a New York office. That was not true at the time, it is not true today, and the complaint has been corrected. 6. Plaintiffs allege that SRT regularly transacts business in New York. (Compl. 8.) This is also incorrect. SRT does not regularly transact business in New York. SRT primarily transacts business from Istanbul, Turkey, where I reside. SRT has no representatives, personnel, or employees in New York. 7. SRT does not pay taxes in New York. 8. SRT does not have any contracts with persons or entities in New York. 9. SRT does not maintain any bank accounts in New York. 10. SRT does not conduct any advertising directed to customers in New York. 11. SRT does not have a designated agent for service of process in New York. 12. SRT is not registered to do business in New York. The Subscription Agreements with Omnia 13. The Complaint also alleges that SRT is in unlawful possession of certain certificated shares of Ominto, Inc. ( Ominto ). 14. Those shares were lawfully transferred to SRT by Omnia Capital Ltd. ( Omnia ), a Cyprus corporation, pursuant to subscription agreements between Omnia and SRT (the Subscription Agreements ). 15. Under each Subscription Agreement, Omnia subscribed for redeemable, participating, non-voting shares in different segregated portfolio companies (the SPC Shares ) within SRT. Each segregated portfolio company, or SPC, is a separate cell within SRT that segregates the assets and liabilities of the shares in that SPC from other SPCs and from the 2 2 of 5

3 general assets of SRT. Amongst the SPCs that Omnia subscribed to are: (1) Caelum SPC of SRT Capital SPC Ltd.; (2) Omnia Gems SPC of SRT Capital SPC Ltd.; (3) Omnia Consolidated Assets SPC of SRT Capital SPC Ltd.; and (4) Omnia Consolidated Securities SPC of SRT Capital SPC Ltd. These Subscription Agreements are attached hereto as Exhibits A-D. 16. In exchange for the SPC Shares, Omnia agreed to deposit certain assets into the SPC for investment. (Exs. A-D (Clause 1).) These assets included quantities of opals and diamonds, as well as Ominto shares (collectively, the Assets ). Omnia agreed to pay a 0.60% management fee per annum on the sum invested in each SPC. The subscription confirmations showing that Omnia transferred Ominto shares in exchange for the SPC Shares are attached hereto as Exhibits E and F. 17. Upon information and belief, it is my understanding that Omnia is a Cyprus corporation with its principal place of business in Nicosia, Cyprus. It is also my understanding that Omnia s affiliates that participated in the negotiation of the Subscription Agreements Omnia Schweiz GmbH and Omnia Administrative Services, Ltd. did so from, respectively, Switzerland and Cyprus, where they are also incorporated. Omnia Fails to Pay the Management Fees 18. Omnia failed to pay the management fees due under the Subscription Agreements. These fees total more than US$13 million. 19. Rather than remitting payment of these fees as it contractually agreed to do, Omnia initiated litigation against SRT in the Cayman Islands on March 7, 2016 pursuant to the forum selection clause in the Subscription Agreements (Exs. A-D (Clause 18)) and demanded a return of the Assets (the Omnia Action ). Omnia s argument in support of its application for an 3 3 of 5

4 ex parte injunction before the Grand Court of the Cayman Islands Financial Services Division are attached hereto as Exhibit G. 20. SRT is permitted as a matter of Cayman law to exercise a lien over the Assets to assure the payment of the unpaid management fees, and therefore is unwilling to return them to Omnia so long the management fees remain unpaid. 21. SRT appeared in the Omnia Action and undertook not to sell, auction, charge, or otherwise dispose or deal with or purport to sell, or otherwise dispose or deal with the Assets during the pendency of the Omnia Action. The consent order dated March 8, 2016 between SRT and Omnia to that effect is attached hereto as Exhibit H. 22. Following initiation of the Omnia Action, Omnia engaged in settlement discussions. SRT offered to return the Assets upon Omnia s payment of the outstanding management fees. 23. Omnia has not responded to SRT s offer, nor has it continued to prosecute the Omnia Action, which is presently stayed. The consent order dated March 24, 2016 to that effect is attached hereto as Exhibit I. 4 4 of 5

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Carbures Europe, S.A. v Emerging Mkts. Intrinsic Cayman Ltd NY Slip Op 33028(U) November 29, 2018 Supreme Court, New York County Docket Number:

Carbures Europe, S.A. v Emerging Mkts. Intrinsic Cayman Ltd. 2018 NY Slip Op 33028(U) November 29, 2018 Supreme Court, New York County Docket Number: 653892/2015 Judge: Saliann Scarpulla Cases posted with