emil assentato affidavit

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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

Index No. 653207/2014

AFFIDAVIT OF

EMIL ASSENTATO

KEVIN MILLIEN, individually and in his capacityas shareholder of BOSTON TECHNLOGIES, INC.,

a Delaware corporation,

Plaintiff,

-against-

GEORGE POPESCU, individually and in hiscapacity as director of BOSTON TECHNOLOGIES,INC., CURRENCY MOUNTAIN HOLDINGS,LLC, a Delaware limited liability company,FOREXWARE, LLC, a Delaware limited liabilitycompany, and EMIL ASSENTATO, individuallyand in his capacity as controlling shareholder ofCURRENCY MOUNTAIN HOLDINGS, LLC,

Defendants,

-and-

BOSTON TECHNOLOGIES, INC., a Delawarecorporation,

Nominal Defendant,

Defendants.

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xSTATE OF NEW YORK )

) s.s.:COUNTY OF NEW YORK )

EMIL ASSENTATO, being duly sworn, deposes and says:

1. I am the sole shareholder of Currency Mountain Holdings, LLC (Currency

Mountain), a controlling shareholder of defendant Forexware LLC (Forexware), and a

defendant in this action.

ILED: NEW YORK COUNTY CLERK 12/15/2014 03:27 PM INDEX NO. 653207/

YSCEF DOC. NO. 56 RECEIVED NYSCEF: 12/15/


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2. I respectfully submit this affidavit in opposition to plaintiff Kevin Milliens

(Millien) application for an injunction enjoining defendants from, amongst other things,

effecting (a) a merger of nominal defendant Boston Technologies, Inc. (Boston Technologies),

(b) the transfer of the assets of Boston Technologies or certain non-party affiliates of Boston

Technologies or (c) the transfer of any ownership interest Millien may have in Boston

Technologies or its purported affiliates.

3. Plaintiffs motion for a preliminary injunction should be denied. Most

fundamentally, the purported transaction which Millien seeks to enjoin, the purchase of the

assets of Boston Technologies by Defendant Forexware, LLC (Forexware), closed five (5)

months ago in July, 2014. A copy of the Amended and Restated Purchase Agreement, dated as

of July 11, 2014 (the Asset Purchase Agreement) is annexed hereto as Exhibit A. Far from

being a secret transaction, I believe Millien was fully aware of this transaction and its closing,

if for no other reason, then the fact that we issued a press release in July announcing it. A copy

of the Press Release dated July 11, 2014 is annexed hereto as Exhibit B.

4. No explanation for Milliens delay in proceeding with this action is offered and I

believe that this action is nothing more than the latest legal volley in Milliens war against

Defendant George Popescu, the controlling shareholder of Boston Technologies (Popescu). It

is clear to me that, by dragging me and my companies into his business divorce, Millien, who

apparently lost his last foray against Popescu before a Delaware Chancery Court earlier this year,

is seeking to exact as much collateral damage as he can.1

1In this regard, it is important to note that Currency Mountain, LLC is not a party to the Asset Purchase Agreementand has no other connection to this transaction.


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5. During the course of negotiating the Asset Purchase Agreement, I certainly

became aware of the dispute between the owners of Boston Technologies. However, contrary to

Milliens assertion, neither I nor Forexware, did anything to take sides in that dispute. To the

contrary, because of our general awareness of this dispute, we took great pains to assure that our

acquisition of the assets of Boston Technologies was entirely arms-length and was appropriate

and valid under all applicable law.

Introduction

6. Currency Mountain is a New York based holding company with a controlling

interest in a number of companies providing a variety of products and services supporting the

foreign exchange (forex) trading industry. Currency Mountains subsidiaries include,

FXDirectDealer, LLC (FXDD), FXDD Bullion, Forexlive, Boston Technologies, and Avatar

Capital Group LLC. Currency Mountain also has a controlling interest in Forexware.

7. Forexware is a leading software developer for trading applications in the forex

space and provider of end-to-end forex software solutions to financial institutions, brokerages

and money managers around the world. Forexware specializes in business to business trading

applications and forex enterprise solutions. It provides entry-level software products tailored to

startup retail brokers or introducing brokers transitioning to become a broker in the forex

industry. It also provides a customizable, enterprise-level product for established brokers in need

of enhanced infrastructure technology, advanced dealing desk software, better liquidity streams,

or fully branded white label platforms to offer their clients.

Negotiations with Popescu About a Potential Business Combination

8. In or about April, 2014, I was approached by an investment banker with whom I

had a relationship about the possibility of some form of business combination with Boston


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Technologies. Although I knew none of the principals of Boston Technologies, I knew Boston

Technologies to be a provider of software, solutions, services and trading platforms to

institutional and retail brokerage firms in the worldwide foreign exchange, contracts for

difference, commodities, futures and options marketplace with offices in Boston, London,

Tokyo, Shanghai and New York. After I indicated that I was interested in learning more about

Boston Technologies with an eye towards a possible transaction, I was introduced to George

Popescu, who I was informed was the President of Boston Technologies.

9. Moreover, through its affiliated entity BT Trading, Ltd. (BT Trading), a Belize

company and its wholly owned subsidiaries BT Prime Ltd. (BT Prime BVI), a British Virgin

Island business company and BT Prime Limited (BT Prime UK), a United Kingdom company,

I understood that Boston Technologies engaged in forex trading activities on behalf of

institutional clients.

10. At that time, I understood from Mr. Popescu that Boston Technologies was in a

fairly precarious cash position and needed to undertake a business combination in order to

preserve whatever value the company had.

11. During Forexwares diligence, beyond gaining a fuller understanding of the

business and its assets, two things came to my attention that dramatically influenced this

transaction. First, it came to my attention that through the Boston Technologies affiliate, BT

Prime BVI, there was a multi-million dollar negative financial position as a result of trading

losses in BT Prime BVI.2 Quite naturally, the existence of this negative position and Popescus

2Specifically, in connection with its forex trading activities, BT Prime BVI held certain currency positions. Ofcourse, as the relative value of particular currency pairings changes, the value of such currency positions can changedramatically. In this instance, I understand that there were certain currency positions held at BT Prime BVI whichreflected a negative value in the several millions of dollars.


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desire for Forexware to assume this liability in conjunction with the purchase of Boston

Technologies assets influenced the price I was prepared to pay for those assets.

12. I also learned of the animosity between Popescu and Millien, the two principal

shareholders of Boston Technologies. Because of their contentious relationship, Forexware took

extra care to close transaction in an appropriate and legally valid manner.

The Structure of the Asset Purchase Agreement

13. During the course of my discussions with Popescu, many possible structures for a

business combination were considered. Because a portion of the business existed in a Delaware

entity while other aspects of the business operated through foreign entities, the structure was, by

necessity, complex. Moreover, because the ownership of the various Boston Technologies

entities was not uniform, we took great pains to assure that each of the component transactions

was structured in the legally valid manner.

14. With respect to Boston Technologies, which I understand to be the only Boston

Technologies entity before this Court and the only US entity, we elected to effect an asset

purchase as opposed to some type of equity purchase. A part of that decision related to our

desire to avoid being dragged into any dispute between the owners of Boston Technologies and

simply to engage in an arms length transaction. Quite naturally, we were concerned that Popescu

was empowered to effectuate this asset purchase on behalf of Boston Technologies.

15. In that regard, we relied on the findings of the Delaware court in the legal

proceeding which I understand Millien brought to challenge Popescus right to control business

decisions for Boston Technologies. As I understand that decision, the Delaware court rejected

Milliens claims that Popescu was not the controlling shareholder and ordered the parties to issue

an additional share to Popescu so that he was the majority, controlling shareholder. Having that


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court decision provided us with certainty regarding Popescus capacity to enter into an asset

purchase transaction on behalf of Boston Technologies. I understand that Millien has

acknowledged that, pursuant to that Delaware Court decision, Popescu became the controlling

shareholder of Boston Technologies.

16. Because of the relative ease in effecting an acquisition of Boston Technologies

assets and the additional complications of effecting a combination with the other foreign BT

entities, we structured the overall transaction in two stages. The first closing would be the

acquisition of Boston Technologies assets. The second closing related to the other foreign

entities. Because of various complications of a both financial and regulatory nature, the manner

with which Forexware would proceed to acquire the assets of the foreign entities was set up so

we had various options (e.g. between acquiring assets or equity) which could be determined at a

later date.

17. In particular, from various discussions I had with Millien, I was aware that he had

raised questions about the ownership structure of BT Trading, the Belize entity which, in turn,

owned the other foreign entities. Accordingly, while we scheduled the first closing for July 11,

2014 and, in fact, consummated such closing on that date, we did not schedule a date for the

second closing. In fact, I understand that approximately a week before the first closing

happened, Millien commenced a proceeding in Belize to enjoin in some fashion the second

closing. Certainly, it is my understanding and desire that any issues regarding the ownership of

the Belize entity and its subsidiaries should be resolved before we can proceed with the second

closing. Indeed, the Asset Purchase Agreement has as a required delivery to Forexware at the

second closing, among other things, a release signed by Millien in a form acceptable to


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Forexware to assure that such issue is resolved either by agreement or, if necessary, order of the

Belize court in the same manner as the Delaware courts order.

18. As part of structuring the transaction with Boston Technologies, I did have

discussions with Popescu about joining Forexware as an employee, as Millien notes in his

affidavit. Millien Aff. 28. However, contrary to Milliens assertion, I never agreed to divert

any part of the purchase price Forexware was paying for Boston Technologies to Popescu nor

did I ever agree to pay Popescu anything as part of the Boston Technologies transation. Rather,

we discussed and I agreed to hire Popescu, following the acquisition of Boston Technologies

assets, as an employee with the title Head of Strategies to provide assistance chiefly with sales

of the software which was developed at Boston Technologies with which he, quite naturally, was

intimately familiar. In conjunction with his employment, I did agree to pay him a salary. As

noted below, even though he was no longer working for Boston Technologies, I did offer Millien

a job as well although he turned it down. I never considered either of these opportunities

inappropriate and, obviously, did nothing to keep my offer to Popescu secret.

19. As the foregoing should demonstrate, neither I nor Forexware, ever sought to

take sides with Popescu or Millien in their disputes. Rather, I simply tried to facilitate an arms-

length transaction for assets and services that I thought would be beneficial to Forexware.

Indeed, we have taken steps to guard against Forexware becoming involved in the business

divorce between Millien and Popescu.

20. Ironically, having reviewed Milliens allegations against Forexware and myself

personally as well as Currency Mountain, a company which truly has nothing to do with this

transaction, this appears to be a case of no good deed going unpunished. Thus, in his affidavit,

Millien has sought, presumably intentionally, to misconstrue my efforts to engage with him and


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facilitate his communications with Popescu and to treat him fairly as some effort to conspire with

Popescu. I have never attempted to provide any special benefit to Popescu in connection with

this transaction or otherwise and have never sought to conspire with him or assist him with

respect to his dispute with Millien. To the contrary, I tried to facilitate, apparently

unsuccessfully, some sort of rapproachment between Popescu and Millien.

21. In that vein, I have no knowledge, directly or indirectly, of how the proceeds of

Forexwares purchase of Boston Technologies assets ($250,000) were spent. Once the funds

were wired to the designated Boston Technologies account, we retained no control over them or

knowledge about them.

My Communications With Millien

22. As Millien notes, during the course of my negotiations for the purchase of the

assets of Boston Technologies, I spoke to him from time to time regarding various aspects of the

transaction. It was clear that Millien and Popescu were not able to engage in productive

discussions and, as a result, I endeavored to facilitate better communication between them,

sometimes with me as the intermediary. Indeed, as Millien notes, in early June, 2014, he and I

did discuss the fact that Forexware had agreed, in principle, to acquire the assets of Boston

Technologies. Certainly, Millien should not be heard to argue that he was unaware of

Forexware's acquisition of Boston Technologies assets since he was made aware of it directly

from me, among other ways.

23. Contrary to Milliens suggestion, however, at no time did I offer to arrange a

distribution from Popescu to Millien. Millien Aff. 28. Indeed, I had no knowledge at that

time of how Boston Technologies was going to use the proceeds from the asset sale. I did

discuss with Millien the possibility of my speaking with Popescu about this issue as part of my


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efforts to act as a communication intermediary between the two of them. However, I never

conditioned this non-existent offer on his giving me and my companies a release.

24. Rather, as he notes, as part of my discussions regarding the asset purchase, we did

discuss the possibility of Forexware employing Millien after its acquisition of the Boston

Technologies assets. I did this even though I understood that Millien, who had been in charge of

sales, had been terminated by Boston Technologies some time earlier. As he notes, we did

discuss, amongst other things, the possibility of him being in charge of sales. Moreover, we

discussed amounts which Millien could get paid in salary as an employee which were

commensurate with what I understood he had made before. This was similar to the discussions

which I had with Popescu, in or about this same time, which discussions led to Popescu joining

Forexware after the Boston Technologies asset purchase closed. It is true that, given that Millien

and Popescu had recently concluded what I understood to be a comprehensive legal fight

regarding control of Boston Technologies in the Delaware courts, I insisted that Millien release

any further claims he planned to assert as a condition of becoming a Forexware employee. My

goal was obviously to assure that whatever adverse history existed between the two individuals

was left in the past if they were going to join the Forexware team. Millien turned down my offer

of employment at that time.

Conclusion

25. I respectfully submit that the injunction Millien has requested should not be

granted. As noted more fully in the accompanying Memorandum of Law and above, the

transaction he seeks to enjoin closed many months ago. To enjoin transfer or disposition of the

assets of Boston Technologies would unfairly impair Forexware, the owner of such assets from

its free use of them. As noted above, neither I nor my companies are properly part of these


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dispute and are only named as a means of exacting undue collateral damage on us. I ask that in

addition to denying Milliens request for an injunction, Currency Mountain, Forexware and I be

dismissed from this action.

WHEREFORE, defendants Currency Mountain, Forexware and Assentato respectfully

request that this Court deny Plaintiffs injunction and grant such other and further relief as the

Court may deem just and proper.

________________________ EMIL ASSENTATO

Sworn to before me this__th day of December, 2014

_____________________Notary Public

emil assentato affidavit

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