Oca Affidavit Millien

8/10/2019 Oca Affidavit Millien

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK: COMMERCIAL DIVISION

------------------------------------------------------------------------------

KEVIN MILLIEN, individually and in his capacity s

shareholder

o

BOSTON TECHNOLOGIES, INC., a

Delaware corporation,

Plaintiff

-against-

GEORGE POPESCU, individually and in his capacity s

director

o

BOSTON TECHNOLOGIES, INC., CURRENCY

MOUNTAIN HOLDINGS, LLC, a Delaware limited liability

company, FOREXW ARE, LLC, a Delaware limited liability

company, and EMIL ASSENTATO, individually and in his

capacity as controlling shareholder o CURRENCY

MOUNTAIN HOLDINGS, LLC,

Defendants

-and-

BOSTON TECHNOLOGIES, INC., a Delaware corporation,

N aminal Defendant.

FFID VIT OF KEVIN MILLIEN

X

Index No.

Affidavit

X

KEVIN Mil-LIEN, being duly sworn, deposes and says under the penalties o perjury:

1

I am a _

___

__S itizen and I reside in New York at 465 Lexington A venue, Apt. #35,

New York, NY I0017. I am a minority shareholder

o

Boston Technologies, Inc. ( BT ), with

63,000,000 shares

o

the company's Class B Common Stock ( Voting Stock ), nearly 50% of

126,000,001 total shares of Voting Stock, or 47.48% o the total shares outstanding o BT common stock

(both Class B and Class A). The Voting Stock comprises approximately 94.96% o the total common

stock

o

the company. The rest is held by holders o Class A stock, which has no voting rights attached.

ILED: NEW YORK COUNTY CLERK 11/06/2014 10:05 AM INDEX NO. 653207/2014

SCEF DOC. NO. 5 RECEIVED NYSCEF: 11/06/2014


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2 I began collaborating with Popescu sometime in late 2008 or early 2009 while a vice president at

FXCM, a trading firm based

in

New York working

in

foreign exchange currency markets. During the

summer of 2009, I spent considerable time working with Popescu on BT s software to adapt it for use by

FXCM. As a result

of

our collaboration, FXCM became one

of BT s

largest customers. Later that

summer, I began to consider departing from FXCM and discussed with Popescu the possibility

of

working with BT. Certain preliminary terms including compensation, equity share, commissions and so

forth were discussed through email.

3. On or about August 4, 2009, I left FXCM and joined BT as the company's Chief Operating

Officer ( COO ). I was also appointed a Director of the company as well as the Secretary and Treasurer

of

the company. As a condition

of

joining, I was to receive an equal equity share in the company. The

distribution was delayed due to various difficulties the company was dealing with at the time.

4. On or about November 3, 2009, Popescu and I together established BT Trading, Ltd . ( BT

Trading ), an International Business Companies ( IBC ) entity of Belize. We became the sole

shareholders

of

BT Trading, with each

of

us holding a 50% share of the company. We also became the

sole directors of

BT Trading.

To

this day, I remain a shareholder

of

BT Trading.

5 On or about April 2010, George and I decided to reform

BT s

capital structure before applying

for a line of credit from Webster Bank. BT retained the law firm

of

Gesmer Updegrove LLP ( Gesmer ).

Peter Moldave, an attorney at Gesmer, prepared the documentation that Popescu and I signed on or about

April 27, 2010. As a result

of

the restructuring, BT issued Class B Common Stock or voting stock

( Voting Stock ), comprising about 95% of the total common stock then issued

by

the company.

Popescu and I became the sole holders

of

50% each of the Voting Stock, or 63,000,000 shares each. We

were also the sole directors

of

the company . The non-voting common stock

is

held

by

various minority

shareholders.

6. Also

in

2010, Popescu and I founded BT Prime, Ltd. ( BT Prime ), a British Virgin Islands

( BVI ) entity. We made the holding company that we co-owned, BT Trading, the sole shareholder of

BT Prime. We then became the sole directors of BT Prime.

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7. In 2012, we founded BT Prime Ltd., a registered entity of England and Wales, and afterwards we

changed the name to Boston Prime, Ltd. ( Boston Prime ), to distinguish the entity from the previously

formed BVI entity. As with BT Prime, the BVI entity, we made BT Trading the sole shareholder of

Boston Prime. We also became the sole directors

of

Boston Prime.

8.

At present, I have not received any notice of my removal from the Board of Directors from either

BT Prime or Boston Prime. To

my

knowledge I remain a Director

of

both entities.

9. BT is a Delaware corporation with its headquarters in Boston, Massachusetts . BT owns all of the

intellectual property, generally software, that is used in BT's overall business. BT also employs all of the

staff. BT licenses the intellectual property to BT Prime and Boston Prime and provides these entities the

support

of

its staff through bilateral inter-company agreements.

BT

Prime and Boston Prime then directly

serve the business's clients, with compensation flowing to BT as a service provider through the bilateral

agreements. Collectively, BT and the affiliate entities provide software, trading platform, and other

support services for institutional and retail brokerage firms in the foreign exchange market. A graphical

representation

of

the business of BT and the BT affiliates entities BT Trading, BT Prime, and Boston

Prime (collectively, the BT Affiliates ).

10.

BT

is

entirely independent

of BT

Trading,

BT

Prime, and Boston Prime (collectively, the BT

Affiliates ). The only relationship between BT on the one hand, and Boston Prime and BT Prime on the

other, is through the inter-company agreements, and the fact that both Popescu and I are shareholders of

BT and shareholders of BT Trading, the parent entity to BT Prime and Boston Prime, and have served on

the Board of Directors of all four entities.

11. From 2009 to 2012 ,

BT's

annual revenues increased from approximately $2 million to $14

million. By 2013, BT' s revenues reached $20.5 million. That same year, BT realized profits

of

$2.4

million. On or around August

of

2012, I left my position as COO and instead became Chief Marketing

Officer (CMO , and from January of 2013 through May of 2013, I spent considerable time

in

London,

United Kingdom pursuing various business opportunities.

12. In 2012, the relationship between Popescu and me began to deteriorate.

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13 In 2013, Popescu and I began to dispute the future ofBT.

14 At some time prior to June

of

2013, I negotiated a large joint-venture opportunity with Interactive

Data Corporation ( IDC ), a major technology firm. I notified Popescu in order to provide BT the

opportunity.

15 On or about June 6, 2013, Popescu indicated that he wanted me to leave the company. I refused.

With respect to the IDC opportunity, Popescu told me that he would only go through with

it

if I would

leave the company quietly. I insisted that the joint venture with IDC should be handled separately from

our dispute regarding the company. Popescu responded by contacting IDC and telling them BT was not

interested in the joint venture, resulting a significant missed opportunity for BT.

I6. On June

2I,

2013, Popescu terminated me by email as CMO

of

BT and began to lock me out

of

the business even though I was still a Director and a shareholder with 50% of the Voting Stock. I thus

commenced an action in the Chancery Court of Delaware for the appointment of a custodian to break the

deadlock between us as equal owners and co-directors

of

the company.

17 After I had filed the action in Delaware, Popescu sent me a proposed unanimous written consent

of

the BT board of directors enabling BT to issue 1,260,000 additional shares of voting stock to Popescu,

which would result

in

Popescu holding a 50.5% share

of

Voting Stock leaving me with only 49.5%.

Popescu stated that the proposed written consent would implement the terms of our agreement

purportedly reflected

in

an email from August 3, 2009 discussing the terms

of

me joining BT at the time.

18

I later discovered that while the Delaware action still pending and unresolved, Popescu directed

Eric Gebaide, a BT employee, to effect a dilution

of

my stock in BT Trading without my knowledge or

consent on or about July I9, 2013. Any such dilution was a violation

of

BT Trading's Articles

of

Association.

I9 On or about February 25, 2013, I requested

BT

financials from Popescu as part

of

ongoing

settlement discussions. I received a response from

BT s

Chief Financial Officer, Steve Hovagimyan . He

declined to provide me the financials unless and until I signed a confirmation

of

the company' s bank

account balance for the company audit. I refused to do so.

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20. On information and belief, BT lost approximately $2 million o client funds

in

March o 2014.

Around the same time, BT released software with a software bug that led to losses o about 1 million for

BT.

21. On January 31, 2014, the Delaware Chancery Court entered a decision and ordered

me

to

authorize the issuance by BT o one additional share o Voting Stock to Popescu, finding that the email

dated August 3,

2009, in which Popescu and I were discussing terms o my future position with BT,

constituted a binding agreement between Popescu and I and that the issuance o the additional share

would fulfill its terms.

22. At some point prior to March, 2014, Popescu misused corporate funds

o

BT, approximately

$100,000, to found the First Zurich Trust, a Swiss entity,

o

which he was a 100% shareholder. The BT

Board o Directors, o which I was member at the time, was never consulted . The Board never approved

any such action. Furthermore, BT shareholders besides Popescu received no consideration for this

transaction.

23. BT and the BT affiliates generally relied on Rockwell Capital Markets ( Rockwell ), an entity

Popescu and I co-founded and co-owned, to serve as the counterparty for all customer trades conducted

by

the business. At some point prior to March, 2014, Popescu founded Seven Hills Capital Ltd. ( Seven

Hills ), a Republic o Seychelles entity, to replace Rockwell as the counterparty to customer trades. I

never approved this change even though at the time I was a co-equal shareholder

o

BT and BT

Trading, the holding company that wholly-owned both BT Prime and Boston Prime, and a

director

o

BT, BT Trading, BT Prime and Boston Prime. The transactions were never approved

by the Boards o Directors for any o the entities

24. Upon information and belief, prior to and throughout this period o time, Popescu would

regularly provide himself purported rebate payments in the amount

o approximately $15,000

to $20,000 as Head o Risk from BT Prime and Boston Prime, the entities that managed the

client accounts. These rebates were paid from BT Prime and Boston Prime through Seven

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Hills. I never approved these transactions even though I was a co-equal shareholder

of

BT

Trading, the holding company that wholly-owned both BT Prime and Boston Prime, and a

director

of BT Trading, BT Prime and Boston Prime. The transactions were never approved by

the Boards of Directors for any of the entities.

25. On

or

about March 5, 2014,

T

issued one additional share

of

Voting Stock to Popescu with

my

authorization pursuant to the Chancery Court order. As a result, Popescu obtained a controlling share of

the company's Voting Stock (63,000,001 shares). I became a minority shareholder with 63,000,000

shares, 1 share less than Popescu. I remained a director of T at that time.

26. I later received information, from Emil Assentato ( Assentato ) of Currency Mountain Holdings,

LLC ( Currency Mountain ) that at some time prior to May 1 2014, Popescu had been discussing with

Currency Mountain the sale of BT and its affiliate entities, without my knowledge or consent, even

though I was a Director

of

BT, a Director and co-owner of BT Trading, and a Director of T Prime and

Boston Prime. I further discovered that on May

1 2014, when I was still a

T

Director, Popescu had

entered into a written expression of mutual intent to merge or transact with Currency Mountain and

Assentato on behalf

of

BT, also without

my

knowledge or consent and without consideration by or

authorization of the Boards of Directors of BT or of the affiliate entities.

27. On May 13 2014, Popescu finally ousted me from the Board

of

Directors

of

BT via email with

an

attached notice

of

action

by

written consent of the shareholders. To

my

knowledge, I was still a director

and shareholder

of

BT Trading, a Director

of

BT Prime, and a Director of Boston Prime.

On May 15, 2014, I entered into an agreement with CFH Group A/S ( CFH ), a holding company

involved in online trading services based in Denmark, for the purchase of my entire interest in T and its

affiliate entities. At some time later Popescu emailed Christian Frahm ( Frahm ), the CEO of CFH, and

told him that CFH was interfering with a pending transaction of BT and the BT Affiliates with an

unnamed buyer, and that my share of T Trading was substantial ly less than 50% . In a Forex


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Magnates press report dated June 12, 2014, Popescu had contrarily stated publicly that T Trading was

owned equally by Popescu and me.

28. On or before June 9, 2014, I was contacted by Assentato and learned that Popescu was selling the

BT and the BT Affiliatesto Currency Mountain. At

no

time before this had Popescu informed

me

of

this

transaction or his intent to enter into it. Assentato further told me that Currency Mountain intended to

acquire the intellectual property of BT, allow

T

to go bankrupt, and purchase T Prime and Boston

Prime through stock acquisitions . Assentato then discussed with

me

the possibility of working with

Currency Mountain after Currency Mountain, through its subsidiary Forexware, LLC ( Forexware ), had

acquired BT. He said he wanted me to manage the merged entity and that it would generate good press to

have a founder

of

T

return to run the business. He further said he did not want Popescu running the

business and that Popescu would be relegated to an inconsequential Head of Strategy position with

Currency Mountain. As part of our discussion over that day and later, Assentato also told

me

that

Popescu did not intend to share any

of

the proceeds

of

the acquisition with me and offered to arrange a

distribution with Popescu, but only if I were to agree to release and waive all legal claims against both

FXDD and its affiliates and T and its affiliates . I did not agree to enter into such binding agreement.

29. To

my

knowledge, Popescu and

T

had entered into a binding agreement with Currency

Mountain and Forexware for an asset or stock acquisition

of

BT by Forexware, as well as the acquisition

of the affiliates or at least client accounts of the affiliates, on or about June

1

2014. I did not find out

about the transaction at all until I was contacted about it by Assentato. I never authorized or approved

this transaction while I was still a Director. I never authorized or approved any discussions concerning

this transaction when I was a Director, when Popescu had nonetheless begun to discuss the transaction

with Currency Mountain and Assentato and entered into the written expression

of

mutual intent to merge

or transact.

30. I along with FXCM made bids to Popescu for T and the affiliate entities, yet Popescu did not

consider any of the offers. Each of the offers was for approximately $3.8 million .

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31. I later learned from Evan Ross, a minority shareholder of BT, that according to what Popescu had

told him, the consideration paid by FXDD was approximately $250,000, less approximately $100,000

in

transaction costs, much lower than any of the offers I, CFH, or FXCM made to Popescu.

To

my

knowledge, Popescu personally received approximately

1

million from FXDD apart from the

transaction between

T

and its Affiliates and Currency Mountain and Forexware, in addition to a

potential interest in an upcoming IPO of Currency Mountain planned for 2014.

32. To

my

knowledge Popescu

is

currently working as or has been appointed to work as Head of

Strategies of Currency Mountain and pursuant to the terms of the agreement has received or is entitled to

receive stock, stock options or both in Currency Mountain.

33. Popescu never submitted, at any time, the transaction for a vote by the minority shareholders. I

am not aware that any special committee was formed to evaluate the transaction. To my knowledge, the

Boards

of

the BT affiliates have not authorized any transaction with Currency Mountain or Forexware.

34. To my knowledge, Assentato and Currency Mountain were aware

of

my status as a Director of

BT prior to my removal on May

13

and was aware

of

my status a minority shareholder of BT while

working with Popescu on the transaction to acquire T and its affiliate entities. To my knowledge,

Assentato and Currency Mountain also were aware that Popescu was deliberately excluding me from the

process. Currency Mountain

is

also aware of

my

ownership of T Trading. Assentato revealed to me in

our discussions in June that he was aware of Popescu's actions to dilute my shares in T Trading and that

Popescu had no intention of sharing the proceeds with me. Assentato had entered into a binding

agreement to transact with Popescu even though he was aware of these facts.

35. FXDirectDealer, LLC ( FXDD ), another subsidiary of Currency Mountain, received severe

sanctions and fines from the Commodity Futures Trading Commission and the National Futures

Association in 2013. Assentato is a majority owner

of

FXDD in addition to being the sole or majority

owner

of

Currency Mountain.

36. Tradition (North America), Inc. ( Tradition ) a minority owner of FXDD, or Currency Mountain,

has been seeking to liquidate its interest in the company in part due to the regulatory issues with FXDD.

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Currency Mountain lacks the amount Tradition has demanded for its interest.

To

my knowledge, this has

placed pressure on Assentato to enter into a deal with

BT

in order to increase the revenue stream into

Currency Mountain to assist with liquidating Tradition's stake.

37. In

June

of

2014

; after I became aware

of

Popescu's

statements that my

BT

Trading shares had

been diluted, I met with the registered agent of

BT

Trading and asked for certain documents regarding BT

Trading.

The agent

refused to provide with any documents or specific information, other than informing

me that Popescu had submitted board minutes to remove me from the Board of Directors. I never

authorized these Board minutes, nor was I ever notified of a Board meeting or presented with the minutes

for consent, even though I am a Director of

BT

Trading, and any such removal or dilution of my shares

violates

BT Trading's

Articles

of

Association.

38. In

July of

2014, I filed an action in the Supreme Court

of

Belize to enjoin any dilution of y

shares and any other transaction affecting my ownership interest in BT Trading. On July 2, 2014, the

Supreme Court of Belize entered

an

interim injunction

order

enjoining BT Trading and Popescu from any

dilution or transaction with respect to my 50 ownership interest in BT Trading. The Belize court

extended the injunction on July 28 and August 28. On August 13, the court replaced with the order with

substantially the same interim injunction

order

to remain in effect [u]ntil the determination

of

this matter

or further order of the Court.

39. On information and belief, the Defendants nonetheless are moving forward with the transaction

and are in the process of transferring client accounts from Boston Prime and BT Prime to Currency

Mountain and Forexware.

40. Upon information and belief, Popescu placed the proceeds he obtained from the BT-CM

Transaction with Seven Hills. A wire

of

$400,000 was sent from Boston Prime to Seven Hills shortly

after the BT-CM Transaction was publicly announced on July I I 2014, that upon information and belief

was pursuant to the BT-CM Transaction in which Popescu would remove funds from the BT Affiliates

that would later be covered by Currency Mountain.

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Sworn to me this 2J

day

of

October 2014

~ = : : : : : : : : : : : : : : : : : : : :

Julien Gerald B

NOTARY PUBLIC STATE OF NEW YORK

Reg.istration No. 1 TU6274598

Qualified in

New

York County

Commission Expires Jan. 14 2017

1

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Oca Affidavit Millien