INDEX NO.

653207/2014

FILED: NEW YORK COUNTY CLERK 12/15/2014 03:27 PM

NYSCEF DOC. NO. 56

RECEIVED NYSCEF: 12/15/2014

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
------------------------------------ x
KEVIN MILLIEN, individually and in his capacity : Index No. 653207/2014
as shareholder of BOSTON TECHNLOGIES, INC., :
a Delaware corporation,
:
:
Plaintiff,
: AFFIDAVIT OF
: EMIL ASSENTATO
:
-against:
GEORGE POPESCU, individually and in his
:
capacity as director of BOSTON TECHNOLOGIES, :
INC., CURRENCY MOUNTAIN HOLDINGS,
:
LLC, a Delaware limited liability company,
:
FOREXWARE, LLC, a Delaware limited liability :
company, and EMIL ASSENTATO, individually
:
and in his capacity as controlling shareholder of
:
CURRENCY MOUNTAIN HOLDINGS, LLC,
:
:
Defendants,
:
:
-and:
:
BOSTON TECHNOLOGIES, INC., a Delaware
:
corporation,
:
:
Nominal Defendant, :
:
Defendants.
:
:
------------------------------------ x
STATE 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.

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

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

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

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

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

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 armslength 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
9

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

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