FILED: NEW YORK COUNTY CLERK 11/06/2014 10:05 AM

NYSCEF DOC. NO. 5

INDEX NO. 653207/2014

RECEIVED NYSCEF: 11/06/2014

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK: COMMERCIAL DIVISION

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KEVIN MILLIEN, individually and in his capacity as

shareholder of BOSTON TECHNOLOGIES, INC., a
Delaware corporation,
Plaintiff,

-againstIndex No.

GEORGE POPESCU, individually and in his capacity as

director of 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 of CURRENCY
MOUNTAIN HOLDINGS, LLC,

Affidavit

Defendants,

-andBOSTON TECHNOLOGIES, INC., a Delaware corporation,

N aminal Defendant.
X
AFFIDAVIT OF KEVIN MILLIEN
KEVIN Mil-LIEN, being duly sworn, deposes and says under the penalties of perjury:
1.

I am a _ ___:lk.
:.....__
S_ _ _ citizen and I reside in New York at 465 Lexington A venue, Apt. #35,

New York, NY I 0017.

I am a minority shareholder of Boston Technologies, Inc. ("BT"), with

63,000,000 shares of the company's Class B Common Stock ("Voting Stock"), nearly 50% of
126,000,001 total shares of Voting Stock, or 47.48% of the total shares outstanding of BT common stock
(both Class B and Class A). The Voting Stock comprises approximately 94.96% of the total common
stock of the company. The rest is held by holders of Class A stock, which has no voting rights attached.

J
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.

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.

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 I 9, 2013.

Any such dilution was a violation of BT Trading's Articles of

Association.
I 9.

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.

20.

On information and belief, BT lost approximately $2 million of client funds in March of 2014.

Around the same time, BT released software with a software bug that led to losses of 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 of one additional share of Voting Stock to Popescu, finding that the email
dated August 3, 2009, in which Popescu and I were discussing terms of my future position with BT,
constituted a binding agreement between Popescu and I and that the issuance of the additional share
would fulfill its terms.
22.

At some point prior to March, 2014, Popescu misused corporate funds of BT, approximately

$100,000, to found the First Zurich Trust, a Swiss entity, of which he was a 100% shareholder. The BT
Board of Directors, of 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 of 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 of BT and BT
Trading, the holding company that wholly-owned both BT Prime and Boston Prime, and a
director of BT, BT Trading, BT Prime and Boston Prime. The transactions were never approved
by the Boards of Directors for any of the entities
24.

Upon information and belief, prior to and throughout this period of time, Popescu would

regularly provide himself purported "rebate" payments in the amount of approximately $15,000
to $20,000 as "Head of 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

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, BT 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 BT 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 BT Prime and
Boston Prime. I further discovered that on May 1, 2014, when I was still a BT 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 BT 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 BT Trading was "substantially less than 50%".

In a Forex

Magnates press report dated June 12, 2014, Popescu had contrarily stated publicly that BT 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 Affiliates to 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 BT to go bankrupt, and purchase BT 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 BT 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 BT and its affiliates. I did not agree to enter into such binding agreement.
29.

To my knowledge, Popescu and BT 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 BT and the affiliate entities, yet Popescu did not

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

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 BT 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 BT 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 BT Trading. Assentato revealed to me in
our discussions in June that he was aware of Popescu's actions to dilute my shares in BT 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.

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 my

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 II, 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.

Sworn to me this

.2J

day of October, 2014

~ /~=:::::::::::::::-:::::--
Julien Gerald B
NOTARY PUBLIC, STATE OF NEW YORK
Reg.istration No. 01 TU6274598
Qualified in New York County
Commission Expires Jan. 14,2017

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