Betancourt's Revised Second Affidavit: Foley Hoag makes it public by including it as an exhibit in a recently-filed motion (July 1, 2011) in US Federal Court. What's in that document regarding Wael Al-Mazeedi and BTU Power Company as well as BTU Power Company II that it needed to be sealed for over 2 yrs?

SOMETHING NEW:

• Wael Al-Mazeedi (through WilmerHale) filed an emergency motion to seal Betancourt's affidavit a few hours (literally) after Betancourt submitted it to US Federal Court (filed June 18, 2009 and sealed June 19, 2009).  

• Brian Bialas, an attorney from Foley Hoag (currently representing BTU Ventures in the Betancourt litigation - WilmerHale's "replacement") filed an affidavit on July 1, 2011 in support of a motion before US Federal Court.  Mr. Bialas' affidavit includes the entirety of Mr. Betancourt's affidavit as an exhibit.

For now, we are left to ponder (wonder) why Foley Hoag decided to make Betancourt's affidavit accessible to the entire world through PACER (the US Federal government website: Public Access to Court Electronic Records).  Link: http://www.pacer.gov/

Betancourt's affidavit is LONG and DETAILED.  

We'll let people read it and come to their own conclusions.

Note: names that pop-up directly include PSEG, Qatar National Bank, Dubai Islamic Bank, Christina Stephens, James Commodore, Gerry Cater (WilmerHale corporate counsel for BTU).  Names that pop-up indirectly include Majed Halawi and Aref Kooheji.  We have "inserted" names into the affidavit based on references made to those individuals elsewhere in this blog.

 Link: Betancourt Second Revised Affidavit

SUMMARY OF SUBSTANCE OF THIS AFFIDAVIT

5. In June and July of 2008, about nine months after I joined Ventures, a series of events took place that raised questions about my employer's business practices. During that time frame I became aware of the diversion of certain monies, placed by a major Middle Eastern Islamic bank [i.e. Dubai Islamic Bank] in a fund designated for investments in the Middle East and North Africa, to another fund [i.e. BTU Power Company II] formed for the acquisition of a power company in Asia [i.e. Meiya Power Company]. Both funds were managed and operated by BTU affiliates. I raised questions and expressed concerns about this matter to my direct supervisor at Ventures, Mr. Wael Al Mazeedi. Additionally, I addressed (also with Mr. Al Mazeedi) complaints made directly to me by several other investors about a lack of transparency in Ventures' business operations and failure to distribute profits generated by the investments. As a result, I was removed from contact with investors. I received only brief, perfunctory responses to my questions and concerns. Consequently, I became worried that I had unwittingly accepted employment in a business enterprise that, as matter of routine practice, improperly concealed its activities from the investors that funded its operations, and mishandled capital entrusted to it.

6.  During the summer of 2008 I also learned that another set of investors, also based in the Middle East, had filed suit in Massachusetts Superior Court against my employer. The allegations made in the lawsuit involved the Asia power company fund to which the Islamic bank's funds had been diverted, and squared with my observations of irregularities in how my employer was conducting its business. The combination of my knowledge derived from my duties, and what I learned from the allegations in the court complaint, caused me concern that my employer may have engaged in fraud. However, the apparent fraud seemed to me to fall outside the purview of American securities and other regulatory agencies since the victims were foreign entities that had invested via unregulated private equity funds.

7.  In addition to the actions by my employer that had given rise to the lawsuit regarding the Asia power company fund, over the summer of 2008 I had also become aware of what appeared to be another instance of potential fraud, this time relating to my employer's acquisition of a power plant in Tunisia in 2004 using information secretly leaked by a high-level insider [i.e. Majed Halawi] working for the previous owner of the plant, Public Service Enterprise Group ("PSEG"), a publicly traded energy and energy services company headquartered in New Jersey. I learned of the relevant actions while reviewing company documents, given to me by another employee [i.e. Alycia Goody], in the ordinary course of my duties. Because of my concerns, I printed and collected in .a binder hard copies of some of these documents. I shared my inquietude with a long-time BTU consultant, but did not distribute or otherwise utilize the copies in any way, since I did not know how such seeming improprieties should be reported or investigated. The documents I collected in connection with the Tunisia transaction comprise part of the set of documents that the Court ordered delivered into its custody, which have since been released to the parties pursuant to a second Order issued on April 30, 2009.

8.  I frequently discussed the quandary that I faced with the other senior members of BTU's management team. At various times I also made attempts to discuss the issues at hand with Mr. Al Mazeedi's trusted senior external advisors [i.e. Henry Tiedemann, Guy Spaull]. For the most part, the external advisors seemingly only possessed piecemeal understanding of facts underlying the questions and concerns I raised and offered no advice one way or the other. Additionally, I also sought guidance from the lawyer that had been corporate counsel at the time I joined Ventures [i.e. Alycia Goody]. Although the former corporate counsel appreciated the implications of the questions and concerns I was raising and was aware of many of the relevant details, she was not able to offer any specific advice. I later consulted with a former BTU contractor [i.e. Daniel McBrearty] with sophisticated understanding of the financial aspects of the energy business, as well as with our joint counsel [i.e. Pierre F. de Ravel d'Esclapon], in an effort to obtain advice about the appropriate ways to protect the ownership rights and economic interests of certain investors in funds managed and operated by affiliates of BTU. Eventually, I shared BTU documents with them in electronic form.

9.  While these discussions were continuing, and after unsuccessfully raising questions with both my superior at Ventures as well as various trusted BTU advisors, and having obtained no results other than an exclusion from dealings with the affected investors, on my own I decided to take action to assist the Asia power company investors in their efforts to seek justice in their Superior Court action. I believed I had a moral duty to assist those investors. I did so by mailing approximately one dozen documents, anonymously in two separate mailings, to the counsel of record [i.e. Edwards Angell Palmer & Dodge] for the Asia power company investors [i.e. IFIC and ASEAN, Kuwait & Bahrain, respectively]. The two envelopes of documents I thus sent to the lawyers, which I will detail below, and documents I shared with the consultant and counsel referenced in ¶8 above, are the only confidential or protected documents I have ever shared with any non-BTU individual or entity.

10.  Shortly after I anonymously sent the packages described in paragraph 8 above, counsel for the plaintiff Asia power company investors filed an affidavit in the Superior Court action, which included as exhibits approximately half the documents I had sent. To my knowledge, the remaining documents have not been further disclosed.

11.  As a result of that court filing, my employer apparently came to suspect that someone within the company had leaked the documents in question. BTU, with the assistance of its counsel [i.e. WilmerHale & Leonard G. Learner], began an investigation and soon thereafter placed me on administrative leave and then terminated my employment.

DETAILED CHRONOLOGY OF THE EVENTS AND ACTIONS DISCLOSED ABOVE

12.  In early June 2008, I travelled to the Middle East with my employer, Mr. Mazeedi, as well as a company lawyer, Gerry Cater of WilmerHale's Washington D.C. office, to meet with the shareholders (owners of all the economic interest) in BTU Power Company ("BPC"), a private equity fund formed to aggregate the capital of foreign investors and acquire power plants in the Middle East and North Africa. BPC had invested in two power plants, one in Tunisia and the other in Abu Dhabi. The purpose of the various meetings was to remind and prepare the BPC shareholders (all of whom are located in the Middle East) for the upcoming capital call necessary to complete the Abu Dhabi investment. A temporary loan (an equity bridge loan or "EBL") had been used to make the Abu Dhabi investment. The EBL was due to be repaid on June 30 by calling on capital from shareholders who had already committed specified investment sums to the project.

13. One of the BPC shareholders from whom we were seeking capital for the repayment of the EBL was the Dubai Islamic Bank ("DIB"). Most of the shareholders, such as the Qatar National Bank ("QNB") and the Bahrain Pension Fund, had placed their funds directly into BPC. However, DIB's funds were held separately from those of other investors in the "Islamic Portfolio," since they were governed by Islamic ("Sharia") investment law.

14. At our June 5, 2008 meeting with DIB's representatives, DIB unequivocally stated that it had no further funding commitments to BPC, claiming that it had already funded the full amount of capital it had committed under its investment agreement. In support of DIB's position, DIB's lawyers at the meeting cited a letter dated April 27, 2006 from Mr. Al Mazeedi. In that letter, Mr. Al Mazeedi acknowledged that DIB had fulfilled its funding commitments to BPC by virtue of authorizing the use of some Islamic Portfolio funds in 2006 for the BTU investment in the Asia power company (known as "Meiya Power Company" or "MPC"). I saw the letter at the time and was subsequently provided a copy as well.

15. To my knowledge, the other BPC shareholders had been kept in the dark about the diversion of funds from the Islamic Portfolio to MPC, and therefore believed that DIB had not fulfilled its funding pledge to the Abu Dhabi investment and was responsible for an $18 million shortfall in the funds required to repay the EBL. Likewise, Mr. Cater, who had begun to serve as BTU's outside counsel sometime in 2007, either had not previously seen or had seen but had not appreciated the significance of the April 27, 2006 letter, and expressed dismay at its implications.

16. The upshot of the disclosure of the April 27, 2006 letter was that I and my colleague Kevin Donovan, Venture's Director of Finance and Accounting, undertook the task of somehow persuading DIB and the other BPC shareholders not to pursue legal recourse to remedy the funding shortfall but instead work towards finding a commercially equitable solution. In DIB's case, its representatives had to be persuaded to provide funds above and beyond DIB's contractual obligations under the investment agreement. In addition to being a BPC shareholder, QNB had also provided the EBL as well as a letter of credit intended to act as the primary guarantee for the loan. Consequently, QNB had to be convinced not to declare a default with regards to the EBL or the concomitant guarantee. I assumed responsibility for working with DIB, and Mr. Donovan focused on QNB. We returned to the Middle East to conduct the necessary discussions.

17. In addition to expressing concern about the shortfall in funding for the Abu Dhabi investment, some of the BPC shareholders complained that they had not received periodic or timely financial reports, nor had they received expected dividends from the profits generated by the investments. Furthermore, some shareholders requested to either be given more direct access and control of their investment or to be allowed to exit BPC entirely. In fact, at a meeting I had attended with Mr. Al Mazeedi earlier in June 2008, QNB had stated that it would take action to dissolve the fund because Mr. Al Mazeedi had not created a mechanism for QNB to exit BPC as he had promised numerous times in the past. Throughout this period Mr. Al Mazeedi had continuously repeated that BPC would be given a new organizational structure in response to these concerns. (The planned restructuring of BPC was in fact described to me by Mr. Al Mazeedi during my interview for the Senior Vice President position at Ventures.) To this end, while Mr. Donovan and I were meeting directly with the shareholders in the Middle East, Mr. Cater was working with James Commodore, who had been hired as Venture's in-house counsel in May of 2008, to create a more transparent, corporate entity to replace the private equity fund structure that had originally been used to raise capital for BPC. Mr. Al Mazeedi instructed Mr. Donovan and me to explain to the shareholders that once the new entity was formed, they would have greater access to, and control of, their investments. Moreover, Mr. Donovan and I understood that the shareholders' existing investments would be rolled over into the new entity, and no further monies would be required from them and they would initially retain the same pro-rata ownership in the new entity as they had in BPC.

18. After I returned from the Middle East in late July 2008, I became increasingly uneasy about the diversion of a portion of DIB's Islamic Portfolio monies to MPC, the secrecy surrounding this arrangement, and the consequences of the diversion for BPC and its owners. Recognizing there was much I did not know about Mr. Al Mazeedi or BTU, I tried to find out more from public sources. On or about July 19, 2008 I typed "Mazeedi" and "BTU" into Google, and a blurb from www.courthousenews.com appeared, which reported the filing of a lawsuit against my employer, Ventures, as well as against Mr. Al Mazeedi and others, in Massachusetts Superior Court by IFIC and ASEAN, two former shareholders in the BTU fund that acquired MPC. I followed the link from www.courthousenews.com and downloaded the complaint from the lawsuit, Industrial and Financial Investment Company, and ASEAN Investment Company v. Wael Al Mazeedi, Mitsue Oishi, BTU Ventures, Inc, and Unnamed Consulting Company, Middlesex Superior Court Docket No. 08-03871 (hereinafter, "the IFIC lawsuit"). Among other allegations, the plaintiffs in the IFIC lawsuit claimed that Mr. Al Mazeedi had structured the sale of MPC to include a "Multi-Million Dollar Payoff' for himself, in the guise of a consulting contract. The plaintiffs claimed to have learned about the matter "through disclosures made in litigation in Massachusetts."

19. On or about July 21, 2008, I brought the complaint from the IFIC lawsuit to work and asked Mr. Commodore if he knew anything about it. He said he did not. This in itself was troubling given that Mr. Commodore was Ventures' only in-house counsel. Mr. Al Mazeedi's assistant, Christina Stephens, later saw the complaint on Mr. Commodore's desk, and asked who else had seen it. I understand from Mr. Commodore that he replied that he did not know.

20. Mr. Al Mazeedi returned to Massachusetts from an overseas vacation on July 27, 2008. He called me at home and in an abrupt manner told me that Ms. Stephens had informed him that I was upset about the IFIC lawsuit. I told him I was concerned that it would impact our business efforts in the future. I also mentioned that I felt Mr. Donovan and I had been in placed in a compromised position in our negotiations with the BPC shareholders since we had made representations about BPC's transformation from a fund to a corporate entity without being aware of all the material issues that might affect the promised restructuring. Mr. Al Mazeedi dismissed the IFIC lawsuit as merely an extension of his partner Mr. Hayat's complaints of having been frozen out of decision-making at Ventures by Mr. Al Mazeedi and Mr. Al Mazeedi's wife, Ms. Oishi. Although I had not seen Mr. Hayat's legal complaint at this time, I was aware that he had sued his business partners, Mr. Al Mazeedi and Ms. Oishi.

21. Although QNB and DIB, as well as other shareholders, had expressed dissatisfaction with Mr. Al Mazeedi and Ventures' management and control of BPC, and had previously threatened to seek redemption of their funds and/or the dissolution of the entity holding their funds, Mr. Donovan and I succeeded in calming their misgivings and getting them to hold off pursuing legal recourse regarding the $18 million shortfall. They agreed to give us more time to find a commercial solution. Toward the end of July, DIB agreed, despite the April 27, 2006 letter, to contribute another $18 million towards the Abu Dhabi power plant investment, based on a previous agreement by Mr. Al Mazeedi to repay the funds or give DIB property of equivalent value. All the major investors relied significantly on the representations that Mr. Donovan and I had made, at Mr. Al Mazeedi's direction, that BTU would be creating a new, more transparent investment company to hold and administer the assets of BPC. I believe the shareholders' reliance is reflected in contemporaneous email correspondence with Ventures.

22. On July 29, 2008, Mr. Al Mazeedi called Mr. Donovan and myself into his office and proceeded to accuse us of being disloyal and undermining his authority by making decisions that he had not approved. He was not specific. He also told us that, according to Ms. Stephens, we had said the shareholders disliked him and wanted him out, and that we both had been offered jobs in the future by QNB and DIB. While it was true that the shareholders had expressed dissatisfaction with Mr. Al Mazeedi's management, the claim that Mr. Donovan and I had received job offers from the shareholders was not true. Rather, DIB and QNB had simply expressed greater comfort in dealing with Mr. Donovan and me than with Mr. Al Mazeedi.

23. On July 29, 2008, Mr. Commodore distributed a semi-final draft of his plan for restructuring BPC into a more transparent, corporate entity. On or about July 31, 2008, Mr. Commodore attempted to present to Mr. Al Mazeedi and the management team his plan for the restructuring of BPC. Mr. Al Mazeedi terminated the presentation after the first few slides.

24. In the first week of August 2008, soon after DIB agreed to make up the $18 million payment, Mr. Al Mazeedi instructed Mr. Donovan and me to have no further contact with the BPC shareholders. He claimed that he alone understood how to deal with them.

25. I understand that Mr. Commodore's more transparent investment company structure was rejected in late July by Mr. Al Mazeedi, and that Mr. Cater was tasked with drafting a new company structure. The shareholders were, at the same time, assured that the new structure would be presented soon thereafter. I understand that nothing was actually presented until late September.

26. After the first week of August, I was essentially demoted. Instead of performing my former duties — responsibility for dealing with shareholders, acquisition of new projects for BTU, asset management, and service as a director or shareholder representative in the Tunisia and Abu Dhabi project companies — I was assigned a lower-level in-house task of creating financial models for hypothetical new investment or development opportunities.

27. As part of my regular duties, earlier in the year I had updated the financial models for the Tunisia and Abu Dhabi projects. To perform this task, I had utilized historical company records given to me months earlier by Alycia Goody, Venture's former in-house counsel. She had provided me with the transaction documents stored in her computer as well as several data CDs containing assorted project-related information. In going through these files during the summer of 2008, I took a close look at the contents of the CDs since they contained, in addition to the transaction documents and financial models, relevant historical information. I noticed for the first time some anomalies in respect to the acquisition in 2004 by BPC of the Tunisia power plant. For example, I noticed that prior to the acquisition certain emails from a high-level employee of the plant's prior owner (which by chance was my prior employer, PSEG), had been sent from private rather than corporate email accounts to Mr. Al Mazeedi and others at BTU. BTU had provided this high-level employee (who was also serving as general manager of the Tunisia plant) with PSEG's negotiating proposals, apparently to secure his advice as to how BTU should respond. Among other things, the high-level employee was using his access to the plant's budgets and escrow accounts, PSEG information and discussions with PSEG executives in charge of the sale of the Tunisia plant to evaluate and recommend pricing levels and bargaining positions to Mr. Al Mazeedi and BTU. It also appears that he was assisting Mr. Al Mazeedi and BTU with the drafting of correspondence to PSEG. It became clear that Mr. Al Mazeedi had secured confidential business information from this insider at PSEG, which gave Ventures an unfair advantage in conducting negotiations for the acquisition of the plant. I knew all the principals from PSEG involved in the transaction quite well as I had worked for PSEG for over three years. Furthermore, I had worked closely with the high-level employee while developing PSEG's strategic business plan for the Middle East and North Africa during the time I worked in PSEG's London, UK office. Unsure of what to do, but uncomfortable doing nothing, I printed a number of documents pertaining to improprieties in the purchase of the Tunisia power plant, and took them home. I thought I would keep the documents until I determined the proper course for reporting this evidence of wrong-doing. I never sent these documents (which I had highlighted and annotated in places) to anyone, until I turned them over to this Court when ordered to do so. (At the same time, I also turned over to the Court all other hard copies of company documents that I then had in my possession, and which I had used either while working at home or while travelling over the course of my BTU employment.)

28. During mid- to late August, Mr. Al Mazeedi repeated his accusations that I had betrayed him. On or about August 20, 2008, we had a lengthy conversation. I questioned him about the ongoing legal actions against the company (the Hayat matter and the IFIC lawsuit), and about his interactions and relations with various shareholders and other companies. Mr. Al Mazeedi was nonresponsive, and told me that I should not question his interactions with the shareholders. I replied by repeating what I had said previously to him: that I would be doing him a disservice if I did not question him; that I came from a public corporate background where transparency was paramount and assumptions, conclusions, decisions and actions were routinely tested for correctness and validity by rigorous questioning; and that as a Senior Vice President it was my job to do so. I also told him I had joined Ventures because I believed his stated plan to transform the company's structure from that of an informally-run private equity fund to that of an operating company with functional, transparent structures and policies. Mr. Al Mazeedi replied only by telling me that he would continue to handle shareholder matters, and that I should continue to focus exclusively on creating financial models.

29. During the first week of October 2008, Mr. Commodore told me he had located the "agreement" that was described and challenged in the IFIC lawsuit. Mr. Commodore called me over to his work area and proceeded to show me the document on his computer screen. This document confirmed what the IFIC plaintiffs had alleged, namely that Mr. Al Mazeedi was paid a "consulting fee" of $8 million in connection with the purchase by another BTU-affiliated company of an interest in MPC. Although the IFIC plaintiffs had not set out these particulars, the agreement seemed to bear out the plaintiffs' allegations that Mr. Al Mazeedi had arranged to receive "a Multi-Million Dollar Payoff'," and that this payment was seemingly fraudulent since it was not negotiated at arm's length with an independent third party and there were no real obligations regarding the provision of services in exchange for payment. Aside from confirming the IFIC plaintiffs' allegations, the "agreement" would be of no use to any investor or competitor of Ventures or of any other BTU entity as it contains no trade secrets, investment strategies, or other proprietary BTU information of any kind.

30. A few days later I asked Mr. Commodore to copy the agreement described in the last paragraph onto a portable computer drive. He did so.

31. On October 16, 2008, I printed the agreement described above using my home computer and printer, and mailed it to Attorneys Philip D. O'Neill, Jr. and Joshua Gardner at Edwards Angell Palmer & Dodge, counsel of record for the IFIC plaintiffs. I put a fictitious return address on the envelope, and mailed it from a mailbox in Boston. My rationale for taking this action was that if a fraud had indeed occurred it would see the light of day and be tested in the impartial forum of a court of law. (I later showed this and other documents to Dan. McBrearty, a former BTU consultant, in an effort to obtain advice about the appropriate ways to protect the ownership rights and economic interests of certain other investors in funds managed and operated by affiliates of BTU, as described below.)

32. Over the course of the next few weeks, Mr. Commodore informed me that he had found much of the documentation related to the MPC sale transaction that was being challenged in the IFIC lawsuit. He showed me a number of sample folders and documents located on his computer desktop. He told me that he had searched for and found other related documents on the "legal drive" section of the company's computer network, to which he (but not I) had access.

33. I gave a portable drive to Mr. Commodore, and asked him to copy the MPC documents. He did so and gave me the device. As before, I printed out some of the contents of the drive using my printer at home. The documents I printed consisted of corporate records showing that Mr. Al Mazeedi controlled various legal entities involved in the MPC transaction, which entities had been made to falsely appear to be acting at arm's length from one another. Like the "agreement" described in paragraph 28 above, these documents contain no trade secrets, investment strategies, or other proprietary BTU commercial information, and would be of no use to any BTU competitor or investor in BTU (other than the IFIC plaintiffs, who could use the documents to prove that self-dealing occurred as alleged in their lawsuit). I printed approximately one dozen such documents. As before, on November 8, 2008, I mailed copies of the documents to counsel for the IFIC plaintiffs, using a false return address. As before, I did this so that the fraud alleged in the WIC lawsuit could be thoroughly tested in a court of law, based on full relevant data.

34. The portable drive I used to download and print the documents had an embedded feature whereby the contents of the drive are automatically backed-up to a secure website. No one except I ever had access to the backed-up documents from the website as I had never told anyone else the password to the website, until, per this Court's instructions, I gave the Independent Consultant in this matter, StoneTurn that password. I understand that StoneTurn has changed the password so as to preclude access to the documents by me or any other party. During the time I had sole access to the backed-up documents, I did not transmit them to anyone electronically or physically, except as I have disclosed herein. Sometime later in 2008, after I mailed the second packet of documents to IFIC's counsel (on or about November 10), I destroyed the portable drive I had utilized to transport the documents. However, I believe that the documents may have been unintentionally copied to my home computer when I printed them using the printer connected to my computer or when they were being backed-up, and therefore may turn up in the disclosure of my computer's contents ordered by the Court.

35. Aside from the two envelopes I sent to Edwards Angell Palmer & Dodge, I disseminated Ventures' and other BTU documents only to Dan McBrearty, a BTU contractor whom I had engaged on BTU's behalf in approximately November 2007 to work with me on financial modeling, and through him, to counsel whom we jointly consulted. I sent Mr. McBrearty an electronic copy of the "agreement" described in ¶28 above, a copy of Mr. Commodore's rejected restructuring plan (122), a discussion document drafted by Mr. Commodore regarding repayment of the EBL and attendant shareholders' obligations under the guarantee, as well as about half a dozen emails and letters between BTU and the BPC shareholders expressing the desire to withdraw their investments from BTU. I did so in order to' check with someone whose insight I trusted that my interpretation that fraud may have occurred was not erroneous, and to obtain advice about appropriate ways to protect the ownership rights and economic interests of certain other investors in funds managed and operated by affiliates of BTU, whose concerns I have described in ¶17 above. At the time, Mr. McBrearty was bound by a contract he had signed with BTU, which included a non-disclosure agreement regarding BTU documents. I do not believe he further disseminated any of the documents I sent him electronically, except to the joint counsel referred to above.

36. In the months of October and November 2008, Mr. Commodore and I met several times after work to discuss BTU issues, sometimes with my former financial analyst, Timea Tothova. On November 27, Mr. Commodore sent me his updated resume, with a cover email requesting that I pass it along in case I were to run into "any lawyers, law firms or companies who may be interested in new hires." These documents are among those stored on my computer and produced to plaintiffs pursuant to the Court's order and the parties' agreed-upon protocol.

37. On November 28, 2008, Joshua Gardner, one of IFIC's lawyers in the IFIC lawsuit, filed an affidavit in Middlesex Superior Court, to which he attached seven of the documents I had mailed anonymously to his firm. Venture's counsel, who were defending the IFIC lawsuit, therefore became aware that the documents had come into IFIC's possession, and apparently concluded that they had been leaked by someone at BTU.

38. Ventures began an investigation. As part of the investigation, I was questioned on December 9, 2008 by a gentleman who identified himself only as an investigator for BTU's lawyers. During the investigation, I truthfully acknowledged that I had received documents from James Commodore, but denied (untruthfully) sending documents to lawyers representing parties that had sued BTU, or to anyone else. I was not forthcoming regarding the latter matter because I was afraid of what Ventures or Mr. Al Mazeedi would do to me if I admitted doing so. I was placed on administrative leave and escorted from the premises.

39.  My only direct contact with any of the BPC shareholders since approximately the second week in August 2008, when Mr. Al Mazeedi changed my duties, occurred on October 19, 2008. On that date, Ayman Adel Kamal, Chief of Investments at DIB, called my cell phone because, he told me, he had been unable to reach anyone at BTU's Waltham, Massachusetts office. He reported to me that the company fax was seemingly not picking up, that Mr. Al Mazeedi was not taking his calls, and that there was no way to leave a voicemail. Mr. Kamal told me that he had questions about Mr. Al Mazeedi's proposal for DIB's exit from BPC. He asked me if I had access to a fax where he could re-send his questions. I said that I had not been involved with any of the issues related to the proposed exit since August and that I was not in a position to receive anything related to the proposal. I assured Mr. Kamal that I would pass along his concerns regarding his inability to communicate with anybody at BTU's Waltham, Massachusetts office. This exchange involved three telephone calls, of two minutes', ten minutes', and two minutes' duration, and two text messages. The first text message simply communicated to Mr. Kamal that he could reach me at my personal cell (he had originally tried to reach me, unsuccessfully, on my company phone) since I very infrequently carried my company phone. The second text message was a courtesy follow-up message after he had informed me that he received a response to his questions in that morning's correspondence and I did not need to worry about communicating anything to Mr. Al Mazeedi. Beyond this, another of the shareholders, QNB, sent me a request on August 12, 2008 for accounting records from 2007 for BPC and BTU Power Management Company (a related entity). I did not respond to the request, but relayed it to Mr. Al Mazeedi 's assistants. I understand that sometime in August or September Mr. Al Mazeedi instructed Bryan Murphy to block any emails from the shareholders that were addressed or copied to either myself or Mr. Donovan.

40. I have reviewed the affidavit filed in this action by James Commodore. In addition to statements in paragraph 11, which I addressed in my first affidavit at paragraph 11, and statements in paragraphs 13-14 regarding Mr. Kamal, which I have addressed above in paragraph 39, several statements by Mr. Commodore are incorrect or misleading. My comments below are not intended to be exhaustive, since much of Mr. Commodore's affidavit reports his interpretation of events, or his subjective impressions. However, his errors and omissions of fact are addressed below.

a. In paragraph 9, Mr. Commodore describes copying "certain files" onto a company thumb drive. The item in question was the "agreement" described above in paragraph 29, and the substance of my conversations with Mr. Commodore regarding the document is set out above in paragraphs 29-30. Mr. Commodore's summary of our conversation is inaccurate.

b. In paragraph 10, Mr. Commodore describes copying certain documents from Ms. Goody's files for me onto a non-company thumb drive that I provided. The contents of this set of documents, and the events and conversations associated with their transfer to me, are set out above in paragraphs 32-33. Mr. Commodore's version of our conversation is incomplete and misleading.

c. In paragraph 11, Mr. Commodore suggests that he had noticed that I was in the habit of "systematically gathering...documents concerning many matters outside [my] areas of responsibility" and "material that clearly was neither created by [me] not conveyed to [me] in the ordinary course." These statements are misleading. Because of the varied nature of my duties, in the "ordinary course," I routinely and extensively relied on documents and financial models produced by my predecessors, outside consultants, financial institutions that provided debt to the project companies, technical reports, presentations and resolutions from board meetings, etc. and routinely reviewed historical documents of many kinds to glean from them useful information and relevant background. These materials were made available to me through various means, including the company's shared server, which I have previously described in paragraphs 13-16 of my first affidavit. (Above in ¶27, and in my first affidavit at paragraph 11, I have addressed the issue of the hard copies of documents and binders.) Also, once-I became concerned about the propriety of my employer's actions, I reviewed its historical files as described above.

d. Mr. Commodore's statement in paragraph 12 that he "discerned the method" by which I accessed certain computer files is disingenuous at best. From early in his employment, Mr. Commodore had been well aware that Ventures provided shared servers for employee use. He knew that I and other employees had free access to their contents. In fact, Mr. Commodore was the person who instructed me on the use of the shared servers and proceeded to demonstrate by placing a document from his computer directly on my computer desktop.

e. I deny making the statement attributed to me in paragraph 13 of Mr. Commodore's affidavit to the effect that I "would emerge as the likely candidate to take control" of Ventures should Mr. Al Mazeedi be "ousted." That part of paragraph 13 is created from whole cloth. My conversation with Ayman Adel Kamal after the first week of August 2008 are described fully in ¶39 above.

f. I deny attempting, as Mr. Commodore asserts in paragraph 15, "to induce the named employees, including [Mr. Commodore] to join with [me]"..."to extract some kind of payment from Ventures," and I never told Mr. Commodore anything of the sort. Instead, I simply spoke with him about my concerns about Ventures' improper business practices, and my desire to do something about them. Mr. Commodore made it clear that he would not join me in doing so, but was willing to assist.

g. In paragraphs 20-21, Mr. Commodore refers to "cruise missiles." Mr. Commodore misconstrues the use of the term. I did not use the term to refer to the packages I had sent to Edwards Angell. Rather, by "two cruise missiles launched," I meant that I believed that the two shareholders (DIB and QNB) had "launched" their formal demand for return of their capital, based on earlier communications described in116-17 above. I held this belief because in September 2008, Mr. Al Mazeedi had convened the BTU senior management team, including me, and informed us that he had told the shareholders that on November 1 he would cash out the shares of everyone that had requested an exit. I surmised that no such cash-out would be possible, since no new investors had been persuaded to become BPC shareholders. By mid-November, it would have been reasonable to conclude that we would soon learn that DIB and QNB had each forwarded a demand. As for the third "cruise missile," I do not recall using the term at that time, nor do I recall any context in which I may have used it then. I can say with certainty that I never mentioned to anyone at BTU, on the company premises, either directly or allusively, the two envelopes I had sent to the IFIC plaintiffs' counsel.

h. In paragraph 23, Mr. Commodore inaccurately claims to have cooperated fully with Ventures' investigation. This is not accurate, in that he seems not have disclosed to Ventures his own research into the MPC matter on his own initiative, to find out if there was a basis in fact for the IFIC plaintiffs' allegations. Furthermore, he did not admit his voluntary disclosure to me of the documents he found, nor his willing provision to me of the documents that were the fruit of his search.

     41.  As discussed above, during the course of my discussions with Mr. McBrearty, I shared with him correspondence between BTU and some of the investors in the BTU Power Company expressing dissatisfaction with the handling of their investments. As noted, Mr. McBrearty sent these along to the counsel we were jointly consulting, in order to secure advice about the appropriate ways to protect these the ownership rights and economic interests of certain investors in funds managed and operated by affiliates of BTU. Mr. McBrearty and I then discussed those documents and their significant implications with our joint counsel.


SIGNED UNDER THE PENALTIES OF PERJURY THIS_____ DAY OF____ , 2009.


Martin Betancourt