FILED: NEW YORK COUNTY CLERK 09/30/ :41 PM INDEX NO /2016 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 09/30/2016

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1 FILED: NEW YORK COUNTY CLERK 09/30/ :41 PM INDEX NO /2016 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 09/30/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MARK D ANDREA, Plaintiff, v. INCAPTURE INVESTMENTS LLC, PETER KNEZ, and INCAPTURE LP, Defendants. Index No /2016 DEFENDANT PETER KNEZ S VERIFIED AMENDED ANSWER AND AFFIRMATIVE DEFENSES Defendant PETER KNEZ ( Knez or Defendant, by his attorneys, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., answers the Verified Complaint (the Complaint of Plaintiff Mark D Andrea ( Plaintiff, as follows: 1. Knez denies having knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 1 of the Complaint. 2. Knez admits that Incapture Investments LLC is a Delaware limited liability company and was doing business in New York or in California. 3. Knez admits the allegations in Paragraph Knez admits the allegations in Paragraph Knez admits that Incapture was created in early 2012 and that, when created, did not have operations. Knez denies the remaining allegations in Paragraph Knez admits that he and D Andrea began discussing D Andrea s employment in or around March 2012, that he and D Andrea previously had been employed by the same entity, and that Knez individually would be investing in Incapture. Knez denies the remaining allegations in Paragraph of 10

2 7. Knez denies the allegations set forth in paragraph 7 of the Complaint, and directs the Court to the Personal Services Agreement, the Partnership Agreement and the Supplemental Agreement for the terms thereof. 8. Knez denies the allegations in Paragraph Knez denies the allegations in Paragraph Knez admits that (i Incapture LP is a Delaware limited partnership, (ii Incapture GP LLC is the general partner of Incapture LP, (iii Encapture LLC is the managing member of Incapture GP LLC, and (iv Knez is the managing member of Encapture LLC, and denies the remaining allegations in Paragraph Knez denies the allegations set forth in Paragraph 11 and directs the Court to the Amended and Restated Personal Services Agreement for the terms thereof. 12. Knez denies the allegations set forth in Paragraph 12 and directs the Court to the 13. Knez denies the allegations set forth in Paragraph 13 and directs the Court to the 14. Knez denies the allegations set forth in Paragraph 14 and directs the Court to the 15. Knez denies the allegations set forth in Paragraph 15 and directs the Court to the 16. Knez denies the allegations set forth in Paragraph 16 and directs the Court to the 17. Knez denies the allegations set forth in Paragraph 17 and directs the Court to the 2 of 10

3 18. Knez denies the allegations set forth in Paragraph 18 and directs the Court to the 19. Knez denies the allegations set forth in Paragraph 19 and directs the Court to the 20. Knez denies the allegations in Paragraph Knez admits that the flagship investment fund of Incapture Investments LLC was launched in May 2014, and denies the remaining allegations in Paragraph Knez admits that the Incapture defendants employed approximately 30 individuals in or around the end of 2013, and that the Incapture defendants employed approximately 50 individuals in or around the early part of Knez denies the remaining allegations in Paragraph Knez admits that at various times between October 2013 and October 2015, Incapture Investments LLC had offices in San Francisco, London, Tokyo, Sydney and Walnut Creek, CA. Knez denies the remaining allegations in Paragraph Knez denies having knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 24 regarding D Andrea s thoughts and beliefs. Knez admits that D Andrea was reimbursed for travel and business expenses pursuant to company policy. To the extent a response is required, Knez denies the remaining allegations in Paragraph Knez admits that Incapture Investments LLC and BlackRock entered into a settlement agreement, and denies the remainder of the allegations in Paragraph Knez admits that Incapture LP consummated an equity financing in the spring of 2014, and denies the remaining allegations in Paragraph of 10

4 27. Knez admits that Incapture Investments LLC launched the Alpha Capture Fund in around May 2014 with an initial investment of $50,000,000, and that investments in such fund were made through a number of investors. Knez denies the remaining allegations in Paragraph Knez admits that the Alpha Capture Fund received additional investment of $150,000,000 in around July 2015, from new investors based in Australia. Knez denies the remaining allegations in Paragraph Knez denies the allegations in Paragraph Knez admits that Alpha Capture Fund s performance was negative by approximately 3.5 percent on or around July 2015, and denies the remaining allegations in Paragraph Knez denies having knowledge or information sufficient to form a belief as to the truth of the allegations regarding clients thoughts and actions, or the impact of same on D Andrea s substandard performance. Knez denies the remaining allegations in Paragraph Knez denies the allegations in Paragraph Knez admits that he and Diamond led a series of presentations to potential investors and were supported by an investment banking company. Knez admits that they made detailed presentations to both private equity and venture capital firms. Knez denies the remaining allegations in Paragraph Knez admits that Incapture Investments LLC began to wind down the Alpha Capture Fund in July 2015, and that D Andrea remained employed thereafter. Knez denies the remaining allegations in Paragraph Knez denies the allegations in Paragraph of 10

5 36. Knez denies the allegations in Paragraph Knez denies the allegations in Paragraph Knez denies the allegations in Paragraph Paragraph 39 contains legal conclusions to which no response is required. To the extent a response is required, Knez denies the allegations in Paragraph Knez denies the allegations in Paragraph Knez denies the allegations in Paragraph Knez denies the allegations in Paragraph Knez denies the allegations in Paragraph Knez denies the allegations in Paragraph Knez incorporates herein all of his answers to Paragraphs 1 through 44, inclusive, as if the same were fully set forth herein. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE The Complaint must be dismissed because it fails to state a claim upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE Plaintiff s causes of action are barred, in whole or in part, based on the doctrine of equitable estoppel. laches. THIRD AFFIRMATIVE DEFENSE Plaintiff s causes of action are barred, in whole or in part, based on the doctrine of 5 of 10

6 FOURTH AFFIRMATIVE DEFENSE Plaintiff s causes of action are barred, in whole or in part, based on the doctrine of waiver. unclean hands. FIFTH AFFIRMATIVE DEFENSE Plaintiff s causes of action are barred, in whole or in part, based on the doctrine of SIXTH AFFIRMATIVE DEFENSE Each of the Plaintiff s allegations arises, in whole or in part, from Plaintiff s own breaches of his fiduciary duties, fraud and/or misrepresentation. unenforceable. SEVENTH AFFIRMATIVE DEFENSE Plaintiff s claims contract claims are barred because the alleged contract is EIGHTH AFFIRMATIVE DEFENSE Plaintiff s claims contract claims must be denied because, to the extent a contract exists, Knez performed as required under the contract. NINTH AFFIRMATIVE DEFENSE Plaintiff s claims are barred because to the extent that the Plaintiff has suffered any damages, such damages were not causally related to any alleged conduct of Knez. 6 of 10

7 TENTH AFFIRMATIVE DEFENSE Plaintiff s claims are barred because to the extent that Plaintiff has suffered any damages, he has failed to mitigate such damages. ELEVENTH AFFIRMATIVE DEFENSE The relief Plaintiff requests would result in unjust enrichment. TWELFTH AFFIRMATIVE DEFENSE Plaintiff s contract claims must be denied because, to the extent a contract exists, Plaintiff materially breached his contractual obligations to Knez, and said breaches discharge Knez from any liability in whole or in part. THIRTEENTH AFFIRMATIVE DEFENSE Plaintiff s claims are barred by his failure to deliver performance that served as a condition for the contract. FOURTEENTH AFFIRMATIVE DEFENSE Plaintiff s claims are barred by his failure to name and/or join the proper parties. FIFTEENTH AFFIRMATIVE DEFENSE Plaintiff s claims are barred by the doctrines of release, ratification, and/or acquiescence. SIXTEENTH AFFIRMATIVE DEFENSE Plaintiff s claims are barred, in whole or in part, because any losses or damages suffered by Plaintiff were proximately caused by his own acts or omissions. 7 of 10

8 SEVENTEENTH AFFIRMATIVE DEFENSE Should Plaintiff prevail, pursuant to the Personal Guarantee, he is liable for his own attorney s fees and Knez could in no way be responsible for reimbursement of any such fees. WHEREFORE, Defendant Peter Knez demands judgment against Plaintiff: (a Dismissing the Verified Complaint with prejudice and denying each and every request for relief set forth therein; (b (c Awarding Knez his costs and disbursements in this action; and Granting Knez such other and further relief as the Court deems just and proper. Dated: September 30, 2016 New York, New York MINTZ, LEVIN, COHN, FERRIS, GLOVKSY & POPEO, P.C. By: /s/ Narges M. Kakalia Narges M. Kakalia NMKakalia@mintz.com The Chrysler Center 666 Third Avenue New York, New York ( H. Andrew Matzkin, Esq. HMatzkin@mintz.com 1 Financial Center Boston, Massachusetts ( Admitted pro hac vice MAYNARD COOPER & GALE, LLP C. Andrew Kitchen, Esq. DKitchen@maynardcooper.com Transamerica Pyramid Center 8 of 10

9 600 Montgomery Street, Suite 2600 San Francisco, California ( Admitted pro hac vice Attorneys for Defendant Peter Knez 9 of 10

10 VERIFICATION STATE OF NEW YORK ss: COUNTY OF NEW YORK NARGES M. KAKALIA, being duly sworn, deposes and says: I am a member of the law firm Mintz Levin Cohn Ferris Glovsky and Popeo, P.C., attorneys for defendant Peter Knez ( Defendant in this action. I have read the annexed Verified Answer and Affirmative Defenses and know the contents thereof and state that the same are true to my knowledge, except as to the matters alleged upon information and belief, and as to such matters, I believe same to be true based upon my review of the underlying records of Defendant. I am making this affirmation because Defendant resides outside of the county in which I maintain my law practice. I affirm that the foregoing statements are true under penalties of perjury. Dated: New York, New York September 30, 2016 /s/ Narges M. Kakalia NARGES M. KAKALIA, ESQ v.2 10 of 10