Evidence Record
AW Harris Awh 2024 48085 Doc. 121068521
1. This Court has appointed Robert Berleth as Receiver over Cyberlux Corporation ("Cyberlux") in the above-captioned proceeding. Montague seeks to intervene to protect its substantial contractual rights to sums totaling approximately $3,543,265.17 (before interest)...
DISTIL analysis
DISTIL Run
Profile
Standard
Version
1
Doc Type
Petition in Intervention
Total Nodes
30
Node Legend
Entity (ENT)
Event (EVT)
Claim (CLM)
Anchor (ANC)
Omission (OMI)
Tension (TEN)
Tell (TEL)
Inference (INF)
Hypothesis (HYP)
Stage 1
Index
Orientation · No nodes
Document Classification
Petition in Intervention Montague Capital Partners, LLC via Cersonsky & McAnelly, P.C. Commercial litigation, receivership proceedings, breach of contract 2019-2025 (consulting relationship); 2023-2025 (alleged breaches); filed June 13, 2025
financial_claimreceivershipcontractual_disputemulti_party_litigation
Analytical Frame
Creditor claim for unpaid commissions and fees under consulting agreement
Analytical Summary
Montague Capital Partners, LLC filed a Petition in Intervention in Harris County District Court seeking to protect its contractual claims totaling approximately $3.5 million against Cyberlux Corporation, which is under receivership. Montague asserts it is entitled to 5% commissions on Ukraine-related drone contracts it sourced for Cyberlux, including approximately $38.7 million already received and an anticipated $25.8 million payment from Huntington Ingalls Industries. The petition alleges Cyberlux breached the January 1, 2023 Amended and Restated Consulting Agreement by failing to pay commissions, monthly consulting fees, penalty payments, and by refusing to provide required financial statements. Montague seeks recognition of its claims in the receivership estate and immediate segregation of its 5% share of the pending HII payment.
Key Points
- Montague claims $3,543,265.17 owed by Cyberlux under 2023 Consulting Agreement before interest and penalties
- 5% commission due on $38.7M received in 2023 from Ukraine drone contract ($1,935,000 unpaid)
- 5% commission due on pending $25,795,303.38 HII payment ($1,289,765.17)
- $125,000 in unpaid monthly consulting fees from January-June 2025
- Montague sourced $79M HII contract for FlightEye K8 drones for Ukraine use
- Agreement provides 10% penalty on underpayments exceeding 10% and 1% monthly interest on all unpaid amounts
- Robert Berleth appointed as Receiver over Cyberlux by this Court
- Cyberlux allegedly failed to provide required monthly payment statements under Section 3.3(a)
Stage 2
Core — Entities, Events, Claims
18 nodes
ENT-001
Entity
Montague Capital Partners, LLC
North Carolina limited liability company, intervenor and creditor claiming approximately $3.5 million owed under consulting agreement with Cyberlux Corporation. Principal place of business at 101 Glen Lennox Dr., Suite 300, Chapel Hill, NC 27517.
Page 2 — Intervenor Montague is a North Carolina limited liability company with its principal place of business at 101 Glen Lennox Dr., Suite 300, Chapel Hill, NC 27517.
ENT-002
Entity
Cyberlux Corporation
Nevada Corporation with headquarters and principal place of business at 800 Park Offices Drive, Suite 3209, Research Triangle Park, North Carolina 27709. Operates drone manufacturing facility in Montgomery, Texas. Currently subject to receivership proceedings before Harris County District Court.
Page 2 — Defendant Cyberlux is a Nevada Corporation with its headquarters and principal place of business located at 800 Park Offices Drive, Suite 3209, Research Triangle Park, North Carolina 27709... Cyberlux is currently subject to receivership proceedings before this Court.
ENT-003
Entity
Denis Kalenja
Managing Partner of Montague Capital Partners, LLC. Described as the driving force behind Cyberlux's most important acquisitions and responsible for sourcing and negotiating commercial agreements accounting for the overwhelming majority of Cyberlux's revenues.
Page 3 — Montague, and its Managing Partner, Denis Kalenja, was the driving force behind Cyberlux's most important acquisitions and was responsible for sourcing and negotiating the commercial agreements that account for the overwhelming majority of Cyberlux's revenues to date.
ENT-004
Entity
Robert Berleth
Court-appointed Receiver over Cyberlux Corporation in the underlying proceeding.
Page 1 — This Court has appointed Robert Berleth as Receiver over Cyberlux Corporation ("Cyberlux") in the above-captioned proceeding.
ENT-005
Entity
Huntington Ingalls Industries (HII)
Contracting party with Cyberlux Corporation for delivery of FlightEye Model K8 drones for use in Ukraine. Expected to make payment of $25,795,303.38 to Cyberlux receivership estate.
Page 1, 6 — the Cyberlux Receiver will soon be in possession of a $25,795,303.38 payment to Cyberlux from Huntington Ingalls Industries ("HII")... On or about August 29, 2023, Cyberlux entered a contract with HII to deliver FlightEye Model K8 drones for use by the Ministry of Defense of Ukraine.
EVT-001
Event
Execution of 2023 Consulting Agreement
Montague and Cyberlux executed Amended and Restated Consulting Agreement on January 1, 2023, and supplemental Memorandum on January 5, 2023. Agreement provided for $250,000 annual base compensation, 2% commission on most commercial contracts, and 5% commission on Ukraine-related contracts.
Page 3 — Montague and Cyberlux have maintained a close working relationship since 2019, formalized in the original January 1, 2019 Consulting Agreement (attached as Exhibit A) and subsequently amended and restated via the January 1, 2023 Consulting Agreement (attached as Exhibit B) and January 5, 2023 Memorandum (attached as Exhibit C).
EVT-002
Event
HII Contract Execution (August 29, 2023)
Cyberlux entered into contract with Huntington Ingalls Industries on or about August 29, 2023 to deliver FlightEye Model K8 drones for Ministry of Defense of Ukraine. Initial total value approximately $79 million. Montague claims this represents culmination of its strategic efforts to position Cyberlux as key defense supplier.
Page 6 — On or about August 29, 2023, Cyberlux entered a contract with HII to deliver FlightEye Model K8 drones for use by the Ministry of Defense of Ukraine. This contract, with an initial total value of approximately $79 million, represents the culmination of Montague's strategic efforts to position Cyberlux as a key supplier in the defense sector.
EVT-003
Event
2023 HII Payments to Cyberlux
Cyberlux received approximately $38.7 million in payments under the HII contract during 2023. Montague asserts these payments are subject to 5% commission under the 2023 Consulting Agreement, totaling $1,935,000 in commissions owed.
Page 6 — Based on information available to Montague, including Cyberlux's public financial disclosures, Cyberlux received approximately $38.7 million in payments under this contract during 2023.
EVT-004
Event
Pending HII Payment ($25.8M)
HII is expected to make additional payment of $25,795,303.38 to Cyberlux in near term. Information learned from documents filed by Cyberlux Receiver in Atlantic Wave Holdings case.
Page 6, 7 — Furthermore, based upon documents filed by the Cyberlux Receiver in Atlantic Wave Holdings, LLC, et al. v. Cyberlux Corporation, et al., Cause No. 2024-48085, 129th Judicial District Court of Harris County, Texas (the "Atlantic Wave case"), Montague has learned that HII is expected to make an additional payment of $25,795,303.38 to Cyberlux in the near term.
EVT-005
Event
Failure to Pay Commissions on 2023 Receipts
Cyberlux failed to pay Montague any portion of $1,935,000 in commissions due on approximately $38.7 million received during 2023 under Ukraine drone contract. This represents 100% underpayment triggering willful misconduct provisions under Section 3.3(c) of Agreement.
Page 7 — Despite receiving approximately $38.7 million in payments during 2023 under the Ukraine drone contract-a Commissionable Contract expressly identified in Schedule 2 of the Agreement and subject to the 5% commission rate-Cyberlux has failed to pay Montague any portion of the $1,935,000 in commissions due on these receipts.
EVT-006
Event
Failure to Pay Monthly Consulting Fees (Jan-Jun 2025)
Beginning with January 2025 payment and continuing through present, Cyberlux failed to make six required monthly payments of $20,833.33. Unpaid consulting fees total $125,000 for period January through June 2025, exclusive of interest.
Page 7, 8 — In addition to the commission obligations, Cyberlux has failed to pay the monthly consulting fees required under Section 3.2 of the Agreement. Beginning with the January 2025 payment and continuing through the present, Cyberlux has failed to make six (6) of the required monthly payments of $20,833.33. As of today, the unpaid consulting fees total $125,000 for the period January through June 2025, exclusive of interest.
EVT-007
Event
Demand Letter (June 10, 2025)
On June 10, 2025, demand letter sent via email and Federal Express by Montague to Cyberlux, detailing breaches and amounts owed under 2023 Consulting Agreement.
Page 8 — On June 10, 2025, a demand letter was sent-via email and Federal Express-by Montague to Cyberlux, detailing the breaches and amounts owed to Montague under the 2023 Consulting Agreement.
EVT-008
Event
Filing of Petition in Intervention
Montague Capital Partners filed Petition in Intervention in Cause No. 2025-41073, 129th Judicial District Court of Harris County, Texas on June 13, 2025 at 1:32 PM. Filed by attorney M.H. Cersonsky of Cersonsky & McAnelly, P.C.
Page 1, 18 — 6/13/2025 1:32 PM Marilyn Burgess - District Clerk Harris County Envelope No. 101991528 By: Joshua Hall Filed: 6/13/2025 1:32 PM
CLM-001
Claim
Total Amount Due: $3,543,265.17 (before interest)
Montague claims Cyberlux owes total of approximately $3,543,265.17 before interest, consisting of: (a) $1,935,000 unpaid commissions on $38.7M received in 2023; (b) $193,500 representing 10% penalty on underpayment; (c) $125,000 unpaid monthly consulting fees Jan-Jun 2025; (d) $1,289,765.17 commission on pending $25.8M HII payment; plus accrued interest at 1% per month.
Page 1, 8 — Montague seeks to intervene to protect its substantial contractual rights to sums totaling approximately $3,543,265.17 (before interest) arising from Cyberlux's breach of the January 1, 2023 Amended and Restated Consulting Agreement... Cyberlux owes: (a) $1,935,000 in unpaid commissions on the approximately $38.7 million received during 2023; (b) $193,500 representing the 10% penalty on such underpayment pursuant to Section 3.3; (c) accrued interest on the unpaid commission at 1% per month from the date each payment was due; (d) $125,000 in unpaid monthly consulting fees for January through June 2025; and (e) accrued interest on unpaid consulting fees at 1% per month from each payment's due date.
CLM-002
Claim
5% Commission Rate on Ukraine Contracts
Agreement Section 3.3 provides Montague entitled to receive 5% commission on Ukraine-related commercial contracts, specifically including Order no. 220/9169 for tactical drones for Ministry of Defense of Ukraine, subsequently increased to 2,000 units per January 5, 2023 Memorandum.
Page 4, 5 — In addition to the Fees Consultant shall be entitled to receive two percent (2%), with the exception of any Ukraine-related commercial contracts for which the Consultant shall be entitled to five percent (5%), of the gross amounts payable to Cyberlux... That certain line of business related to the sale of tactical drones from time to time for use by the Ministry of Defense of Ukraine, including without limitation, Order no. 220/9169 dated September 21, 2022 for 1,000 tactical drones type FlightEye KOA031831... such order was subsequently increased to 2,000 units, as to which 5% commission is payable pursuant to the Agreement.
CLM-003
Claim
Montague Sourced $79M HII Contract
Montague claims it sourced the contract underlying Cyberlux's most significant revenue stream - the $79M August 29, 2023 contract with HII to deliver FlightEye Model K8 drones for use in Ukraine. Describes this as representing culmination of Montague's strategic efforts to position Cyberlux as key defense supplier.
Page 4, 6 — Sourcing the contract underlying Cyberlux's most significant revenue stream-Cyberlux's $79M August 29, 2023 contract with Huntington Ingalls Industries ("HII") to deliver FlightEye Model K8 drones for use in Ukraine... This contract, with an initial total value of approximately $79 million, represents the culmination of Montague's strategic efforts to position Cyberlux as a key supplier in the defense sector.
CLM-004
Claim
Material Breach: Failure to Provide Monthly Statements
Section 3.3(a) requires Cyberlux provide monthly statements within first five business days of each month detailing payments received under Commissionable Contracts. Montague claims Cyberlux has provided no statements whatsoever regarding substantial payments received under Ukraine drone contract.
Page 6, 8 — Cyberlux will, within the first five (5) business days of each month provide Consultant with a statement of all payments made under Commissionable Contracts in the prior month... Compounding these payment failures, Cyberlux has breached its reporting obligations under Section 3.3(a) of the Agreement by failing to provide monthly statements detailing payments received under Commissionable Contracts. Despite the clear requirement that such statements be provided within the first five business days of each month, Montague has received no statements whatsoever regarding the substantial payments Cyberlux has received under the Ukraine drone contract.
CLM-005
Claim
Montague's Strategic Transformation of Cyberlux
Montague claims responsibility for: formulating Cyberlux's transition from small lighting company to defense subcontractor; guiding acquisition of Catalyst Machineworks drone manufacturer; leading negotiation and closing of Datron acquisition; lifting 'Caveat Emptor' designation from OTC Markets (shares were 'essentially worthless' during CE designation).
Page 3, 4 — Formulating and leading Cyberlux's transition from a small company focused on lighting systems to legitimate defense subcontractor; Guiding Cyberlux's acquisition of the (then-distressed) high-speed drone manufacturer Catalyst Machineworks... Leading, negotiating and closing on Cyberlux's acquisition of Datron World Communications, Inc... Leading the effort to lift the "Caveat Emptor" ("CE") designation of the OTC Markets Group... Cyberlux shares were essentially "worthless" during the pendency of the CE designation
Stage 3
In Situ — Quotations, Tells, Tensions, Questions
8 nodes
QUO-001
Quotation
Agreement Section 3.2: Base Compensation
Section 3.2 of 2023 Consulting Agreement: 'As base compensation for the Services and the rights granted to Cyberlux in this Agreement, Cyberlux shall pay Consultant a fixed fee of $250,000.00 (the "Fees") per annum, payable in equal monthly installments on the first business day of each month, commencing January 3, 2023.'
Page 4 — Section 3.2 of the Agreement provides: As base compensation for the Services and the rights granted to Cyberlux in this Agreement, Cyberlux shall pay Consultant a fixed fee of $250,000 00 (the "Fees") per annum, payable in equal monthly Installments on the first business day of each month, commencing January 3, 2023.
QUO-002
Quotation
Agreement Section 3.3: Commission Structure
Section 3.3 provides: 'In addition to the Fees Consultant shall be entitled to receive two percent (2%), with the exception of any Ukraine-related commercial contracts for which the Consultant shall be entitled to five percent (5%), of the gross amounts payable to Cyberlux (the "Commission") under commercial contracts sourced by Consultant...'
Page 4 — Section 3.3 of the Agreement states: In addition to the Fees Consultant shall be entitled to receive two percent (26), with the exception of any Ukraine-related commercial contracts for which the Consultant shall beCentited [sic] to five percent (5%) , of the gross amounts payable to Cyberlux (the "Commission") under commercial contracts sourced by Consultant, including, without limitation, the proceeds of joint ventures, licenses and software as service agreements (collectivedy) the "Commissionable Contracts"}
QUO-003
Quotation
Agreement Section 3.3(c): Underpayment Penalties
Section 3.3(c) states: 'if any payment in respect of any Commissionable Contract is underpaid by an amount in excess of ten percent (10%) of the amount payable thereunder in any month, the Parties agree that such underpayment represents willful misconduct or gross negligence on the part of Cyberlux, and must be cured within ten (10) business days with an additional payment premium of an amount equal to ten (10) percent of the underpayment amount.'
Page 5 — In respect of any underpayment of Commission, Cyberlux will pay interest on such underpayment at a rate of one percent (1%) per month; provided that if any payment in respect of any&Commissionable Contract is underpaid by an amount in excess of ten percent (10%) of the amount payable thereunder in any month, the Parties agree that such underpayment represents willful misconduct or gross negligence on the part of Cyberlux, and must be cured within ten (10) business days with an additional payment premium of an amount equal to ten (10) percent of the underpayment amount.
TEN-001
Tension
Cyberlux Asset Dissipation vs. Creditor Claims
Petition highlights tension between Cyberlux's receipt of substantial payments ($38.7M in 2023, $25.8M pending) and alleged asset dissipation. Records indicate Cyberlux 'dissipated approximately $38 million in September 2023.' Multiple creditors pursuing recovery including Atlantic Wave's domesticated judgment and recent $1.6M judgment to Thin Air Gear in Colorado federal court.
Page 9, 10 — Cyberlux's financial maneuvers have raised concerns regarding asset preservation. Records indicate that Cyberlux dissipated approximately $38 million in September 2023... The scope of creditor claims against Cyberlux underscores the critical need for centralized receivership administration. In addition to Montague's substantial claims, multiple creditors have pursued recovery against Cyberlux, including Atlantic Wave's domesticated judgment and a recent $1,631,221.32 judgment entered in favor of Thin Air Gear, LLC in Colorado federal court.
TEN-002
Tension
Conflicting Interests: Secured Creditor vs. Unsecured Claims
In April 2025, after defaulting on credit agreement with Legalist SPV III, LP, Cyberlux amended its line of credit to increase borrowing limit from $7 million to $12.3 million, with credit facility collateralized by accounts receivable on Ukraine-related drone contracts. This creates potential priority conflict with Montague's commission claims on same revenue stream.
Page 9 — Recently, in April 2025, after defaulting on a credit agreement with Legalist SPV III, LP ("Legalist"), Cyberlux amended its line of credit with Legalist to increase the borrowing limit from $7 million to $12.3 million, with the credit facility collateralized by accounts receivable on its Ukraine-related drone contracts.
QST-001
Question
What constitutes 'sourced by Consultant' under Agreement?
Agreement entitles Montague to commissions on 'commercial contracts sourced by Consultant.' Montague claims it 'sourced' the $79M HII contract, but agreement does not define 'sourced.' Question: what specific actions constitute sourcing under this agreement - initial introduction, negotiation, closing, or some combination? This definition will be critical to determining commission entitlement.
Page 4 — In addition to the Fees Consultant shall be entitled to receive two percent (2%), with the exception of any Ukraine-related commercial contracts for which the Consultant shall be entitled to five percent (5%), of the gross amounts payable to Cyberlux (the "Commission") under commercial contracts sourced by Consultant
QST-002
Question
How reliable is Montague's calculation of 2023 receipts?
Montague states 'Based on information available to Montague, including Cyberlux's public financial disclosures, Cyberlux received approximately $38.7 million in payments under this contract during 2023.' Montague acknowledges lack of monthly statements from Cyberlux and reliance on 'incomplete public information and third-party sources.' Question: what is actual payment amount and timing, and does it match Montague's estimate?
Page 6, 8 — Based on information available to Montague, including Cyberlux's public financial disclosures, Cyberlux received approximately $38.7 million in payments under this contract during 2023... This lack of transparency has forced Montague to rely on incomplete public information and third-party sources to determine the extent of amounts owed
QST-003
Question
What is priority of Montague's claims vs. Legalist security interest?
Legalist SPV III holds $12.3M credit facility 'collateralized by accounts receivable on its Ukraine-related drone contracts' - the same revenue stream on which Montague claims 5% commission rights. Question: does Legalist's security interest in accounts receivable take priority over Montague's contractual commission claims? Does commission accrue before or after secured creditor rights attach?
Page 9 — Recently, in April 2025, after defaulting on a credit agreement with Legalist SPV III, LP ("Legalist"), Cyberlux amended its line of credit with Legalist to increase the borrowing limit from $7 million to $12.3 million, with the credit facility collateralized by accounts receivable on its Ukraine-related drone contracts.
Stage 4
Interpretive — Inferences, Omissions, Patterns
4 nodes
INF-001
Inference
Timing of Receivership Suggests Liquidity Crisis
Convergence of events suggests acute liquidity crisis: (1) Cyberlux stopped paying Montague's monthly fees in January 2025; (2) Cyberlux defaulted on Legalist credit agreement requiring April 2025 amendment; (3) Receivership appointed by this Court sometime before June 2025; (4) Multiple creditor judgments outstanding. Inference: Cyberlux's financial condition deteriorated significantly in late 2024/early 2025 despite substantial contract revenues.
Page 1, 7, 9 — Beginning with the January 2025 payment and continuing through the present, Cyberlux has failed to make six (6) of the required monthly payments... Recently, in April 2025, after defaulting on a credit agreement with Legalist SPV III, LP... This Court has appointed Robert Berleth as Receiver over Cyberlux Corporation
INF-002
Inference
Montague Seeking Priority Treatment via Early Intervention
Montague's intervention filing on June 13, 2025 specifically requests Receiver 'segregate and hold in trust Montague's 5% commission ($1,289,765.17) from the pending HII payment of $25,795,303.38.' Inference: Montague seeks to establish priority claim or constructive trust over specific identifiable funds before general receivership distribution, potentially ahead of other unsecured creditors.
Page 1, 16 — Direct the Receiver to segregate and hold in trust Montague's 5% commission ($1,289,765.17) from the pending HII payment of $25,795,303.38... Montague's intervention will promote judicial efficiency by allowing the Receiver to consider creditor interests in a single forum
OMI-001
Omission
No Discussion of Legalist's Potential Objection
Petition extensively details Montague's commission claims on Ukraine contract revenue and requests segregation of funds from pending HII payment. However, petition does not address how Legalist's $12.3M secured credit facility 'collateralized by accounts receivable on its Ukraine-related drone contracts' might conflict with requested relief. Omission notable given direct competition for same revenue stream.
Page 9, 16 — Direct the Receiver to segregate and hold in trust Montague's 5% commission ($1,289,765.17) from the pending HII payment of $25,795,303.38... Recently, in April 2025, after defaulting on a credit agreement with Legalist SPV III, LP ("Legalist"), Cyberlux amended its line of credit with Legalist to increase the borrowing limit from $7 million to $12.3 million, with the credit facility collateralized by accounts receivable on its Ukraine-related drone contracts.
OMI-002
Omission
No Detail on 2% Commission Claims
Petition states 'In addition to its failure to pay the 5% commission on the Ukraine drone contract, Cyberlux has failed to pay the 2% commission due to Montague on other Commissionable Contracts.' However, petition provides no details, amounts, or supporting information regarding these 2% commission claims. All detailed financial claims focus exclusively on 5% Ukraine-related commissions.
Page 7 — In addition to its failure to pay the 5% commission on the Ukraine drone contract, Cyberlux has failed to pay the 2% commission due to Montague on other Commissionable Contracts.
Extracted text
18 pages · 29458 charactersFiling Header
CAUSE NO. 2025-41073
PHILLIP RICK TUCKER, a/k/a RICK TUCKER, and NEILL WHITELEY, Individually, Plaintiffs,
V.
CYBERLUX CORPORATION and MARK D. SCHMIDT, Individually,
§ § § § Defendants.
§ IN THE DISTRICT COURT OF
§ §
§
HARRIS COUNTY, TEXAS
§
§
§ § 129TH JUDICIAL DISTRICT COURT
MONTAGUE CAPITAL PARTNERS, LLC'S PETITION IN INTERVENTION
TO THE HONORABLE JUDGE OF THE COURT:
Montague Capital Partners, LLC ("Intervenof" or "Montague") files its Petition in Intervention and in support thereof respectfully shows the Court as follows:
I. INTRODUCTION
1.
This Court has appointed Robert Berleth as Receiver over Cyberlux Corporation ("Cyberlux") in the above-captioned proceeding. Montague seeks to intervene to protect its substantial contractual rights to sums totaling approximately $3,543,265.17 (before interest) arising from Cyberlux's breach of the January 1, 2023 Amended and Restated Consulting Agreement and associated January 5, 2023 Memorandum (collectively, the "2023 Consulting Agreement"). Importantly, for purposes of this intervention, the Cyberlux Receiver will soon be in possession of a $25,795,303.38 payment to Cyberlux from Huntington Ingalls Industries ("HII") of which Montague is entitled to receive 5% (i.e., $1,289,765.17). Accordingly, Montague files this Petition in Intervention to protect its interests in Cyberlux's assets and ensure the orderly administration of claims against the receivership estate. Montague's intervention will promote judicial efficiency by allowing the Receiver to consider creditor interests in a single
. nocia CenyOface of Marilyn, Burgers District Clerk
forum, avoiding piecemeal litigation.
II. PARTIES
2.
Intervenor Montague is a North Carolina limited liability company with its principal place of business at 101 Glen Lennox Dr., Suite 300, Chapel Hill, NC 27517.
3.
Plaintiff Phillip Rick Tucker is an individual residing in Harris County, Texas. Daniel A. Ardmore, attorney of record for Plaintiff, will be served pursuant to Texas Rule of Civil Procedure 21.
4.
Plaintiff Neill Whiteley is an individual residingon Montgomery County, Texas. Daniel A. Ardmore, attorney of record for Plaintiff, will be served pursuant to Texas Rule of Civil Procedure 21.
Jnoticias: CopyOfficecaf Madalyn Burgess District Clerk
5.
Defendant Cyberlux is a Nevada Corporation with its headquarters and principal place of business located at 800 Park Offices Drive, Suite 3209, Research Triangle Park, North Carolina 27709. Cyberlux will be served pursuant to the Texas Rules of Civil Procedure. Cyberlux is currently subject to receivership proceedings before this Court.
6.
Defendant Mark D. Schmidt is an individual residing in Pittsboro, North Carolina. Mr. Schmidt will be served pursuant to the Texas Rules of Civil Procedure. Mr. Schmidt is currently subject to receivership proceedings before this Court.
III. I. JURISDICTION AND VENUE
7.
This Court has personal jurisdiction over Cyberlux and its assets because it conducts substantial business in Texas and operates a drone manufacturing facility in Montgomery, Texas.
8.
This Court has subject matter jurisdiction via the underlying claims of the named
Plaintiffs Tucker and Whiteley and through the Court's receivership proceedings.
9.
Venue is proper in this county because it is the county in which all or a substantial part of the events giving rise to Plaintiffs Tucker's and Whiteley's claims occurred.
IV. BACKGROUND
a. Montague's Work on Behalf of Cyberlux
10.
Montague and Cyberlux have maintained a close working relationship since 2019, formalized in the original January 1, 2019 Consulting Agreement (attached as Exhibit A) and subsequently amended and restated via the January 1, 2023 Consulting Agreement (attached as Exhibit B) and January 5, 2023 Memorandum (attached as Exhibit C).
11.
Montague, and its Managing Partner, Denis Kalenja, was the driving force behind Cyberlux's most important acquisitions and was responsible for sourcing and negotiating the commercial agreements that account for the overwhelming majority of Cyberlux's revenues to date.
12.
Highlights of Montague's work on behalf of Cyberlux include:
· Formulating and leading Cyberlux's transition from a small company focused on lighting systems to legitimate defense subcontractor;
· Guiding Cyberlux's acquisition of the (then-distressed) high-speed drone manufacturer Catalyst Machineworks ("Catalyst") and advising on Catalyst's transformation from drone-enthusiast company to the military/law- enforcement drone manufacturing arm of Cyberlux;
• Leading, negotiating and closing on Cyberlux's acquisition of Datron World Communications, Inc. ("Datron") and subsequently integrating Datron-and its tactical military communications equipment manufacturing capabilities- into Cyberlux;
· Leading the effort to lift the "Caveat Emptor" ("CE") designation of the OTC Markets Group (which allowed for brokers and trading platforms to handle buy and sell orders in Cyberlux stock) Cyberlux shares were essentially "worthless" during the pendency of the CE designation;
· Sourcing the contract underlying Cyberlux's most significant revenue stream-Cyberlux's $79M August 29, 2023 contract with Huntington Ingalls Industries ("HII") to deliver FlightEye Model K8 drones for use in Ukraine.
13.
In exchange for Montague's strategic business development services, work in identifying and developing acquisitions, and assistance with sourcing, negotiating and closing commercial contracts, Cyberlux agreed to pay Montague substantial fees and commissions (detailed below) pursuant to the 2023 Consulting Agreement.
b. Relevant Terms of the 2023 Consulting Agreement
14. Section 3.2 of the Agreement provides:
As base compensation for the Services and the rights granted to Cyberlux in this Agreement, Cyberlux shall pay Consultant a fixed fee of $250,000 00 (the "Fees") per annum, payable in equal monthly Installments on the first business day of each month, commencing January 3, 2023.
15. Section 3.3 of the Agreement states:
In addition to the Fees Consultant shall be entitled to receive two percent (26), with the exception of any Ukraine-related commercial contracts for which the Consultant shall beCentited [sic] to five percent (5%) , of the gross amounts payable to Cyberlux (the "Commission") under commercial contracts sourced by Consultant, including, without limitation, the proceeds of joint ventures, licenses and software as service agreements (collectivedy) the "Commissionable
Contracts()} Commissionable Contracts, including designated lines of business, work orders, and similar in effect on the date hereof are listed on Schedule 2 hereto.
(emphasis added)
16.
Schedule 2 of the Agreement provides:
The following are Commissionable Contracts and/or work orders in effect as of January 1, 2023.
. That certain line of business related to the sale of tactical drones from time to time for use by the Ministry of Defense of Ukraine, including without limitation, Order
no. 220/9169 dated September 21, 2022 for 1,000 tactical drones type FlightEye KOA031831, plus training, service and maintenance for use by Ministry of Defense of Ukraine.
17.
And the January 5, 2023 Memorandum states (in relevant part):
The Agreement cited in Schedule 2, that certain Order no. 220/9169 dated September 21, 2022 for 1,000 tactical drones type FlightEye KOA031831. The Parties desire to memorialize that such order was subsequently increased to 2,000 units, as to which 5% commission is payable pursuant to the Agreement.
18.
Montague is entitled to receive commissions "for two years after the termination of the provision of Services under [the] Agreement" (Ex. B, Section 3.3(a)) and the Agreement does not terminate naturally until January 1, 2026 (Id. at Section 2: "the term of this Agreement . . . shall continue for a period of three years or until earlier terminated by either party"). The 2023 Consulting Agreement has not been terminated by either party.
19.
Those terms-Section 3.2, Section 3.3, Schedule 2, and the excerpted portion of the Memorandum-form the primary basis for Montague's claims for amounts payable and owing by Cyberlux under the 2023 Consulting Agreement.
20.
Further, Montague is entitled to additional penalty payments, and interest payments, on unpaid commissions. Specifically, Section 3.3(c) provides:
In respect of any underpayment of Commission, Cyberlux will pay interest on such underpayment at a rate of one percent (1%) per month; provided that if any payment in respect of any&Commissionable Contract is underpaid by an amount in excess of ten percent (10%) of the amount payable thereunder in any month, the Parties agree that such :selected: underpayment represents willful misconduct or gross negligence on the part of Cyberlux, and must be cured within ten (10) business days with an additional payment premium of an amount equal to ten (10) percent of the underpayment amount.
21.
Moreover, Section 3.5 provides:
Consultant shall have the right to charge interest on any unpaid Fees, Commission and expenses at the rate of one percent (1.0%) per month, commencing 15 days after the due date thereof, subject to the additional amount in respect of underpaid Commission set forth in Section 3.3 above.
22.
In addition to the fees and commissions due under the 2023 Consulting Agreement, Montague is entitled to receive monthly statements (id. at Section 3.3/a): "Cyberlux will, within the first five (5) business days of each month provide Consultant with a statement of all payments made under Commissionable Contracts in the prior month" and "have access to the books and records of Cyberlux in respect of all Commissionable Contracts in order to review and confirm the amounts payable as Commission." (Id. at Section 33(c).) Cyberlux has not provided monthly statements detailing payments received under Commissionable Contracts.
c. Payments to Cyberlux Under the Ukraine-related Commissionable Contract
23.
On or about August 29, 2023, Cyberlux entered a contract with HII to deliver FlightEye Model K8 drones for use by the Ministry of Defense of Ukraine. This contract, with an initial total value of approximately $79 million, represents the culmination of Montague's strategic efforts to position Cyberlux as a key supplier in the defense sector.
24.
Based on information available to Montague, including Cyberlux's public financial disclosures, Cyberlux received approximately $38.7 million in payments under this contract during 2023
25.
Furthermore, based upon documents filed by the Cyberlux Receiver in Atlantic Wave Holdings, LLC, et al. v. Cyberlux Corporation, et al., Cause No. 2024-48085, 129th Judicial District Court of Harris County, Texas (the "Atlantic Wave case"), Montague has learned that HII is expected to make an additional payment of $25,795,303.38 to Cyberlux in the near term.
26.
These payments-both the $38.7 million payment and the forthcoming $25.7 payment-are subject to Montague's entitlement to commissions at the contractual rate of 5% under the 2023 Consulting Agreement.
d. Material Breaches of the 2023 Consulting Agreement by Cyberlux
27.
Cyberlux has materially breached multiple provisions of the 2023 Consulting Agreement, depriving Montague of millions of dollars in rightfully earned compensation while simultaneously failing to provide the transparency promised under theAgreement. These breaches are not mere technical violations but represent a fundamental failure to honor the contractual relationship that has been instrumental to Cyberlux's success.
28.
Despite receiving approximately $38.7 million in payments during 2023 under the Ukraine drone contract-a Commissionable Contract expressly identified in Schedule 2 of the Agreement and subject to the 5% commission rate-Cyberlux has failed to pay Montague any portion of the $1,935,000 in commissions due on these receipts. This complete failure to pay commissions constitutes not only a material breach of Section 3.3 of the Agreement but also triggers the willful misconduct provisions of Section 3.3(c), as the underpayment exceeds 10% of the amount payable (indeed, it represents a 100% underpayment). Under the Agreement's terms, this gross underpayment subjects Cyberlux to both interest charges at 1% per month and an additional penaliy equal to 10% of the underpayment amount.
29.
In addition to its failure to pay the 5% commission on the Ukraine drone contract, Cyberlux has failed to pay the 2% commission due to Montague on other Commissionable Contracts.
30.
In addition to the commission obligations, Cyberlux has failed to pay the monthly consulting fees required under Section 3.2 of the Agreement. Beginning with the January 2025
payment and continuing through the present, Cyberlux has failed to make six (6) of the required monthly payments of $20,833.33. As of today, the unpaid consulting fees total $125,000 for the period January through June 2025, exclusive of interest. This ongoing failure to pay base compensation represents a separate and independent material breach of the Agreement.
31.
Compounding these payment failures, Cyberlux has breached its reporting obligations under Section 3.3(a) of the Agreement by failing to provide monthly statements detailing payments received under Commissionable Contracts. Despite the clear requirement that such statements be provided within the first five business days of each month, Montague has received no statements whatsoever regarding the substantial payments Cyberlux has received under the Ukraine drone contract. This lack of transparency has forced Montague to rely on incomplete public information and third-party sources to determine the extent of amounts owed, thereby frustrating the Agreement's provisions designed to ensure accurate and timely commission payments.
e. Amounts Due Montague
32.
On June 10, 2025, a demand letter was sent-via email and Federal Express-by Montague to Cyberlux, detailing the breaches and amounts owed to Montague under the 2023 Consulting Agreement.
33.
Cyberlux owes: (a) $1,935,000 in unpaid commissions on the approximately $38.7 million received during 2023; (b) $193,500 representing the 10% penalty on such underpayment pursuant to Section 3.3; (c) accrued interest on the unpaid commission at 1% per month from the date each payment was due; (d) $125,000 in unpaid monthly consulting fees for January through June 2025; and (e) accrued interest on unpaid consulting fees at 1% per month from each payment's due date.
34.
Upon receipt of the $25,795,303.38 payment from HII referenced in the Atlantic Wave case, Cyberlux will owe Montague the 5% commission due thereon ($1,289,765.17) within ten business days. Cyberlux's failure to timely pay this commission will trigger the 10% penalty provisions of Section 3.3(c).
f. Cyberlux's Demonstrated Pattern of Frustrating Creditor Recovery Efforts
35.
The necessity of these receivership proceedings arises in part from Cyberlux's demonstrated pattern of frustrating creditor recovery efforts. Court records reflect that Cyberlux has repeatedly made representations regarding its intentions to secure or satisfy obligations that have not materialized. In October 2024, Cyberlux represented to the Court in the Atlantic Wave case that a stay of execution had been granted in Virginia regarding the underlying judgment domesticated in Texas, when in fact no such stay had been requested or granted. Subsequently, in April 2025, Cyberlux represented to a federal court (in a baseless and, ultimately rejected, removal action) that it intended to file a supersedeas bond, yet no such motion was ever filed.
36.
Cyberlux's financial maneuvers have raised concerns regarding asset preservation. Records indicate that Cyberlux dissipated approximately $38 million in September 2023. Recently, in April 2025, after defaulting on a credit agreement with Legalist SPV III, LP ("Legalist"), Cyberlux amended its line of credit with Legalist to increase the borrowing limit from $7 million to $12.3 million, with the credit facility collateralized by accounts receivable on its Ukraine-related drone contracts.
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37.
The scope of creditor claims against Cyberlux underscores the critical need for centralized receivership administration. In addition to Montague's substantial claims, multiple creditors have pursued recovery against Cyberlux, including Atlantic Wave's domesticated judgment and a recent $1,631,221.32 judgment entered in favor of Thin Air Gear, LLC in
Colorado federal court. These circumstances demonstrate the necessity of receivership proceedings to ensure orderly administration of claims and prevent further dissipation of assets that rightfully should satisfy creditor obligations.
38.
Given this context, Montague's intervention serves not only its own interests but also the broader goal of ensuring transparent and equitable treatment of all creditors through the receivership process.
V. STANDARD FOR INTERVENTION
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39.
"Any party may intervene by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party." Tex. R. Civ. P. 60. "A party has a justiciable interest in a lawsuit, and thus a right to intervene, when his interests will be affected by the litigation." L. Offs. of Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 70 (Tex. App .- Fort Worth 2003, no pet.). It is appropriate for a party to intervene to protect its interest in property that is the subject of a turnover motion. See generally Breazeale v. Casteel, 4 S.W.3d 434, 436 (Tex. App .- Austin 1999, pet denied.).
VI. MONTAGUE'S INTEREST
40.
Montague has a justiciable interest in this proceeding because it holds substantial contractual claims against Cyberlux that will be directly affected by the receivership administration.
41.
Montague is entitled receive 5% of the $25,795,303.38 payment that HII is expected to transfer to the receivership estate shortly.
42.
The disposition of this receivership-and HII's $25 million payment into the receivership estate-will directly impact Montague's ability to collect amounts owed under the 2023 Consulting Agreement, as the Receiver controls Cyberlux's assets and payment streams.
43.
Montague cannot adequately protect its interests without participating in these proceedings, as the Receiver will determine the priority and payment of claims against the estate.
VII. FIRST CAUSE OF ACTION: BREACH OF CONTRACT
44.
Montague incorporates by reference all preceding paragraphs as if fully set forth herein.
45.
A valid and enforceable contract exists between Montague and Cyberlux in the form of the 2023 Consulting Agreement, which was duly executed by authorized representatives of both parties on or about January 1, 2023, and supplemented via the Memorandum dated January 5, 2023.
46.
Montague has fully performed all conditions, covenants, and obligations required under the 2023 Consulting Agreement, including but not limited to: (a) providing strategic business development services; (b) identifying and developing acquisition opportunities; (c) assisting with the identification of business development opportunities involving Cyberlux's portfolio of products and services; (df sourcing and negotiating commercial contracts, including the $79 million HII contract; and (e) facilitating Cyberlux's transformation into a defense contractor.
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47.
Cyberlux has materially breached the 2023 Consulting Agreement in multiple respects, including (a) failing to pay the 5% commission due on approximately $38.7 million received under the Ukraine drone contract during 2023, totaling $1,935,000; (b) failing to pay the 2% commission on other Commissionable Contracts; (c) failing to pay monthly consulting fees from January 2025 through June 2025, totaling $125,000; (d) failing to provide monthly statements of payments received under Commissionable Contracts as required by Section 3.3(a); and (e) failing to pay interest and penalties on underpaid amounts as required by Sections 3.3(c)
and 3.5.
48.
As a direct and proximate result of Cyberlux's breaches, Montague has suffered actual damages in the amount of at least $2,253,500 consisting of: (a) $1,935,000 in unpaid commissions on the $38.7 million payment; (c) $193,500 in contractual penalties; (d) $125,000 in unpaid monthly fees; and (e) interest accruing at 1% per month on all unpaid amounts.
49.
Upon receipt of the $25,795,303.38 payment from HII, Cyberlux will owe Montague the 5% commission due thereon ($1,289,765.17) within ten business days. Cyberlux's failure to timely pay this commission will trigger the 10% penalty provisions of Section 3.3(c).
VIII. SECOND CAUSE OF ACTION: QUANTUM MERUIT
50.
Montague incorporates by reference all preceding paragraphs as if fully set forth herein.
51.
In the alternative, and without waiving the foregoing, Montague brings this its second cause of action, quantum meruit.
52.
Montague rendered valuable services to Cyberlux, including identifying acquisition targets, negotiating complex commercial transactions, developing strategic business relationships, and specifically sourcing the $79 million HII contract for Ukraine drone sales.
53.
These services were knowingly and voluntarily accepted by Cyberlux, as evidenced by: (a) Cyberlux's execution of consulting agreements acknowledging the value of such services; (b) Cyberlux's reliance on Montague's expertise in completing acquisitions and securing contracts; and (c) Cyberlux's receipt of approximately $38.7 million (with an additional $25.7 million pending) directly resulting from contracts sourced by Montague.
54.
The services were not rendered gratuitously, as both parties understood and
agreed that Montague would be compensated through fees and commissions for its strategic business development work.
55.
The services were highly beneficial to Cyberlux, transforming it from a small lighting company into a legitimate defense contractor with substantial government contracts, including the single largest revenue source in Cyberlux's history.
56.
Despite receiving the benefit of Montague's services and the resulting revenues, Cyberlux has failed and refused to pay Montague the reasonable value of such services.
57.
The reasonable value of Montague's services, based on industry standards for investment banking and strategic consulting services resulting in transactions of this magnitude, is no less than $3,543,265.17, representing approximately 5% of the revenues generated through Montague's efforts.
IX. . THIRD CAUSE OF ACTION: UNJUST ENRICHMENT
58.
Montague incorporates by reference all preceding paragraphs as if fully set forth herein.
59.
In the alternative, and without waiving the foregoing, Montague brings this its third cause of action, unjust enrichment.
60.
Montague conferred substantial benefits upon Cyberlux, including (but not limited to): (a) strategic business development services that transformed Cyberlux's business model; (b) identification and negotiation of key acquisitions; and (c) sourcing the $79 million HII contract.
61.
Cyberlux appreciated and had knowledge of these benefits, as demonstrated by its active participation in the transactions sourced by Montague, its execution of agreements
acknowledging Montague's role, and its receipt and retention of the revenues generated through Montague's efforts.
62.
Cyberlux voluntarily accepted and retained these benefits, including the revenues, business relationships, and enhanced market position resulting from Montague's services.
63.
Under the circumstances, it would be inequitable and unconscionable for Cyberlux to retain these benefits without compensating Montague, particularly where: (a) Cyberlux explicitly agreed to pay commissions on such revenues; (b) Montague's efforts were the proximate cause of Cyberlux obtaining these contracts and revenues; and (c) Cyberlux has retained the full benefit while refusing to pay any compensation to Montague.
64.
Cyberlux has been unjustly enriched in an amount no less than $3,543,265.17, representing the value of the benefits conferred and retained.
65.
Montague has no adequate remedy at law to the extent its contract claims are deemed unenforceable, and equity requires that Cyberlux disgorge the benefits it has unjustly retained.
X. CONDITIONS PRECEDENT
66.
All conditions precedent to Montague's recovery have been performed or have occurred, or have been waived or excused by Cyberlux's conduct.
XI. ATTORNEYS' FEES AND COSTS
67.
Montague incorporates by reference all preceding paragraphs as if fully set forth herein.
68.
Under Sections 8.1 and 8.1(b) of the 2023 Consulting Agreement, Montague is entitled to "costs, or expenses of whatever kind" and "reasonable attorneys' fees" for "breach of
any representation, warranty, or obligation under [the] Agreement."
69.
As a result of Cyberlux's breaches and wrongful conduct, Montague has been required to retain counsel to pursue this intervention and protect its substantial interests in the receivership estate.
70.
Additionally, under Texas law and principles of equity applicable to receivership proceedings, Montague is entitled to recover reasonable attorneys' fees incurred in establishing and protecting its claims against the receivership estate, particularly where such efforts benefit the estate by ensuring proper administration of creditor claims.
71.
Montague has incurred and will continue to neur reasonable and necessary
receivership proceedings. Such fees are necessary to prevent further dissipation of assets and ensure Montague receives the compensation it rightfully earned.
72.
Pursuant to Texas Civil Practice and Remedies Code Chapter 38, and applicable equitable principles, Montague requests recovery of all reasonable attorneys' fees and costs incurred in this proceeding, including fees through trial or judgment, post judgment proceedings and in the event of success of on appeal, appellate fees whether Montague pursues an appeal as the appellee or defends an appeal as the appellee.
XII. PRAYER
73.
WHEREFORE, Montague Capital Partners, LLC respectfully prays that this
Court:
(a) Grant this Petition in Intervention and allow Montague to participate as a party in these receivership proceedings;
(b) Enter judgment recognizing Montague's claims against the receivership estate as follows: (1) $1,935,000.00 in unpaid commissions on 2023 Ukraine contract payments; (2) $1,289,765.17 in commissions on the pending HII payment of $25,795,303.38; (3) $193,500.00 in contractual penalties under Section 3.3(c); (4) $125,000.00 in unpaid monthly consulting fees for January through June 2025; and (5) All accrued interest at 1% per month on unpaid amounts as provided in the 2023 Consulting Agreement;
(c) Order the Receiver to provide Montague with immediate access to all books, records, and monthly statements relating to Commissionable Contracts as required under Section 3.3 of the 2023 Consulting Agreement;
(d) Direct the Receiver to segregate and hold in trust Montague's 5% commission ($1,289,765.17) from the pending HII payment of $25,795,303.38;
(e) Direct the Receiver to pay Montague's allowed claims in accordance with applicable law and the priorities established in the receivership proceedings;
(f) Award Montague its reasonable and necessary attorneys' fees and costs incurred in this proceeding, including appellate fees in the event of success on appeal whether Montague pursues an appeal as the appellant, or defends an appeal as the appellee;
(g) Award Montague pre-judgment and post-judgment interest at the maximum rate allowed by law; and
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(h) Grant Montague all other relief, whether at law or in equity, to which it may be justly entitled.
Respectfully submitted,
CERSONSKY & MCANELLY, P.C.
By: /s/ M.H.Cersonsky M.H. Cersonsky mhcersonsky@law-cmpc.com State Bar No. 04048500 1770 St. James Place, Suite 150 Houston, Texas 77056 (713) 600-8500 (Telephone) (713)600-8585 (Facsimile)
ATTORNEY FOR INTERVENOR MONTAGUE CAPITAL PARTNERS, LLC.
Unofficial Copy Office of Marilyn.noengesegnetes what Clef,
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M. Cersonsky on behalf of M. H. Cersonsky Bar No. 04048500 mhcersonsky@law-cmpc.com Envelope ID: 101991528
Filing Code Description: Counter Claim/Cross Action/Interpleader/Intervention/Third Party Filing Description: Montague Capital Partners, LLC's Petition In Intervention Status as of 6/13/2025 1:48 PM CST
Case Contacts
Name
BarNumber
TimestampSubmitted
Status
Daniel AArdmore
ardmorelawfirm@gmail.com
6/13/2025 1:32:27 PM
SENT
M. H. Cersonsky
mhcersonsky@law-cmpc.com
6/13/2025 1:32:27 PM
SENT
Sazzad Hossain
shossain@law-cmpc.com
6/13/2025 1:32:27 PM
SENT
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