11057870-1 

UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

www.flsb.uscourts.gov

In re: Case No. 20-14866-RAM 

5BARZ INTERNATIONAL INC., Chapter 7 

 Debtor. 

 / 

TRUSTEE’S MOTION TO APPROVE: (1) SETTLEMENT 

AGREEMENT AND RELEASE; (2) ASSIGNMENT OF THE 

ESTATE’S RIGHT, TITLE, AND INTEREST IN SUBSIDIARY ENTITIES AND 

INTERCOMPANY RECEIVABLES; AND (3) PAYMENT OF CONTINGENCY FEE 

Joel L. Tabas, the duly appointed Chapter 7 Trustee (“Trustee”) for the bankruptcy estate 

(the “Estate”) of 5Barz International, Inc. (the “Debtor”), through undersigned counsel and 

pursuant to 11 U.S.C. §§ 105(a) and 363, Federal Rules of Bankruptcy Procedure 2002, 6004, and 

9019, and Local Rules 6004-1 and 9019-1, files this motion (the “Motion”) to (1) approve a 

settlement agreement and release with Daniel Bland, Gil Amelio, Samartha Raghava 

Nagabhushanam, Mark Geoghegan, Cubera International, Inc., Cubera Management, Inc., Cirus 

Foundation, and Vector Financial Group, LLC (collectively, the “Cubera Parties”), (2) approve 

the assignment of the Estate’s right, title, and interest in subsidiary entities and intercompany 

receivables to Cubera International, Inc., or its designee and (3) approve payment of a contingency 

fee to the Trustee’s counsel, Berger Singerman LLP (“Berger Singerman”), and in support thereof, 

states as follows: 

JURISDICTION AND VENUE 

1. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334. 

This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (N), and (O). 

2. Venue is proper before this Court pursuant to 28 U.S.C. §§ 1408 and 1409. 

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BACKGROUND 

3. On April 30, 2020, the Debtor filed a Chapter 11 voluntary petition. After a failed 

plan process, the case converted to a Chapter 7 case on November 23, 2020, and the Chapter 7 

Trustee was duly appointed to administer the Chapter 7 case. 

4. Upon application by the Chapter 7 Trustee and after a hearing upon notice, the 

Court entered an Order Approving the Trustee’s Application for Employment of Berger Singerman 

LLP as Special Litigation Counsel and Approving Contingency Fee Arrangement dated January 

21, 2021 [ECF 318] (“Employment Order”). Pursuant to ⁋3 of the Employment Order, Berger 

Singerman was to investigate and, if appropriate, pursue any and all claims or causes of action of 

the Estate against insiders of the Debtor, affiliates of insiders of the Debtor, transferees of property 

or interests in property from the Debtor, any pre-petition professionals of the Debtor or any third 

party associated with pre and/or post-petition actions taken by the Debtor or those in concert with 

the Debtor (collectively, the “Litigation Claims”). The Employment Order also approved the 

contingency fee arrangement described in the Application which, as pertinent here, provides for 

payment to Berger Singerman of thirty percent (30%) of any gross recoveries realized from the 

settlement of Litigation Claims. See Employment Order at ⁋4(a) (“For any recovery received prior 

to the filing of a complaint in respect of any Litigation Claim – 30% of such gross Recovery”). 

5. Berger Singerman undertook an extensive investigation of potential Litigation 

Claims for assertion against the Cubera Parties and other third parties, by reviewing the Debtor’s 

email database, reviewing document production from the Debtor and third parties, researching 

information on the internet, reviewing the testimony and exhibits referenced at the Debtor’s Rule 

2004 examination, and analyzing the testimony given at the Debtor’s section 341 meeting of 

creditors at the commencement of the Chapter 11 case and after conversion to the Chapter 7 case. 

As a result of Berger Singerman’s investigations, Berger Singerman drafted an 18 count complaint 

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against the Cubera Parties and other third parties, asserting claims for breach of fiduciary duties, 

conspiracy to breach fiduciary duties, avoidance of post-petition transfers, avoidance of 

constructive and actual fraudulent transfers, conversion and unjust enrichment (the “Claims” or 

“Draft Complaint”). The Cubera Parties dispute the allegations and Claims asserted by the Trustee 

in the Draft Complaint and have asserted defenses thereto. 

6. In an effort to achieve maximum results and minimize further risk and expenses to 

the Estate, the Trustee and the Cubera Parties engaged in pre-suit settlement discussions over the 

course of several months in an effort to globally resolve all Claims. The Trustee and the Cubera 

Parties agree that settling the Claims are in their and the Estate’s best interests. Accordingly, the 

Trustee and the Cubera Parties have reached a settlement that is memorialized in the Settlement 

Agreement and Release (the “Settlement Agreement and Release”), attached hereto as Exhibit 

“A.”

7. In connection with the settlement of Claims, the Trustee and the Cubera Parties 

have agreed that the Trustee will assign to Cubera International, Inc. or its designee, the Estate’s 

right, title, and interest in (1) each of the Debtor’s subsidiary entities listed on line 15 of the 

Debtor’s Schedule B valued at $0 (Case No. 20-14866, ECF 32), including Cellynx Group, Inc., 

5Barz SA de CV, 5Barz Pte. Ltd., 5Barz Technologies Pte. Ltd., and 5Barz India Pvt. Limited (the 

“Subsidiaries”); and (2) the intercompany receivables due from the Subsidiaries listed on line 71 

of the Debtor’s Schedule B with a current value of $0 (Case No. 20-14866, ECF 32) (the 

“Intercompany Receivables”). 

THE PROPOSED SETTLEMENT 

8. In considering the circumstances and taking into account the nature of the dispute 

and the associated risks, the Trustee believes that the terms of the Settlement Agreement and 

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Release are favorable to the Debtor’s Estate. The Settlement Agreement and Release provides in 

pertinent part as follows:1

(a) The Cubera Parties shall pay the total sum of $1,000,000.00 (the “Settlement 

Amount”), which amount includes the Deposit (defined below), to the Trustee 

by wire transfer to the Trustee’s bank account within three (3) business days 

after entry of a final, non-appealable order of this Court granting this Motion 

(the “Settlement Approval Order”). 

(b) The Cubera Parties shall pay a deposit of $100,000.00 to be credited towards 

the Settlement Amount (the “Deposit”) to the Trustee by wire transfer to the 

Trustee’s bank account within three (3) business days after the date of execution 

of the Settlement Agreement and Release by the last Party. The Deposit shall 

be refundable to the Cubera Parties only if this Agreement is not approved by 

the Court by the Settlement Approval Order. In all other circumstances, the 

Deposit shall be non-refundable. However, if the Agreement is not approved by 

the Court as a result of the Cubera Parties’ own actions, the Deposit shall be 

non-refundable, and the Trustee shall be entitled to retain the Deposit for the 

benefit of the Estate. 

(c) Should the Cubera Parties default on payment of the Settlement Amount, the 

Cubera Parties agree that the Trustee shall be entitled to entry of judgment in 

his favor and against each of the Cubera Parties, jointly and severally, in the 

amount of $1,000,000.00, and the Cubera Parties shall not oppose entry of such 

judgment. The Cubera Parties agree that the Trustee’s entitlement to this 

judgment shall not be deemed to be an election of remedies, and the Trustee 

may additionally pursue each of the Cubera Parties for the Claims or any other 

cause of action available to the Trustee, but the Trustee shall not be entitled to 

a double recovery against any Cubera Party. 

(d) The Settlement Approval Order shall provide for the assignment by the Trustee 

to Cubera International, Inc. (or its designee) of the Debtor’s interests in (1) 

each of the Debtor’s Subsidiaries; and (2) the Intercompany Receivables. Apart 

from the Settlement Approval Order, no further documentation shall be 

required in connection with the assignment of the Debtor’s interests in the 

Subsidiaries and Intercompany Receivables. The assignment of the Subsidiaries 

and Intercompany Receivables by the Trustee to Cubera International, Inc. (or 

its designee) is made on an “AS-IS, WHERE-IS,” basis, with no representations 

or warranties of any type being given by the Trustee or his professionals, and 

subject to any and all liens, claims, encumbrances, interests and defenses, 

whether known or unknown. Cubera International Inc. (or its designee) shall be 

responsible for the payment of any and all fees and taxes imposed by any 

governmental or other agency, foreign or domestic, arising from or relating to 

1

 The following is only a summary of the Settlement Agreement and Release, which is attached as Exhibit “A” and 

should be read in its entirety as the terms therein control. 

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this sale and assignments, including but not limited to sales tax, documentary 

stamp tax and recording fees. The assignments of the Debtor’s interests in the 

Subsidiaries and Intercompany Receivables shall be conditioned upon, and 

shall not be effective until, the Settlement Approval Order becomes final and 

non-appealable and the cleared Settlement Amount is received by the Trustee. 

(e) The Parties agree that the Court shall retain jurisdiction to enforce the 

Settlement Agreement and Release. 

(f) The Settlement Agreement and Release is subject to and conditioned upon the 

entry of the Settlement Approval Order and upon the Settlement Approval 

Order becoming final and non-appealable. 

(g) The Trustee and the Debtor’s Estate, for good and valuable consideration 

received from the Cubera Parties, the receipt of which is hereby acknowledged, 

release the Cubera Parties as follows: the Trustee and the Debtor’s Estate, 

including their respective agents, representatives, partners, officers, directors, 

employees, and attorneys (collectively, the “Trustee Releasors”), each hereby 

release and forever discharge the Cubera Parties, including their respective 

agents, representatives, partners, employees, and attorneys, except for the 

Doney Law Firm and all attorneys associated with the Doney Law Firm 

(collectively, the “Cubera Releasees”) of and from all manner of claims, 

actions, causes of action, suits, controversies, agreements, promises, damages, 

judgments, and any claims and demands of any kind whatsoever, in law or in 

equity, known or unknown, contingent or noncontingent, liquidated or 

unliquidated at this time, that the Trustee Releasors now have, may have, or 

ever had against the Cubera Releasees for, upon, or by reason of any matter, 

cause, or thing whatsoever from the beginning of time through the date of the 

Settlement Approval Order becoming final and non-appealable, including, but 

not limited to, any claims that were brought, or which could have been brought, 

in connection with the Claims and the Case, or any matters that are otherwise 

related in any way to facts or issues with respect to the Debtor. The Settlement 

Agreement and Release does not release the Cubera Parties’ obligations under 

the Settlement Agreement and Release. The Settlement Agreement and Release 

shall be effective upon the Settlement Approval Order becoming final and nonappealable and after receipt by the Trustee of the cleared Settlement Amount. 

(h) The Cubera Parties, for good and valuable consideration received from the 

Trustee, the receipt of which is hereby acknowledged, release the Trustee and 

the Debtor’s Estate as follows: the Cubera Parties, including their respective 

agents, representatives, partners, officers, directors, employees, and attorneys, 

except for the Doney Law Firm and all attorneys associated with the Doney 

Law Firm (collectively, the “Cubera Releasors”), each hereby release and 

forever discharge the Trustee and the Debtor’s Estate, including their respective 

agents, representatives, partners, employees, and attorneys (collectively, the 

“Trustee Releasees”) of and from all manner of claims, actions, causes of 

action, suits, controversies, agreements, promises, damages, judgments, and 

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any claims and demands of any kind whatsoever, in law or in equity, known or 

unknown, contingent or noncontingent, liquidated or unliquidated at this time, 

that the Cubera Releasors now have, may have, or ever had against the Trustee 

Releasees for, upon, or by reason of any matter, cause, or thing whatsoever from 

the beginning of time through the date of the Settlement Approval Order 

becoming final and non-appealable, including, but not limited to, any claims 

that were brought, or which could have been brought, in connection with the 

Claims and the Case, or any matters that are otherwise related in any way to 

facts or issues with respect to the Debtor. The Settlement Agreement and 

Release does not release the Trustee’s obligations under the Settlement 

Agreement and Release or the Vector Claim as defined below. The Settlement 

Agreement and Release shall be effective upon the Settlement Approval Order 

becoming final and non-appealable and after receipt by the Trustee of the 

cleared Settlement Amount. 

(i) The Cubera Parties Release shall not serve as a release by Vector Financial 

Group, LLC in connection with Proof of Claim 3-1 filed against the Debtor’s 

Estate on May 20, 2020 or its chapter 11 administrative expense claim set forth 

on ECF 294 filed in the Case (collectively, the “Vector Claim”); provided, 

however, the Trustee and all interested parties retain the right to object to the 

Vector Claim and any component thereof. For the avoidance of doubt, the 

Settlement Agreement and Release and the releases contained therein shall not 

affect the rights or obligations of any party in connection with the Vector Claim 

nor shall the Settlement Approval Order serve as an adjudication of such claim. 

9. The Settlement Amount shall be allocated as follows: (i) $970,000.00 to the Claims; 

(ii) $5,000.00 to Cellynx Group, Inc.; (iii) $5,000.00 to 5Barz SA de CV; (iv) $5,000.00 to 5Barz 

Pte. Ltd.; (v) $5,000.00 to 5Barz Technologies Pte. Ltd.; (vi) $5,000.00 to 5Barz India Pvt. 

Limited; and (vii) $5,000.00 to the Intercompany Receivables due from the Subsidiaries. 

REQUESTED RELIEF 

10. The Trustee seeks entry of an order, substantially in the form attached hereto as 

Exhibit “B,” approving the Trustee’s proposed compromise with the Cubera Parties as described 

herein and in the Settlement Agreement and Release attached hereto as Exhibit “A,” approving 

the assignment of the Estate’s interests in the Subsidiaries and the Intercompany Receivables, and 

approving Berger Singerman’s contingency fee. 

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LEGAL BASIS FOR SETTLEMENT 

11. Fed. R. Bankr. P. 9019(a) provides, in relevant part, that: “[o]n motion by the 

trustee and after notice and a hearing, the court may approve a compromise or settlement.” 

Settlements and compromises are a normal part of the bankruptcy process. Protective Comm. For 

Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424, 88 S. Ct. 1157 

(1969) (quoting Case v. Los Angeles Lumber Prods. Co., 308 U.S. 106 (1939)). 

12. To approve a compromise and settlement under Fed. R. Bankr. P. 9019(a), a 

bankruptcy court should find that the compromise and settlement is fair and equitable, reasonable 

and in the best interests of the debtor’s estate. See, e.g., TMT Trailer Ferry, 390 U.S. at 424; Air 

Line Pilots Ass., Int’l v. America National Bank and Trustee Co. of Chicago (In re Ionosphere 

Clubs, Inc.), 156 B.R. 413, 426 (S.D.N.Y. 1993), aff’d, 17 F. 3d 600 (2d Cir. 1994). 

13. Approval of a settlement in a bankruptcy proceeding is within the sound discretion 

of the Court, and will not be disturbed or modified on appeal unless approval or disapproval is an 

abuse of discretion. In re Arrow Air, Inc., 85 B.R. 886, 891 (Bankr. S.D. Fla. 1988); In re Chira, 

367 B.R. 888, 896 (S.D. Fla. 2007) aff’d. 567 F.3d 1307 (11th Cir. 2010). The test is whether the 

proposed settlement “falls below the lowest point in the range of reasonableness.” In re Arrow Air, 

Inc., 85 B.R. at 891; Realan Inv. Partners, LLLP v. Meinenger (In re Land Resources, LLC), 505 

B.R. 571, 577 (M.D. Fla. 2014) (quoting In re Martin, 490 F.3d 1272, 1275 (11th Cir. 2007)) (“A 

bankruptcy court does not abuse its discretion in approving a settlement agreement unless the 

agreement ‘fall[s] below the lowest point in the range of reasonableness.’”). Where, like here, “the 

potential augmentation of a bankruptcy estate ‘involves protracted investigation or potentially 

costly litigation, with no guarantee as to the outcome, the trustee must tread cautiously, and an 

inquiring court must afford him wide latitude in deciding whether to settle.” In re Soderstrom, 477 

B.R. 249, 252 (Bankr. M.D. Fla. 2012) (quotation omitted). 

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14. The Court must consider the following factors in determining whether to approve 

the Settlement Agreement and Release: (i) the probability of success in the litigation; (ii) the 

difficulties, if any, to be encountered in the matter of collection; (iii) the complexity of the litigation 

involved and the expense, inconvenience and delay necessarily attending it; and (iv) the paramount 

interest of the creditors and proper deference to their reasonable views in the premises. In re Justice 

Oaks, II, Ltd., 898 F.2d 1544, 1549 (11th Cir.), cert. denied, 498 U.S. 959 (1990) (establishing the 

legal standard for approval of settlements). 

15. Based on the above legal principles, the Trustee asserts that the Settlement 

Agreement and Release falls well above the lowest point of the range of reasonableness and, thus, 

should be approved. Although the Trustee believes that the Claims are meritorious, the probability 

of success cannot be gauged with certainty at this stage and material risk exists. Recognizing the 

uncertainty of litigation, and that a trial will take time, with substantial costs and fees to be incurred 

in connection with discovery, experts, and trial preparation, the parties agreed to engage in presuit settlement discussions following delivery of the Draft Complaint by the Trustee to the Cubera 

Parties. Additionally, there could be collection difficulties encountered by the Trustee if he were 

successful in his pursuit of the Claims, including against certain of the Cubera Parties that are 

international organizations. Accordingly, the Trustee, in his business judgment, has determined 

that the compromise reached with the Cubera Parties is a fair and reasonable settlement of the 

Claims and approval of the Settlement Agreement and Release is in the best interest of creditors. 

ASSIGNMENT OF ESTATE’S RIGHT, TITLE, 

AND INTEREST IN SUBSIDIARIES AND INTERCOMPANY RECEIVABLES 

16. In connection with the settlement of Claims, the Trustee and the Cubera Parties 

have agreed that the Trustee will assign the Estate’s right, title, and interest in the Subsidiaries and 

the Intercompany Receivables to Cubera International, Inc. or its designee. 

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17. The Court has the statutory authority to approve the sale of the Subsidiaries and the 

Intercompany Receivables outside the ordinary course of business, free and clear of liens. See 11 

U.S.C. §363(b)(1) and (f). Pursuant to section 363(f) of the Bankruptcy Code, the trustee can sell 

all or any part of property of the estate, free and clear of any and all liens, claims, liabilities, 

encumbrances or other interests if: 

(i) applicable non-bankruptcy law permits the sale of such property free and 

clear of such interest; 

 (ii) each entity holding a lien, claim or interest consents; 

(iii) such interest is a lien and the price at which such property is to be sold is 

greater than the aggregate value of all liens on such property; 

(iv) such interest is in bona fide dispute; or 

(v) such entity could be compelled, in a legal or equitable proceeding, to accept 

a money satisfaction of such interest. 

11 U.S.C. §363(f); Citicorp Homeowners Services, Inc. v. Elliot, et al (In re Elliot), 94 B.R. 343, 

345 (E.D. Pa. 1988) (section 363(f) is written in the disjunctive; the court may approve a sale “free 

and clear” provided at least one of the subsections is met). 

18. Section 363(b)(1) of the Bankruptcy Code provides that “[t]he trustee, after notice 

and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the 

estate.” 11 U.S.C. §363(b)(1). Courts have held that transactions should be approved under section 

363(b)(1) when: (a) they are supported by the sound business judgment of the debtor’s 

management (or the Chapter 7 Trustee here); (b) interested parties are provided with adequate and 

reasonable notice; (c) the sale price is fair and reasonable; and (d) the purchaser is acting in good 

faith. See In re Delaware & Hudson Ry. Co., 124 B.R. 169, 176 (D. Del 1991); In re Phoenix Steel 

Corp., 82 B.R. 334, 335-336 (D. Del. 1987). 

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19. Here, each of the above factors is met. As a threshold matter, the Debtor does not 

list any secured creditors on Schedule D at ECF 32. Additionally, the sale is supported by the 

Trustee’s sound business judgment, the sale price is fair and reasonable and the purchaser is acting 

in good faith. Namely, the Debtor holds a 60% ownership interest in Cellynx Group, Inc. (which 

owns a 100% stock interest in Cellynx, Inc.) and a 100% ownership interest in 5Barz SA de CV 

(Mexico company), 5Barz Pte. Ltd. (Singapore company), 5Barz Technologies Pte. Ltd. 

(Singapore company), and 5Barz India Pvt. Limited (Mumbai company), all of which are valued 

at $0.00 on the Debtor’s Schedule B. See Line 15 of the Debtor’s Schedule B at ECF 32. While 

the entity Cellynx, Inc. is the holder of certain intellectual property, including issued United States 

patents related to systems and methods for boosting cell phone signals through the use of multiband antennae, the Debtor’s principals, Daniel Bland and Samartha Nagabhushanam, have 

confirmed to the Trustee through counsel that none of the Subsidiaries are operational and that 

each has a negative equity value. 

20. The Debtor also owns an interest in certain Intercompany Receivables between the 

Debtor, on the one hand, and the Subsidiaries, on the other hand. The face value of the receivables 

is $7,079,384. See Line 71 of the Debtor’s Schedule B at ECF 32. However, the current value of 

the Debtor’s interest in those Intercompany Receivables is scheduled as $0.00 on the Debtor’s 

Schedule B. Id. Yet, notwithstanding the valuing of the Subsidiaries and Intercompany 

Receivables at $0, the Cubera Parties will pay $1 million to settle the Claims and receive an 

assignment of the Subsidiaries and Intercompany Receivables on an “AS-IS, WHERE-IS,” basis, 

with no representations or warranties of any type being given by the Trustee or his professionals, 

and subject to any and all liens, claims, encumbrances, interests and defenses, whether known or 

unknown. Apart from the Settlement Approval Order, no further documentation will be required 

in connection with the assignment of the Debtor’s interests in the Subsidiaries and Intercompany 

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Receivables. As well, Cubera International Inc. or its designee will be responsible for the payment 

of any and all fees and taxes imposed by any governmental or other agency, foreign or domestic, 

arising from or relating to the sale and assignment provided for by the Settlement Agreement and 

Release, including but not limited to sales tax, documentary stamp tax and recording fees. Given 

the foregoing, the Trustee’s decision to enter into the Settlement Agreement and Release is one 

entirely supported by his sound business judgment, the sale price is fair and reasonable and the 

purchaser is acting in good faith. 

21. The remaining factor for consideration by the Court (i.e., interested parties are 

provided with adequate and reasonable notice) will also be satisfied because creditors and other 

parties in interest will receive accurate and reasonable notice of the terms of the proposed sale and 

assignment through receipt of this Motion. With respect to satisfying the elements of the “sound 

business purpose” test,2

 for the reasons set forth herein, the Trustee asserts that the sale and 

assignment of the Estate’s right, title and interest in the Subsidiaries and Intercompany Receivables 

in conjunction with the settlement of the Claims is the most cost efficient and expedient way to 

monetize the Estate’s right, title and interest in such property. Without this Court’s approval, there 

is no assurance that the Trustee will be able to monetize the Estate’s right, title and interest in the 

Subsidiaries and Intercompany Receivables because, upon information and belief, they have little 

or no market value. 

22. In the exercise of the Trustee’s business judgment, the sale of the Subsidiaries and 

Intercompany Receivables to Cubera International, Inc. or its designee pursuant to the Settlement 

Agreement and Release presents the best option for maximizing the value of the Debtor’s interests 

in the Subsidiaries and Intercompany Receivables for the benefit of the Debtor’s Estate and its 

2 See In re Continental Airlines, Inc., 780 F.2d 1223, 1226 (5th Cir. 1986). 

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creditors. Accordingly, the Trustee respectfully requests that the Court approve the proposed sale 

and assignment outside of the ordinary course of business and that the Court waive the 14-day stay 

period pursuant to Fed. R. Bankr. P. 6004(h). 

PAYMENT OF CONTINGENCY FEE 

23. Pursuant to the Employment Order, this Court authorized Berger Singerman to 

receive a 30% contingency fee for pre-suit gross recoveries in connection with the pursuit of any 

Litigation Claim. Employment Order at ¶¶ 3- 4. Additionally, the Employment Order authorized 

Berger Singerman to advance the payment of costs with the Estate being responsible to reimburse 

Berger Singerman for such costs. Employment Order at ¶5. The Employment Order also requires 

that any request for payment of compensation in connection with the settlement of a Litigation 

Claim be included in a motion to approve the settlement. Employment Order at ¶ 6. 

24. As a result of the settlement reached prior to the filing of a complaint, the Trustee 

requests that Berger Singerman’s 30% contingency fee be approved and that he be authorized and 

directed to pay Berger Singerman $300,000.00 (30% of $1,000,000.00), plus the reasonable and 

necessary costs incurred by Berger Singerman in connection with the pursuit of the Litigation 

Claims, which total $11,321.56 as of the date of the filing of this Motion. Berger Singerman 

reserves the right to seek the reimbursement of additional costs incurred following the filing of 

this Motion. The Trustee seeks authorization to pay Berger Singerman’s fees and costs from the 

proceeds of the instant settlement. 

WHEREFORE, Joel L. Tabas, Trustee, respectfully requests entry of an order: (1) 

granting this Motion; (2) approving the Settlement Agreement and Release; (3) approving the 

assignment of the Estate’s interest in the Subsidiaries and the Intercompany Receivables; (4) 

approving and directing the payment of Berger Singerman’s contingency fee and reimbursement 

of costs; and (5) granting such other relief as the Court deems just and proper. 

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 Dated: December 7, 2021 Respectfully submitted, 

BERGER SINGERMAN LLP 

 Special Litigation Counsel for Trustee 

 1450 Brickell Avenue, Suite 1900 

 Miami, FL 33131 

 Telephone: (305) 755-9500 

 Facsimile: (305) 714-4340 

 By: /s/ Samuel J. Capuano

 Paul Steven Singerman 

 Florida Bar No. 378860 

 singerman@bergersingerman.com

Samuel J. Capuano 

 Florida Bar No. 90946 

scapuano@bergersingerman.com 

 

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CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on December 7, 2021, a true and correct copy of the foregoing 

was served via electronic transmission through the Court’s CM/ECF system upon all parties on 

the attached CM/ECF Service List. Upon the issuance of a hearing notice to consider this Motion, 

the undersigned counsel will serve this motion and the hearing notice upon all creditors and 

interested parties reflected on the Court matrix, and file a supplemental certificate of service with 

the Court. 

 By: /s/ Samuel J. Capuano 

 Samuel J. Capuano 

 

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CM/ECF SERVICE LIST 

• Samuel J Capuano scapuano@bergersingerman.com, 

FSellers@bergersingerman.com;efile@bergersingerman.com;efile@ecf.inforuptcy.com 

• Daniel Gielchinsky dan@dgimlaw.com, 

tatiana@dgimlaw.com;dan_1836@ecf.courtdrive.com;eservice@dgimlaw.com 

• Robin M Herman shherman1@gmail.com 

• Jill E Kelso jill.kelso@usdoj.gov 

• Zakarij N Laux zakarij.laux@usdoj.gov, 

shannon.patterson@usdoj.gov;milton.pacheco@usdoj.gov 

• Justin B Levine justin.levine@csklegal.com, 

Patricia.martel@csklegal.com;Jacob.post@csklegal.com;Courtney.dean@csklegal.com;d

onna.scott@csklegal.com 

• Nathan G Mancuso ngm@mancuso-law.com 

• Isaac M Marcushamer isaac@dgimlaw.com, tatiana@dgimlaw.com 

• Aleida Martinez Molina aleida@axslawgroup.com, jz@axslawgroup.com 

• Aleida Martinez-Molina martinez.trustee@wsh-law.com 

• Office of the US Trustee USTPRegion21.MM.ECF@usdoj.gov 

• Steven D Schneiderman Steven.D.Schneiderman@usdoj.gov 

• Joel L Tabas JLT@tfsmlaw.com, 

jcepero@tabassoloff.com;lshortino@tabassoloff.com;jlt@trustesolutions.net 

• Joel L Tabas jtabas@tabassoloff.com, 

jcepero@tabassoloff.com;kborrego@tabassoloff.com 

• William M Uptegrove uptegrovew@sec.gov, 

baddleyd@sec.gov;JacobsonN@SEC.GOV 

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EXHIBIT “A” 

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UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

In re: Case No. 20-14866-RAM

5BARZ INTERNATIONAL INC., Chapter 7

SETTLEMENT AGREEMENT AND RELEASE

This Settlement Agreement and Release (“Agreement”) is made and entered into on

December__, 2021, by and among Joel L. Tabas, the duly appointed Chapter 7 trustee (the

‘Trustee”) forthe bankruptcy estate (die “Estate”) ofSBarz International, Inc. (the “Debtor”), on

the one hand, and Daniel Bland, Gil Amelio, Samartha Raghava Nagabhushanam, Mark

Geoghegan, Cubera International, Inc., Cubera Management, Inc., Cims Foundation, and Vector

Financial Group, LLC (collectively, the “Cubera Parties”), on the other hand. The Trustee and

the CuberaParties may be referred to individually as a “Party” and together as “Parties.”

RECITALS:

WHEREAS, on April 30, 2020, the Debtor filed a voluntary petition for relief under

Chapter 11, Title 11 ofthe United States Code, CaseNo. 20-bk-14866-RAM (the “Case”), in the

United States Bankruptcy Court for the Southern District ofFlorida (the “Court”). On November

23, 2020, the Court entered an order converting the case to a Chapter 7 case and the Trustee was

appointed as Chapter 7 trustee ofthe Debtor’s Estate;

WHEREAS, the Trustee has asserted various claims against the Cubera Parties via

delivery of a draft complaint, which claims include breach of fiduciary duty, conspiracy to

commit breach offiduciary duty, avoidance and recovery offraudulent transfers, avoidance and

recovery ofpost-petition transfers, conversion, and unjust enrichment (the “Claims”);

WHEREAS, the Cubera Parties dispute the Claims asserted by the Trustee, and have

asserted various defenses;

WHEREAS, the Parties have participated in extended and good faith pre-suit settlement

negotiations and have reached a settlement, the terms ofwhich are set forth in this Agreement;

NOW, THEREFORE, in consideration ofthe promises and the mutual covenants ofthe

Parties stated in this Agreement, and for other good and valuable consideration, the receipt and

sufficiency ofwhich are hereby acknowledged, the Parties represent, warrant, consent, and agree

as follows:

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1. Adoption of Recitals. The above recitals are true and correct, are incorporated

herein by this reference, and constitute a part ofthis Agreement

2. Settlement Terms: As full and final settlement of the Claims, subject to the

conditions set forth in this Agreement the Parties agree asfollows:

A The Cubera Parties shall pay the total sum of $1,000,000.00 (the “Settlement

Amount”), which amount includes the Deposit (defined below), to the Trustee by

wire transfer to the Trustee’s bank account within three (3) business days after

entry ofa final, non-appealable order ofthe Court granting the motion to approve

this Agreement(the “Settlement Approval Order”).

B. The Cubera Parties shall pay a deposit of$100,000.00 to be credited towards the

Settlement Amount (die “Deposit”) to the Trustee by wire transferto the Trustee’s

bank account within three (3) business days after the date of execution ofthis

Agreement by the last Party. The Deposit shall be refundable to the Cubera

Parties only ifthis Agreement is not approved by the Settlement Approval Order.

In all other circumstances, the Deposit shall be non-refundable. However, ifthe

Agreement is not approved by the Court as a result of the Cubera Parties’ own

actions, the Deposit shall be non-refundable, and the Trustee shall be entided to

retain the Deposit forthe benefit ofthe Estate.

C. Should the Cubera Parties default on payment of the Settlement Amount, the

Cuban Parties agree that the Trustee shall be entided to entry ofjudgment in his

favor and against each ofthe Cubera Parties, jointly and severally, in the amount

of$1,000,000.00, and the Cubera Parties shall not oppose entry ofsuchjudgment.

The Cubera Parties agree that the Trustee’s entidement to thisjudgment shall not

be deemed to be an election ofremedies, and the Trustee may additionally pursue

each ofthe Cubera Parties for die Claims or any other cause ofaction available to

the Trustee, but the Trustee shall not be entitled to a double recovery against any

Cubera Party.

D. The Settlement Approval Ordershall provide for the assignment by the Trustee to

Cubera Internationa], Inc. (or its designee) ofthe Debtor’s interests in (1) each of

the Debtor’ssubsidiary entities listed on line 15 ofthe Debtor’s Schedule B (Case

No. 20-14866, ECF 32), including Cellynx Group, Inc., SBarz SA de CV, SBarz

Pte. Ltd., SBarz Technologies Pte. Ltd., and SBarz India Pvt Limited (the

“Subsidiaries”); and (2) die intercompany receivables due from the Subsidiaries

listed on line 71 ofthe Debtor’s Schedule B (Case No. 20-14866, ECF 32) (the

“Intercompany Receivables”). Apart from the Settlement Approval Order, no

further documentation shall be required in connection with the assignment ofthe

Debtor’s interests in the Subsidiaries and Intercompany Receivables. The

assignment ofthe Subsidiaries and Intercompany Receivables by the Trustee to

Cubera International, Inc. (or its designee) is made on an “AS-IS, WHERE-IS,”

basis, with no representations or warranties ofany type being given by the Trustee

or his professionals, and subject to any and all liens, claims, encumbrances.

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interests and defenses, whether known or unknown. Cubera International Inc. (or

its designee) shall be responsible for the payment of any and all fees and taxes

imposed by any governmental or other agency, foreign or domestic, arising from

or relating to this sale and assignments, including but not limited to sales tax,

documentary stamp tax and recording fees. The assignments of the Debtor’s

interests in the Subsidiaries and Intercompany Receivables shall be conditioned

upon, and shall not be effective until, the Settlement Approval Order becomes

final and non-appealable and the cleared Settlement Amount is received by the

Trustee.

E. The Parties agree that the Court shall retain jurisdiction to enforce this

Agreement.

3. Conditions Precedent This Agreement is subject to and conditioned upon the

entry ofthe Settlement Approval Order and upon the Settlement Approval Order becoming final

and non-appealable. In the event that the Court does not approve this Agreement, nothing herein

shall be deemed a representation or admission by any Party asto any issue, and the Parties shall

be returned to the status quo priorto the entry into this Agreement

4. Trustee Release. The Trustee and the Debtor’s Estate, for good and valuable

consideration received from the Cubera Parties, the receipt ofwhich is hereby acknowledged,

release the Cubera Parties as follows: the Trustee and the Debtor’s Estate, including their

respective agents, representatives, partners, employees, and attorneys (collectively, the ‘Trustee

Releasors”), each hereby release and forever discharge the Cubera Parties, including their

respective agents, representatives, partners, officers, directors, employees, and attorneys, except

for the Doney Law Firm and all attorneys associated with the Doney Law Firm (collectively, the

“Cubera Releasees”) of and from all manner of claims, actions, causes of action, suits,

controversies, agreements, promises, damages, judgments, and any claims and demands of any

kind whatsoever, in law orin equity, known or unknown, contingent or noncontingent, liquidated

or unliquidated at this time, that the Trustee Releasors now have, may have, or ever had against

the Cubera Releasees for, upon, or by reason ofany matter, cause, or thing whatsoever from the

beginning of time through the date offile Settlement Approval Order becoming final and nonappealable, including, but not limited to, any claims that were brought, or which could have been

brought, in connection with the Claims and the Case, or any matters that are otherwise related in

any way to fects or issues with respect to the Debtor. This release does not release the Cubera

Parties’ obligations under this Agreement This release shall be effective upon the Settlement

Approval Order becoming final and non-appealable and after receipt by the Trustee of the

cleared Settlement Amount.

3. Cubera Parties Release. The Cubera Parties, for good and valuable consideration

received from the Trustee, the receipt of which is hereby acknowledged, release the Trustee and

the Debtor’s Estate as follows: the Cubera Parties, including their respective agents,

representatives, partners, officers, directors, employees, and attorneys, except for the Doney Law

Firm and all attorneys associated with the Doney Law Finn (collectively, the “Cubera

Releasors”), each hereby release and forever discharge the Trustee and the Debtor’s Estate,

including their respective agents, representatives, partners, employees, and attorneys

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(collectively, the ‘Trustee Releasees”) of and from all manner of claims, actions, causes of

action, suits, controversies, agreements, promises, damages, judgments, and any claims and

demands of any kind whatsoever, in law or in equity, known or unknown, contingent or

noncontingent, liquidated or unliquidated at this time, that the CuberaReleasors now have, may

have, or ever had against the Trustee Releasees for, upon, or by reason of any matter, cause, or

thing whatsoever from the beginning oftime through the date ofdie Settlement Approval Older

becoming final and non-appealable, including, but not limited to, any claims that were brought,

or which could have been brought, in connection with the Claims and the Case, or any matters

that are otherwise related in any way to facts or issues with respect to the Debtor. This release

does not release the Trustee’s obligations under this Agreement or the Vector Claim as defined

below. This release shall be effective upon the Settlement Approval Order becoming final and

non-appealable and after receipt by theTrustee ofthe cleared Settlement Amount.

6. Vector Claim. The Cubera Parties Release set forth in paragraph 5 above shall

notsave as a release by Vector Financial Group, LLC in connection with its ProofofClaim 3-1

filed against the Debtor’s Estate on May 20,2020, or its chapter 11 administrative expense claim

set forth on ECF 294 filed in the Case (collectively, the “Vector Claim”); provided, however, the

Trustee and all interested parties retain the right to object to the Vector Claim and any

component thereof. For the avoidance ofdoubt, this Agreement and the releases contained herein

shall not affect the rights or obligations of any party in connection with the Vector Claim nor

shall the Settlement Approval Orderserve as an adjudication ofsuch claim.

7. Attorney Representation. Each Party warrants and represents that it is entering

into this Agreement voluntarily, and without any duress or undue influence. Each Party further

represents that it had the opportunity to consult with legal counsel ofits own choosing before

signing this Agreement.

8. Entire Agreement This Agreement constitutes the sole and entire settlement and

release agreement between the Parties and supersedes all prior and contemporaneous statements,

promises, understandings, or agreements, whether written or oral. Each Party acknowledges that

no promise or inducement has been offered except asset forth herein and that this Agreement has

bear executed after each ofthe Parties has made an independent investigation ofthe facts and

has had the opportunity to rely upon the legal knowledge and advice of attorneys in executing

this Agreement

9. Amendments. This Agreement may be not be amended, modified, or altered

unless such amendment isin writing and signed by all Parties and approved by the Court

10. Cooperation and Best Efforts. The Parties hereto agree to cooperate fully in the

execution of any documents or performance in any way which may be reasonably necessary to

cany out the purposes ofthis Agreement and to effectuate the intent ofthe Parties thereto, and 

the Parties shall use their best efforts to obtain Court approval ofthe Agreement

11. Applicable Law. This Agreement shall be deemed to be made and entered into in

the State of Florida and shall in all respects be interpreted, enforced, and governed under the

laws ofFlorida, without giving effect to any conflict oflaws principles.

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12. Authority. Subject to approval of the Court, the individuals executing this

Agreement on behalf of tire Parties have the full power and lawful authority to execute and

deliver this Agreement, to perform die obligations hereunder, and to consummate the

transactions contemplated hereby, as well as all ofthe other documents executed or delivered, or

to be executed or delivered, by the Parties in connection herewith. The execution and delivery of

this Agreement by the Parties and die consummation by die Parties of the transactions

contemplated hereby have been duly and validly authorized by all necessary corporate action on

the part of the Parties and no other corporate proceedings are necessary to authorize this

Agreement or to consummate the transactions contemplated hereby. Each ofthe documents to

which the Parties are, or will be, a party has been, or will be, duly and validly executed and

delivered by the Parties, and, assuming the due authorization, execution and delivery of the

documents by the other Parties, are (or when executed and delivered will be) legal, valid and

binding obligations ofthe Parties.

13. No Adverse Construction. The Parties acknowledge that this Agreement has

been prepared by each of them. In the event any part of this Agreement is found to be

ambiguous, such ambiguity shall not be construed against any Party.

14. Waiver. The failure ofeither Party to enforce any provision or provisions ofthis

Agreement shall not in any way be construed as a waiver ofany such provision or provisions as

to any future violations thereof, nor prevent that Party thereafter from enforcing each and every

other provision ofthis Agreement The rights granted the Parties herein are cumulative and the

waiver ofany single remedy shall not constitute a waiver ofsuch party’s right to assert all other

legal remedies available to it underthe circumstances.

15. Counterparts. This Agreement may be signed and executed in one or more

counterparts, each ofwhich shall be deemed an original and all ofwhich together shall constitute

one Agreement Delivery of an executed counterpart of a signature page ofthis Agreement by

facsimile or email shall be effective as delivery of an originally executed counterpart of this

Agreement

[Signaturepagesfollow]

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IN WITNESS WHEREOF, the Parties have executed this Agreement as ofthe date first

written above.

ACCEPTED AND AGREED:

Joel L. Tabtfc, Chapter 7 Trustee ofthe

bankruptcy estate ofSBarz International, Inc.

xwljT^L ^ ^

niel Bland, indivi^trafK

Samar;! iaTE* ^ ava Nagabhushanam,

individually

N\\

'T'T',

A L

.•U me __

<-bbera Intema''onal, t ic., a Nevada

Coloration

By X^A.

0

Title; CO— CSV

Mark Geoghegan, individually

Corporation

By: O-vvv 'el ^

Title: /,Z?0

« ‘.*ru? Foundation, a Cook Islands Company

By:

Title; LP Wb-eT

Vector Financial Group, LLC, a Florida

limited liability company

By: _________

Title:

I

i

i

I1022W5-2

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IN WITNESS WHEREOF, the Parties have executed this Agreement as ofthe date first

written above.

ACCEPTED AND AGREED:

Joel L. Tabas, Chapter 7 Trustee ofthe

bankruptcy estate of5Barz International, Inc.

Daniel Bland, individually GO Amelio, individually

SamarthaRaghava Nagabhushanam, Mark o

individually

individually

Cubera International, Inc., aNevada

Corporation

Cubera Management, Inc., aFlorida

Corporation

By: By:

Title: Title:

Cirus Foundation, aCook Islands Company

Title:

By.

limited liability company

By AteAn

Title:

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EXHIBIT “B” 

Case 20-14866-RAM Doc 327 Filed 12/07/21 Page 24 of 27
11038917-1

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

In re: Case No. 20-14866-RAM

5BARZ INTERNATIONAL INC., Chapter 7

Debtor.

/

ORDER GRANTING TRUSTEE’S MOTION TO APPROVE (1) SETTLEMENT 

AGREEMENT AND RELEASE; (2) ASSIGNMENT OF THE ESTATE’S RIGHT, TITLE 

AND INTEREST IN SUBSIDIARY ENTITIES AND INTERCOMPANY 

RECEIVABLES; AND (3) PAYMENT OF CONTINGENCY FEE

THIS MATTER came before the Court at a duly noticed hearing on ______________ at 

____ a.m./p.m. upon the Trustee’s Motion to Approve: (1) Settlement Agreement and Release; (2) 

Assignment of the Estate’s Right, Title, and Interest in Subsidiary Entities and Intercompany 

Receivables; and (3) Payment of Contingency Fee [ECF No. ____] (the “Motion”). In ruling on 

the Motion, the Court, has considered the Settlement Agreement and Release1attached to the 

1 Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Motion. 

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Motion as Exhibit “A,” the representations made by the Trustee in the Motion regarding the 

assignment and sale of the Debtor’s interests in the Subsidiaries and Intercompany Receivables 

and the Employment Order authorizing Berger Singerman’s contingency fee. The Court, having 

considered the foregoing matters and argument of counsel at the hearing, finds that: (i) due and 

appropriate notice of the Motion and the relief to be granted by this Order has been provided with

all parties in interest having the opportunity to be heard on the Motion and the relief requested 

therein; (ii) the settlement contained in the Settlement Agreement and Release falls above the 

lowest point in the range of reasonableness as contemplated by applicable caselaw and satisfies 

the factors set forth in In re Justice Oaks II, Ltd., 898 F.2d 1544, 1549 (11th Cir. 1990); (iii) the 

factors set forth in applicable caselaw and section 363 of the Bankruptcy Code have been satisfied 

to authorize the assignment of the Debtor’s interests in the Subsidiaries and Intercompany 

Receivables outside the ordinary course of business free and clear of all liens; and (iv) the Court’s 

Employment Order authorizes compensation payable to Berger Singerman as set forth below. With 

the Court being fully advised in the premises,

IT IS ORDERED that:

1. The Motion is GRANTED.

2. The Settlement Agreement and Release attached to the Motion as Exhibit “A” is 

APPROVED and, accordingly, subject to this Order becoming final and non-appealable and the 

Trustee’s timely receipt of the Settlement Amount:

a. The Debtor’s interests in the Subsidiaries and Intercompany Receivables 

are hereby assigned by the Trustee to Cubera International, Inc. or its designee on an “AS-IS, 

WHERE-IS,” basis, with no representations or warranties of any type being given by the Trustee 

or his professionals, and subject to any and all liens, claims, encumbrances, interests and defenses, 

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whether known or unknown. This Order shall serve as an assignment of the Estate’s right, title 

and interest in the Subsidiaries and Intercompany Receivables without further documentation. 

Cubera International Inc. or its designee shall be responsible for the payment of any and all fees 

and taxes imposed by any governmental or other agency, foreign or domestic, arising from or 

relating to the sale and assignment provided for by the Settlement Agreement and Release, 

including but not limited to sales tax, documentary stamp tax and recording fees.

b. Berger Singerman is entitled to a 30% contingency fee totaling $300,000.00 

(30% of the $1,000,000.00 Settlement Amount), reasonable and necessary costs (“Costs”) in the 

amount of $11,321.56 incurred as of the filing of the Motion and any additional Costs incurred by 

Berger Singerman after the filing of the Motion, and the Trustee shall pay said sums to Berger 

Singerman out of the Settlement Amount.

3. The Court waives the fourteen (14) day stay period under Fed. R. Bankr. P. 6004(h)

so that this Order shall become immediately effective.

4. This Court shall retain jurisdiction to hear and determine all matters arising from 

or related to the implementation of this Order.

# # #

Submitted by:

Paul Steven Singerman, Esq.

Samuel J. Capuano, Esq.

BERGER SINGERMAN LLP

1450 Brickell Avenue, Ste. 1900

Miami, FL 33131

Telephone: (305) 755-9500

Facsimile: (305) 714-4340

Email: singerman@bergersngerman.com

Email: scapuano@bergersingerman.com

Copy furnished to:

Samuel J. Capuano, Esq.

(Samuel J. Capuano, Esq. is directed to serve a copy of this Order upon interested parties and file 

with the Court a certificate of service.)

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