Exhibit 10.1


 


SETTLEMENT AGREEMENT


 


This Settlement Agreement (“Settlement
Agreement”) is executed by and between Plaintiff Madwell LLC of 243 Boerum Street, Brooklyn, NY 11206 (“Plaintiff”),
on the one hand, and on the other hand Defendants Long Island Brand Beverages LLC (“LIBB”), Philip Thomas of 16 Ash
Street, Garden City, New York (“Mr. Thomas”) and Paul Vassilakos of 180 Madison Avenue Suite 1702 New York, NY (“Mr.
Vassilakos,” and collectively with LIBB and Mr. Thomas, “Defendants”). Plaintiff and Defendants are collectively
hereinafter referred to as the “Parties.”


 


RECITALS


 


A.WHEREAS,
in 2013 and 2014, Plaintiff provided advertising, marketing and design services to LIBB and incurred expenses on behalf of LIBB
for the purchase of advertising space (the “Advertising Campaign”); and


 


B.WHEREAS,
Plaintiff alleges that it invoiced LIBB for a total of $676,112.15 for services rendered and expenses incurred in the course of
the Advertising Campaign (the “Campaign Fees”); and


 


C.WHEREAS,
LIBB has paid Plaintiff $278,114.15 of the Campaign Fees; and


 


D.WHEREAS,
certain disputes arose between Plaintiff and LIBB with respect to the Advertising Campaign and amounts owed to Plaintiff by LIBB
in connection therewith; and


 


E.WHEREAS,
Plaintiff initiated a lawsuit against Defendants in the New York Supreme Court for the County of Kings, bearing Index Number 509081/2015
(the “Lawsuit”), to, among other things, recover the alleged unpaid portion of the Campaign Fees, plus interest; and


 


F.WHEREAS,
Plaintiff alleges that it is owed $397,998, together with at least $80,000 of contractual interest accrued on the aforesaid unpaid
sum; and


 






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G.WHEREAS,
the Parties wish to compromise and settle all of the outstanding controversies between and among them related to the Lawsuit and
Advertising Campaign, with prejudice and without costs, and enter into a mutual release, all on the terms set forth in this Agreement;


 


NOW, THEREFORE, in consideration of the
mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and adequacy of which
is hereby admitted and acknowledged, the Parties hereto agree as follows:


 


AGREEMENT


 


1.Incorporation of Recitals. The
above Recitals are incorporated herein by reference, and form a part of this Settlement Agreement.


 


2.Settlement Payment. LIBB will
pay Plaintiff the total Settlement Amount of $440,000 (the “Settlement Amount”) in accordance with the following schedule:


 


a)Initial Payment: On the same
day as the execution of this Agreement by Plaintiff and LIBB (the “Execution Date”), LIBB will pay Plaintiff a lump
sum of $50,000 by executing a wire transfer of $50,000 to from LIBB's attorney's trust account to Plaintiffs bank account.


 


b)Second Payment: No later than
one month after the Execution Date, LIBB will pay $100,000 to Plaintiff in one lump sum by sending a check for $100,000 to Plaintiff
by overnight delivery via FedEx or UPS. By way of example, if the Execution Date is July 30, 2015, then this check must be sent
no later than August 30, 2015.


 


c)Third Payment: No later than
two months after the Execution Date, LIBB will pay $50,000 to Plaintiff in one lump sum by sending a check for $50,000 to Plaintiff
by overnight delivery via FedEx or UPS. By way of example, if the Execution Date is July 30, 2015, then this check must be sent
no later than September 30, 2015.


 






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d)Fourth Payment: No later than
three months after the Execution Date, LIBB will pay $80,000 to Plaintiff in one lump sum by sending a check for $80,000 to Plaintiff
by overnight delivery via FedEx or UPS. By way of example, if the Execution Date is July 30, 2015, then this check must be sent
no later than October 30, 2015.


 


e)Fifth Payment: No later than
four months after the Execution Date, LIBB will pay $80,000 to Plaintiff in one lump sum by sending a check for $80,000 to Plaintiff
by overnight delivery via FedEx or UPS. By way of example, if the Execution Date is July 30, 2015, then this check must be sent
no later than November 30, 2015.


 


f)Sixth Payment: No later than
five months after the Execution Date, LIBB will pay $80,000 to Plaintiff in one lump sum by sending a check for $80,000 to Plaintiff
by overnight delivery via FedEx or UPS. By way of example, if the Execution Date is July 30, 2015, then this check must be sent
no later than December 30, 2015.


 


3.Effective Date: This Settlement
Agreement shall become effective on the day that the funds clear from the check for the Initial Payment to Plaintiff’s bank
account.


 


4.Affidavit of Confession of Judgment


 


a)Simultaneously with execution of
this Settlement Agreement, Mr. Thomas shall execute on behalf of LIBB and have notarized the Affidavit for Confession of Judgment
attached hereto as Exhibit A (the “Affidavit”). The original Affidavit shall immediately be delivered to Plaintiff’s
counsel’s office: Law Office of Matthew C. Heerde, 222 Broadway 19th Floor, New York, NY 10038


 


b)The Affidavit shall be held by Plaintiff’s
attorneys under the following conditions: (A) upon full payment of the Settlement Amount, the Affidavit shall be destroyed; or
(B) upon Default as provided below, such original may be filed with the Court and enforced.


 






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5.Default. 


  


a)If LIBB fails to timely make any
payment required by Section 2 above, LIBB may cure such failure by remitting such payment in full within fifteen (15) calendar
days from the sending of notice of nonpayment to LIBB as designated hereunder. In the event that LIBB fails to timely cure their
failure to pay by 5 p.m. New York time on the fifteenth such calendar day following the sending of such notice, LIBB will at that
time be deemed to be in “Default”.


 


b)In the event of Default, all unpaid
portions of the Settlement Amount plus stipulated interest of $50,000 (the “Unpaid Balance”), shall become immediately
due, owing, and payable to Plaintiff, and Plaintiff shall be entitled to file for entry of judgment for the Unpaid Balance against
LIBB in the Supreme Court of the State of New York, County of Nassau, without further notice, and shall have execution therefor,
pursuant to the Affidavit and in accordance with this Agreement.


 


c)The Parties agree that the $50,000
stipulated interest described in Section 5(b) above is a fair and reasonable assessment of Plaintiff’s damages in the event
that LIBB breaches its obligations under Section 2.;


 


d)Upon LIBB’s Default, LIBB shall
be liable for Plaintiff’s reasonable costs and attorney fees incurred in enforcing the judgment described in the Affidavit.


 


6.Dismissal of Action. Upon the
clearing of funds from the check for the Initial Payment, Plaintiff and Defendants, through their attorneys, shall execute a Stipulation
of Discontinuance with Prejudice (attached hereto as Exhibit B), which Plaintiff shall promptly then file with the Court.


 


 



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7.Other Covenants and Consideration


 


		a)	By Plaintiff. Plaintiff, on behalf of itself and on behalf of its successors and assigns, hereby covenants and agrees
that it:



 


(i)shall not take any action, including
without limitation the making of disparaging statements (oral or in writing) concerning any Defendant(s), that is reasonably likely
to injure, impair or damage the relationships between any Defendant and any lessor, lessee, vendor, supplier, customer, distributor,
franchisee, franchisor, employer, employee, consultant, state or municipal governing body or agency, or other business associate
of or person or entity having any relationship with such Defendant, as such relationship relates to such Defendant’s employment
or conduct of business, except that nothing in this subsection 7(a)(i) shall prohibit Plaintiff from testifying or providing information
in response to a lawful subpoena or in the course of any court action.


 


		b)	By Defendants. Defendants, on behalf of themselves and on behalf of their successors and assigns, hereby covenant and
agree that they:



 


(i)shall not take any action, including
without limitation the making of disparaging statements (oral or in writing) concerning Plaintiff, that is reasonably likely to
injure, impair or damage the relationships between Plaintiff and any lessor, lessee, vendor, supplier, customer, distributor, franchisee,
franchisor, employer, employee, consultant, state or municipal governing body or agency, or other business associate of or person
or entity having any relationship with Plaintiff, as such relationship relates to Plaintiff’s employment or conduct of business,
, except that nothing in this subsection 7(b)(i) shall prohibit Defendants from testifying or providing information in response
to a lawful subpoena or in the course of any court action.


 






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8.Mutual General Releases by Parties.


 


a)Defendants’ Release.
Defendants, on their own behalf and on behalf of their agents, partners, shareholders, predecessors, attorneys, creditors, heirs,
executors, trustees, administrators, assigns, successors-in-interest of any kind, and all of their respective past and present
officers and directors (collectively, the “Defendant Releasing Parties”), do hereby release, remise, relieve and forever
discharge and shall hold harmless and indemnify (if any other person or entity files a claim by, on behalf of, or through any Defendant
Releasing Party), Plaintiff, and each and all of Plaintiff’s affiliates, partners, associates, employees, former employees,
independent contractors, former independent contractors, attorneys, agents, successors, assigns, personal representatives, predecessors,
related organizations, heirs, executors, trustees, and administrators (collectively, the “Plaintiff Released Parties”)
of and from any and all costs (including costs of suit, attorney’s fees and expenses), expenses, monies due or owing, suits,
debts, obligations, claims, damages, demands, liabilities, actions and causes of action of every kind and character, known by the
Defendant Releasing Parties as of the effective date hereof, whether contingent or absolute, which any Defendant Releasing Party
has had or now has against any of the Plaintiff Released Parties, accruing by reason of any cause, matter or thing whatsoever from
the beginning of time to the effective date hereof, including but not limited to any matter, cause or thing arising out of or related
to the Lawsuit..


 


b)Plaintiff’s Release.
Plaintiff, on its own behalf and on behalf of its agents, partners, shareholders, predecessors, attorneys, creditors, heirs, executors,
trustees, administrators, assigns, successors-in-interest of any kind, and all of their respective past and present officers and
directors (collectively, the “Plaintiff Releasing Parties”), hereby release, remise, relieve and forever discharge
and shall hold harmless and indemnify (if any other person or entity files a claim by, on behalf of, or through any Plaintiff Releasing
Party), Defendants, and each and all of Defendants’ affiliates, employees, former employees, independent contractors, former
independent contractors, attorneys, agents, successors, assigns, personal representatives, predecessors, related organizations,
heirs, executors, trustees, and administrators (collectively, the “Defendant Released Parties”) of and from any and
all costs (including costs of suit, attorney’s fees and expenses), expenses, monies due or owing, suits, debts, obligations,
claims, damages, demands, liabilities, actions and causes of action of every kind and character, known by the Plaintiff Releasing
Parties as of the effective date hereof, whether contingent or absolute, which any Plaintiff Releasing Party has had or now has
against any of the Defendant Released Parties, accruing by reason of any cause, matter or thing whatsoever from the beginning of
time to the effective date hereof, including but not limited to any matter, cause or thing arising out of or related to the Lawsuit.


 






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c)Miscellaneous Provisions Related
to the Releases.


 


(i)It is the specific intent and purpose
of this instrument to be a full, final and complete, remise, release, discharge, compromise, settlement, accord and satisfaction
of any and all claims or causes of action of every kind and character asserted or that could have been asserted by or among the
Parties in connection with the Action.


 


(ii)Each of the Parties acknowledges
that he/she/it may hereafter discover facts different from, or in addition to, those which he/she/it now believes to be true with
respect to any and all of the liabilities, claims, causes of action, damages, costs or demands herein released. The Parties hereby
waive any rights, claims, or causes of action that might arise as a result of such different or additional claims or facts as they
exist as of the execution date of Agreement, under any theory, statute, or cause of action. The Parties acknowledge that they understand
the significance and consequence of such release and such waiver of any claims.


 






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(iii)Each of the Parties acknowledges
that he/she/it is fully informed and aware of his/her/its rights to receive independent legal advice regarding the advisability
of entering into this release and has received independent legal advice from his/her/its attorney with regard to the advisability
of executing this release. Each of the Parties further acknowledges that he/she/it has made an investigation of the facts pertaining
to this release as he/she/it has deemed necessary, and, further, acknowledges that he/she/it has not relied upon any statement
or representation of any of the other Parties.


 


(iv)Each of the Parties acknowledges
and agrees that in executing this Agreement and the other documents delivered under this Agreement, he/she/it does not rely and
has not relied upon any representation, warranty or statement made by any other Party or any of its agents, representatives or
attorneys with regard to the subject matter, basis or effect of this Agreement and any of the other documents delivered under this
Agreement or otherwise.


 


(v)Notwithstanding anything in this
Agreement to the contrary, no Party is released from such Party’s covenants, obligations, representations, warranties and
agreements to the extent set forth in this Agreement.


 


9.Bankruptcy.LIBB represents
that it has no intention of filing any form of Bankruptcy Petition with any court. In the unlikely event that any such petition
is filed prior to the effective and complete payment of the entire Settlement Amount, LIBB agrees that Plaintiff may dispute any
alleged dischargability of the remaining settlement payments due.


 


10.Waiver. No provision hereof
may be waived unless in writing and signed by the Party whose rights are thereby waived. Waiver of any one provision herein shall
not be deemed to be a waiver of any other provision herein (whether similar or not), nor shall such waiver constitute a continuing
waiver unless otherwise expressly so provided


 






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11.Successors, Assigns, Transferees.
This Settlement Agreement shall be binding upon and inure to the benefit of, all Parties and, as applicable, each Party’s
officers, directors, shareholders, affiliates, parent companies, subsidiaries, related entities, employees, representatives, legal
representatives, acquirers, partners, principals, attorneys, agents, predecessors, heirs, successors, assignees, and transferees
of the Parties.


 


12.Review and Investigation.
Defendants acknowledge and agree that they have carefully read and reviewed this Settlement Agreement and its Exhibits and understand
them fully, and Defendants specifically do not rely upon any statement, representation, legal opinion, accounting opinion or promise
of Plaintiff or any person representing such other Party, in executing this Settlement Agreement or in making the settlement provided
for herein, except as expressly stated in this Settlement Agreement. Each party has made such an investigation of the law and facts
pertaining to this Settlement Agreement and of all matters pertaining thereto as it deems necessary. This Settlement Agreement
has been carefully read by, and the contents hereof are known and understood by the Parties, and it is signed freely by each party
executing this Settlement Agreement.


 


13.Non-Admission of Liability.  
Neither this Agreement nor anything contained herein shall constitute or is to be construed as an admission by any of the Parties
as evidence of any liability, wrongdoing or unlawful conduct.


 


14.Availability of Counsel. The
Parties each acknowledge and agree that they have had a reasonable opportunity to consult with legal counsel before executing this
Agreement.


 






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15.Governing Law. This Agreement
shall be governed by and construed in accordance with the laws of New York, without giving effect to any choice of law or conflict
of law provision or rule that would cause the application of the laws of any jurisdictions other than the State of New York.


 


16.Venue. Any dispute regarding
the interpretation or obligations under this Settlement Agreement shall be adjudicated in the Supreme Court of New York, Kings
County. All Parties hereby agree and consent that they are subject to the Jurisdiction of New York Courts for the purpose of any
dispute regarding this Settlement Agreement.


 


17.Attorneys Fees. In the event
of any court action to enforce this Settlement Agreement or regarding the interpretation of this Settlement Agreement, the prevailing
party in such action shall be entitled to recover its reasonable costs and attorneys fees.


 


18.Entire Agreement.This
Agreement constitutes a single integrated written agreement expressing the entire agreement and understanding between the Parties
concerning the subject matter hereof and supersedes and replaces all prior negotiations or proposed agreements, whether written
or oral. All prior and contemporaneous negotiations and agreements are deemed incorporated and merged into this Agreement and are
deemed to have been abandoned if not so incorporated. No modification or amendment of this Agreement or any waiver of any right
granted hereunder shall be of any force or effect unless reduced to writing and signed by the Party claimed to be bound thereby.
This Agreement is intended to be, and is, final and binding upon the Parties hereto according to the terms hereof regardless of
any claims of mistake of fact or law.


 


 



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19.Notices.All notices permitted
under this Agreement shall be sent:


 


	For LIBB:	Long Island Brand Beverages
	 	Attn: Phil Thomas
	 	116 Charlotte Avenue
	 	Hicksville, NY 11801
	 	 
	 	 
	With Copies to:	Eric Sharp, Esq.
	 	Via email: esharp@galganolaw.com
	 	 
	 	 
	For Plaintiff:	Madwell LLC
	 	Attn: David Eisenman
	 	243 Boerum Street
	 	Brooklyn, New York 11206
	 	 
	With Copies to:	Matthew C. Heerde, Esq.
	 	Via email: mheerde@heerdelaw.com




  


or such other addresses which the Parties may designate in writing
from time to time.


 


20.Authority to Execute. Each
party hereto hereby represents and warrants to the other party that (a) the person signing on its behalf below has the capacity
and authority to execute and deliver this Settlement Agreement, and (b) no consent or approval of any other person or entity is
required to authorize it to enter into this Settlement Agreement and to perform its obligations hereunder.


 


21.Counterparts. This Agreement
may be signed in counterpart copies, each of which shall constitute an original, with the same force and effect as if each of the
Parties hereto has signed a single instrument.


 






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22.Facsimile and Electronic Signatures.
Facsimile or electronic copies of signatures of the Parties hereto shall have the same force and effect as original ink signatures.


 


23.Costs. Except for the payments
referenced herein, each Party shall bear its own attorneys' fees and costs, and shall not seek to recover such fees and costs from
any other Party.


 


IN WITNESS THEREOF, the undersigned Parties
have executed this Agreement.


 


 


	/s/
    Philip Thomas	 	July
    31, 2015	 
	Long
    Island Brand Beverages LLC	 	Date	 
	By:
    Philip Thomas, Managing Member	 	 	 
	 	 	 	 
	 	 	 	 
	/s/
    David Eisenman	 	July
    30, 2015	 
	Madwell
    LLC	 	Date	 
	By:
    David Eisenman, CEO	 	 	 
	 	 	 	 
	/s/
    Philip Thomas	 	July
    31, 2015	 
	Philip
    Thomas, Individually	 	Date	 
	 	 	 	 
	/s/
    Paul Vassilakos	 	July
    31, 2015	 
	Paul
    Vassilakos, Individually	 	Date	 




 


 






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