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Iconix International Inc.","case_name_full":"","slug":"cole-v-iconix-international-inc","docket_number":"1:25-cv-09357","docket_number_core":"2509357","docket_number_raw":"1:25-cv-09357","docket_number_source":0,"federal_dn_office_code":"1","federal_dn_case_type":"cv","federal_dn_judge_initials_assigned":"","federal_dn_judge_initials_referred":"","federal_defendant_number":null,"pacer_case_id":"652794","cause":"28:1332 Diversity Action","nature_of_suit":"360 P.I.: Other","jury_demand":"Defendant","jurisdiction_type":"Diversity","appellate_fee_status":"","appellate_case_type_information":"","mdl_status":"","filepath_ia":"","filepath_ia_json":"","ia_upload_failure_count":null,"ia_needs_upload":true,"ia_date_first_change":"2025-11-10T07:47:33.209364-08:00","date_blocked":null,"blocked":false,"appeal_from":null,"parent_docket":null,"tags":[],"panel":[]},"parties":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/parties/16658065/","id":16658065,"attorneys":[],"party_types":[{"docket":"https://www.courtlistener.com/api/rest/v4/dockets/71893430/","docket_id":71893430,"name":"Defendant","date_terminated":null,"extra_info":"","highest_offense_level_opening":"","highest_offense_level_terminated":"","criminal_counts":[],"criminal_complaints":[]}],"date_created":"2025-11-10T07:51:43.660877-08:00","date_modified":"2025-11-10T07:51:43.660892-08:00","name":"Seth Horowitz","extra_info":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/parties/16658064/","id":16658064,"attorneys":[],"party_types":[{"docket":"https://www.courtlistener.com/api/rest/v4/dockets/71893430/","docket_id":71893430,"name":"Defendant","date_terminated":null,"extra_info":"","highest_offense_level_opening":"","highest_offense_level_terminated":"","criminal_counts":[],"criminal_complaints":[]}],"date_created":"2025-11-10T07:51:43.643717-08:00","date_modified":"2025-11-10T07:51:43.643725-08:00","name":"ICONIX BRAND GROUP, INC","extra_info":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/parties/16658063/","id":16658063,"attorneys":[{"attorney":"https://www.courtlistener.com/api/rest/v4/attorneys/10863908/","attorney_id":10863908,"date_action":null,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/71893430/","docket_id":71893430,"role":1}],"party_types":[{"docket":"https://www.courtlistener.com/api/rest/v4/dockets/71893430/","docket_id":71893430,"name":"Plaintiff","date_terminated":null,"extra_info":"","highest_offense_level_opening":"","highest_offense_level_terminated":"","criminal_counts":[],"criminal_complaints":[]}],"date_created":"2025-11-10T07:51:43.555881-08:00","date_modified":"2025-11-10T07:51:43.555892-08:00","name":"Neil Cole","extra_info":""}],"entries":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/468313489/","id":468313489,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/71893430/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/483603137/","id":483603137,"tags":[],"absolute_url":"/docket/71893430/39/cole-v-iconix-international-inc/","date_created":"2026-06-22T13:10:48.285336-07:00","date_modified":"2026-06-23T04:48:18.385028-07:00","sha1":"067d816a9877bf4c21f0f528a7b646b072aa3a1f","page_count":1,"file_size":572920,"filepath_local":"recap/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.39.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.39.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:25-cv-09357-MKV Document 39 Filed 06/22/26 Page 1 of 1\n USDC SDNY\n DOCUMENT\n ELECTRONICALLY FILED\n DOC #:\n UNITED STATES DISTRICT COURT DATE FILED: 6/22/2026\n SOUTHERN DISTRICT OF NEW YORK\n\n NEIL COLE,\n\n Plaintiff,\n\n v.\n\n ICONIX INTERNATIONAL INC. f/k/a\n ICONIX BRAND GROUP, INC., and No. 25-cv-9357 (MKV)\n SETH HOROWITZ,\n\n Defendants.\n\n\n\n NOTICE OF VOLUNTARY DISMISSAL PURSUANT TO FED. R. CIV. P.\n 41(a)(1)(A)(i) OF CLAIMS AGAINST DEFENDANT ICONIX INTERNATIONAL INC.\n\n\n Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i), Plaintiff Neil Cole hereby gives notice of the\n\n dismissal of his claims with prejudice as against Defendant Iconix International Inc. in the above-\n\n captioned action, i.e., Counts II-V of the Amended Complaint, see Dkt. No. 22.\n\n\n\n Dated: June 18, 2026\n\n\n ________________\n\n BLOCH & WHITE LLP\n Benjamin D. White\n Cristina Alvarez\n Kyle W. Bigley\n 90 Broad St., Suite 703\n New York, NY 10004\nThe Clerk of Court is respectfully requested to terminate docket\nentries 23 and 27. 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LURIE, PLLC\n 194 President Street\n Brooklyn, NY 11231\n 347-651-0194\n\n Attorneys for Defendant Seth Horowitz\n\f Case 1:25-cv-09357-MKV Document 35 Filed 05/11/26 Page 2 of 15\n\n\n\n\n Table of Contents\n\nTable of Authorities ................................................................................................................ i\n\nArgument ................................................................................................................................ 1\n\n\n I. Cole\u2019s initiation allegations are implausible and threadbare .......................... 1\n\n II. The undisputed facts establish multiple independent\n bases for presuming probable cause that Cole cannot rebut ........................... 3\n\n A. Cole\u2019s second trial conviction established a presumption of\n probable cause. .......................................................................................... 4\n\n B. The Judicial fact findings of Horowitz\u2019s truthfulness (and\n Cole\u2019s untruthfulness) established a presumption of probable\n cause. ........................................................................................................ 4\n\n C. The GBG witnesses\u2019 corroboration established a presumption\n of probable cause. ..................................................................................... 6\n\n D. The grand jury\u2019s indictment of Cole established a presumption\n of probable cause. .................................................................................... 7\n\n III. Cole\u2019s makeweight \u201cmalice in fact\u201d allegations are irrational and\n threadbare. ...................................................................................................... 8\n\n IV. Cole fails to allege that Horowitz overcame the volition of federal\n prosecutors ...................................................................................................... 9\n\nConclusion\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.. ........................................................................................ 10\n\f Case 1:25-cv-09357-MKV Document 35 Filed 05/11/26 Page 3 of 15\n\n\n\n\n Table of Authorities\n\nCases\n\nAshcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................... 1\n\n\nColon v. City of New York, 60 N.Y.2d 78 (1983)\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026. 1, 4, 5\n\n\n\nDantas v. Citigroup, 779 F. App\u2019x 16 (2d Cir. 2019) ................................................................ 1, 10\n\n\nGoddard v. Daly, 295 A.D.2d 314 (2nd Dep\u2019t 2002) ...................................................................... 4\n\n\nGull Keys I LLC v. Fulton Advisory Beef Fund I, LLC, No. 1:23-cv-09058-MKV, 2025 U.S.\n Dist. LEXIS 169799 (S.D.N.Y. Sept. 2, 2025) ........................................................................... 5\n\n\nParo Mgmt. Co. v. Willis of New Jersey, Inc., No. 1:24-cv-4885 (MKV),\n 2025 U.S. Dist. LEXIS 57884 (S.D.N.Y. March 27, 2025) ....................................................... 3\n\n\nPassucci v. Home Depot, Inc., 67 A.D.3d 1470 (4th Dep\u2019t 2009) .................................................. 4\n\n\nRobinson v. Concentra Health Servs., 781 F.3d 42 (2nd Cir. 201)\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.......5\n\n\nSibblies v. City of New York, 219 A.D.3d 403 (1st Dep\u2019t 2023).................................................... 4\n\n\nUnited States v. Cole, 158 F.4th 113 (2d Cir. 2025). .............................................................. passim\n\n\n\n\n ii\n\f Case 1:25-cv-09357-MKV Document 35 Filed 05/11/26 Page 4 of 15\n\n\n\n\n Defendant Seth Horowitz submits this Reply Memorandum of Law in further support of\n\nhis motion to dismiss the Amended Complaint, as against Horowitz.1\n\n Argument\n\n A complaint must contain more than threadbare allegations and speculation, particularly a\n\npleading that is grounded on a contention the defendant acted \u201cirrationally,\u201d like Cole\u2019s. See\n\nAshcroft v. Iqbal, 556 U.S. 662, 678 (2009). But speculation, and distortion of a record that is\n\nincorporated into his Complaint, is all Cole proffers.\n\n I. Cole\u2019s initiation allegations are implausible and threadbare\n\n Cole contends Horowitz initiated, and continued, the DOJ\u2019s criminal case against Cole by\n\n(i) \u201cfraudulently\u201d or \u201cperjuriously\u201d2 confessing, and then pleading guilty, to a fictional fraud\n\nscheme involving Cole and himself; and (ii) overcoming the \u201cvolition,\u201d3 of a team of FBI agents\n\nand federal prosecutors by duping them into obtaining an indictment against Cole, and then\n\ntrying him twice, all while keeping each of the experienced law enforcement officers in the dark\n\nabout the purported absence of probable cause to bring the case. To call this theory of liability\n\nimplausible is an understatement.\n\n First, Cole contends Horowitz chose to invent, and plead guilty to, a fictional criminal\n\nscheme because of a purportedly \u201cdeep-seated and mostly irrational resentment and anger\n\ntowards Cole.\u201d Cole Opp. Mem. at 23. But despite having access to a plethora of evidence, and\n\nafter two trials during which two teams of skilled criminal defense lawyers did everything\n\n\n\n1\n Unless otherwise indicated, initially capitalized terms employed herein are intended to have the\ndefinitions set forth in Horowitz\u2019s Opening Memorandum and in the Amended Complaint.\n2\n See Colon v. City of New York, 60 N.Y.2d 78, 82-83 (1983).\n3\n See Dantas v. Citigroup, 779 F. App\u2019x 16, 23 (2d Cir. 2019) (summary order).\n\f Case 1:25-cv-09357-MKV Document 35 Filed 05/11/26 Page 5 of 15\n\n\n\n\npossible to call into question Horowitz\u2019s credibility, Cole offers only makeweight allegations to\n\nsupport his avowedly \u201cirrational\u201d contentions. See Horowitz Opening Mem. Point III.\n\n Cole\u2019s \u201cirrationality\u201d allegations are not only meager, but also misleading: Cole: (i)\n\ndistorts documentary evidence, including by falsely asserting Horowitz drafted multiple letters\n\nproclaiming his hatred of Cole; and (ii) misstates trial testimony, including by falsely claiming\n\nHorowitz admitted to purchasing massive quantities of illegal drugs, when he actually purchased\n\nsome marijuana for personal use. Cole also, belatedly, acknowledges a handwritten note on\n\nwhich Cole grounds his contention that Horowitz knowingly lied was twice rejected as irrelevant\n\nby Judge Ramos, because it fails to meaningfully impeach Horowitz\u2019s veracity. See Point III,\n\ninfra.\n\n Second, Cole asserts Horowitz acted to \u201cprotect\u201d himself, but fails to explain how\n\ninventing, and then pleading guilty to, a purportedly fictional set of felonies could have\n\n\u201cprotected\u201d Horowitz.\n\n Cole speculates Horowitz \u201cmay well have committed\u201d a separate criminal scheme with\n\nGBG that Cole was uninvolved in. Cole Opp. Mem. at 14. But Cole cannot point to a single\n\nallegation of fact in his Amended Complaint to support his speculation. Cole made no such\n\nallegations because there is no basis for them. As we have explained, and the Second Circuit\u2019s\n\nopinion makes clear, there is nothing in the voluminous documentary and testimonial record\n\nsupporting such a \u201cpossibility[].\u201dHorowitz Opening Mem. at 10. Furthermore, as we have also\n\nexplained, Cole\u2019s current rank speculation about the \u201cpossibility\u201d of such a crime is at odds with\n\nCole\u2019s own trial testimony. Id. at 11.\n\n\n\n\n 2\n\f Case 1:25-cv-09357-MKV Document 35 Filed 05/11/26 Page 6 of 15\n\n\n\n\n Third, faced with the absence of factual allegations to sustain his irrational theory of\n\ninitiation, Cole has proffered a new, and equally meritless, contention: That the Second Circuit\n\nmade findings of fact supporting his contention that Horowitz is a perjurer in connection with its\n\nDouble Jeopardy holding.\n\n According to Cole, the Second Circuit \u201cearnestly believed that Horowitz was not telling\n\nthe truth.\u201d Cole Opp. Mem. at 14. That is simply false. The Second Circuit did not make a\n\nfinding that Horowitz engaged in \u201cfraud, perjury\u201d or their equivalent, as required to sustain\n\nCole\u2019s claim herein; indeed, the issue of Horowitz\u2019s state of mind and intent was not before the\n\nappellate court.\n\n Finally, Cole points to his own assertion on the stand that Horowitz was untruthful. It is,\n\nhowever, settled law that a malicious prosecution plaintiff\u2019s testimony is never alone sufficient to\n\nestablish probable cause. Cole contends the caselaw allows such a plaintiff\u2019s testimony to be\n\nconsidered if she also alleges other cognizable facts colorably establishing the malicious\n\nprosecution defendant knowingly lied. Cole, however, fails to allege such facts.\n\n Cole suggests he may later be able to adduce evidence supporting his contention that\n\nHorowitz is a perjurer. But such speculation cannot sustain a complaint against a motion to\n\ndismiss, let alone a fundamentally implausible complaint like Cole\u2019s. See Paro Mgmt. Co. v.\n\nWillis of New Jersey, Inc., No. 1:24-cv-4885 (MKV), 2025 U.S. Dist. LEXIS 57884 (S.D.N.Y.\n\nMarch 27, 2025).\n\n II. The undisputed facts establish multiple independent bases for presuming probable\n cause that Cole cannot rebut\n\n Cole offers defective arguments against each of the four, independent, bases for\n\npresuming probable cause that appear on the face of his Complaint and the materials\n\n 3\n\f Case 1:25-cv-09357-MKV Document 35 Filed 05/11/26 Page 7 of 15\n\n\n\n\nincorporated therein. Each of these presumptions is independently fatal to the Complaint, given\n\nthat Cole also fails to allege that Horowitz procured the Department of Justice\u2019s indictment\n\nthrough \u201cfraud, perjury, the suppression of evidence or other \u2026 conduct undertaken in bad\n\nfaith,\u201d as New York law requires to overcome a presumption of probable cause. Colon, 60\n\nN.Y.2d at 82-83.\n\n A. Cole\u2019s second trial conviction established a presumption of probable cause.\n\n As the First, Second and Fourth Departments have held, a criminal conviction establishes\n\na presumption of probable cause, regardless of whether it is reversed on appeal. Sibblies v. City\n\nof New York, 219 A.D.3d 403, 404-05 (1st Dep\u2019t 2023); Passucci v. Home Depot, Inc., 67\n\nA.D.3d 1470, 1471 (4th Dep\u2019t 2009); Goddard v. Daly, 295 A.D.2d 314, 315 (2nd Dep\u2019t 2002).\n\nCole asserts that, because the reversal of a federal criminal conviction renders the verdict\n\nineffective for criminal law purposes, the foregoing substantive rule of New York law applicable\n\nto the civil tort of malicious prosecution at issue herein can be disregarded by this Court. Cole is\n\nwrong.\n\n B. The Judicial fact findings of Horowitz\u2019s truthfulness (and Cole\u2019s untruthfulness)\n established a presumption of probable cause.\n\n Judge Ramos (who presided over both of Cole\u2019s criminal trials) made the following\n\nfindings of fact in connection with Cole\u2019s sentencing: (i) Cole committed perjury, and (ii)\n\nHorowitz was truthful. Such findings, at a minimum, give rise to a presumption that the\n\nindictment of Cole was supported by probable cause.\n\n Cole offers two equally meritless arguments for barring this Court from recognizing the\n\nexistence of Ramos\u2019 damning (for him) findings:\n\n\n\n 4\n\f Case 1:25-cv-09357-MKV Document 35 Filed 05/11/26 Page 8 of 15\n\n\n\n\n First, Cole asserts this Court should not recognize a presumption of probable cause\n\narising from Judge\u2019s Ramos\u2019s findings that Cole committed perjury because there is no caselaw\n\ndirectly on point. That, however, is almost certainly only because no former criminal defendant\n\nhas had the audacity to bring a malicious prosecution case after a judge found them to be a\n\nperjurer. Furthermore, the New York Court of Appeals\u2019 holding in Colon that a grand jury\u2019s vote\n\nto issue an indictment -- which is not even a finding of culpability \u2013 establishes a presumption of\n\nprobable cause leads, a fortiori, to the conclusion that a judicial finding of perjury by a malicious\n\nprosecution plaintiff, at a minimum, gives rise to the same presumption.\n\n Second, Cole suggests, without authority, this Court cannot recognize the existence of\n\nJudge Ramos\u2019s findings under the incorporation by reference rule. He is wrong.\n\n Judge Ramos\u2019 findings were included in the record on appeal that Cole presented to the\n\nSecond Circuit, and that the appellate court repeatedly cited, and relied upon, in the decision on\n\nwhich Cole grounds his purported malicious prosecution claim. Accordingly, like the appellate\n\nopinion, the trial court record (including Judge Ramos\u2019 findings) are incorporated by reference\n\ninto Cole\u2019s Complaint under the law of this Circuit. See Gull Keys I LLC v. Fulton Advisory\n\nBeef Fund I, LLC, No. 1:23-cv-09058-MKV, 2025 U.S. Dist. LEXIS 169799, at *8 (S.D.N.Y.\n\nSept. 2, 2025).\n\n Additionally, in their briefing in support of Cole\u2019s ultimately successful appeal, Cole\u2019s\n\nappellate counsel quoted, and expressly relied on, the very sentencing findings by Judge Ramos\n\n\n\n\n 5\n\f Case 1:25-cv-09357-MKV Document 35 Filed 05/11/26 Page 9 of 15\n\n\n\n\nCole now says this Court cannot recognize. Accordingly, Cole is judicially estopped from his\n\ncurrent position. See Robinson v. Concentra Health Servs., 781 F.3d 42, 45-46 (2nd Cir. 2015).4\n\n C. The GBG witnesses\u2019 corroboration established a presumption of probable cause.\n\n The two GBG witnesses were at the \u201ccenter stage\u201d of the government\u2019s case against Cole\n\n(158 F. 4th at 122), as the Second Circuit explained, and as Cole\u2019s appellate counsel\n\nacknowledged. The GBG Witnesses corroborated three of the factual pillars of the government\u2019s\n\ncase against Cole by testifying that: (i) Cole entered into undocumented side deals, including\n\nthrough GBG\u2019s Rabin, who testified that he made \u201cfirm\u201d oral agreements with Cole respecting\n\nthe SEA-2 and SEA-3 transactions; (ii) GBG would not have executed the written agreements for\n\nthe foregoing transactions without Cole\u2019s oral commitments to provide millions of dollars in\n\nreimbursements and credits; and (iii) Cole actually provided millions of dollars in cash payments\n\nto GBG pursuant to the undocumented oral agreements with GBG. Horowitz Opening Mem. at\n\n13-17.\n\n Under settled New York law, such corroboration gives rise to a presumption of probable\n\ncause as a matter of law; and each of Cole\u2019s makeweight arguments for setting aside that\n\npresumption fails:\n\n First, Cole contends that the presumption only applies where the malicious prosecution\n\ndefendant is a police officer. Cole, however, offers no authority for this contention, which is\n\n\n\n\n4\n In light of the foregoing, this Court need not address whether it can also take judicial notice of\nthe sentencing proceedings. But the precedents Cole cites acknowledge that the existence of\njudicial orders can be the subject of judicial notice, and Horowitz is simply asking that the Court\ntake notice of the existence of Judge Ramos\u2019s findings, not that it adopt them as binding, as Cole\nmisleadingly suggests.\n 6\n\f Case 1:25-cv-09357-MKV Document 35 Filed 05/11/26 Page 10 of 15\n\n\n\n\nnonsensical, given that New York law places a greater, not a lesser, burden on a plaintiff suing a\n\nprivate citizen for malicious prosecution. See Point III, infra.\n\n Second, Cole asserts that the existence of corroborating testimony cannot be recognized\n\nby this Court at the motion to dismiss stage. Cole again offers no support for his contention,\n\nwhich is nonsensical. Where, as here, corroborating testimony is set forth in trial records that are\n\nincorporated by reference into the plaintiff\u2019s complaint, and recounted in an appellate decision\n\non which the plaintiff relies, they are deemed to be incorporated by reference into the plaintiff\u2019s\n\npleading under the law of this Circuit. See Gull Keys I LLC, supra.\n\n Finally, Cole contends the GBG Witnesses\u2019 corroboration came too late, because they\n\ntestified at trial, after the grand jury issued its indictment, But the GBG witnesses also testified\n\nbefore the grand jury which issued the indictment (while Horowitz did not). In any event, Cole\u2019s\n\ncontention that a presumption of probable cause cannot derive from trial testimony in a malicious\n\nprosecution case is at direct odds with the settled rule that a trial conviction gives rise to such a\n\npresumption.\n\n D. The grand jury\u2019s indictment of Cole established a presumption of probable cause.\n\n Finally, the grand jury\u2019s indictment of Cole established a presumption of probable cause,\n\nas the New York Court of Appeals has held. Once again, Cole\u2019s arguments for ignoring this\n\nsettled rule of New York law are unavailing.\n\n Cole contends that the grand jury indictment should be ignored \u201cbecause his claim\n\nnecessarily does not depend on what happened in the grand jury.\u201d Cole Opp. Mem. at 21. But the\n\nissue is not whether the grand jury\u2019s indictment \u2013 and thus its finding of probable cause -- is part\n\nof Cole\u2019s claim, but rather whether it obviates his claim, as a matter of law.\n\n\n 7\n\f Case 1:25-cv-09357-MKV Document 35 Filed 05/11/26 Page 11 of 15\n\n\n\n\n Cole also, confusingly, tries to take Horowitz to task for pointing out the FBI\u2019s notes of\n\nthe DOJ\u2019s interviews of Horowitz provide no basis to call into question his veracity, despite the\n\nfact that Cole, in his counsel\u2019s earlier letter to this Court, speculated that those notes \u2013 or their\n\nsubstantive equivalent -- were read to the grand jury, and baselessly suggested that they\n\ncontained knowing falsehoods.\n\n * * *\n\n As demonstrated in our Opening Memorandum, and in Points I and III hereof, Cole does\n\nnot make any substantial allegations of fact supporting his contention that Horowitz engaged in\n\nperjury or its equivalent, as required to rebut each of the foregoing presumptions.\n\n III. Cole\u2019s makeweight \u201cmalice in fact\u201d allegations are irrational and threadbare\n\n Cole\u2019s purported \u201cmalice\u201d allegations also constitute the (exceedingly weak) foundation\n\nfor his assertions that: (i) Horowitz \u201cinitiated\u201d the government\u2019s criminal case; and (ii) there was\n\nno probable cause for the indictment, both of which Cole must adequately allege to sustain his\n\nmalicious prosecution claim. Cole contends Horowitz had such a \u201cdeep-seated and mostly\n\nirrational resentment and anger towards Cole\u201d that he was willing to go to jail for a fictional\n\ncrime by knowingly lying to the government. But the three allegations that purportedly support\n\nthis irrational contention are each defective.\n\n First, Cole persists in, falsely, contending Horowitz drafted multiple letters demonstrating\n\nhis purported \u201cirrational hatred\u201d for Cole. But Cole cites only a single email that was drafted\n\nyears before any of the events at issue, and that Horowitz never sent. Furthermore, the unsent\n\nemail (which we have presented in full to the Court) expresses no \u201cdeep seated hatred\u201d of Cole,\n\nlet alone hatred of an \u201cirrational\u201d variety. Rather than evincing that Horowitz had a motive to\n\n\n 8\n\f Case 1:25-cv-09357-MKV Document 35 Filed 05/11/26 Page 12 of 15\n\n\n\n\ninvent and plead guilty to a non-existent crime years later, it merely expresses the kind of strong\n\ndisagreement that business colleagues often share with one another during a time of stress.\n\n Second, Cole belatedly acknowledges that the second of the two items grounding his\n\ncontention that Horowitz committed perjury or its equivalent out of \u201cirrational hatred\u201d -- a\n\nsnippet from a handwritten note Horowitz wrote well after the events at issue -- was kept from\n\nthe jury during both of Cole\u2019s criminal trials because Judge Ramos ruled that the note did not\n\nmeaningfully call into question Horowitz\u2019s truthfulness as a witness.\n\n Cole also contends it is insignificant that the note was written after the relevant events;\n\nyet that is among the reasons Judge Ramos gave for refusing to allow the document to be\n\npresented to the jury, stating that the note was \u201cout of context, temporally\u201d and more likely to\n\nconfuse the jury than to meaningfully call into question Horowitz\u2019s veracity. Furthermore, the\n\nnote, which does not reference Cole in any relevant respect, does nothing to support Cole\u2019s\n\ncontention that Horowitz bore an \u201cirrational hatred\u201d of him.\n\n Finally, Cole scrapes the bottom of the barrel by asserting that wholly legal withdrawals\n\nHorowitz made from his bank account could somehow prove he is a perjurer. In purported\n\nsupport of this contention, Cole now suggests that Horowitz used most or all of the money he\n\nwithdrew to \u201cpurchase drugs.\u201d Cole Opp. Mem. at 25. In fact, Horowitz testified that he used\n\nsome, presumably small, portion of the funds at issue to purchase marijuana for personal use;\n\nthat neither establishes that Horowitz had a deep-seated hatred of Cole nor that he was a\n\nknowingly untruthful witness.\n\n IV. Cole fails to allege that Horowitz overcame the volition of federal prosecutors\n\n\n\n\n 9\n\f Case 1:25-cv-09357-MKV Document 35 Filed 05/11/26 Page 13 of 15\n\n\n\n\n A malicious prosecution plaintiff suing a non-governmental witness must plead and prove\n\nthat the defendant overcame the \u201cvolition\u201d of the prosecutors, who are presumed to exercise their\n\nown independent judgment when bringing and prosecuting criminal charges. See Dantas, 779 F.\n\nApp\u2019x at 23.\n\n During his trial testimony, Cole asserted that federal prosectors knew that he was\n\ninnocent, but nonetheless used \u201cthreat[s]\u201d to coerce both of the GBG Witnesses and Horowitz to\n\nfalsely testify Cole had entered into the undocumented side deals with GBG, and thereby\n\novercame Horowitz\u2019s and the other witnesses\u2019 volition, not the other way round.\n\n In his opposition, Cole asserts the prosecutors could have both threatened Horowitz to\n\ncompel him to (purportedly falsely) testify that Cole entered into the oral agreements with GBG\n\nand that Horowitz simultaneously overcame the prosecutors\u2019 volition by providing the very same\n\ntestimony. That is nonsensical, and indeed irrational.5\n\n Conclusion\n\n For all of the reasons stated herein, in our Opening Memorandum and in the\n\naccompanying Affirmations, we respectfully submit that the Amended Complaint herein should\n\nbe dismissed, as against Horowitz, with prejudice.\n\n\n\n\n5\n The foregoing dispositive arguments apply equally to Cole's malicious prosecution claim\ninsofar as it purportedly arises from the obstruction of justice charges brought against Cole. This\ntheory of liability is, once again, irrational. While Cole asserts Horowitz testified to Cole\ndestroying documents (Cole Opp. Mem. at 3); that is not true. Horowitz solely testified that he\ndestroyed documents, at Cole's direction. Accordingly, just as with the underlying fraud scheme,\nHorowitz directly implicated himself in a crime; furthermore, Horowitz pleaded guilty to\nobstruction. Affirmation of David R. Lurie, dated May 11, 2026, Exh. H (excerpting testimony).\nFinally, the (unrebutted) presumptions of probable cause arising both from Judge Ramos's\nfindings and the indictment apply with full force to this portion of Cole's purported claim.\n 10\n\f Case 1:25-cv-09357-MKV Document 35 Filed 05/11/26 Page 14 of 15\n\n\n\n\nDated: May 11, 2026\nBrooklyn, New York\n Respectfully submitted,\n\n\n LAW OFFICE OF DAVID R. LURIE, PLLC\n\n\n By: ________/s/____________\n David R. Lurie\n 194 President Street\n Brooklyn, NY 11231\n 347-651-0194\n\n Attorneys for Defendant Seth Horowitz\n\n\n\n\n 11\n\f Case 1:25-cv-09357-MKV Document 35 Filed 05/11/26 Page 15 of 15\n\n\n\n\n Certificate of Compliance\n\n\n Pursuant to Local Civil Rule 7.1(c), the above-named counsel hereby certifies that this\n\nmemorandum complies with the word-count limitation of this Court\u2019s Local Civil Rules. As\n\nmeasured by the word processing system used to prepare it, this memorandum contains 2,830\n\nwords (exclusive of the caption, any index, table of contents, table of authorities, signature\n\nblocks and this certificate).\n\n\n\n\n 12\n\f","ocr_status":2,"date_upload":"2026-05-14T13:38:45.733166-07:00","document_number":"35","attachment_number":null,"pacer_doc_id":"127039591442","is_available":true,"is_free_on_pacer":null,"is_sealed":false,"document_type":1,"description":"Reply Memorandum of Law in Support of Motion","acms_document_guid":""}],"date_created":"2026-05-11T14:11:51.118414-07:00","date_modified":"2026-05-11T14:11:51.124380-07:00","date_filed":"2026-05-11","time_filed":"16:31:12","entry_number":35,"recap_sequence_number":"2026-05-11.001","pacer_sequence_number":111,"description":"","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/463678926/","id":463678926,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/71893430/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/478831919/","id":478831919,"tags":[],"absolute_url":"/docket/71893430/36/cole-v-iconix-international-inc/","date_created":"2026-05-11T14:11:45.644530-07:00","date_modified":"2026-05-18T05:04:56.126063-07:00","sha1":"13ada0a0fe95402f5cda8f0d00b420e7636c1a8e","page_count":2,"file_size":112994,"filepath_local":"recap/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.36.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.36.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:25-cv-09357-MKV Document 36 Filed 05/11/26 Page 1 of 2\n\n\n\n\nUNITED STATES DISTRICT COURT\nSOUTHERN DISTRICT OF NEW YORK\n------------------------------------x\n :\n : Index No. 1:25-cv-09357-MKV\n NEIL COLE, :\n :\n Plaintiff, :\nv. :\n :\nICONIX INTERNATIONAL INC. f/k/a/ :\nICONIX BRAND GROUP, INC., and :\nSETH HOROWITZ, :\n :\n Defendants. :\n :\n :\n------------------------------------X\n\n\n SECOND AFFIRMATION OF DAVID R. LURIE\n\n\n\n DAVID R. LURIE, an attorney duly admitted to practice before this Court, does hereby state\n\nthe following under penalty of perjury, pursuant to 28 U.S.C. \u00a7 1746:\n\n 1. I am counsel to Seth Horowitz, a defendant in the above-captioned\n\nAction.1\n\n 2. I submit this Affirmation in support of Horowitz\u2019s Motion to Dismiss the\n\nAmended Complaint herein, as against himself, with prejudice, pursuant to Federal Rule of Civil\n\nProcedure 12(b)(6).\n\n\n\n\n1\n Unless otherwise indicated, initially capitalized terms employed herein are intended to have the\ndefinitions set forth in the Memorandum of Law in Support of Horowitz\u2019s Motion to Dismiss\nand the Affirmation of David R. Lurie, herein, each dated March 27, 2026.\n\f Case 1:25-cv-09357-MKV Document 36 Filed 05/11/26 Page 2 of 2\n\n\n\n\n 3. Annexed hereto as Exhibit H is a true and correct copy of an excerpt from\n\nthe transcript of the first trial held in the Cole Criminal Case.\n\nDated: May 11, 2026\nBrooklyn, New York\n\n\n _______________/s/_____________\n David R. Lurie\n\n\n\n\n 2\n\f","ocr_status":1,"date_upload":"2026-05-14T13:38:38.625504-07:00","document_number":"36","attachment_number":null,"pacer_doc_id":"127039591536","is_available":true,"is_free_on_pacer":null,"is_sealed":false,"document_type":1,"description":"Affirmation in Support of Motion","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/479268095/","id":479268095,"tags":[],"absolute_url":"/docket/71893430/36/1/cole-v-iconix-international-inc/","date_created":"2026-05-14T13:38:20.223804-07:00","date_modified":"2026-05-18T05:02:07.021892-07:00","sha1":"5291ed18aff83301228e019640d3d02b915fd9a6","page_count":3,"file_size":302417,"filepath_local":"recap/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.36.1.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.36.1.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 1:25-cv-09357-MKV Document 36-1 Filed 05/11/26 Page 1 of 3\n\n\n\n\n EXHIBIT H\n\f Case: 23-7566, 02/28/2024, DktEntry: 23.1, Page 162 of 305\n Case 1:25-cv-09357-MKV Document 36-1 Filed 05/11/26 Page 2 of 3\n A-157\nUNITED STATES OF AMERICA, v. CORRECTED\nNEIL COLE, October 7, 2021\nLA7PCOL6 Horowitz - Direct Page 350 LA7PCOL6 Horowitz - Direct Page 352\n\n 1 MR. REISNER: No objection. 1 In an e-mail or phone call, I asked him if there was\n 2 THE COURT: It will be received. 2 anything else he needed me to do, and there was not. And that\n 3 (Government's Exhibit 1179 received in evidence) 3 is how I recall that day ending, and the Middle East joint\n 4 BY MR. HARTMAN: 4 venture happened.\n 5 Q. Mr. Horowitz, what's the subject line of the e-mail? 5 Q. Earlier you told us that you thought that transaction was\n 6 A. \"Invoices.\" 6 used to return some of the money that Iconix owed to GBG. Why\n 7 Q. Can you read the body? 7 do you think that?\n 8 A. \"Hi, Seth. Sorry I was interrupted. It would be helpful 8 A. That transaction had a unique and, to my knowledge,\n 9 if you could please confirm the invoice numbers for the 2.4 9 unjustified $3.1 million payment back to GBG for something that\n10 million payment which we received. Thank you.\" 10 was called market research and analysis. In this case, the\n11 Q. Mr. Horowitz, did you have an understanding about why 11 return of funds to GBG was documented in the Middle East joint\n12 Mr. Cole, Ethan Cole, was asking for this information? 12 venture transaction documents.\n13 A. Yes. 13 Q. Mr. Horowitz, you described a number of transactions, two\n14 Q. What's your understanding? 14 transactions where Iconix agreed to return money in exchange\n15 A. He was trying to line up our payment of 2.4 -- 15 for an increased purchase price. With respect to the two\n16 approximately 2.4 million with the invoices that he had dropped 16 transactions you described, the SEA-2 and the SEA-3\n17 off. 17 transaction, do you know for certain, based on your\n18 Q. Why did he need your help doing that? 18 conversations with Mr. Cole, that that was the nature of the\n19 A. Because he had dropped off invoices in excess of the $2.4 19 agreement?\n20 million, and we were going to pick which ones to pay, and he 20 A. Yes.\n21 needed to kind of match up which we paid and which ones we did 21 MR. REISNER: Objection, leading.\n22 not. 22 THE COURT: Overruled.\n23 Q. Do you remember whether you responded to him? 23 A. Yes.\n24 A. I don't recall. 24 Q. Is the same true with respect to the Middle East\n25 Q. You can take that down, Mr. Charalambous. 25 transaction?\n\nLA7PCOL6 Horowitz - Direct Page 351 LA7PCOL6 Horowitz - Direct Page 353\n\n 1 Mr. Horowitz, we talked about the Middle East joint 1 MR. REISNER: Same objection.\n 2 venture earlier and the fact that it was slated to happen in 2 THE COURT: Overruled.\n 3 the fourth quarter of 2014. I think you told us it did 3 A. I cannot be certain of that.\n 4 ultimately happen; is that right? 4 Q. Mr. Horowitz, after the comment letter and the short report\n 5 A. That is correct. 5 came out, did Mr. Cole give you any instructions for what to do\n 6 Q. Can you describe for us what you recall about the closing 6 with materials that you had?\n 7 history of that transaction? 7 A. Yes, he did.\n 8 A. Sure. The transaction was supposed to close December 15th, 8 Q. Can you describe that conversation?\n 9 that Monday. We received the short report and the SEC inquiry 9 A. Yes. It was an evening at the Iconix office, many people\n10 on that day. I would say the office was turned upside down for 10 had gone home. I was at my desk. Neil came to my door, kind\n11 about 48 hours. 11 of stood outside my door, looking very frazzled and angry. And\n12 My understanding, as of December 17th, was that 12 he said to me, quite simply, \"I need you to get rid of any\n13 although we had gone back and forth on doing the joint venture 13 e-mails with Jason and Jared and\" -- I believe he said --\n14 with GBG, that we were not going to be doing any more joint 14 \"Yapp, and I'm going to do the same,\" and he stormed off to his\n15 ventures, as the SEC inquiry was focused in large part on the 15 office.\n16 joint ventures. 16 Q. And who is Yapp?\n17 On December 18th -- and I remember the dates well 17 A. Yapp is Kevin Yapp. He was an owner of New Rise, a\n18 because it's my anniversary, and I was off, and I remember 18 licensee of ours for Rocawear and somebody that we were\n19 where we were -- I got a phone call that -- I got a phone call 19 considering using for Rocawear Kids.\n20 from Ethan Cole that the joint venture was back on. He started 20 Q. How did you react to Mr. Cole telling you this?\n21 listing the details of it. 21 A. I was scared, nervous, shaking. I remember thinking, I\n22 I got off the phone. I don't recall whether I called 22 don't know what he wants me to erase but I better do what he\n23 Neil Cole or Neil called me, but he told me -- Neil told me 23 said. I was panicked.\n24 that the deal was on. He had gone over to GBG himself to 24 Q. And what did you do?\n25 negotiate any remaining terms. 25 A. I sorted e-mails by their size, looking for what would be\n\n\nMin-U-Script\u00ae Southern District Court Reporters (41) Pages 350 - 353\n\f Case: 23-7566, 02/28/2024, DktEntry: 23.1, Page 163 of 305\n Case 1:25-cv-09357-MKV Document 36-1 Filed 05/11/26 Page 3 of 3\n A-158\nUNITED STATES OF AMERICA, v. CORRECTED\nNEIL COLE, October 7, 2021\nLA7PCOL6 Horowitz - Direct Page 354 LA7PCOL6 Horowitz - Direct Page 356\n\n 1 term sheets with Jason and Jared as recipients, and I deleted 1 company received from the SEC?\n 2 them. 2 A. No, it was not.\n 3 Q. Did you do anything else to destroy documents? 3 Q. What was the next one that you knew about, and when did it\n 4 A. I did. 4 come?\n 5 Q. Did you have a further conversation with Mr. Cole about 5 A. I believe it came in February.\n 6 this? 6 Q. Of 2015?\n 7 A. I did. 7 A. Of 2015.\n 8 Q. Can you describe that conversation? 8 Q. Mr. Charalambous, can you please show for the witness and\n 9 A. This was, I believe, sometime at the very beginning of 9 the parties what's been marked as Government Exhibit 112.\n10 2015. I was in Neil's office, and he asked me if I had gotten 10 Mr. Horowitz, is this the letter that came from the\n11 rid of any hard documents or any copies of anything with Jason 11 SEC in February of 2015?\n12 and Jared, and I said I had not but that I would, and I did. 12 A. It is.\n13 Q. Can you describe what you did? 13 MR. HARTMAN: The government offers Government\n14 A. I took home a few of the binders that I had that were 14 Exhibit 112.\n15 labeled GBG and Li & Fung. I took them home and threw them 15 MR. REISNER: No objection.\n16 down a garbage chute. 16 THE COURT: It will be received.\n17 Q. Why did you take them home? 17 (Government's Exhibit 112 received in evidence)\n18 A. I was scared that somebody might find me doing it and felt 18 BY MR. HARTMAN:\n19 that I could just take them home and throw them out. 19 Q. Mr. Horowitz, what's the date of this letter?\n20 Q. When you say you were scared someone might find you doing 20 A. February 11th, 2015.\n21 it, what do you mean by that? 21 Q. Can we go to page 2, please, Mr. Charalambous.\n22 A. Somebody at the Iconix office would see me. I didn't want 22 Mr. Horowitz, could I ask you to read paragraph 2\n23 to raise any suspicion. I was nervous in making a series of 23 here, please?\n24 bad decisions. 24 A. Starting at \"Explain\"?\n25 Q. Did you keep anything? 25 Q. Actually, let's start with, \"Please further explain,\" which\n\nLA7PCOL6 Horowitz - Direct Page 355 LA7PCOL6 Horowitz - Direct Page 357\n\n 1 A. I did. 1 is in the middle of that top paragraph.\n 2 Q. What did you keep? 2 A. \"Please further explain to us the primary business purpose\n 3 A. I kept a binder that had the financial forecasts in them. 3 of the (1) initial formations of your international joint\n 4 I just kept that in the office. I did not get rid of that, and 4 ventures between 2012 and 2014; (2) subsequent sales of your\n 5 at a later date, I sent a series of e-mails from my work 5 wholly owned trademarks in certain international locations to\n 6 account to my personal account to print out to make sure that I 6 existing joint ventures or licensees (December 2013, June and\n 7 had hard copies of things. 7 September 2014); and (3) sale of your controlling interest in\n 8 Q. Why did you keep those things? 8 OP Japan to your joint venture partner in December 2012.\"\n 9 A. I kept those things because I knew that we had done 9 Q. Let's stop right there. Mr. Horowitz, did you have an\n10 something wrong. I knew that we could be in trouble, and I 10 understanding at this point of what it was that the SEC was\n11 knew from Neil's behavior then, and going forward, that he 11 concerned about with respect to these joint ventures?\n12 would do anything to use others, in his words, as scapegoats or 12 A. Yes.\n13 fall guys, and I wanted some record that this had occurred. 13 Q. What's your understanding of what they were concerned\n14 Q. Mr. Horowitz, when you refer to having done things that 14 about?\n15 were wrong, what are you referring to? 15 A. Well, my understanding in how it was explained and\n16 A. We inflated our revenues to hit quarterly numbers, and we 16 discussed internally at Iconix, was that these joint ventures\n17 didn't tell our finance team about it. We didn't tell our 17 were counted as revenue for the company, and there are\n18 legal team about it. We dragged out the payments so that way, 18 questions as to whether or not the structure, the actual\n19 at the end of the third quarter, we had over $11 million of 19 structure or formation of these joint ventures, were properly\n20 revenue that was owed back to a partner that was not properly 20 accounted for as revenue.\n21 accounted for. And we would lie in our response to the SEC 21 And there was also a great focus on the puts and calls\n22 because we left out material terms on why those prices 22 or the ability for the partner to force Iconix to buy back\n23 increased. 23 50 percent after five years, or Iconix's ability to buy back\n24 Q. Let's talk about that. We saw the letter that came in 24 the 50 percent after five years.\n25 December from the SEC. Was that the last letter that the 25 Q. To your understanding at this point, had the SEC identified\n\n\nMin-U-Script\u00ae Southern District Court Reporters (42) Pages 354 - 357\n\f","ocr_status":1,"date_upload":"2026-05-14T13:38:40.370660-07:00","document_number":"36","attachment_number":1,"pacer_doc_id":"127039591537","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit Exh, H","acms_document_guid":""}],"date_created":"2026-05-11T14:11:45.604846-07:00","date_modified":"2026-05-11T14:11:45.623033-07:00","date_filed":"2026-05-11","time_filed":"16:36:43","entry_number":36,"recap_sequence_number":"2026-05-11.001","pacer_sequence_number":114,"description":"","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/463678800/","id":463678800,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/71893430/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/478831740/","id":478831740,"tags":[],"absolute_url":"/docket/71893430/37/cole-v-iconix-international-inc/","date_created":"2026-05-11T14:11:09.644423-07:00","date_modified":"2026-05-14T07:54:41.711461-07:00","sha1":"cc33182c38483726bd63f5c424a819cef1d16e19","page_count":16,"file_size":460953,"filepath_local":"recap/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.37.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.37.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:25-cv-09357-MKV Document 37 Filed 05/11/26 Page 1 of 16\n\n\n\n\n UNITED STATES DISTRICT COURT\n SOUTHERN DISTRICT OF NEW YORK\n\nNEIL COLE,\n\n Plaintiff, INDEX NO. 1:25-cv-09357 (MKV)\n\n -against-\n\nICONIX INTERNATIONAL INC. f/k/a\nICONIX BRAND GROUP, INC., and SETH\nHOROWITZ, ORAL ARGUMENT REQUESTED\n\n Defendants.\n\n\n\n DEFENDANT ICONIX INTERNATIONAL INC.\u2019S REPLY MEMORANDUM OF\n LAW IN SUPPORT OF MOTION TO DISMISS THE AMENDED COMPLAINT\n\f Case 1:25-cv-09357-MKV Document 37 Filed 05/11/26 Page 2 of 16\n\n\n TABLE OF CONTENTS\n\n Page\n\n\nPRELIMINARY STATEMENT ................................................................................................... 1\nI. COLE\u2019S CLAIM FOR PUNITIVE DAMAGES FAILS AS A MATTER OF\n LAW. ................................................................................................................................. 1\nII. COLE FAILS TO ALLEGE A CLAIM FOR CONSEQUENTIAL DAMAGES. ........... 4\nIII. COLE FAILS TO ALLEGE BREACH OF THE ADVANCEMENT\n AGREEMENT. .................................................................................................................. 5\nIV. COLE\u2019S IMPLIED COVENANT CLAIM FAILS AS A MATTER OF LAW. ............... 5\n A. Cole\u2019s Obstruction-based Implied Covenant Claim Is Duplicative. ...................... 6\n B. Cole\u2019s Recoupment-based Implied Covenant Claim Fails as a Matter of\n Law. ....................................................................................................................... 7\nV. COLE FAILS TO PLEAD A CLAIM FOR UNJUST ENRICHMENT. .......................... 9\nCONCLUSION ............................................................................................................................ 10\n\n\n\n\n i\n\f Case 1:25-cv-09357-MKV Document 37 Filed 05/11/26 Page 3 of 16\n\n\n\n\n TABLE OF AUTHORITIES\n\n Page(s)\n\nCases\n\nAEA Middle Mkt. Debt Funding LLC v. Marblegate Asset Mgmt., LLC,\n 214 A.D.3d 111 (N.Y. App. Div. 2023) ....................................................................................7\n\nAgerbrink v. Model Serv. LLC,\n 155 F. Supp. 3d 448 (S.D.N.Y. 2016)......................................................................................10\n\nIn re Alexander,\n 2026 WL 74280 (S.D.N.Y. Jan. 9, 2026),\n appeal filed, No. 26-239 (2d Cir. Feb. 3, 2026).........................................................................2\n\nBeth Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield of N.J., Inc.,\n 448 F.3d 573 (2d Cir. 2006).......................................................................................................9\n\nBloomfield Inv. Res. Corp. v. Daniloff,\n 2024 WL 3517850 (2d Cir. July 24, 2024) ................................................................................1\n\nBrown v. Cara,\n 420 F.3d 148 (2d Cir. 2005).......................................................................................................9\n\nCampione v. Campione, 942 F. Supp. 2d 279 (E.D.N.Y. 2013)....................................................10\n\nCargo Logistics Int\u2019l, LLC v. Overseas Moving Specialists, Inc.,\n 723 F. Supp. 3d 212 (E.D.N.Y. 2024) .......................................................................................4\n\nClark-Fitzpatrick, Inc. v. Long Island R.R. Co.,\n 70 N.Y.2d 382 (1987) ................................................................................................................9\n\nCohen v. S.A.C. Trading Corp.,\n 711 F.3d 353 (2d Cir. 2013).....................................................................................................10\n\nCordero v. Transamerica Annuity Serv. Corp.,\n 39 N.Y.3d 399 (2023) ................................................................................................................9\n\nDalton v. Educ. Testing Serv.,\n 87 N.Y.2d 384 (1995) ............................................................................................................7, 8\n\nDemetre v. HMS Holdings Corp.,\n 127 A.D.3d 493 (N.Y. App. Div. 2015) ....................................................................................7\n\nDNF Assocs., LLC v. HSBC Bank USA, N.A.,\n 2024 WL 3426777 (S.D.N.Y. July 16, 2024) ............................................................................4\n\n\n\n\n ii\n\f Case 1:25-cv-09357-MKV Document 37 Filed 05/11/26 Page 4 of 16\n\n\n\n\nDorset Indus., Inc. v. Unified Grocers, Inc.,\n 893 F. Supp. 2d 395 (E.D.N.Y. 2012) .......................................................................................8\n\nE.J. Brooks Co. v. Cambridge Sec. Seals,\n 31 N.Y.3d 441 (2018) ..............................................................................................................10\n\nFrio Energy Partners, LLC v. Fin. Tech. Leverage, LLC,\n 680 F. Supp. 3d 322 (S.D.N.Y. 2023)......................................................................................10\n\nGipe v. DBT Xpress, LLC,\n 150 A.D.3d 1208 (N.Y. App. Div. 2017) ..............................................................................2, 4\n\nHavel v. Kelsey-Hayes Co.,\n 83 A.D.2d 380 (N.Y. App. Div. 1981) ......................................................................................8\n\nIsland Sports Ctr. v. Belli Constr. Corp.,\n 628 N.Y.S.2d 952 (1995) ...........................................................................................................3\n\nJia Chen v. Antel Commc\u2019ns, LLC,\n No. 14-CV-10080, 2015 WL 5793404 (E.D.N.Y. Sept. 30, 2015) ...........................................5\n\nJoseph Sternberg, Inc. v. Walber 36th St. Assocs.,\n 187 A.D.2d 225 (N.Y. App. Div. 1993) ..................................................................................10\n\nKaplan Grp. Invs. LLC v. A.S.A.P. Logistics Ltd.,\n 694 F. Supp. 3d 374 (S.D.N.Y. 2023)........................................................................................6\n\nKermanshah v. Kermanshah,\n 580 F. Supp. 2d 247 (S.D.N.Y. 2008)......................................................................................10\n\nMatter of Legion of Christ, Inc. v. Town of Mount Pleasant,\n 151 A.D.3d 858 (N.Y. App. Div. 2017) ....................................................................................8\n\nManhattan Motorcars, Inc. v. Automobili Lamborghini, S.P.A.,\n 244 F.R.D. 204 (S.D.N.Y. 2007) ...............................................................................................8\n\nMarky\u2019s Martial Arts, Inc. v. FC Online Mktg., Inc.,\n 2022 WL 18276016 (S.D.N.Y. Sept. 16, 2022).........................................................................2\n\nMartin v. Metro. Prop. & Cas. Ins. Co.,\n 238 A.D.2d 389 (1997) ..............................................................................................................4\n\nMawson Infrastructure Grp., Inc. v. CleanSpark, Inc.,\n 2025 WL 2636305 (S.D.N.Y. Sept. 11, 2025)...........................................................................4\n\nMid-Hudson Anesthesiologists, P.C. v. St. Luke\u2019s Cornwall,\n 2026 WL 734947 (S.D.N.Y. Mar. 16, 2026) .........................................................................2, 4\n\n\n\n\n iii\n\f Case 1:25-cv-09357-MKV Document 37 Filed 05/11/26 Page 5 of 16\n\n\n\n\nPremium Prods. Inc. v. O\u2019Malley,\n 246 A.D.3d 948 (N.Y. App. Div. 2026) ................................................................................2, 4\n\nQuintanilla v. WW Int\u2019l, Inc.,\n 541 F. Supp. 3d 331 (S.D.N.Y. 2021)........................................................................................9\n\nRocanova v. Equitable Life Assur. Socy.,\n 83 N.Y.2d 603 (1994) ............................................................................................................1, 3\n\nSafka Holdings LLC v. iPlay, Inc.,\n 42 F. Supp. 3d 488 (S.D.N.Y. 2013)..........................................................................................4\n\nSingh v. City of New York,\n 139 N.Y.S.3d 307 (N.Y. App. Div. 2020) .................................................................................9\n\nSmart Coffee, Inc. v. Sprauer,\n 140 N.Y.S.3d 376 (Civ. Ct. N.Y.C. 2021) .................................................................................2\n\nTopps Co. v. Cadbury Stani S.A.I.C.,\n 380 F. Supp. 2d 250 (S.D.N.Y. 2005)........................................................................................2\n\nUnion Bank, N.A. v. CBS Corp.,\n 2009 WL 1675087 (S.D.N.Y. June 10, 2009) .........................................................................10\n\nURP Maiden Lane LLC v. Valley Nat\u2019l Bank,\n 244 A.D.3d 509 (N.Y. App. Div. 2025) ....................................................................................6\n\nZicherman v. State Farm Fire & Casualty Co.,\n 698 F. Supp. 3d 564 (S.D.N.Y. 2023)....................................................................................3, 4\n\n\n\n\n iv\n\f Case 1:25-cv-09357-MKV Document 37 Filed 05/11/26 Page 6 of 16\n\n\n\n\n PRELIMINARY STATEMENT\n\n Cole\u2019s Opposition, like his Amended Complaint, rests on a faulty premise: that a\n\nprocedural double-jeopardy ruling rewrites the parties\u2019 contracts and turns Cole\u2019s claims into\n\nsomething more than a private dispute over advancement, recoupment, and indemnification. It\n\ndoes not. The ruling did not create new contractual duties, undo the Separation Agreement, make\n\nrecoupment unrelated to indemnification obligations repayable, or transform Iconix\u2019s alleged\n\nnonpayment into a public harm. And no amount of backfilling in Cole\u2019s Opposition can cure the\n\npleading defects in his Amended Complaint or support punitive or consequential damages.\n\n The holes in Cole\u2019s argument are clear when his Opposition is read alongside his\n\nresponse to Defendant Seth Horowitz\u2019s motion to dismiss. (ECF 33.) There, Cole contends\n\nHorowitz alone maliciously caused his prosecution and resulting harm. Yet here, he tries to pin\n\nthose same harms on Iconix to inflate damages. He cannot have it both ways. 1\n\n Cole\u2019s claims for consequential and punitive damages fail as a matter of law. His breach\n\nof the Advancement Agreement claim is conclusory, his implied covenant claim is duplicative\n\nand seeks to add obligations the contracts do not contain, and his unjust enrichment claim is both\n\ncontract-barred and untimely. Counts III\u2013V should therefore be dismissed with prejudice.\n\nI. COLE\u2019S CLAIM FOR PUNITIVE DAMAGES FAILS AS A MATTER OF LAW.\n\n Cole advances multiple theories to justify punitive damages. None work. He has not\n\nalleged egregious public-facing conduct, and punitive damages are unavailable for a private\n\ncontract dispute like this, and courts routinely dismiss such claims at the pleading stage,\n\nparticularly where, as here, a plaintiff fails to allege public harm. 2\n\n\n1\n Iconix notes that the SEC dismissed its claims against Cole on May 4, 2026. As Iconix cited that matter mainly for\nbackground, the dismissal does not affect the legal arguments presented in Iconix\u2019s motion to dismiss.\n2\n See, e.g., Rocanova v. Equitable Life Assur. Socy., 83 N.Y.2d 603, 613 (1994); Bloomfield Inv. Res. Corp. v.\nDaniloff, 2024 WL 3517850, at *4 (2d Cir. July 24, 2024).\n\f Case 1:25-cv-09357-MKV Document 37 Filed 05/11/26 Page 7 of 16\n\n\n\n\n Cole alleges neither conduct directed at the public nor the kind of extraordinarily\n\negregious conduct that warrants punitive damages where the broader impact on the public calls\n\nfor general deterrence. He contends that Iconix\u2019s alleged conduct relating to his criminal trials\n\nwas \u201cdirected at the public\u201d (Opp. at 22), but Cole\u2019s own Amended Complaint reveals these\n\nalleged actions (even when dressed up as relating to a \u201cpublic\u201d criminal case) are really all about\n\nIconix\u2019s purported breach of indemnification obligations to Cole alone. Am. Compl. \u00b6\u00b6 93\u201395.\n\n Cole\u2019s cases, In re Alexander, Marky\u2019s, Smart Coffee, Island Sports, Premium Products,\n\nMid-Hudson, and Gipe, are distinguishable if not helpful to Iconix. They either do not involve\n\negregious public-facing misconduct or involve different procedural postures. Alexander analyzed\n\nif sanctions, including punitive damages, could be enforced through contempt proceedings rather\n\nthan by writ of execution, not whether a party\u2019s failure to comply with a court order satisfied the\n\n\u201cdirected at the public\u201d requirement for punitive damages in a contract-based dispute. 3\n\n Marky\u2019s is inapposite as well. It reflects a line of cases allowing punitive damages for\n\nwillful and malicious trade secret misappropriation.4 \u201c[N]either the Second Circuit nor this Court\n\nhas required proof of public harm\u201d in that specific context. 5 That rationale\u2014rooted in the nature\n\nof trade secret misuse\u2014has no application to the private contract dispute here.\n\n In Smart Coffee, the landlord did not merely breach the lease; rather, she carried out an\n\nillegal lockout during a pandemic in defiance of executive orders\u2014conduct that \u201cthumbed [the\n\nlandlord\u2019s] nose at the judicial process\u201d and \u201cgreatly offended the public sense of justice and\n\ndecency.\u201d6 That shares no connection with the purely private contractual dispute alleged here.\n\n\n\n3\n In re Alexander, 2026 WL 74280, at *2, 7, 9 (S.D.N.Y. Jan. 9, 2026), appeal filed, No. 26-239 (2d Cir. Feb. 3,\n2026).\n4\n Marky\u2019s Martial Arts, Inc. v. FC Online Mktg., Inc., 2022 WL 18276016, at *10 (S.D.N.Y. Sept. 16, 2022).\n5\n Topps Co. v. Cadbury Stani S.A.I.C., 380 F. Supp. 2d 250, 267 (S.D.N.Y. 2005).\n6\n Smart Coffee, Inc. v. Sprauer, 140 N.Y.S.3d 376, 387\u201388 (Civ. Ct. N.Y.C. 2021).\n\n\n 2\n\f Case 1:25-cv-09357-MKV Document 37 Filed 05/11/26 Page 8 of 16\n\n\n\n\n And Island Sports itself reinforced that \u201cpunitive damages are normally not available for\n\n[a] mere breach of contract since \u2018their purpose is not to remedy private wrongs, but to vindicate\n\npublic rights.\u2019\u201d7 It explained that courts allow punitive damages only where conduct evinces a\n\n\u201chigh degree of moral turpitude\u201d or was \u201cactuated by evil and reprehensible motives,\u201d and\n\ndemonstrates \u201csuch wanton dishonesty as to imply a criminal indifference to civil obligations,\u201d\n\nand even then, only if it was \u201caimed at the public generally.\u201d Id. Accordingly, the court permitted\n\npunitive damages only because defendant\u2019s actions were so \u201creprehensible\u201d and \u201cdisingenuous\n\nor dishonest\u201d that such damages were necessary to avoid signaling to the public that such\n\nconduct was permissible. Id. at 956. Cole, by contrast, alleges a private contractual dispute about\n\nmonies he claims are owed to him alone. Alleging that Iconix cooperated with federal authorities\n\nprosecuting Cole (see Opp. at 10) (which Cole separately blames entirely on Horowitz) does not\n\ntransform this dispute into one involving wanton dishonesty or reprehensible motives aimed at\n\nthe public or creating a public harm calling for punitive damages.\n\n Punitive damages also require an independent tort.8 Cole tries to satisfy that requirement\n\nby pointing to two claims he failed to plead in his Amended Complaint. But his belated attempt\n\nto fill that gap with a fraud claim fails. (Opp. at 21.) Indeed, all Cole can muster is a single\n\nallegation that Iconix\u2019s purported failure to advance legal expenses \u201cwas also at least in part\n\nfraudulent.\u201d Am. Compl. \u00b6 101. And as set forth below, Cole\u2019s implied covenant claim fails as a\n\nmatter of law, so it cannot supply the independent tort needed here. Infra at \u00a7 IV.\n\n In any event, as explained in Zicherman\u2014which Cole cites for the (split) authority that an\n\nimplied covenant claim can satisfy the independent tort requirement (Opp. at 20)\u2014an\n\n\n\n7\n Island Sports Ctr. v. Belli Constr. Corp., 628 N.Y.S.2d 952, 955 (1995) (quoting Rocanova, 83 N.Y.2d at 613).\nNote: Island Sports is referred to as Suffolk Sports Center, Inc. in Cole\u2019s brief; both refer to the same case.\n8\n Rocanova, 83 N.Y.2d at 613.\n\n\n 3\n\f Case 1:25-cv-09357-MKV Document 37 Filed 05/11/26 Page 9 of 16\n\n\n\n\nindependent tort is necessary, not sufficient. Cole must still plead conduct \u201cdirected toward the\n\npublic generally,\u201d which he fails to do.9 698 F. Supp. 3d at 573\u201374. \u201cBecause proving\n\nentitlement to punitive damages requires showing that the harm is aimed at the public generally,\n\nmany claims are dismissed because of the difficulty in gathering such proof.\u201d Id. at 573.\n\n Finally, Premium Products, Mid-Hudson, and Gipe did not hold that dismissing punitive\n\ndamages claims is categorically improper at the pleadings stage. 10 They held, on specific records,\n\nthat dismissal was premature, which is not the case here. (Opp. at 23\u201324.)\n\nII. COLE FAILS TO ALLEGE A CLAIM FOR CONSEQUENTIAL DAMAGES.\n\n Cole\u2019s consequential damages claim fails because he does not plead facts showing that\n\nthe damages he seeks were within the parties\u2019 contemplation at the time of contracting. His\n\nOpposition does not fix that problem, and the cases he cites do not save his claim.\n\n DNF addresses whether damages are calculable, not whether they were contemplated. 11\n\nAnd while Cargo Logistics treated foreseeability as \u201ca question of fact,\u201d it did not, as Cole\n\nsuggests, create a categorical rule that foreseeability of consequential damages is \u201ca question of\n\nfact unsuitable for resolution at the pleading stage.\u201d (Opp. at 24.) Indeed, courts often dismiss\n\nconsequential damages claims where, as here, the complaint lacks supporting facts. 12 This claim\n\nshould be dismissed as too remote, speculative, and insufficiently pleaded. See Mot. at 23\u201324.\n\n\n\n\n9\n Zicherman v. State Farm Fire & Casualty Co., 698 F. Supp. 3d 564 (S.D.N.Y. 2023).\n10\n Premium Prods. Inc. v. O\u2019Malley, 246 A.D.3d 948, 955 (N.Y. App. Div. 2026); Mid-Hudson Anesthesiologists,\nP.C. v. St. Luke\u2019s Cornwall, 2026 WL 734947, at *11 (S.D.N.Y. March 16, 2026); Gipe v. DBT Xpress, LLC, 150\nA.D.3d 1208, 1210 (N.Y. App. Div. 2017).\n11\n (Opp. at 25); DNF Assocs., LLC v. HSBC Bank USA, N.A., 2024 WL 3426777, at *6 (S.D.N.Y. July 16, 2024).\n12\n See Cargo Logistics Int\u2019l, LLC v. Overseas Moving Specialists, Inc., 723 F. Supp. 3d 212, 233 (E.D.N.Y. 2024);\nMartin v. Metro. Prop. & Cas. Ins. Co., 238 A.D.2d 389, 390 (N.Y. App. Div. 1997) (reversing denial of motion to\ndismiss consequential damages); Mawson Infrastructure Grp., Inc. v. CleanSpark, Inc., 2025 WL 2636305, at *6\n(S.D.N.Y. Sept. 11, 2025) (granting motion to dismiss consequential damages); Safka Holdings LLC v. iPlay, Inc.,\n42 F. Supp. 3d 488, 493 (S.D.N.Y. 2013) (collecting cases).\n\n\n 4\n\f Case 1:25-cv-09357-MKV Document 37 Filed 05/11/26 Page 10 of 16\n\n\n\n\nIII. COLE FAILS TO ALLEGE BREACH OF THE ADVANCEMENT AGREEMENT.\n\n Cole tries but fails to paper over his pleading failures by attacking an argument Iconix\n\nnever made. Cole\u2019s failure is not about specifying the amount he claims is due to him under the\n\nAdvancement Agreement\u2014it is that his Amended Complaint never alleges why the $1.76\n\nmillion he claims he is due constitutes covered expenses under the Advancement Agreement.\n\nAlthough this would be information he should have had, Cole does not allege what the charges\n\nwere for or how they otherwise fit within the Agreement\u2019s scope and cap. He conclusively\n\nasserts that the amount is owed pursuant to the Agreement. That is insufficient.\n\n Cole\u2019s efforts to distinguish Gallo and Jia Chen fail. Cole argues that unlike in Gallo,\n\nhere, there is no \u201ctrigger\u201d for payment \u201cother than Iconix\u2019s signature on the agreement.\u201d (Opp. at\n\n8.) He is incorrect. The trigger is not a signature; it is a qualifying bill under the Advancement\n\nAgreement. Similarly, Cole argues that, unlike in Jia Chen, he has \u201cunequivocally alleged\n\nentitlement\u201d to $1.76 million. (Opp. at 9.) But the issue is not whether Cole says the amount is\n\nowed. It is whether he pleads facts showing that the amount is contractually due. As in Jia Chen,\n\nCole fails to allege that the expenses fall within the Agreement\u2019s scope, cap, and limitations. 13\n\nIV. COLE\u2019S IMPLIED COVENANT CLAIM FAILS AS A MATTER OF LAW.\n\n Cole\u2019s implied covenant claim also fails as his two theories\u2014obstruction and\n\nrecoupment\u2014attempt to transform alleged breaches of contract into independent claims or add\n\nobligations the parties never agreed to. Where, as here, an implied covenant claim arises from the\n\nsame operative facts as a breach of contract claim, 14 it should be dismissed.\n\n\n\n\n13\n See Jia Chen v. Antel Commc\u2019ns, LLC, 2015 WL 5793404, at *4\u20135 (E.D.N.Y. Sept. 30, 2015).\n14\n Any alleged contract damages will face their own challenges, including Cole\u2019s entitlement to such damages at all\nand the reasonableness of his claimed expenses.\n\n\n 5\n\f Case 1:25-cv-09357-MKV Document 37 Filed 05/11/26 Page 11 of 16\n\n\n\n\n A. Cole\u2019s Obstruction-based Implied Covenant Claim Is Duplicative.\n\n Cole\u2019s obstruction-based implied covenant claim arises from the same facts underlying\n\nhis breach of contract claims. (Mot. at 16.) He points to Iconix\u2019s supposed refusal to cooperate\n\nwith his defense, failure to provide documents, and handling of an SEC interview (Opp. at 10),\n\nbut these merely repackage his claim that Iconix failed to support his defense, the basis of his\n\nbreach of contract claim. Indeed, Cole\u2019s breach claim alleges that Iconix \u201cabruptly and\n\ninexcusably failed to continue advancing Cole\u2019s legal expenses,\u201d imposed conditions on counsel\n\nand fees that \u201cdisrupt[ed] his pre-trial preparations\u201d and \u201charm[ed] [his] ability to defend\n\nhimself,\u201d and acted in a manner \u201cpurposefully intended to harm and punish Cole at his most\n\nvulnerable.\u201d Am. Compl. \u00b6\u00b6 64, 71\u201376, 85. His theory therefore rests on a single premise:\n\nalleged nonperformance of contractual obligations in connection with his defense.\n\n Cole\u2019s reliance on Kaplan does him no favors. There, this Court dismissed the implied\n\ncovenant claim because it duplicated the breach of contract claim, emphasizing that \u201cNew York\n\nlaw . . . does not recognize a separate cause of action for breach of the implied covenant . . .\n\nwhen a breach of contract claim, based on the same facts, is also pleaded.\u201d 15 So too here. Cole\u2019s\n\nclaimed harms, including alleged disruption of his defense in the criminal proceedings, are the\n\nalleged effects of Iconix\u2019s purported failure to fund his defense. They do not arise independently.\n\n Cole\u2019s remaining authorities are readily distinguishable because, unlike here, each\n\ninvolved conduct independent of the alleged breach. In URP Maiden Lane LLC, defendants went\n\nbeyond failing to perform to misleading third parties and undermining the transaction, thereby\n\n\u201chinder[ing] plaintiff\u2019s ability to receive the fruits of the agreement.\u201d 16 Moreover, the implied\n\ncovenant claim was pleaded in the alternative. Id. Here, Cole alleges no comparable third-party\n\n\n15\n See Kaplan Grp. Invs. LLC v. A.S.A.P. Logistics Ltd., 694 F. Supp. 3d 374, 388 (S.D.N.Y. 2023).\n16\n URP Maiden Lane LLC v. Valley Nat\u2019l Bank, 244 A.D.3d 509, 510 (N.Y. App. Div. 2025).\n\n\n 6\n\f Case 1:25-cv-09357-MKV Document 37 Filed 05/11/26 Page 12 of 16\n\n\n\n\nmisconduct or independent interference, and he chose not to plead his implied covenant claim in\n\nthe alternative despite the issue being raised in Cole\u2019s pre-motion letter (ECF 16 at 2) and his\n\nopportunity to amend. His attempt to backfill with a footnote will not do. (See Opp. at 12 n.4.)\n\n In AEA, the court allowed an implied covenant claim because it involved misconduct\n\n\u201cseparate from the conduct constituting the alleged breach of contract\u201d\u2014a scheme to manipulate\n\na restructuring process, foreclosure, and credit-bid process to deprive plaintiffs of their rights. 17\n\n Demetre and Dalton are likewise unhelpful. In Demetre, dismissal was premature\n\nbecause a \u201cbest efforts\u201d provision was ambiguous and the record undeveloped, making it unclear\n\nwhether the conduct fell within the contract\u2019s express terms. 18 Here, the agreements expressly\n\ndefine Iconix\u2019s obligations, so Cole\u2019s implied covenant claim is not filling a gap in the contract.\n\nAnd Dalton did not address duplicative claims at all. Rather, the court treated the implied\n\ncovenant as part of the contract itself in finding a breach. 19\n\n B. Cole\u2019s Recoupment-based Implied Covenant Claim Fails as a Matter of Law.\n\n Cole\u2019s argument that the agreements need not expressly provide for return of recouped\n\ncompensation because the implied covenant can supply such an obligation (Opp. at 12),\n\nmisunderstands the doctrine. While an implied covenant claim need not rely on an express\n\nprovision, it cannot create new obligations untethered to or inconsistent with the contract.\n\n Cole\u2019s reliance on Dalton is once again misplaced. That case did not involve the creation\n\nof new contractual obligations, but rather the enforcement of existing contractual procedures\n\ngoverning the exercise of discretion, where ETS failed to \u201cconsider any relevant material\n\nsubmitted\u201d as required by the agreement. 87 N.Y.2d at 389\u201390. As the Court emphasized, \u201cno\n\n\n17\n AEA Middle Mkt. Debt Funding LLC v. Marblegate Asset Mgmt., LLC, 214 A.D.3d 111, 133\u201334 (N.Y. App. Div.\n2023).\n18\n Demetre v. HMS Holdings Corp., 127 A.D.3d 493, 494 (N.Y. App. Div. 2015).\n19\n Dalton v. Educ. Testing Serv., 87 N.Y.2d 384, 389 (1995).\n\n\n 7\n\f Case 1:25-cv-09357-MKV Document 37 Filed 05/11/26 Page 13 of 16\n\n\n\n\nobligation can be implied . . . which would be inconsistent with other terms of the contractual\n\nrelationship,\u201d reinforcing that the implied covenant operates only within the contract. Id.\n\n Dorset, Havel, and Manhattan Motorcars are likewise distinguishable. In Dorset, the\n\ndefendant terminated an agreement then \u201ccreat[ed] a competing check-out . . . program\u201d using\n\nthe plaintiff\u2019s model, thereby \u201csubvert[ing] the contract\u2019s purpose\u201d and depriving the plaintiff of\n\nits expected revenue stream.20 Dorset therefore involved affirmative misconduct that undermined\n\nthe entire structure of the parties\u2019 bargain unlike here, where Cole alleges no comparable\n\nscheme. And Dorset itself reiterates that the implied covenant \u201cdoes not add to the contract a\n\nsubstantive provision not included by the parties.\u201d Id. at 406.\n\n In Havel, the plaintiff granted an exclusive patent license in exchange for royalties. The\n\ncourt implied a duty to use \u201cdue diligence to exploit the process\u201d to make the contract\n\ncommercially meaningful.21 This is a narrow exception applied where, unlike here, the contract\n\nwould otherwise be economically nonsensical.\n\n And in Manhattan Motorcars, the court only implied a term where the contract was silent\n\non the issue and the obligation did not \u201ccontradict[] the express terms.\u201d 22 Here, Cole\u2019s theory\n\ndoes not interpret silence because the separation agreement expressly governs recoupment.\n\n Cole\u2019s remaining arguments misread the law. For example, Cole contends that Iconix\n\nimproperly references a WHEREAS clause to create rights. (Opp. at 13\u201314.) It does not. Iconix\n\nsimply refers to that clause for context. That \u201cstatements in a whereas clause . . . do not create\n\nrights beyond those arising from the contract\u2019s operative terms\u201d 23 does not mean they should be\n\n\n\n20\n Dorset Indus., Inc. v. Unified Grocers, Inc., 893 F. Supp. 2d 395, 405\u201307 (E.D.N.Y. 2012).\n21\n Havel v. Kelsey-Hayes Co., 83 A.D.2d 380, 384 (N.Y. App. Div. 1981).\n22\n Manhattan Motorcars, Inc. v. Automobili Lamborghini, S.P.A., 244 F.R.D. 204, 218 (S.D.N.Y. 2007).\n23\n Matter of Legion of Christ, Inc. v. Town of Mount Pleasant, 151 A.D.3d 858, 860 (N.Y. App. Div. 2017)\n(emphasis added); (see Opp. at 13.)\n\n\n 8\n\f Case 1:25-cv-09357-MKV Document 37 Filed 05/11/26 Page 14 of 16\n\n\n\n\nignored entirely. Here, the clause merely reflects the parties\u2019 intent to fully and finally resolve\n\nrecoupment, with the operative provisions controlling recoupment. Likewise, Cole\u2019s Release\n\nargument fails. The Release does not preserve any right to recover recouped funds and, in any\n\nevent, the Agreement ties recoupment to the restatement and contractual terms, not subsequent\n\ndevelopments like Cole\u2019s later acquittal. (See Opp. at 13\u201314.)\n\n Cole\u2019s footnoted attempt to distinguish Quintanilla and Singh mischaracterizes those\n\ndecisions. (Opp. at 13 n.5.) In rejecting the implied covenant claims, both cases relied on the\n\nabsence of any contractual basis to infer the obligation plaintiffs sought to impose, not, as Cole\n\nasserts, a direct \u201ccontradiction\u201d between the contract terms and the implied duty asserted. 24 The\n\nlack of any basis to infer such obligations here compels the same result.\n\n Cole\u2019s reliance on Cordero is similarly misplaced. He cites it for the uncontroversial\n\nproposition that courts consider \u201creasonable expectations\u201d (Opp. at 15), but omits that the Court\n\nof Appeals rejected the implied covenant claim because the obligation was not tied to the\n\ncontract\u2019s terms.25 Cole also misapplies Brown (Opp. at 15), which involved an agreement whose\n\nterms and scope were not fully defined, creating factual questions about the parties\u2019 intent. 26\n\nHere, the Separation Agreement expressly defines the recoupment, leaving no ambiguity.\n\nV. COLE FAILS TO PLEAD A CLAIM FOR UNJUST ENRICHMENT.\n\n Cole\u2019s unjust enrichment claim fails for two independent reasons that his Opposition does\n\nnot cure. First, where a valid contract governs a dispute, quasi-contract claims are barred. 27 Here,\n\nthe Separation Agreement governs the recoupment and does not provide for repayment. Cole\u2019s\n\n\n24\n Quintanilla v. WW Int\u2019l, Inc., 541 F. Supp. 3d 331, 352 (S.D.N.Y. 2021); Singh v. City of New York, 139 N.Y.S.3d\n307, 311 (N.Y. App. Div. 2020).\n25\n Cordero v. Transamerica Annuity Serv. Corp., 39 N.Y.3d 399, 410\u201311 (2023).\n26\n Brown v. Cara, 420 F.3d 148, 152\u201353 (2d Cir. 2005).\n27\n Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 388\u201389 (1987); Beth Israel Med. Ctr. v. Horizon\nBlue Cross & Blue Shield of N.J., Inc., 448 F.3d 573, 586\u201387 (2d Cir. 2006).\n\n\n 9\n\f Case 1:25-cv-09357-MKV Document 37 Filed 05/11/26 Page 15 of 16\n\n\n\n\nargument that Iconix did not identify a specific repayment provision misses the point. (Opp. at\n\n16.) The question is whether the contract covers the subject, not the remedy Cole now seeks.\n\nAnd it does cover the subject. See Mot. at 20\u201321; Levitt Decl. Ex. E, \u00b6\u00b6 1\u20135, 18.\n\n Again, Cole\u2019s cited cases do not help him. Frio and Joseph Sternberg involved contracts\n\nsilent as to what would happen if certain conditions failed. 28 Here, there is no such gap.\n\nAgerbrink involved a challenge to the legality of the contract itself, 29 which Cole does not assert.\n\nAnd in Union Bank, the court could not resolve the dispute on the pleadings, because it depended\n\non facts outside the contract. 30 Here, Cole\u2019s claim turns on the contract alone.\n\n Second, Cole cannot refute that the unjust enrichment claim is time-barred. The claim\n\naccrues when the defendant\u2019s retention of the benefit first becomes wrongful, not when a later\n\nevent makes it seem unfair.31 The later reversal of his conviction thus does not reset accrual, and\n\nhis cited cases do not apply. In Campione, the claim accrued only after the defendant later\n\nrepudiated obligations.32 In Kermanshah, the timing of the wrongful act was unclear. 33 And in\n\nCohen, accrual depended on a later wrongful act giving rise to restitution. 34 None applies here.\n\n Nor does Cole\u2019s claim of disparate treatment compared to Horowitz create any right to\n\nrestitution. (Opp. at 16\u201317.) Indeed, he cites no authority in support of this conclusory assertion.\n\n CONCLUSION\n\n Iconix respectfully requests that this Court dismiss Counts III\u2013V of Cole\u2019s Amended\n\nComplaint with prejudice, and his claims for punitive and consequential damages.\n\n\n28\n Frio Energy Partners, LLC v. Fin. Tech. Leverage, LLC, 680 F. Supp. 3d 322, 340\u201341 (S.D.N.Y. 2023); Joseph\nSternberg, Inc. v. Walber 36th St. Assocs., 187 A.D.2d 225, 228 (N.Y. App. Div. 1993).\n29\n Agerbrink v. Model Serv. LLC, 155 F. Supp. 3d 448, 459\u201360 (S.D.N.Y. 2016).\n30\n Union Bank, N.A. v. CBS Corp., 2009 WL 1675087, at *8 (S.D.N.Y. June 10, 2009).\n31\n See E.J. Brooks Co. v. Cambridge Sec. Seals, 31 N.Y.3d 441, 455 (2018).\n32\n Campione v. Campione, 942 F. Supp. 2d 279, 283\u201384 (E.D.N.Y. 2013).\n33\n Kermanshah v. Kermanshah, 580 F. Supp. 2d 247, 264 (S.D.N.Y. 2008).\n34\n Cohen v. S.A.C. Trading Corp., 711 F.3d 353, 364 (2d Cir. 2013).\n\n\n 10\n\f Case 1:25-cv-09357-MKV Document 37 Filed 05/11/26 Page 16 of 16\n\n\n\n\nDated: May 11, 2026 MORRISON & FOERSTER LLP\n New York, New York\n\n\n By: /s/ Jamie A. Levitt\n Jamie A. Levitt\n JLevitt@mofo.com\n Michael D. Birnbaum\n MBirnbaum@mofo.com\n 250 West 55th Street\n New York, NY 10019-9601\n Telephone: 212.468.8000\n Facsimile: 212.468.7900\n\n Attorneys for Defendant\n Iconix International Inc.\n\n\n\n\n 11\n\f","ocr_status":2,"date_upload":"2026-05-12T13:08:55.130242-07:00","document_number":"37","attachment_number":null,"pacer_doc_id":"127039591974","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Reply Memorandum of Law in Support of Motion","acms_document_guid":""}],"date_created":"2026-05-11T14:11:09.599614-07:00","date_modified":"2026-05-11T14:11:09.608589-07:00","date_filed":"2026-05-11","time_filed":"16:56:43","entry_number":37,"recap_sequence_number":"2026-05-11.001","pacer_sequence_number":117,"description":"","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/462936524/","id":462936524,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/71893430/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/478062998/","id":478062998,"tags":[],"absolute_url":"/docket/71893430/34/cole-v-iconix-international-inc/","date_created":"2026-05-04T16:09:31.079582-07:00","date_modified":"2026-05-04T16:09:31.090716-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"34","attachment_number":null,"pacer_doc_id":"127039549917","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Notice (Other)","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/478116563/","id":478116563,"tags":[],"absolute_url":"/docket/71893430/34/1/cole-v-iconix-international-inc/","date_created":"2026-05-05T08:20:30.151294-07:00","date_modified":"2026-05-05T08:20:30.151307-07:00","sha1":"","page_count":2,"file_size":70632,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"34","attachment_number":1,"pacer_doc_id":"127039549918","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit S.E.C. v. Cole et al, Notice of Dismissal","acms_document_guid":""}],"date_created":"2026-05-04T16:09:31.038201-07:00","date_modified":"2026-05-04T16:09:31.047446-07:00","date_filed":"2026-05-04","time_filed":"17:37:38","entry_number":34,"recap_sequence_number":"2026-05-04.001","pacer_sequence_number":109,"description":"","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/462160980/","id":462160980,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/71893430/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/477269611/","id":477269611,"tags":[],"absolute_url":"/docket/71893430/31/cole-v-iconix-international-inc/","date_created":"2026-04-27T22:07:24.368836-07:00","date_modified":"2026-05-04T03:30:40.181777-07:00","sha1":"1c36590158b5690b4a6cc09c0c3bcb0d719cb8b2","page_count":1,"file_size":135668,"filepath_local":"recap/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.31.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.31.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:25-cv-09357-MKV Document 31 Filed 04/27/26 Page 1 of 1\n\n\n\n\n UNITED STATES DISTRICT COURT\n SOUTHERN DISTRICT OF NEW YORK\n\n\n NEIL COLE,\n\n Plaintiff,\n v. Case No. 1:25-cv-09357\n\n\n ICONIX INTERNATIONAL INC. f/k/a/\n ICONIX BRAND GROUP, INC., and\n SETH HOROWITZ,\n Defendants.\n\n\n\n NOTICE OF APPEARANCE\n\nTo the Clerk of this Court and all parties of record:\n\n Please enter my appearance as counsel in this case for Plaintiff Neil Cole. I certify that I am\n\nadmitted to practice in this Court.\n\nDated: New York, New York\n April 27, 2026\n\n Respectfully submitted,\n\n\n\n\n Cristina Alvarez\n\n BLOCH & WHITE LLP\n 90 Broad Street, Suite 703\n New York, New York 10004\n Telephone: (646) 780-8055\n calvarez@blochwhite.com\n\f","ocr_status":2,"date_upload":"2026-05-03T05:41:49.152803-07:00","document_number":"31","attachment_number":null,"pacer_doc_id":"127039504961","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Notice of Appearance","acms_document_guid":""}],"date_created":"2026-04-27T22:07:24.338444-07:00","date_modified":"2026-04-27T22:07:24.345734-07:00","date_filed":"2026-04-27","time_filed":"23:34:02","entry_number":31,"recap_sequence_number":"2026-04-27.001","pacer_sequence_number":100,"description":"","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/462160976/","id":462160976,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/71893430/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/477269607/","id":477269607,"tags":[],"absolute_url":"/docket/71893430/32/cole-v-iconix-international-inc/","date_created":"2026-04-27T22:07:23.554812-07:00","date_modified":"2026-05-04T07:16:56.682312-07:00","sha1":"de309cce08f7c75793f112a9a2ac4400cfbeee0f","page_count":31,"file_size":364259,"filepath_local":"recap/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.32.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.32.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 1 of 31\n\n\n\n\n UNITED STATES DISTRICT COURT\n SOUTHERN DISTRICT OF NEW YORK\n\n\nNEIL COLE,\n\n Plaintiff,\n v. Case No. 1:25-cv-09357\n\n\nICONIX INTERNATIONAL INC. f/k/a/\nICONIX BRAND GROUP, INC., and\nSETH HOROWITZ,\n Defendants.\n\n\n\n\n PLAINTIFF NEIL COLE\u2019S MEMORANDUM OF LAW\n IN OPPOSITION TO ICONIX INTERNATIONAL INC.\u2019S\n PARTIAL MOTION TO DISMISS THE AMENDED COMPLAINT\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 2 of 31\n\n\n\n\n TABLE OF CONTENTS\nPRELIMINARY STATEMENT...................................................................................................... 1\n\nFACTUAL BACKGROUND ......................................................................................................... 3\n\nARGUMENT .................................................................................................................................. 6\n\n I. The Complaint States a Claim for Breach of the Advancement Agreement (Count\n III). .............................................................................................................................6\n\n II. The Complaint States a Claim for a Breach of the Implied Covenant of Good Faith\n and Fair Dealing (Count IV). ....................................................................................9\n\n A. The Complaint States an Obstruction-Based Implied Covenant Claim. ........... 9\n\n B. The Complaint States a Recoupment-Based Implied Covenant Claim........... 12\n\n III. The Complaint States a Claim for Unjust Enrichment (Count V)...........................16\n\n IV. The Complaint States Claims for Punitive and Consequential Damages. ..............20\n\n A. The Complaint States a Claim for Punitive Damages..................................... 20\n\n B. The Complaint States a Claim for Consequential Damages. .......................... 24\n\nCONCLUSION ............................................................................................................................. 25\n\n\n\n\n i\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 3 of 31\n\n\n\n\n TABLE OF AUTHORITIES\nCases\n\n25 Bay Terrace Assocs., L.P. v. Pub. Serv. Mut. Ins. Co., 144 A.D.3d 665 (2d Dep\u2019t 2016) ........ 20\n\n900 Unltd., Inc. v. MCI Telecom. Corp., 626 N.Y.S.2d 188 (1st Dep\u2019t 1995) .............................. 19\n\nAEA Middle Mkt. Debt Funding LLC v. Marblegate Asset Mgt., LLC, 214 A.D.3d 111\n (1st Dep\u2019t 2023) .........................................................................................................................11\n\nAgerbrink v. Model Serv. LLC, 155 F. Supp. 3d 448 (S.D.N.Y. 2016) .................................... 18\n\nAshland Mgt. v Janien, 82 N.Y.2d 395 (1993).............................................................................. 24\n\nBeth Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield of N.J., Inc., 448 F.3d 573 (2d Cir.\n 2006) ......................................................................................................................................... 16\n\nBi-Economy Mkt., Inc., v. Harleysville Ins. Co. of N.Y., 856 N.Y.S.2d 505 (2008) ................ 24, 25\n\nBotbol v. Frosch Intl. Travel Inc., 222 A.D.3d 471 (1st Dep\u2019t 2023) ........................................... 12\n\nBrown v. Cara, 420 F.3d 148 (2d Cir. 2005) ................................................................................. 15\n\nCampione v. Campione, 942 F. Supp. 2d 279 (E.D.N.Y. 2013) .................................................... 19\n\nCoggins v. Cnty. of Nassau, 988 F. Supp. 2d 231 (E.D.N.Y. 2013) ................................................ 3\n\nCohen v. Dunne, 2017 WL 4516820 (S.D.N.Y. Sept. 27, 2017) ................................................... 20\n\nCohen v. S.A.C. Trading Corp., 711 F.3d 353 (2d Cir. 2013) ....................................................... 19\n\nCordero v. Transamerica Annuity Serv. Corp., 39 N.Y.3d 399 (2023) ......................................... 15\n\nDalton v. Educational Testing Serv., 87 N.Y.2d 384 (1995) ....................................................11, 12\n\nDeerfield Commc\u2019ns Corp. v. Chesebrough-Ponds, Inc., 68 N.Y.2d 954 (1986) ......................... 21\n\nDNF Assocs., LLC v. HSBC Bank USA, N.A., 2024 WL 3426777 (S.D.N.Y. July 16, 2024) ....... 25\n\nDorset Indus., Inc. v. Unified Grocers, Inc., 893 F. Supp. 2d 395 (E.D.N.Y. 2012) ......... 12, 14, 15\n\nFrio Energy Partners, LLC v. Fin. Tech. Leverage, LLC, 680 F. Supp. 3d 322\n (S.D.N.Y. 2023) ........................................................................................................................ 17\n\nGallo v. Inter-Con Security Systems Inc., 2021 WL 3913539 (S.D.N.Y. Sept. 1, 2021) ................ 8\n\n ii\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 4 of 31\n\n\n\n\nGipe v. DBT Xpress, LLC, 150 A.D.3d 1208 (2d Dep\u2019t 2017) ...................................................... 24\n\nHarsco Corp. v. Segui, 91 F.3d 337 (2d Cir. 1996). ........................................................................ 7\n\nHavel v. Kelsey-Hayes Co., 83 A.D.2d 380 (4th Dep\u2019t 1981) ...................................................... 12\n\nHobish v. AXA Equitable Life Ins. Co., 43 N.Y. 3d 442 (2025) .................................................... 21\n\nIDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132 (2009) .................................... 19\n\nIn re Alexander, 2026 WL 74280 (S.D.N.Y. Jan. 9, 2026) ........................................................... 22\n\nJia Chen v. Antel Communications, LLC, 2015 WL 5793404 (E.D.N.Y. Sept. 30, 2015) ............. 9\n\nJoseph Sternberg, Inc. v. Walber 36th St. Assocs., 187 A.D.2d 225 (1st Dep\u2019t 1993) .................. 17\n\nKaplan Grp. Investments LLC v. A.S.A.P. Logistics Ltd., 694 F. Supp. 3d 374 (S.D.N.Y. 2023) . 10\n\nKermanshah v. Kermanshah, 580 F. Supp. 2d 247 (S.D.N.Y. 2008) ............................................ 19\n\nLiu Jo S.P.A. v. Jenner, 630 F. Supp. 3d 501 (S.D.N.Y. 2022) .......................................................11\n\nManhattan Motorcars, Inc. v. Automobili Lamborghini, S.p.A., 244 F.R.D. 204\n (S.D.N.Y. 2007) ........................................................................................................................ 12\n\nMarky\u2019s Martial Arts, Inc. v. FC Online Marketing, Inc., 2022 WL 18276016\n (S.D.N.Y. Sept. 16, 2022) ......................................................................................................... 23\n\nMartin Hilti Fam. Tr. v. Knoedler Gallery, LLC, 137 F. Supp. 3d 430 (S.D.N.Y. 2015) ............. 20\n\nMatter of Legion of Christ, Inc. v. Town of Mount Pleasant, 151 A.D.3d 858 (2d Dep\u2019t 2017) .. 13\n\nMatusovsky v. Merrill Lynch, 186 F. Supp. 2d 397 (S.D.N.Y. 2002) ............................................ 19\n\nMid-Hudson Anesthesiologists, P.C. v. St. Luke\u2019s Cornwall, 2026 WL 734947\n (S.D.N.Y. March 16, 2026) ..................................................................................................... 23\n\nPerlbinder v. Vigilant Ins. Co., 190 A.D.3d 985 (2d Dep\u2019t 2021) .......................................... 20, 21\n\nPremium Prods., Inc. v. O\u2019Malley, 246 A.D.3d 948 (2d Dep\u2019t 2026) .......................................... 23\n\nQuintanilla v. WW Int\u2019l, Inc., 541 F. Supp. 3d 331 (S.D.N.Y. 2021) ............................................ 13\n\nRocanova v. Equitable Life Assur. Socy. of U.S., 83 N.Y.2d 603 (1994) ................................ 21, 23\n\nSingh v. City of New York, 139 N.Y.S.3d 307 (2020) .................................................................... 13\n\n\n iii\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 5 of 31\n\n\n\n\nSmart Coffee, Inc. v. Sprauer, 140 N.Y.S.3d 376 (Civ. Ct. N.Y. 2021) ........................................ 23\n\nSuffolk Sports Ctr., Inc. v. Belli Constr. Corp., 212 A.D.2d 241 (2d Dep\u2019t 1995) ........................ 22\n\nUnion Bank, N.A. v. CBS Corp, 2009 WL 1675087 (S.D.N.Y. June 10, 2009) ............................ 17\n\nURP Maiden Lane LLC v. Valley National Bank, 244 A.D.3d 509 (1st Dep\u2019t 2025) ................... 10\n\nZicherman v. State Farm Fire & Cas. Co., 698 F. Supp. 3d 564 (E.D.N.Y. 2023) ....................... 20\n\n\n\n\n iv\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 6 of 31\n\n\n\n\n PRELIMINARY STATEMENT\n\n In 2021, a federal jury acquitted Plaintiff Neil Cole of a sprawling securities fraud\n\nconspiracy concerning false allegations of misconduct while Cole was the CEO of Defendant\n\nIconix Brand Group (\u201cIconix), a company he founded. The entire endeavor was orchestrated by a\n\nsupposedly spurned and vindictive Iconix executive, Seth Horowitz. In 2025, Cole\u2019s horrific, near-\n\ndecade long ordeal ended when the U.S. Court of Appeals for the Second Circuit dismissed the\n\nentire criminal case against him on the basis of his acquittal. As is typical for senior executives,\n\nIconix was contractually obligated to assist Cole with his defense of these proceedings, including\n\nprimarily by indemnifying his legal costs. But Iconix not only failed to comply with that obligation\n\n(despite a Court order requiring it to do so)\u2014which forced Cole to spend millions of his own\n\ndollars defending himself against these false allegations\u2014it also took every opportunity to harm\n\nCole and seek to secure his conviction, all in effort to scapegoat and serve its own financial\n\ninterests. To name the most egregious examples: it withheld evidence that it knew exculpated him,\n\nobstructed his ability to prepare for and respond to the government\u2019s investigation, and forced his\n\ntrusted legal counsel to withdraw from its representation at a hugely critical moment. As made\n\nclear in the Complaint in this action, this conduct amounts to claims sounding in breach of contract,\n\nquasi-contract, and longstanding principles of equity and fairness. Iconix moves to dismiss certain\n\nof these claims at the pleadings-stage, but its arguments are meritless.\n\n First, Iconix takes issue (in part) with what are its straight-forward and unambiguous\n\ncontractual obligations to indemnify Cole. Specifically, Iconix was obligated to indemnify Cole\u2019s\n\nlegal costs pursuant to two separate sources of contractual obligations: (i) the Company\u2019s By-\n\nLaws; and (ii) a separate Advancement Agreement Iconix and Cole entered into (when Iconix\n\nfailed to comply with its obligations under the By-Laws). Through the instant motion, Iconix seeks\n\n\n\n 1\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 7 of 31\n\n\n\n\nto dismiss claims that it breached the latter Advancement Agreement; it does not move to dismiss\n\nclaims that it breached the By-Laws. But its arguments as to the Advancement Agreement simply\n\nmisread the agreement and the Complaint.\n\n Second, Iconix moves to dismiss the Complaint\u2019s claim for breach of the implied covenant\n\nof good faith and fair dealing. This claim similarly contains two components, i.e., that Iconix\n\nbreached its implied obligation to (i) refrain from actively harming its executives\u2019 abilities to\n\ndefend themselves in actions for which they are indemnified; and (ii) return electively recouped\n\nexecutive compensation when its basis for recoupment disappears. Iconix primarily argues that\n\nthese obligations are not contained in a contract\u2014but that is precisely why they make out an\n\nimplied claim. Iconix then challenges the veracity of the facts the Complaint alleges to establish\n\nwhy Iconix\u2019s conduct in harming Cole\u2019s defense and seeking his recoupment were not in good\n\nfaith and were not fair dealing. But this is not Iconix\u2019s opportunity to present its (inaccurate) view\n\nof the facts\u2014that is for the jury to decide.\n\n Third, Iconix moves to dismiss the claim for unjust enrichment concerning its retention of\n\nimproperly recouped funds. Iconix again argues that the claim should fail because Cole\u2019s\n\nentitlement to a return of the recouped funds is not contained in a contract. But again, that is\n\nprecisely why the Complaint brings this as a quasi-contract claim based in equity and fairness.\n\nAnd Iconix can proffer no argument\u2014especially one cognizable at this stage\u2014as to why it is fair\n\nfor Iconix to retain Cole\u2019s executive compensation (but not, for example, Horowitz\u2019s, despite\n\nHorowitz\u2019s extant securities fraud conviction) following his acquittal and dismissal of the criminal\n\ncase.\n\n Finally, Iconix moves to dismiss the Complaint\u2019s claims for punitive and consequential\n\ndamages. Its arguments, however, significantly downplay the egregious and foreseeable\n\n\n\n 2\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 8 of 31\n\n\n\n\nconsequences of Iconix\u2019s betrayal of Cole, while ignoring swaths of allegations in the Complaint\n\nthat make clear that Iconix committed an independent tort and harmed the public generally.\n\n FACTUAL BACKGROUND 1\n\n Neil Cole founded Iconix in 2005 and built it into a multi-billion-dollar branding empire\n\nover nearly 25 years. Complaint (\u201cCompl.\u201d) \u00b6\u00b6 2, 10. While serving as Iconix CEO, Cole was\n\nfalsely accused of securities fraud and other crimes in connection with two joint venture\n\ntransactions\u2014known as SEA-2 and SEA-3\u2014that had been negotiated by Seth Horowitz, Cole\u2019s\n\none-time prot\u00e9g\u00e9 and former COO of Iconix. Id. \u00b6\u00b6 11, 26-27. In an effort to protect himself and\n\nharm Cole, Horowitz falsely claimed that Cole had conspired with Iconix\u2019s overseas counterparties\n\nto create so-called secret side deals\u2014which Cole had supposedly done to artificially inflate\n\nIconix\u2019s revenue\u2014and then tried to cover up the deals by destroying documents and ordering\n\nHorowitz to do the same. Id. \u00b6\u00b6 30-34. Horowitz repeatedly told investigators, law enforcement,\n\nand prosecutors this false story, and principally based on these false reports, Cole was indicted by\n\na federal grand jury and subjected to a criminal trial for charges related to conspiracy to commit\n\nsecurities fraud, securities fraud, and obstruction of justice (the \u201cProceedings\u201d). Id. \u00b6\u00b6 37-38.\n\n Cole was tried twice. At his first trial, the jury acquitted Cole of the top conspiracy charge\n\nand the obstruction count, and was hung on the remaining counts, an outcome the Second Circuit\n\nlater recognized as reflecting the jury\u2019s outright rejection of the government's core theory. Id. \u00b6\u00b6\n\n\n\n\n1\n Iconix\u2019s skewed statement of \u201cfacts\u201d urges the Court to take judicial notice of certain \u201cpublic records,\u201d \u201ceven if the\ncorresponding documents are not attached to or incorporated by reference in the complaint.\u201d MTD n.1. Although\nIconix fails to identify with specificity the entirety of the public records to which it refers, Iconix incorporates into its\nmotion certain records, such as filings from the SEC and FTC. Iconix also selectively quotes from Cole\u2019s sentencing\nproceeding in United States v. Cole, No. 19-cr-869 (S.D.N.Y.), following Cole\u2019s unconstitutional conviction. While\nthe Court can take judicial notice of the existence of these public records or proceedings, the Court may not consider\nthese documents \u201cfor the truth of the facts asserted therein,\u201d Coggins v. Cnty. of Nassau, 988 F. Supp. 2d 231, 242\n(E.D.N.Y. 2013).\n\n 3\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 9 of 31\n\n\n\n\n47-52. The Government unconstitutionally retried Cole on the hung counts in violation of the\n\nDouble Jeopardy Clause, and the Government secured convictions against Cole. Id. \u00b6 53.\n\n Although Iconix was contractually obligated to defend Cole against Horowitz\u2019s false\n\nallegations in the Proceedings, Iconix quickly turned on Cole, and abandoned its obligations for\n\nits own self-interest and enrichment. Id. \u00b6\u00b6 58-59. On January 28, 2008, Iconix and Cole entered\n\ninto an Employment Agreement. Id. \u00b6 110. Paragraph 8 of the Employment Agreement provides\n\nin relevant part that, \u201c[d]uring the Term and thereafter, the Company shall indemnify and hold\n\nharmless the Executive and his heirs and representatives as, and to the extent, provided in the\n\nCompany\u2019s by-laws.\u201d Id. \u00b6 114. When Cole departed Iconix, Iconix and Cole entered into a\n\nSeparation Agreement dated December 29, 2016. Id. \u00b6 111. Paragraph 10 of the Separation\n\nAgreement provides in relevant part that, \u201cnotwithstanding the termination of the Employment\n\nAgreement, the Company continues to be bound by Section 8 of the Employment Agreement\n\n(including, without limitation, any rights to indemnification and advancement to the extent set\n\nforth in the Company\u2019s by-laws as in effect as of the Resignation Date\u201d). Id. \u00b6 114. The \u201cby-laws\u201d\n\nreferred to in both the Employment Agreement and the Separation Agreement required Iconix\n\nindemnify Cole and advance his legal fees. Id. \u00b6 115.\n\n Iconix\u2019s indemnification and advancement obligations applied to the expenses Cole\n\nincurred defending himself in the Proceedings, the purpose of which was to ensure that Cole, a\n\nhigh-level executive, could meaningfully defend himself in any proceeding arising from his role\n\nat Iconix. Id. \u00b6\u00b6 60-61. At the outset, Iconix acknowledged its obligations and advanced Cole the\n\nmillions of dollars in legal expenses he incurred, principally consisting of fees charged by his\n\nchosen counsel, Paul, Weiss, Rifkind, Wharton & Garrison (\u201cPaul Weiss\u201d). Id. \u00b6 63.\n\n\n\n\n 4\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 10 of 31\n\n\n\n\n Despite Cole\u2019s full performance under the contracts, Iconix\u2019s compliance came to an abrupt\n\nhalt on the eve of Cole\u2019s first criminal trial. Id. \u00b6 64. Iconix embarked on a calculated course of\n\nconduct designed to obstruct Cole\u2019s ability to defend himself\u2014conduct driven by Iconix\u2019s self-\n\ninterest in securing Cole\u2019s conviction so that it could, among other things, recover the millions of\n\ndollars it had already advanced. Id. \u00b6\u00b6 65, 96. Iconix unilaterally and without justification ceased\n\nadvancing Cole\u2019s legal fees and expenses in violation of its contractual obligations, forcing Cole\n\nto file suit and seek emergency injunctive relief, in which he successfully obtained an order from\n\na New York State court, holding that Cole had a \u201cclear, contractual right to advancement\u201d (the \u201cPI\n\nOrder\u201d). Id. \u00b6\u00b6 69-70. Iconix also refused to provide Cole\u2019s defense team with exculpatory\n\nevidence gathered by its own Special Committee during an internal investigation of the SEA-2 and\n\nSEA-3 transactions and furnish Cole with any documents before his SEC interview. Id. \u00b6\u00b6 66-67.\n\n In violation of the PI Order, prior to Cole\u2019s second trial, Iconix told Cole it would refuse to\n\nadvance fees if he re-retained his counsel of choice at Paul Weiss\u2014a condition Iconix had no\n\ncontractual right to impose and which forced Cole to retain new lawyer. Id. \u00b6\u00b6 71-74. Iconix\n\nfurther conditioned advancement for the second trial on Cole\u2019s agreement to a $5,000,000 cap on\n\nlegal fees\u2014again, a condition for which Iconix had no contractual basis. Id. \u00b6 75. Cole, facing\n\nimminent trial with preparations already severely disrupted, had no practical choice but to agree.\n\nId. \u00b6 76. The parties memorialized this arrangement in the Advancement Agreement dated June 7,\n\n2022, which included a required payment schedule. Id. \u00b6\u00b6 77, 120. Despite Cole\u2019s full\n\nperformance, Iconix failed to comply with the payment schedule and failed to pay $1,760,000 in\n\nrequired installments under the Advancement Agreement, without justification. Id. \u00b6\u00b6 80, 81, 123.\n\nTo date, Cole continues to incur legal expenses for which Iconix is responsible, including legal\n\nexpenses to cover the instant action. Id. \u00b6 84.\n\n\n\n 5\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 11 of 31\n\n\n\n\n Iconix\u2019s efforts to obstruct and harm Cole\u2019s ability to defend himself in the Proceedings\n\nstem from Iconix\u2019s self-interested efforts to immediately turn on Cole in the wake of Horowitz\u2019s\n\nfalse accusations. Without any basis, Iconix immediately assumed that Cole had done something\n\nimproper in connection with SEA-2 and SEA-3. Id. \u00b6 87. To account for that incorrect\n\nassumption, Iconix chose to restate its financial disclosures and elected to recoup over $7,000,000\n\nin incentive-based compensation from Cole\u2014$2,175,000 in cash and 575,127 shares of Iconix\n\nstock then worth approximately $5,100,000\u2014representing compensation Cole had legitimately\n\nearned based on Iconix\u2019s performance between 2012 and 2014. Id. \u00b6\u00b6 88-89. Iconix took no\n\nsimilar action against Horowitz or others involved in the same transactions, despite their\n\ncompensation being calculated by the same or similar formula. Id. \u00b6 90. Iconix arbitrarily\n\nundertook its efforts to recoup Cole\u2019s incentive-based compensation as part of its efforts to protect\n\nits reputation and protect itself financially.\n\n Despite Iconix\u2019s efforts to obstruct Cole\u2019s defense and secure a conviction against him, in\n\nOctober 2025, the U.S. Court of Appeals for the Second Circuit unanimously vacated those\n\nconvictions and ordered dismissal of the indictment in full. Id. \u00b6\u00b6 53-54. On January 12, 2026,\n\nthe district court entered the vacatur and dismissal. Id. \u00b6\u00b6 55\u201356.\n\n ARGUMENT 2\n\n I. The Complaint States a Claim for Breach of the Advancement Agreement\n (Count III).\n\n Iconix argues the Complaint \u201cfailed to allege facts that . . . would demonstrate he is owed\n\nthe amount he claims is due under the Advancement Agreement.\u201d MTD. 14. That argument is\n\nmeritless.\n\n\n\n2\n Iconix notably does not move to dismiss Cole\u2019s Count II of Cole\u2019s complaint for breach of the employment\nagreement, separation agreement, and by-laws.\n\n 6\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 12 of 31\n\n\n\n\n Under New York law, a party has pled a breach of contract claim when it alleges the\n\nfollowing: \u201c(1) the existence of an agreement, (2) adequate performance of the contract by the\n\nplaintiff, (3) breach of contract by the defendant, and (4) damages.\u201d Harsco Corp. v. Segui, 91\n\nF.3d 337, 348 (2d Cir. 1996). While difficult to parse, Iconix appears to argue that Cole has failed\n\nto sufficiently allege damages. Specifically, Iconix appears to argue that Cole failed to allege facts\n\nthat he is owed $1.76 million under the Advancement Agreement. But no faithful reading of the\n\nComplaint can lead to that conclusion. In fact, the Complaint supports this claim with several\n\ndetailed and specific allegations concerning the sum owed to Cole under the Advancement\n\nAgreement, including:\n\n \u2022 Cole and Iconix entered into the Advancement Agreement, which included a\n required payment schedule for $5,000,000 in fees; Compl. \u00b6 77.\n\n \u2022 Although Iconix made certain of the required payments under the agreed-upon\n payment schedule, Iconix failed to make a single payment to Cole after it paid an\n installment on October 1, 2022; id. \u00b6 79.\n\n \u2022 Iconix did not offer any justification for its refusal to advance any legal expenses\n after October 1, 2022, and that no such justification existed, id. \u00b6 81; and\n\n \u2022 \u201cIconix failed to make payments for legal fees contained in the Advancement\n Agreement in the amount of $1,760,000, and Cole instead had to make those\n payments himself.\u201d Id. \u00b6 123.\n\nTo be clear, Cole plainly delineates the fees covered by the Advancement Agreement\u2019s $5 million\n\ncap, and those not covered by the $5 million cap. See, e.g., id. \u00b6 78 (\u201cThe Advancement Agreement\n\nmade clear that it did not impact Iconix\u2019s obligation (i) to pay legal expenses other than legal fees\n\nor (ii) to pay legal expenses (including fees) that Cole might incur after the second trial (e.g.,\n\nexpenses incurred for sentencing and appeal)\u201d) (emphasis added). And Iconix\u2019s efforts to inject\n\nany doubt into Cole\u2019s unambiguous allegations that he is owed $1.76 million under the\n\nAdvancement Agreement fails.\n\n\n\n 7\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 13 of 31\n\n\n\n\n Iconix next argues that Cole was required to plead his breach of contract claim with\n\nadditional specificity. That argument, however, is untethered from the law. Iconix first analogizes\n\nCole\u2019s so-called \u201cpleading deficiencies\u201d to those in Gallo v. Inter-Con Security Systems Inc., 2021\n\nWL 3913539 (S.D.N.Y. Sept. 1, 2021), but Iconix\u2019s reliance on Gallo is odd. In Gallo, a pro se\n\nplaintiff asserted that the defendant insurance company was required pursuant to a settlement\n\nagreement to reimburse him for $1,250 in medical expenses. The problem he ran into, however,\n\nwas that nothing in the settlement agreement remotely called for that reimbursement. As the Court\n\nconcluded: \u201cPlaintiff has not identified any provision of the Settlement Agreement obligating\n\nDefendant to make a payment of $1,250. And the Court has carefully reviewed the Settlement\n\nAgreement, and has been unable to identify any such provision.\u201d Id. at *9. Despite the lack of\n\nany contractual provision entitling plaintiff to relief, however, the Court noted that the defendant\n\nappeared to concede in its legal briefing \u201cthat it was obligated to make this payment to Plaintiff\u201d\n\npursuant to some obligation (not in the contract or alleged in the complaint) but only if plaintiff\n\nhad provided \u201cthe necessary documentation and receipts to trigger the reimbursement process.\u201d\n\nId. The Court noted, however, that there was no indication (in the complaint or otherwise) that the\n\nplaintiff had complied with this \u201ctrigger,\u201d and thus the court dismissed the breach claim on this\n\ntheory. Gallo is thus nothing like this case. For one, Cole\u2019s right to reimbursement of legal fees\n\nis obviously (and carefully) contained within an agreement: as relevant here, the Advancement\n\nAgreement. And, unlike in Gallo, there is no \u201ctrigger\u201d requiring that payment (other than Iconix\u2019s\n\nsignature on the agreement). 3 Indeed, the Advancement Agreement is quite simple: Iconix was to\n\n\n\n\n3\n Noticeably, Iconix has (wisely) abandoned arguments it made in its pre-motion letter that there were any \u201ctriggers\u201d\nto reimbursement. For example, Iconix argued that Cole was required to allege certain required \u201cprerequisites\u201d to\nadvancement, including \u201cprompt notice, an executed undertaking, and cooperation with Iconix\u2019s participation rights.\u201d\nECF No. 12. But (as Iconix has undoubtedly come to understand) none of the agreements at issue\u2014and certainly not\nthe Advancement Agreement\u2014contain any of those so-called \u201cprerequisites.\u201d\n\n 8\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 14 of 31\n\n\n\n\npay $5,000,000 on dates certain. And the Complaint\u2019s claim for breach of the Advancement\n\nAgreement is equally simple: Iconix did not make certain of those payments on those dates certain\n\n(or ever) in an amount totaling $1,760,000. Iconix\u2019s reliance on Jia Chen v. Antel\n\nCommunications, LLC, 2015 WL 5793404 (E.D.N.Y. Sept. 30, 2015) fares no better. In Jia Chen\n\n(like in Gallo but unlike here), the plaintiff failed to allege any entitlement under the relevant\n\nemployment contract for the vast majority of damages alleged in the complaint. Id. at *5. Here,\n\nhowever, Cole has unequivocally alleged entitlement to $1.76 million under the Advancement\n\nAgreement, which Iconix unjustifiably withheld from Cole.\n\n II. The Complaint States a Claim for a Breach of the Implied Covenant of Good\n Faith and Fair Dealing (Count IV).\n\n The Complaint alleges that contained within the Employment Agreement and the\n\nSeparation Agreement was an implied understanding that: (i) Iconix would not obstruct Cole\u2019s\n\nability to defend himself in any proceeding for which he was indemnified, and (ii) Iconix would\n\nreturn incentive-based compensation it elected to recoup from Cole following a restatement if\n\nIconix later learned that Cole bore no responsibility for the restatement (as confirmed by a decision\n\nof the Second Circuit). Iconix argues that this claim should be dismissed for two reasons: (i) the\n\nComplaint\u2019s obstruction-based claim is duplicative of its breach of contract claim; and (ii) the\n\nComplaint\u2019s recoupment-based claim relies on a repayment obligation that does not appear in and\n\ncannot reasonably inferred from the governing agreements. Both arguments are meritless.\n\n A. The Complaint States an Obstruction-Based Implied Covenant Claim.\n\n Iconix first argues that the Complaint\u2019s obstruction-based implied covenant claim is\n\nduplicative of the Complaint\u2019s breach of contract claims. But Iconix is incorrect because the\n\nComplaint\u2019s implied covenant claim alleges vastly distinct conduct and damages from the breach\n\nof contract claims. Specifically, while an implied covenant claim cannot lie when \u201ca breach of\n\n 9\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 15 of 31\n\n\n\n\ncontract claim, based on the same facts, is also pleaded,\u201d an implied covenant claim survives a\n\nmotion to dismiss \u201cif it is based on allegations different from those underlying the accompanying\n\nbreach of contract claim.\u201d See. e.g., Kaplan Grp. Investments LLC v. A.S.A.P. Logistics Ltd., 694\n\nF. Supp. 3d 374, 388 (S.D.N.Y. 2023) (citation omitted). That is the case here.\n\n Independent from its breach of contract claims, the Complaint alleges that the very purpose\n\nof the indemnification obligations under the Employment and Separation Agreements was to\n\nensure that Cole had the ability to meaningfully defend himself in any proceeding relating to his\n\nexecutive position at Iconix. Compl. \u00b6\u00b6 60-63. Given this purpose, a reasonable person in Cole\u2019s\n\nposition would be justified in understanding that Iconix would not purposefully obstruct Cole\u2019s\n\nability to defend himself in any proceeding for which Cole is indemnified. Id. \u00b6\u00b6 60-63. Yet, as\n\nthe Complaint alleges, Iconix undertook deliberate efforts to obstruct Cole\u2019s ability to defend\n\nhimself including by: (i) refusing to cooperate with Cole\u2019s legal defense, id. \u00b6 66; (ii) refusing to\n\nprovide the defense with exculpatory evidence in its possession, id.; and (iii) subjecting Cole to an\n\nSEC interview, while refusing to provide him with any documents in advance of the interview, id.\n\n\u00b6 67. These efforts significantly hindered Cole\u2019s ability to benefit under the Agreements.\n\n Courts routinely sustain implied covenant claims in this context. For example, in URP\n\nMaiden Lane LLC v. Valley National Bank, 244 A.D.3d 509 (1st Dep\u2019t 2025), the First Department\n\nrejected an argument that an implied covenant claim was duplicative of a breach of contract claim\n\nwhere the plaintiff alleged \u201cthat defendants\u2019 conduct undermined plaintiff\u2019s reasonable expectation\n\nthat defendants would apprise it of information necessary to allow it to assess whether [the\n\nagreement] had been breached and that defendants would not take steps to hinder plaintiff\u2019s ability\n\nto receive the fruits of the agreement.\u201d 244 A.D.3d at 510. UPR Maiden Lane LLC is not an\n\noutlier. In Demetre v. HMS Holdings Corp., 127 A.D.3d 493, 494 (1st Dep\u2019t 2015), for example,\n\n\n\n 10\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 16 of 31\n\n\n\n\nthe First Department likewise held that an implied covenant and breach of contract claim were not\n\nduplicative where the plaintiff alleged that the defendant \u201cin bad faith, engaged in acts that had the\n\neffect of destroying or injuring plaintiffs\u2019 right to receive \u201cthe fruits of the contract.\u201d (quoting\n\nDalton v. Educational Testing Serv., 87 N.Y.2d 384, 389 (1995)); see also AEA Middle Mkt. Debt\n\nFunding LLC v. Marblegate Asset Mgt., LLC, 214 A.D.3d 111, 113 (1st Dep\u2019t 2023) (finding\n\nimplied covenant claim not duplicative where plaintiff alleged bad faith conduct on behalf of\n\ndefendants in conspiring to manufacture a restructuring process that deprived plaintiffs of the\n\nbenefit of their bargain under an agreement).\n\n Iconix next argues that the Complaint\u2019s implied covenant claim should be dismissed\n\nbecause the Complaint seeks to recover damages that are \u201cintrinsically tied to the damages\n\nallegedly resulting from the breach of contract.\u201d MTD 16. But that is simply incorrect. To support\n\nthis argument, Iconix does nothing more than cite to Liu Jo S.P.A. v. Jenner, 630 F. Supp. 3d 501,\n\n520 (S.D.N.Y. 2022), but that case is unavailing. There, the court held that the alleged implied\n\ncovenant and breach of contract damages were \u201cintrinsically tied\u201d because \u201cboth amounts\n\nderive[d] from the contract price.\u201d Id. But that is not at all the case here. Cole\u2019s damages that\n\nflow from Iconix\u2019s obstruction-based breach of the implied covenant claim\u2014e.g., Cole being\n\nforced to change counsel on the eve of his second trial, the disruption to his trial preparation, and\n\nthe resulting (subsequently overturned) conviction\u2014are not damages that flow from the\n\nEmployment or Separation Agreements. That difference in damages sought is made plain in the\n\nallegations relating to each claim. The Complaint\u2019s breach of contract claims seeks reimbursement\n\nfor legal fees that Cole was forced to pay himself in light of Iconix\u2019s breaches; by contrast, the\n\n\n\n\n 11\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 17 of 31\n\n\n\n\nComplaint\u2019s obstruction-based implied covenant claim seeks damages relating to the harms Iconix\n\npurposefully caused by obstructing Cole\u2019s defense throughout the Proceedings. 4\n\n B. The Complaint States a Recoupment-Based Implied Covenant Claim.\n\n Iconix argues that the Complaint\u2019s recoupment-based implied covenant claim should be\n\ndismissed because: (i) it relies on a duty that does not exist in the contract, and (ii) the Separation\n\nAgreement forecloses that implied covenant claim by \u201cexpressly resolving the recoupment and\n\nleaving no contractual basis for the repayment Cole seeks.\u201d MTD 16. Iconix, however,\n\nfundamentally misunderstands both the Complaint\u2019s well-pled allegations and relevant law.\n\n First, Iconix appears to argue that the language of the Employment Agreement does not\n\nmention the \u201creturn of compensation once recouped,\u201d and thus, it argues, the implied covenant\n\nclaim fails. MTD 17-18. But, of course, an implied covenant claim need not (and never does) rely\n\non the express terms of a contract. Indeed, Iconix\u2019s contention runs counter to the animating\n\npurpose of an implied covenant claim, which encompasses obligations that, while not expressly\n\nstated in a contract, are necessary to give effect to the parties\u2019 reasonable expectations at the time\n\nof contracting. Dalton, 87 N.Y.2d at 389; Dorset Indus., Inc. v. Unified Grocers, Inc., 893 F. Supp.\n\n2d 395, 407 (E.D.N.Y. 2012) (\u201cThe fact that the Agreements are silent on these issues is not\n\nnecessarily fatal to the Plaintiff\u2019s claim because New York does not require that a breach of the\n\nduty of good faith and fair dealing be tied to a specific contractual provision.\u201d); Havel v. Kelsey-\n\nHayes Co., 83 A.D.2d 380, 382 (4th Dep\u2019t 1981) (\u201cThat a specific promise has not been expressly\n\nstated does not always mean that it was not intended.\u201d); Manhattan Motorcars, Inc. v. Automobili\n\nLamborghini, S.p.A., 244 F.R.D. 204, 218 (S.D.N.Y. 2007) (\u201cAs the implied covenant of good faith\n\n\n\n\n4\n Cole\u2019s implied covenant claim is not duplicative of the breach of contract claim, but in any event, it can be pleaded\nin the alternative. Botbol v. Frosch Intl. Travel Inc., 222 A.D.3d 471, 472 (1st Dep\u2019t 2023).\n\n 12\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 18 of 31\n\n\n\n\nand fair dealing could be interpreted to incorporate these duties without contradicting the express\n\nterms of the contract, the proper question is whether such implied terms are appropriate under the\n\ncircumstances.\u201d). 5\n\n Second, Iconix argues that the Separation Agreement reflects the parties\u2019 agreement \u201cto\n\nsettle and resolve, fully and finally, all claims related to the Resignation and the recoupment of\n\nCole\u2019s performance-based cash bonus and equity awards as a result of the Restatements.\u201d MTD\n\n18. It is difficult to discern the precise bounds of Iconix\u2019s argument here, but to the extent Iconix\n\nargues that Cole has released or settled claims against Iconix related to the recoupment, the\n\nargument fails. Indeed, Iconix\u2019s disingenuous reading of the Separation Agreement collapses\n\nunder scrutiny. The full text of the provision Iconix relies on contains the following language:\n\n WHEREAS, the Company and Cole desire to settle and resolve, fully and finally, all\n claims related to the Resignation and the recoupment of Cole's performance-based\n cash bonus and equity awards as a result of the Restatements, without any admission\n of liability, incapacity, undue influence, fault or wrongdoing.\n\nDkt. 26-5 at 2.\n\n Despite referencing this provision no less than five times in its brief, Iconix never\n\nacknowledges that the relevant contractual language is contained in a prefatory \u201cWHEREAS\n\nclause.\u201d Courts routinely recognize that \u201cstatements in a whereas clause . . . do not create rights\n\nbeyond those arising from the contract\u2019s operative terms.\u201d See Matter of Legion of Christ, Inc. v.\n\nTown of Mount Pleasant, 151 A.D.3d 858, 860 (2d Dep\u2019t 2017). And the contract\u2019s operative terms\n\ndo not release the Complaint\u2019s implied covenant claim. Indeed, Iconix makes a concerted effort\n\nto put before the Court the Separation Agreement, yet Iconix misleadingly conveys its contents.\n\n\n5\n Iconix generally cites two cases in support of its argument that the failure of its agreements with Cole to mention a\nduty for Iconix to return recoup funds dooms the Complaint\u2019s recoupment-based implied covenant claim: Quintanilla\nv. WW Int\u2019l, Inc., 541 F. Supp. 3d 331 (S.D.N.Y. 2021), and Singh v. City of New York, 139 N.Y.S.3d 307 (2020). But\nneither case supports Iconix\u2019s contentions because in both, the express terms of the contract at issue directly\ncontradicted the plaintiff\u2019s implied covenant claim. As noted in text, that is simply not the case here.\n\n 13\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 19 of 31\n\n\n\n\nFor one, the Separation Agreement references a \u201cGeneral Release and Wavier (the \u2018Release\u2019)\u201d\n\nwhich is referenced as attached to the Separation Agreement as \u201cExhibit A.\u201d Iconix, however,\n\nfailed to include the Release in its submission of the Separation Agreement. And the language of\n\nthe Release makes plain that the Separation Agreement has no bearing on the claims that Cole now\n\nbrings against Iconix. Specifically, the Release states that Cole releases Iconix:\n\n [F]rom any and all claims, demands, causes of action, obligations, damages or\n liabilities, known or unknown, however denominated, which the Releasors have or\n may have against any Releasee arising on or prior to the Effective Date[.] 6\n\n(emphasis added). Because the effective date of the Separation Agreement is December 28, 2016,\n\nthe Separation Agreement cannot release Cole\u2019s implied covenant claim, or any other claim\u2014such\n\nas Cole\u2019s unjust enrichment claim\u2014that accrued following the affirmance of his acquittal of all\n\ncharges by the Second Circuit.\n\n Relatedly, Iconix does not identify any provisions of the Separation Agreement that\n\nforeclose the Complaint\u2019s implied covenant claim. Nor has Iconix pointed to any provision in the\n\nSeparation Agreement that would prevent the Court from inferring any obligation not expressly\n\nstated in the Separation Agreement. See Dorset Industries, Inc., 893 F. Supp. 2d at 407 (finding\n\nthat even a merger clause in an agreement that \u201crecites that all of the parties\u2019 agreements are\n\nmerged into the written document,\u201d \u201cdoes not prevent a court from inferring a covenant of good\n\nfaith and fair dealing.\u201d) (citations omitted). And even if such a provision did exist in the Separation\n\n\n\n\n6\n The Release defines the Releasors as \u201c[Cole] for himself and for his heirs, executors, administrators, trustees, legal\nrepresentatives and assigns.\u201d The Agreement defines the Releasees as \u201c[Iconix] and its affiliates and subsidiaries, and\nall of their respective past, present and future parent entities, subsidiaries, divisions, affiliates, and related business\nentities any of their successors and assigns, assets, employee benefit plan or funds, and all their respective past and/or\npresent directors, officers, fiduciaries, trustees, administrators, managers, supervisors, shareholders, investors,\nemployees, legal representatives, counsel and assigns, whether acting on behalf of the Company or its affiliates or, in\ntheir individual capacities.\u201d\n\n 14\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 20 of 31\n\n\n\n\nAgreement (which it does not), that still would not foreclose the Complaint\u2019s recoupment-based\n\nimplied covenant claim here. Id.\n\n Finally, Iconix argues that the Complaint does not allege facts from which Cole\u2019s right to\n\nrecover the recouped funds could be inferred from the agreements. But the Complaint plainly\n\nalleges as much: Iconix immediately assumed (incorrectly) that Cole had done something wrong\n\n(and criminal) in connection with SEA-2 and SEA-3, and based on that incorrect assumption,\n\nrestated its financials, and then elected\u2014entirely in its discretion\u2014to force Cole to pay back\n\nincentive-based compensation that he had otherwise earned (and not elect to have others do so).\n\nThe Complaint alleges that, under those circumstances, Cole was justified in understanding that\n\nIconix would not retain funds that it elected to recoup following a restatement once learning that\n\nCole had been fully and finally exonerated by the Second Circuit. Compl. \u00b6\u00b6 88-89.\n\n At bottom, Iconix simply disagrees with the Complaint\u2019s well-pled factual allegations and\n\nurges the Court to rule as a matter of law on a fact-intensive question not suited for the pleadings\n\nstage. In assessing the existence of an implied covenant, \u201cthe boundaries set by the duty of good\n\nfaith are generally defined by the parties\u2019 intent and reasonable expectations in entering the\n\ncontract.\u201d Dorset Indus., Inc. v. Unified Grocers, Inc., 893 F. Supp. 2d 395, 406 (E.D.N.Y. 2012)\n\n(citation omitted). \u201cIn discerning what is \u2018reasonable,\u2019 the Court looks to what the parties would\n\nhave expected under the contract: the Court will infer that contracts \u2018include any promises which\n\na reasonable person in the position of the promisee would be justified in understanding were\n\nincluded\u2019 at the time the contract was made.\u201d Cordero v. Transamerica Annuity Serv. Corp., 39\n\nN.Y.3d 399, 409 (2023). But it is black letter law that questions of intent and reasonableness are\n\nfor the trier of fact, not questions of law for the court. Brown v. Cara, 420 F.3d 148, 152-53 (2d\n\nCir. 2005) (\u201c[The intentions of the parties are] frequently a source of persistent disputes of fact.\u201d).\n\n\n\n 15\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 21 of 31\n\n\n\n\n III. The Complaint States a Claim for Unjust Enrichment (Count V).\n\n The Complaint\u2019s claim for unjust enrichment asserts that Iconix unjustly enriched itself at\n\nCole\u2019s expense after it elected to recoup from Cole compensation valued at more than $7 million\n\nin the wake of the false allegations against Cole, and it has retained those funds following the\n\naffirmance of Cole\u2019s acquittal. Iconix posits three arguments for dismissal of the Complaint\u2019s\n\nunjust enrichment claim: (i) it is precluded because recoupment is governed by the 2016 Separation\n\nAgreement, (ii) it is contradicted by language in the Separation Agreement, and (iii) it is time-\n\nbarred because the alleged wrongful conduct occurred in 2016. Each argument fails.\n\n First, Iconix argues that the Complaint\u2019s unjust enrichment claim should be dismissed\n\nbecause the claim is precluded by the 2016 Separation Agreement, \u201ca valid and enforceable\n\ncontract.\u201d While it is true that a party cannot \u201cseek damages in an action sounding in quasi contract\n\nwhere the suing party has fully performed on a valid written agreement, the existence of which is\n\nundisputed, and the scope of which clearly covers the dispute between the parties,\u201d an unjust\n\nenrichment claim is only precluded when the contract \u201cclearly covers the dispute between the\n\nparties.\u201d Beth Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield of N.J., Inc., 448 F.3d 573,\n\n586-87 (2d Cir. 2006). But the Separation Agreement does not \u201cclearly cover\u201d this dispute.\n\n The Complaint\u2019s unjust enrichment claim against Iconix is premised on Iconix\u2019s\n\nenrichment at Cole\u2019s expense when it recouped compensation from Cole valued at more than $7\n\nmillion after it chose to restate its financial statements, Compl. \u00b6 135. But that is not all. The\n\nComplaint further alleges that Iconix recouped such funds from Cole and not from others,\n\nincluding Horowitz, who was integral to the SEA-2 and SEA-3 transactions, id. \u00b6 137, and that\n\nIconix has retained the recouped funds even though the Second Circuit has confirmed Cole\u2019s\n\nunanimous acquittal of charges related to the underlying conduct. The Complaint\u2019s unjust\n\n\n\n 16\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 22 of 31\n\n\n\n\nenrichment theory proceeds on these facts: no one would think it\u2019s fair after reading the Second\n\nCircuit\u2019s decision for Iconix to retain Cole\u2019s executive compensation but not Horowitz\u2019s.\n\n For its part, Iconix has not identified a single provision of the Separation Agreement that\n\ncovers the conduct alleged in the Complaint\u2019s unjust enrichment claim. Frio Energy Partners,\n\nLLC v. Fin. Tech. Leverage, LLC, 680 F. Supp. 3d 322, 336 (S.D.N.Y. 2023) (denying motion to\n\ndismiss unjust enrichment claim where contract is silent as to whether plaintiff was entitled to\n\ncompensation for certain costs if a deal did go through); see also Union Bank, N.A. v. CBS Corp,\n\n2009 WL 1675087, at *6-7 (S.D.N.Y. June 10, 2009) (sustaining an unjust enrichment claim where\n\ndisputes existed about whether the contracts covered the \u201csubject matter\u201d of the dispute and\n\nemphasizing that \u201c[d]ecisions interpreting Clark\u2013Fitzpatrick have made clear that the predicate\n\nfor dismissing quasi-contract claims is that the contract at issue \u2018clearly covers the dispute between\n\nthe parties.\u2019\u201d (citation omitted)); Joseph Sternberg, Inc. v. Walber 36th St. Assocs., 187 A.D.2d 225\n\n(1st Dep\u2019t 1993). Moreover, Iconix makes much of the Complaint\u2019s allegation that the Separation\n\nAgreement is a \u201clegally binding and valid contract,\u201d MTD 20, but the mere existence of a valid\n\ncontract alone does not, and cannot, foreclose Cole\u2019s unjust enrichment claim, see cases cited\n\nsupra. Sternberg, 187 A.D.2d at 228-29. Iconix then again reverts back to its argument that the\n\nSeparation Agreement contains the parties\u2019 \u201cexpress agreement \u2018to settle and resolve, fully and\n\nfinally, all claims related to the Resignation and the recoupment of Cole\u2019s performance-based cash\n\nbonus and equity awards as a result of the Restatements.\u2019\u201d MTD 20. But for the same reasons\n\nstated above, including that the Separation Agreement does not foreclose claims like this one\u2014\n\nthat accrued after the Separation Agreement was signed\u2014this argument should be rejected.\n\n Second, Iconix argues that the Complaint\u2019s unjust enrichment claim should be dismissed\n\nbecause the language of the Separation Agreement \u201ccontradicts\u201d the allegations in the Complaint.\n\n\n\n 17\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 23 of 31\n\n\n\n\nSpecifically, Iconix seems to argue that the Complaint\u2019s allegation that Iconix elected to recoup\n\nCole\u2019s compensation based on a \u201cfalse understanding\u201d of Cole\u2019s misconduct contradicts language\n\nin the Separation Agreement that the recoupment was \u201ca result of the restatements.\u201d MTD 20.\n\nThis is a tortured reading of Cole\u2019s complaint and entirely misunderstands the basis for the\n\nComplaint\u2019s unjust enrichment claim.\n\n For one, there is no contradiction. Iconix conflates two things: (i) the right of Iconix to\n\nseek recoupment as a general matter (which was a \u201cresult of the restatements\u201d); and (ii) the exercise\n\nof that right in Iconix\u2019s discretion as against Cole (and not others involved in SEA-2 and SEA-3,\n\nincluding admitted wrongdoers like Horowitz). To be clear, nothing in the by-laws (or otherwise)\n\nmandated recoupment after a restatement (as made clear, again, by Iconix\u2019s election not to recoup\n\nfrom others). And the Complaint makes clear that Iconix\u2019s exercise of its discretion to do so as\n\nagainst Cole was part of its self-interested effort to frame Cole as a wrongdoer and fraudster with\n\nwhom they were cutting ties. Compl. \u00b6\u00b6 87-90. That Iconix has elected to retain the arbitrarily\n\nrecouped money, even after the Second Circuit confirmed that a jury necessarily decided that Cole\n\nnever engaged in the alleged fraud, forms the basis of the Complaint\u2019s unjust enrichment claim.\n\n In response, Iconix argues that the outcome of Cole\u2019s criminal proceedings is irrelevant to\n\nthe recoupment because Iconix was \u201cobligated to restate its financial[s].\u201d MTD 21. But this\n\nargument fails. For one, the Complaint alleges otherwise. Compl. \u00b6\u00b6 86-89, 137 (\u201cIconix chose\n\nto restate its financial statements [. . .]\u201d) (emphasis added). Further, even if Iconix was obligated\n\nto restate its financials, it was not obligated to concomitantly seek recoupment from Cole. In any\n\nevent, Iconix\u2019s decision to retain the recouped funds now\u2014irrespective of whatever initially\n\ntriggered the recoupment\u2014is undoubtedly against \u201cequity and good conscience.\u201d See, e.g.,\n\nAgerbrink v. Model Serv. LLC, 155 F. Supp. 3d 448 (S.D.N.Y. 2016) (finding that plaintiff\n\n\n\n 18\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 24 of 31\n\n\n\n\nsufficiently pled an unjust enrichment claim where enrichment premised on unenforceable\n\nliquidated damages clause). 7\n\n Finally, Iconix argues that the Complaint\u2019s unjust enrichment claim is time-barred because\n\nthe recoupment was tied to the restatements and not to the criminal proceedings, and therefore, the\n\nclaim began to accrue in 2016. This argument is fundamentally flawed. A tort claim accrues\n\n\u201cwhen all elements of the tort can be truthfully alleged in a complaint.\u201d IDT Corp. v. Morgan\n\nStanley Dean Witter & Co., 12 N.Y.3d 132, 140 (2009) (emphasis added). The third element of an\n\nunjust enrichment claim is that the enrichment is \u201cagainst equity and good conscience,\u201d and the\n\nComplaint alleges that it became against equity and good conscience for Iconix to retain the funds\n\nit recouped from Cole after his conviction was overturned in October 2025. See, e.g., Campione\n\nv. Campione, 942 F. Supp. 2d 279, 283-84 (E.D.N.Y. 2013) (holding that even though defendant\n\noriginally received stock in 1973, the retention of the stock did not become wrongful until 2012,\n\nand therefore claim accrued in 2012); Kermanshah v. Kermanshah, 580 F. Supp. 2d 247, 264\n\n(S.D.N.Y. 2008) (noting that unjust enrichment claim began to accrue when defendants \u201cpossessed\n\nany of [plaintiff\u2019s] \u2018money or property\u2019 that \u2018equity and good conscience require it to return.\u2019\u201d)\n\n(citation omitted); Cohen v. S.A.C. Trading Corp., 711 F.3d 353, 364 (2d Cir. 2013) (finding that\n\nunjust enrichment claim began to accrue from \u201cthe latest-in-time wrongful act pleaded in the\n\ncomplaint\u201d). For that reason (and others), the cases cited by Iconix are unavailing. See Martin\n\n\n\n7\n In support of its argument that the Complaint\u2019s unjust enrichment claim is \u201ccontradicted\u201d by Cole\u2019s agreements with\nIconix, Iconix cites two cases: Matusovsky v. Merrill Lynch, 186 F. Supp. 2d 397, 400 (S.D.N.Y. 2002) and 900 Unltd.,\nInc. v. MCI Telecom. Corp., 626 N.Y.S.2d 188 (1st Dep\u2019t 1995). But both are inapposite. Matusovsky did not even\ninvolve an unjust enrichment claim, and, in any event, the plaintiff\u2019s claims there were \u201ccontradicted\u201d by an agreement\nwhich contained a general release that unambiguously barred \u201call claims\u201d against the defendant, which is not present\nhere. Then, citing a single line devoid of any context or explanation in the First Department\u2019s decision 900 Unltd.,\nInc., Iconix also argues that Cole\u2019s claim should be dismissed because Iconix retained funds pursuant to rights defined\nby contract. But, as addressed in text, nothing in the Separation Agreement addresses Iconix\u2019s right to retain the\nrecouped funds under present circumstances. Nor does the Separation Agreement bar Cole\u2019s claim in equity for that\nunjust retention.\n\n 19\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 25 of 31\n\n\n\n\nHilti Fam. Tr. v. Knoedler Gallery, LLC, 137 F. Supp. 3d 430, 466 (S.D.N.Y. 2015) (generally\n\nreiterating equitable tolling limitations period and granting motion to dismiss unjust enrichment\n\nclaim based on insufficient allegations to support equitable tolling); Cohen v. Dunne, 2017 WL\n\n4516820, at *3-4 (S.D.N.Y. Sept. 27, 2017) (finding unjust enrichment claim began to accrue when\n\ndefendant received wrongful payment).\n\n IV. The Complaint States Claims for Punitive and Consequential Damages.\n\n Iconix argues that the Complaint\u2019s claims for punitive and consequential damages are\n\nunavailable as a matter of law and should be dismissed. The Court should reject these arguments.\n\n A. The Complaint States a Claim for Punitive Damages.\n\n Iconix argues that the Complaint\u2019s claim for punitive damages should be dismissed because\n\nthe Complaint failed to allege: (i) an independent tort, or (ii) a pattern of Iconix\u2019s misbehavior that\n\nwas directed at the public generally. (Iconix notably does not argue that the Complaint sufficiently\n\nalleges conduct egregious enough to warrant punitive damages.) Both arguments are meritless.\n\n First, the Complaint does plead independent torts sufficient for punitive damages. To start,\n\nIconix simply ignores the fact that New York courts recognize that, where, as here, a plaintiff has\n\nsufficiently pled a breach of the implied covenant of good faith and fair dealing, a plaintiff has\n\nsatisfied the independent tort requirement and stated a claim at the motion to dismiss stage for\n\npunitive damages on that basis alone. See 25 Bay Terrace Assocs., L.P. v. Pub. Serv. Mut. Ins. Co.,\n\n144 A.D.3d 665 (2d Dep\u2019t 2016); Zicherman v. State Farm Fire & Cas. Co., 698 F. Supp. 3d 564,\n\n571 (E.D.N.Y. 2023) (\u201cNew York courts have repeatedly allowed claims for punitive damages to\n\ngo forward based on a breach of the covenant of good faith and fair dealing.\u201d); Perlbinder v.\n\nVigilant Ins. Co., 190 A.D.3d 985 (2d Dep\u2019t 2021). In Perlbinder, for example, the Second\n\nDepartment affirmed the lower court\u2019s denial of the defendant\u2019s motion for summary judgment to\n\n\n 20\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 26 of 31\n\n\n\n\ndismiss the plaintiff\u2019s demand for punitive damages. 190 A.D.3d at 986. In that case, the plaintiff\n\nasserted, among other things, a claim against the defendant (an insurance company), for breach of\n\nthe implied covenant. At the end of settlement negotiations, the defendant had agreed to pay $1.6\n\nmillion, but eventually only tendered approximately $400,000 to the plaintiff. Id. The Second\n\nDepartment rejected the defendants\u2019 efforts to dismiss the plaintiff\u2019s demand for punitive damages,\n\nin part because \u201can alleged breach of the implied covenant of good faith and fair dealing may\n\nsupport an award of punitive damages.\u201d Id. at 989. The Complaint\u2019s punitive damages claim\n\ntherefore survives based on its implied covenant claim alone.\n\n In any event, Iconix simply ignores the fact that the Complaint also alleges the independent\n\ntort of fraudulent inducement. Specifically, the Complaint alleges that Iconix\u2019s failure to advance\n\nCole his legal expenses pursuant to the Advancement Agreement was fraudulent, in that Iconix\n\ndefrauded Cole to believe that Iconix would comply with the Advancement Agreement without\n\nhaving any intention of actually complying with it. Compl. \u00b6 101; Deerfield Commc\u2019ns Corp. v.\n\nChesebrough-Ponds, Inc., 68 N.Y.2d 954, 956 (1986) (fraud in the inducement is a recognized\n\nindependent tort even where it relates to a contractual obligation).\n\n Third, relying on Rocanova v. Equitable Life Assur. Socy. of U.S., 83 N.Y.2d 603, 613\n\n(1994), Iconix argues that the Complaint\u2019s claim for punitive damages must be dismissed because\n\nit does not plead a pattern of misconduct affecting the public at large. MTD 23. The argument\n\nfails. To start, the Complaint need not show a pattern of similar conduct \u201cdirected at the public\n\ngenerally.\u201d See Hobish v. AXA Equitable Life Ins. Co., 43 N.Y. 3d 442, 453 (2025) (punitives\n\navailable on contract claim \u201cwhere \u2018the fraud, aimed at the public generally, is gross and involves\n\nhigh moral culpability,\u2019 or when it \u2018envice[s] a high degree of moral turpitude and demonstrate[s]\n\nsuch wanton dishonesty as to imply a criminal indifference to civil obligations\u2019\u201d) (emphasis added)\n\n\n\n 21\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 27 of 31\n\n\n\n\n(citation omitted). In any event, the Complaint does allege conduct that amounted to a pattern of\n\nconduct directed at the public generally, including that Iconix: (i) violated (and is still violating) a\n\ncourt order, (ii) intentionally interfered with Cole\u2019s ability to vindicate his constitutional rights,\n\nthereby interfering with a criminal case, and (iii) took actions aimed at manipulating the public in\n\nan effort to restore Iconix\u2019s reputation. These allegations are sufficient to state a claim for punitive\n\ndamages on a breach of contract claim. See Suffolk Sports Ctr., Inc. v. Belli Constr. Corp., 212\n\nA.D.2d 241, 247 (2d Dep\u2019t 1995); In re Alexander, 2026 WL 74280, at *2 (S.D.N.Y. Jan. 9, 2026)\n\n(finding punitive damages warranted in case where party failed to comply with court orders).\n\n Suffolk Sports\u2014decided after Rocanova\u2014is an illustrative example. Suffolk Sports\n\ninvolved a dispute between two parties in a landlord-tenant relationship, where the Second\n\nDepartment found that the plaintiff had sufficiently alleged entitlement to punitive damages. 212\n\nA.D.2d at 247-48. There, the defendant \u201cembarked upon a calculated effort to vitiate the landlord-\n\ntenant relationship between it\u201d and the plaintiff, including by taking steps to force the plaintiff out\n\nof business. The Court held that the defendant\u2019s actions \u201cinvolve[d] that degree of bad faith\n\nevincing a \u2018disingenuous or dishonest failure to carry out [the parties\u2019] contract\u2019 so as to justify the\n\nimposition of punitive damages.\u201d Id. (citation omitted). Although the Court recognized that the\n\nparties\u2019 conduct involved a purely private dispute, the Court held that punitive damages \u201cserve[d]\n\nthe public good by acting as a deterrent to similar actions in the future,\u201d in part because \u201callow[ing]\n\nany landlord to vitiate a landlord-tenant contract by resort to extralegal means would generally do\n\na disservice to all tenants.\u201d Id. (emphasis added). The same is true here. Permitting Iconix to\n\nintentionally and wantonly frustrate the purposes of its employment-based agreements with Cole,\n\nwould\u2014like in Suffolk Sports\u2014\u201cdo a disservice\u201d to all employees and \u201ccould be interpreted as\n\ntacit permission\u201d for an employer to engage in wrongful and unlawful conduct. And, Suffolk Sports\n\n\n\n 22\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 28 of 31\n\n\n\n\ndoes not stand alone in allowing punitive damages claims to proceed in private disputes. In Smart\n\nCoffee, Inc. v. Sprauer, 140 N.Y.S.3d 376, 387 (Civ. Ct. N.Y. 2021), for example, a court granted\n\na plaintiff punitive damages in a case premised on a breach of a commercial lease agreement where\n\nthe defendant\u2019s conduct \u201cwas both intentional and malicious\u201d and in violation of the N.Y.\n\nGovernor\u2019s Executive Order during the COVID-19 pandemic. Other examples abound. See, e.g.,\n\nPremium Prods., Inc. v. O\u2019Malley, 246 A.D.3d 948, 955 (2d Dep\u2019t 2026) (sustaining claim for\n\npunitive damages where plaintiff alleged that defendant \u201cacted so recklessly [and] wantonly as to\n\nwarrant awards\u2026for punitive damages\u201d in an employment and trade secrets claim); Mid-Hudson\n\nAnesthesiologists, P.C. v. St. Luke\u2019s Cornwall, 2026 WL 734947, at *11 (S.D.N.Y. March 16, 2026)\n\n(sustaining claim for punitive damages where plaintiff alleged that defendants \u201cknowingly misused\n\nconfidential financial, billing, and operational information obtained during the parties\u2019 business\n\nrelationship in order to develop a strategy to replace Plaintiff as the hospital\u2019s anesthesia\n\nprovider\u201d); Marky\u2019s Martial Arts, Inc. v. FC Online Marketing, Inc., 2022 WL 18276016, at *8\n\n(S.D.N.Y. Sept. 16, 2022) (holding punitive damages appropriate where defendant disclosed\n\nplaintiff\u2019s client list to competitors in violation of contractual confidentiality obligations). In any\n\nevent, unlike in Rocanova, where the plaintiff failed to plead \u201cthat he was personally aggrieved by\n\ntortious conduct arising out of his contractual relationship with\u201d the defendant, 83 N.Y.2d at 604,\n\nCole\u2019s complaint suffers from no such defects. See, e.g., Compl. \u00b6\u00b6 85-101.\n\n In any event, this early stage is not the proper place to address Iconix\u2019s argument. At the\n\nmotion to dismiss stage, \u201cit is premature to conclude that the allegations in the complaint are\n\ninsufficient to support a finding that the defendant[] acted so recklessly or wantonly as to warrant\n\nawards of damages and punitive damages\u201d for certain causes of action. Premium Prods., Inc., 246\n\nA.D.3d at 955 (finding premature dismissal of entitlement to punitive damages awards at the\n\n\n\n 23\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 29 of 31\n\n\n\n\nmotion to dismiss stage); Gipe v. DBT Xpress, LLC, 150 A.D.3d 1208, 1210 (2d Dep\u2019t 2017)\n\n(noting that at the motion to dismiss stage, \u201cit is premature to conclude that the allegations in the\n\ncomplaint are insufficient to support a claim that DBT Xpress acted so recklessly or wantonly in\n\nconnection with the hiring, retention, and supervision of the defendant driver as to warrant an\n\naward of punitive damages.\u201d).\n\n B. The Complaint States a Claim for Consequential Damages.\n\n Iconix argues that Cole is not entitled to consequential damages because Cole has not\n\nalleged that his damages were foreseeable. This argument should be rejected.\n\n A party who breaches a contract \u201cis liable for those risks foreseen or which should have\n\nbeen foreseen at the time the contract was made.\u201d Ashland Mgt. v Janien, 82 N.Y.2d 395, 403\n\n(1993). It is not necessary for the breaching party to have foreseen the breach itself or the\n\nparticular way the loss occurred, rather, \u201c[i]t is only necessary that loss from a breach is foreseeable\n\nand probable.\u201d See e.g., Bi-Economy Mkt., Inc., v. Harleysville Ins. Co. of N.Y., 856 N.Y.S.2d 505,\n\n508 (2008). Courts must look to \u201cthe nature, purpose and particular circumstances of the contract\n\nknown by the parties . . . as well as \u2018what liability the defendant fairly may be supposed to have\n\nassumed consciously, or to have warranted the plaintiff reasonably to suppose that it assumed,\n\nwhen the contract was made.\u2019\u201d Id. (citation omitted). Moreover, foreseeability of consequential\n\ndamages is a question of fact unsuitable for resolution at the pleading stage. Cargo Logistics Int\u2019l,\n\nLLC v. Overseas Moving Specialists, Inc., 723 F. Supp. 3d 212, 234 (E.D.N.Y. 2024).\n\n Contrary to Iconix\u2019s claim, the Complaint sufficiently alleges that Cole\u2019s damages were\n\nforeseeable and probable. Of course, the very purpose of Iconix\u2019s indemnification and\n\nadvancement obligations were to protect Cole against the consequences of being unable to mount\n\nan adequate legal defense for claims against him arising out of his position as CEO of Iconix. See\n\n\n\n 24\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 30 of 31\n\n\n\n\ne.g., Bi-Economy, 856 N.Y.S.2d at 508. Courts routinely sustain claims for consequential damages\n\nin this context. Bi-Economy is directly analogous here. Just as in Bi-Economy, where the court\n\nheld that an insurance company that withheld coverage in bad faith could foresee that the insured\n\nwould suffer harm beyond merely the cost of the unpaid claim, Iconix\u2014which contractually agreed\n\nto fund Cole\u2019s defense against criminal charges\u2014could plainly foresee that withholding that\n\nfunding at critical junctures would harm Cole\u2019s ability to defend himself and expose him to the\n\nrisk of conviction. Indeed, the Complaint alleges that Iconix not only actually foresaw these\n\nconsequences, but that it deliberately brought them about. To be clear, the Complaint alleges that\n\nIconix deliberately withheld the advancement of legal fees precisely because it wanted Cole to be\n\nconvicted so it could recover the fees it had advanced. A party cannot argue it did not foresee harm\n\nthat it allegedly engineered for its own selfish ends.\n\n Finally, Iconix argues that the Complaint\u2019s claim for consequential damages should be\n\ndismissed because it is speculative. It is not. As noted above, the Complaint sufficiently alleges\n\nCole\u2019s entitlement to consequential damages, and the complaint does not \u201cplead facts that establish\n\nthat any consequential damages would not be susceptible to calculation.\u201d DNF Assocs., LLC v.\n\nHSBC Bank USA, N.A., 2024 WL 3426777, at *6 (S.D.N.Y. July 16, 2024). In any event,\n\nentitlement \u201cto consequential damages is best tested in the context of a motion for summary\n\njudgement, after the parties have had the opportunity to develop the factual record.\u201d Id.\n\n CONCLUSION\n\n Based on the foregoing, the Court should deny Iconix\u2019s motion to dismiss.\n\n\n\n\n 25\n\f Case 1:25-cv-09357-MKV Document 32 Filed 04/27/26 Page 31 of 31\n\n\n\n\nDated: April 27, 2026\n New York, New York\n\n\n\n\n By:\n Benjamin D. White\n\n BLOCH & WHITE LLP\n Benjamin D. White, Esq.\n Cristina Alvarez, Esq.\n Kyle W. Bigley, Esq.\n 90 Broad Street, Suite 703\n New York, NY 10004\n (212) 901-3825\n bwhite@blochwhite.com\n calvarez@blochwhite.com\n kbigley@blochwhite.com\n\n Attorneys for Plaintiff Neil Cole\n\n\n\n\n 26\n\f","ocr_status":2,"date_upload":"2026-05-03T05:42:59.654280-07:00","document_number":"32","attachment_number":null,"pacer_doc_id":"127039504977","is_available":true,"is_free_on_pacer":null,"is_sealed":false,"document_type":1,"description":"Memorandum of Law in Opposition to Motion","acms_document_guid":""}],"date_created":"2026-04-27T22:07:23.525789-07:00","date_modified":"2026-04-27T22:07:23.533532-07:00","date_filed":"2026-04-27","time_filed":"23:38:50","entry_number":32,"recap_sequence_number":"2026-04-27.001","pacer_sequence_number":103,"description":"","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/462160974/","id":462160974,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/71893430/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/477269605/","id":477269605,"tags":[],"absolute_url":"/docket/71893430/33/cole-v-iconix-international-inc/","date_created":"2026-04-27T22:07:23.294641-07:00","date_modified":"2026-05-04T07:16:58.310340-07:00","sha1":"dd2d7bab352242209786669ce026d7817772ccd0","page_count":31,"file_size":383147,"filepath_local":"recap/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.33.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.33.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 1 of 31\n\n\n\n\n UNITED STATES DISTRICT COURT\n SOUTHERN DISTRICT OF NEW YORK\n\n\nNEIL COLE,\n\n Plaintiff,\n\n v.\n No. 25-cv-09357 (MKV)\n\nICONIX INTERNATIONAL INC. f/k/a/\nICONIX BRAND GROUP, INC., and\nSETH HOROWITZ,\n Defendants.\n\n\n\n\n PLAINTIFF NEIL COLE\u2019S\n MEMORANDUM OF LAW IN OPPOSITION TO\n SETH HOROWITZ\u2019S MOTION TO DISMISS THE AMENDED COMPLAINT\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 2 of 31\n\n\n\n\n TABLE OF CONTENTS\n\nPRELIMINARY STATEMENT...................................................................................................... 1\n\nFACTUAL BACKGROUND ......................................................................................................... 2\n\nARGUMENT .................................................................................................................................. 5\n\n I. The Complaint Alleges that Horowitz \u201cInitiated\u201d a Criminal Proceeding Against Cole. ... 5\n\n II. The Complaint Alleges a Lack of Probable Cause. ............................................................ 9\n\n A. The Complaint Alleges a Lack of Probable Cause by Alleging That Horowitz Made\n Intentionally False Reports to Law Enforcement and Prosecutors. ............................ 9\n\n B. The Competing-Testimony-Plus Standard is Irrelevant Here (Especially at This Stage)\n and Would in Any Event be Satisfied Here. .............................................................. 10\n\n C. Horowitz\u2019s Extended Discussions of \u201cPresumptions\u201d is a Red Herring..................... 15\n\n III. The Complaint Alleges Malice. ........................................................................................ 23\n\nCONCLUSION ............................................................................................................................. 25\n\n\n\n\n i\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 3 of 31\n\n\n\n\n TABLE OF AUTHORITIES\nCases\n\nAhearn v. Brachowicz, 2014 WL 3408389 (S.D.N.Y. July 10, 2014) ........................................... 20\n\nAmbrose v. City of New York, 623 F. Supp. 2d 454 (S.D.N.Y. 2009) .................................11, 22, 23\n\nAnderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162 (2d Cir. 2012) ..................................... 13\n\nBoyd v. City of New York, 336 F.3d 72 (2d Cir. 2003) .............................................................11, 23\n\nBrandon v. City of New York, 705 F. Supp. 2d 261 (S.D.N.Y. 2010) .............................................11\n\nBrown v. Sears Roebuck & Co., 746 N.Y.S.2d 141 (1st Dep\u2019t 2002) ............................................. 6\n\nBuari v. City of New York, 530 F. Supp. 3d 356 (S.D.N.Y. 2021) ........................................... 10, 22\n\nCabrera v. Schafer, 178 F. Supp. 3d 69 (E.D.N.Y. 2016) ............................................................. 21\n\nCoggins v. Cnty. of Nassau, 988 F. Supp. 2d 231 (E.D.N.Y. 2013) ........................................ 18, 22\n\nColon v. City of New York, 60 N.Y. 2d 78 (1983) ......................................................................... 17\n\nDantas v. Citigroup, Inc., 779 F. App\u2019x 16 (2d Cir. 2019).............................................................. 7\n\nDavis v. City of New York, 373 F. Supp.2d 322 (S.D.N.Y. 2005) ................................................. 24\n\nDe Lourdes Torres v. Jones, 26 N.Y.3d 742 (2016) ...................................................................... 22\n\nDemosthene v. City of New York, 2019 WL 181305 (E.D.N.Y. Jan. 10, 2019)...................... passim\n\nDolan v. New Hyde Park Fire Dist., 2017 WL 6597518 (E.D.N.Y. Dec. 22, 2017)....................... 8\n\nFlavin v. City of New York, 99 N.Y.S.3d 259 (2019) .................................................................... 20\n\nGilman v. Marsh & McLennan Cos., 868 F. Supp. 2d 118 (S.D.N.Y. 2012) .............................. 7, 8\n\nGuzman v. United States, 2013 WL 543343 (S.D.N.Y. Feb. 14, 2013) ........................................ 18\n\nHansen v. DeSanti, 2022 WL 900593 (E.D.N.Y. Mar. 28, 2022) ................................................... 6\n\nHicks v. Marchman, 719 F. App'x 61 (2d Cir. 2018) ..................................................................... 10\n\nHincapie v. City of New York, 434 F. Supp. 3d 61 (S.D.N.Y. 2020) ............................................. 12\n\n\n ii\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 4 of 31\n\n\n\n\nJohnson v. McMorrow, 2023 WL 1797063 (S.D.N.Y. Feb. 7, 2023).............................................11\n\nJorgensen v. Cnty. of Suffolk, 558 F. Supp. 3d 51 (E.D.N.Y. 2021) ................................................ 6\n\nKomlosi v. Fudenberg, 2000 WL 351414 (S.D.N.Y. Mar. 31, 2000) .............................................. 8\n\nKramer v. Time Warner Inc., 937 F.2d 767 (2d Cir. 1991) ........................................................... 21\n\nLewis v. Roosevelt Island Operating Corp., 246 F. Supp. 3d 979 (S.D.N.Y. 2017) ..................... 25\n\nLiu Bo Shan v. China Const. Bank Corp., 421 F. App\u2019x 89 (2d Cir. 2011) .................................... 6\n\nLowth v. Town of Cheektowaga, 82 F.3d 563 (2d Cir. 1996) ........................................................ 23\n\nLupski v. Cnty. of Nassau, 822 N.Y.S.2d 112 (2d Dep\u2019t 2006) ....................................................... 5\n\nMartin v. City of Albany, 42 N.Y.2d 13 (1977) ............................................................................. 23\n\nMaskantz v. Hayes, 832 N.Y.S.2d 566 (1st Dep\u2019t 2007 .................................................................. 6\n\nMejia v. City of New York, 119 F. Supp. 2d 232 (E.D.N.Y. 2000) .................................................. 9\n\nPaige-Bey v. LaCoste, 2022 WL 4641104 (E.D.N.Y. Sept. 30, 2022) .......................................... 12\n\nRamos v. City of New York, 285 A.D.2d 284 (1st Dep\u2019t 2001) ..................................................... 24\n\nRivers v. Towers, Perrin, Forster & Crosby Inc., 2009 WL 817852 (E.D.N.Y. Mar. 27, 2009)..... 6\n\nRohman v. New York City Transit Auth., 215 F.3d 208 (2d Cir. 2000) ........................................... 5\n\nS.E.C. v. Siebel Sys., Inc., 384 F. Supp. 2d 694 (S.D.N.Y. 2005).................................................. 18\n\nSavino v. City of New York, 331 F.3d 63 (2d Cir. 2003).................................................................. 5\n\nShabazz v. Kailer, 201 F. Supp. 3d 386 (S.D.N.Y. 2016).............................................................. 10\n\nSibblies v. City of New York, 196 N.Y.S.3d 47 (2023) .................................................................. 17\n\nTommy Hilfiger Licensing, Inc. v. Bradlees, Inc., 2004 WL 2290499 (S.D.N.Y. Oct. 8, 2004) ..... 8\n\nUnited States v. Barret, 848 F.3d 524 (2d Cir. 2017) .................................................................... 14\n\nUnited States v. Cole, 158 F.4th 113 (2d Cir. 2025).................................................... 14, 15, 17, 19\n\nWeyant v. Okst, 101 F.3d 845 (2d Cir. 1996)................................................................................. 18\n\n\n\n iii\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 5 of 31\n\n\n\n\nWilliams v. City of New York, 176 N.Y.S.3d 492 (2022) ............................................................... 20\n\nWynder v. McMahon, 360 F.3d 73 (2d Cir. 2004) ......................................................................... 13\n\nYing Li v. City of New York, 246 F. Supp. 3d 578 (E.D.N.Y. 2017) ................................ 6, 9, 10, 20\n\nOther Authorities\n\nRest. Torts \u00a7 653 cmt. g. ................................................................................................................. 8\n\nRules\n\nRule 12(b)(6) ......................................................................................................................... 2, 9, 25\n\n\n\n\n iv\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 6 of 31\n\n\n\n\n PRELIMINARY STATEMENT\n\n For nearly seven years, Plaintiff Neil Cole was wrongfully prosecuted. He endured not one\n\nbut two criminal trials. He was unconstitutionally sentenced to 18 months\u2019 imprisonment for a\n\ncrime he did not commit. He watched Iconix Brand Group (\u201cIconix\u201d), the company he built from\n\nscratch into a multi-billion-dollar behemoth, ripped from his grasp. And he endured those trials\n\nand tribulations because of malicious lies told by one person: Defendant Seth Horowitz. In this\n\nlawsuit, Cole seeks redress.\n\n As Chief Operating Officer (\u201cCOO\u201d) at Iconix, Horowitz saw himself as Cole\u2019s prot\u00e9g\u00e9\n\nand successor as Chief Executive Officer (\u201cCEO\u201d) and President of the company. But when\n\nHorowitz saw his prospects rebuffed, and as his personal life succumbed to turmoil, Horowitz\n\ndescended into deep-seated resentment toward Cole. Embroiled in an investigation into two deals\n\nthat he led, Horowitz saw an opportunity to accomplish two goals at the same time: (i) protect\n\nhimself and (ii) harm his rival. He knowingly and falsely told the government that Cole had\n\norchestrated a secret, fraudulent securities-fraud scheme and ordered him to destroy evidence.\n\nFortunately, after a jury acquitted Cole of several counts, the Second Circuit unanimously\n\nconcluded that the jury necessarily determined that Cole was not guilty of all counts. But in the\n\nprocess, Cole lost his business, had his name dragged through the mud, and suffered untold\n\nfinancial and emotional harm.\n\n Horowitz\u2019s motion to dismiss the Complaint\u2019s New York law malicious prosecution claim\n\npresents a narrow and straightforward issue, i.e., whether the Complaint sufficiently alleges three\n\nelements: initiation, absence of probable cause, and malice. It undoubtedly has, alleging with\n\nspecificity the precise lies that Horowitz told in maliciously initiating the yearslong prosecution.\n\n\n\n\n 1\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 7 of 31\n\n\n\n\n Unable to contend with the sufficiency of these allegations, Horowitz obfuscates, relying\n\non a series of arguments that fail to grapple with the central point at issue at this stage: the\n\nComplaint sufficiently alleges that Horowitz repeatedly and knowingly lied to incriminate Cole.\n\nThat single reality effectively serves to defeat every single one of Horowitz\u2019s pleading stage\n\narguments. Specifically, Horowitz raises several arguments, chiefly that: (i) prosecutors exercised\n\ntheir own independent judgment in determining to prosecute Cole; (ii) a series of supposed\n\npresumptions of probable cause defeat Cole\u2019s claim; and (iii) Cole did not sufficiently allege that\n\nHorowitz acted with malice. But each of these contentions suffers from the exact same flaw:\n\nunbroken and unambiguous authority makes clear that each of these arguments fails where, as\n\nhere, a prosecution was pursued based on knowing and material lies of a private defendant.\n\nPerhaps aware of that law, Horowitz ultimately turns his attention to disputed the veracity of the\n\nallegations in the Complaint that specifically allege that he made knowing and material lies. But\n\nRule 12(b)(6) is not the place to dispute facts in a complaint.\n\n To be clear, Cole will undoubtedly show that his version of the facts are correct. Horowitz\n\nlied about Cole\u2019s conduct on the SEA-2 and SEA-3 transactions to have Cole maliciously\n\nprosecuted for securities fraud. Horowitz did that in a twisted effort to achieve two aims: protect\n\nhimself and punish Cole, a man he grew deeply resentful of. But proving that story is a fight for\n\nanother day. For now, Horowitz simply cannot obtain a pleadings-stage dismissal by proffering\n\nhis own view of the facts.\n\n FACTUAL BACKGROUND\n\n Cole is a successful businessman who founded Iconix, a brand management company, and\n\nserved as CEO and President. Complaint (\u201cCompl.\u201d) \u00b6 10. In 2012, he hired Horowitz as COO.\n\nId. \u00b6 11. Although Horowitz saw himself as Cole\u2019s prot\u00e9g\u00e9 and successor, Horowitz developed a\n\n\n\n 2\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 8 of 31\n\n\n\n\ndeep-seated and irrational resentment and anger toward Cole when Horowitz felt that his efforts to\n\nlead Iconix were rebuffed. Id. \u00b6\u00b6 12, 16. During this time, Horowitz\u2019s personal life became\n\nembroiled in turmoil, withdrawing large sums of cash to purchase drugs. Id. \u00b6 14. Horowitz wrote\n\nat the time that he \u201cgets a thrill of doing something knowingly wrong,\u201d and asked himself: \u201cI know\n\nit\u2019s right. Why don\u2019t I do it[?]\u201d Id. \u00b6 15. Feeling that Cole stood in his path to becoming Iconix\n\nCEO, Horowitz became angry and resentful, vowing to \u201cfight back\u201d against Cole. Id. \u00b6 17.\n\n In an unsent letter addressed \u201c[D]ear[N]eil,\u201d Horowitz meticulously documented the ways\n\nin which Cole had purportedly \u201cdisrespected\u201d him. Id. \u00b6 18-20. Horowitz wrote that he could\n\neither \u201cignore it\u201d or \u201cfight back\u201d\u2014but his \u201cability to ignore\u201d Cole\u2019s perceived slights was \u201cnot\n\ngoing to last much longer.\u201d Id. \u00b6 22. Horowitz further documented his concerns that he would not\n\nbecome CEO because, he feared, Cole had \u201cno plans of letting [Horowitz] actually drive and attack\n\nthe business.\u201d Id. \u00b6 23. In 2014, Cole told Horowitz that he was not ready to give up the title of\n\nIconix President. Id. \u00b6 24. By 2015, Horowitz was \u201cvery upset\u201d with Cole. Id. \u00b6 25. Observers\n\nat the company saw that there was \u201cvery much . . . a rift developing\u201d between the two. Id.\n\n Meanwhile, also in 2014, Horowitz negotiated two joint venture deals for Iconix with an\n\noverseas counterparty (\u201cGBG\u201d), known as SEA-2 and SEA-3. Id. \u00b6 26. Ultimately, the S.E.C and\n\nD.O.J. started investigating the SEA-2 and SEA-3 deals that Horowitz had negotiated. Id. \u00b6 27.\n\nTo \u201cprotect himself and harm Cole,\u201d Horowitz falsely accused Cole of criminal wrongdoing in\n\nSEA-2 and SEA-3. Id. \u00b6\u00b6 29-32. Specifically, Horowitz repeatedly and falsely told investigators,\n\nlaw enforcement, and prosecutors that (i) Cole entered into secret unwritten side deals with GBG\n\nthat increased GBG\u2019s purchase price in order to artificially inflate Iconix\u2019s revenue; and (ii) Cole\n\ndestroyed documents and ordered Horowitz to do the same to avoid getting caught for the secret\n\nside deals and thereby obstructed justice. Id. \u00b6\u00b6 31-32. Each of these reports were knowingly\n\n\n\n 3\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 9 of 31\n\n\n\n\nfalse: Cole did not conspire to or effectuate secret side deals on SEA-2 or SEA-3, nor did he\n\ndestroy, or order the destruction of, any documents related to either transaction. Id. \u00b6\u00b6 33-34.\n\nOther than Horowitz\u2019s false account, there was effectively no evidence that Cole had engaged in\n\nthe false criminal conduct. Id. \u00b6 35. Absent Horowitz\u2019s false reports, Cole would not have been\n\nsuspected of or investigated for criminal misconduct. Id. \u00b6 36.\n\n But Horowitz\u2019s reports had their desired effect. Based on these falsehoods, a grand jury\n\nindicted Cole for charges related to conspiracy to commit securities fraud, securities fraud, and\n\nobstruction of justice (for his part, Horowitz pled guilty to related charges). Id. \u00b6 37. The\n\nIndictment\u2019s allegations mirrored the false accounts that Horowitz had been providing to\n\ninvestigators, law enforcement, and prosecutors, i.e., that Cole \u201chid\u201d the SEA-2 and SEA-3 side\n\ndeals from Iconix\u2019s lawyers and an auditor and that Cole destroyed and concealed relevant\n\nevidence. Id. \u00b6\u00b6 38-39. As the trial records subsequently made clear, those allegations (and many\n\nothers) could only have come from Horowitz. Id. \u00b6 40.\n\n At trial, the \u201ccentral question\u201d was \u201cwhether Cole had made undisclosed verbal\n\ncommitments to return money to GBG.\u201d Id. \u00b6 41. Horowitz\u2014\u201cindisputably the government\u2019s key\n\nwitness\u201d and who testified for the first five days at trial\u2014was the only witness to testify that Cole\n\nhad allegedly engineered secret side deals on SEA-2 and SEA-3. Id. \u00b6\u00b6 42-43. Indeed, the two\n\nother primary witnesses\u2014Jason Rabin and Jared Margolis, each employed by the GBG\n\ncounterparties on the deals\u2014\u201cdenied that Cole asked them to keep the giveback portion of the\n\ndeals secret or to omit it from the written contracts.\u201d Id. \u00b6 44. The jury, however, did not believe\n\nHorowitz and acquitted him of conspiracy and obstruction of justice. Id. \u00b6 47. As the Second\n\nCircuit later explained, the jury did not \u201cbelieve[] even a fraction of Horowitz\u2019s account,\u201d and\n\n\u201cdisregarded all (or nearly all) of Horowitz\u2019s testimony.\u201d Id. \u00b6 46. Although the Government\n\n\n\n 4\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 10 of 31\n\n\n\n\nunconstitutionally retried Cole in violation of the Double Jeopardy Clause and secured a\n\nconviction, that conviction was reversed (and the indictment ordered dismissed) by the Second\n\nCircuit which made clear that the initial jury had necessarily acquitted Cole of all charges.\n\n ARGUMENT\n\n The sole issue is whether the Complaint plausibly states the elements of a claim for\n\nmalicious prosecution against Horowitz. To do so, the Complaint must have alleged that\n\n(i) Horowitz initiated a prosecution against Cole; (ii) Horowitz lacked probable cause;\n\n(iii) Horowitz acted with malice; and (iv) the prosecution was terminated in Cole\u2019s favor. Savino\n\nv. City of New York, 331 F.3d 63, 72 (2d Cir. 2003). Horowitz does not challenge the Complaint\u2019s\n\nallegation that the prosecution terminated in Cole\u2019s favor (nor could he); he instead challenges the\n\nfirst three prongs. But the Complaint sufficiently alleges each element, and Horowitz\u2019s arguments,\n\nwhich amount to a series of red herrings, misstatements of the law, and misunderstandings of the\n\npleading standard, have no merit. 1\n\n I. The Complaint Alleges that Horowitz \u201cInitiated\u201d a Criminal Proceeding Against\n Cole.\n\n The first prong of a malicious prosecution claim asks whether the defendant initiated or\n\ncontinued a criminal proceeding against the plaintiff. As Horowitz ignores, however, \u201c\u2018[i]nitiation\u2019\n\nin this context is a term of art.\u201d Rohman v. New York City Transit Auth., 215 F.3d 208, 217 (2d\n\nCir. 2000). For a civilian defendant, a complaint must allege that the \u201cdefendant played an active\n\nrole in the prosecution.\u201d Lupski v. Cnty. of Nassau, 822 N.Y.S.2d 112, 114 (2d Dep\u2019t 2006) (citation\n\nmodified). And critically, for civilian defendants like Horowitz, \u201cproviding information \u2018that is\n\n\n\n\n1\n At times, Horowitz's arguments are a bit confused, and he makes arguments going to one element of the claim\nwhile purporting to address other elements. Rather than compound that error, this brief attempts to situate Horowitz\u2019s\narguments under the correct prong of the test.\n\n 5\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 11 of 31\n\n\n\n\nknown to be false qualifies as the commencement of a prosecution.\u2019\u201d Hansen v. DeSanti, 2022 WL\n\n900593, at *5 (E.D.N.Y. Mar. 28, 2022) (quoting Rivers v. Towers, Perrin, Forster & Crosby Inc.,\n\n2009 WL 817852, at *3 (E.D.N.Y. Mar. 27, 2009)); see also, e.g., Liu Bo Shan v. China Const.\n\nBank Corp., 421 F. App\u2019x 89, 93 n.4 (2d Cir. 2011) (\u201cA private individual who deliberately falsifies\n\nevidence to induce another\u2019s prosecution may be held liable for malicious prosecution . . . because\n\nthe knowing provision of false evidence satisfies an essential element of the tort, i.e., the \u2018initiation\u2019\n\nof a prosecution.\u201d); Maskantz v. Hayes, 832 N.Y.S.2d 566, 569 (1st Dep\u2019t 2007) (\u201c[A] defendant\n\nmay be said to have initiated a criminal proceeding by providing false evidence to the police or\n\nwithholding evidence that might affect the determination by the police to make an arrest\u201d (quoting\n\nBrown v. Sears Roebuck & Co., 746 N.Y.S.2d 141, 146 (1st Dep\u2019t 2002)); Ying Li v. City of New\n\nYork, 246 F. Supp. 3d 578, 605 (E.D.N.Y. 2017) (same). The Complaint satisfies the foregoing\n\nrequirements by alleging that Horowitz knowingly provided material, false information to law\n\nenforcement and prosecutors. Specifically, the Complaint alleges Horowitz falsely reported that\n\nCole (i) conspired with him to enter into unwritten, secret side deals to artificially inflate Iconix\u2019s\n\nrevenue and (ii) destroyed documents and ordered Horowitz to do the same. Compl. \u00b6\u00b6 31-33.\n\nAnd the Complaint obviously alleges that Horowitz\u2019s reports were material, since it alleges that\n\n\u201c[t]here was effectively no other evidence other than Horowitz\u2019s false account,\u201d \u201cCole would not\n\nhave been suspected of or investigated for criminal misconduct\u201d absent Horowitz\u2019s reports, and\n\nthe Indictment relied overwhelmingly on Horowitz\u2019s false accounts. Compl. \u00b6\u00b6 35-40; Jorgensen\n\nv. Cnty. of Suffolk, 558 F. Supp. 3d 51, 64 (E.D.N.Y. 2021) (finding initiation where false evidence\n\nwas \u201ccrucial\u201d to indict plaintiff). The Court\u2019s inquiry can end there.\n\n Rather than truly address the \u201cinitiation\u201d prong, Horowitz instead appears to raise two\n\narguments in this section of his brief. First, he previews his factual defense that he did not actually\n\n\n\n 6\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 12 of 31\n\n\n\n\nlie about Cole\u2019s involvement in SEA-2 or SEA-3 (he nowhere actually rebuts the factual allegation\n\nthat he lied about Cole obstructing justice). MTD at 10-11. But, as detailed below in the section\n\nregarding probable cause, the Complaint more than sufficiently alleges that Horowitz lied for\n\npurposes of defeating a motion to dismiss. See infra at \u00a7 II.B. Second, Horowitz then previews\n\nhis factual defense that the Complaint does not sufficiently allege that Horowitz had a motive to\n\nlie. MTD at 10. But that contention is also wrong, as detailed below in the section regarding\n\nmalice. See infra at \u00a7 III.\n\n That said, later in his brief, Horowitz details an argument that theoretically goes towards\n\nthe initiation prong: that prosecutors acted under their own volition in deciding to move forward\n\nwith Cole\u2019s prosecution, thus precluding the Complaint\u2019s malicious prosecution claim. See MTD\n\nat 21-23; Dantas v. Citigroup, Inc., 779 F. App\u2019x 16, 23 (2d Cir. 2019) (making clear this \u201cvolition\u201d\n\nassessment comes under the initiation prong). Specifically, Horowitz argues that the Complaint\n\nfails to overcome the \u201cpresumption that a prosecutor exercises his own independent judgment in\n\ndeciding to prosecute a criminal defendant.\u201d MTD at 21 (quoting Gilman v. Marsh & McLennan\n\nCos., 868 F. Supp. 2d 118, 128-29 (S.D.N.Y. 2012)). However raised, the argument has no merit.\n\n To be sure, in certain contexts, a malicious prosecution claim cannot succeed where a\n\ndefendant can show that a prosecutor pursued the prosecution at issue pursuant to their own\n\nindependent judgment. But under an unbroken line of authority (and as addressed in a related\n\ncontext below), this principle simply does not apply where, as here, the prosecutor\u2019s judgment was\n\ncompromised by a complaining witness\u2019s knowingly false report. This is a crucial and oft-applied\n\ncaveat to the doctrine on which Horowitz relies and is indeed identified in each of the cases he\n\ncites. Indeed, while quoting Judge Oetken\u2019s decision in Gilman, MTD at 21, Horowitz omits\n\nGilman\u2019s crucial addition: that a plaintiff overcomes that presumption by alleging that a defendant\n\n\n\n 7\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 13 of 31\n\n\n\n\nengaged in misconduct, including \u201cby providing false information to the authorities.\u201d Gilman, 868\n\nF. Supp. 2d at 128 (quoting Tommy Hilfiger Licensing, Inc. v. Bradlees, Inc., 2004 WL 2290499,\n\nat *5 n. 8 (S.D.N.Y. Oct. 8, 2004)). This non-controversial principle is consistently and frequently\n\napplied in cases against private individuals who falsely reported crimes. As Judge Bianco\n\nexplained, in cases \u201cwhere a private individual knowingly provides false information to [law\n\nenforcement],\u201d \u201c\u2018an intelligent exercise of the officer\u2019s discretion becomes impossible and a\n\nprosecution based thereon is procured by the person giving the false information.\u2019\u201d Dolan v. New\n\nHyde Park Fire Dist., 2017 WL 6597518, at *9 (E.D.N.Y. Dec. 22, 2017) (quoting Rest. Torts \u00a7\n\n653 cmt. g.). As here, the well-pled allegation that Horowitz knowingly supplied false information\n\n\u201crender[s] intelligent exercise of [law enforcement\u2019s] discretion \u2018impossible,\u2019 and the resulting\n\nprosecution \u2018procured by\u2019 [Horowitz].\u201d Id. Thus, \u201c[w]here, as here, a defendant willfully and\n\nmaliciously causes false information to be presented to prosecuting officials, the prosecutor\u2019s\n\ndecision, based on the false information, will not shield the source from liability for malicious\n\nprosecution.\u201d Komlosi v. Fudenberg, 2000 WL 351414, at *10 (S.D.N.Y. Mar. 31, 2000).\n\n Unable to grapple with this controlling authority as to the \u201cinitiation\u201d prong, Horowitz\n\noffers a line of arguments that are thematically related, i.e., that all blame lies with the Government,\n\nnot Horowitz. But, to the extent these arguments can be deciphered, they can be quickly\n\ndispatched. First, Horowitz suggests he cannot be liable for malicious prosecution because Cole\n\nadopted as part of his criminal trial strategy an argument that the Government coerced witnesses.\n\nMTD at 22. The point Horowitz attempts to make here is not clear. Perhaps he is arguing that\n\nCole previously argued that it was the federal government that maliciously prosecuted Cole, not\n\nhim. But that is no defense to a malicious prosecution claim. Indeed, the Government could have\n\ncoerced witnesses, even while Horowitz initiated the prosecution by knowingly making false\n\n\n\n 8\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 14 of 31\n\n\n\n\nreports to the Government. And, of course, multiple actors can be responsible for a malicious\n\nprosecution. See Mejia v. City of New York, 119 F. Supp. 2d 232, 272 (E.D.N.Y. 2000). Second,\n\nand similarly, Horowitz avers that the Complaint\u2019s statement that the Government\n\n\u201cunconstitutionally and unfairly\u201d retried him means that the \u201cDepartment of Justice was the\n\nmalicious actor.\u201d MTD at 22. This argument is also difficult to parse. But, as noted above, there\n\nis no reason there is just one (i.e., \u201cthe\u201d) malicious actor. In other words, just because the\n\nGovernment acted unfairly in violating the Double Jeopardy Clause\u2014in 2022, three years after\n\nHorowitz maliciously initiated the prosecution\u2014is immaterial to whether Horowitz separately\n\nacted unfairly in lying about Cole\u2019s involvement in SEA-2 and SEA-3 and obstructing justice.\n\n II. The Complaint Alleges a Lack of Probable Cause.\n\n Horowitz argues the Complaint fails to plead the second element of a malicious prosecution\n\nclaim: lack of probable cause. But, here again, Horowitz does not engage with the applicable legal\n\nstandard. Indeed, again, each argument fails given the central theory underlying the Complaint\u2019s\n\nmalicious prosecution claim: Horowitz purposefully lied to have Cole maliciously prosecuted.\n\nThose well-pled allegations simply dispatch each of Horowitz\u2019s Rule 12(b)(6) arguments. Below,\n\nwe (i) explain that the Complaint alleges a lack of probable cause under these principles; (ii) rebut\n\nHorowitz\u2019s reliance on the so-called \u201ccompeting testimony-plus\u201d principle; and (iii) address and\n\nrebut the \u201cpresumptions\u201d of probable cause upon which Horowitz so heavily relies.\n\n A. The Complaint Alleges a Lack of Probable Cause by Alleging That Horowitz\n Made Intentionally False Reports to Law Enforcement and Prosecutors.\n\n Probable cause exists where \u201cfacts and circumstances that would lead a reasonably prudent\n\nperson to believe the plaintiff guilty[,] . . . evaluated in light of the facts known or reasonably\n\nbelieved at the time the prosecution was initiated.\u201d Ying Li, 246 F. Supp. 3d at 611 (citation\n\nmodified). Similar to the initiation prong, where a presumption of probable cause arises, a plaintiff\n\n\n 9\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 15 of 31\n\n\n\n\nrebuts it by alleging that the indictment or conviction was \u201cproduced by fraud, perjury, the\n\nsuppression of evidence or other police conduct undertaken in bad faith,\u201d which includes\n\nallegations that witnesses \u201chave not made a complete and full statement of facts either to the Grand\n\nJury or to the District Attorney, that they have misrepresented or falsified evidence, that they have\n\nwithheld evidence or otherwise acted in bad faith.\u201d Id. at 612 (citation modified).\n\n In light of these principles, the issue here is straightforward: whether the Complaint\n\nsufficiently alleges that Horowitz engaged in such misconduct. The Complaint undoubtedly does\n\nso, alleging that Horowitz knowingly made false reports. See Compl. \u00b6\u00b6 31-40. The Complaint\n\nsuffices because it contains \u201csufficiently specific factual allegations regarding the nature and\n\ncontent of their lies in order to survive defendants\u2019 12(b)(6) motion.\u201d Demosthene v. City of New\n\nYork, 2019 WL 181305, at *5 (E.D.N.Y. Jan. 10, 2019) (collecting cases); see also, e.g., Hicks v.\n\nMarchman, 719 F. App'x 61, 65 (2d Cir. 2018) (summary order) (presumption of probable cause\n\nwas rebutted at the motion to dismiss stage where the plaintiff alleged that the officers provided\n\nfabricated evidence to prosecutors); Buari v. City of New York, 530 F. Supp. 3d 356, 388 (S.D.N.Y.\n\n2021) (same); Shabazz v. Kailer, 201 F. Supp. 3d 386, 392 (S.D.N.Y. 2016) (same). Further, as\n\narticulated in the following section, Cole supported his allegations as to Horowitz\u2019s intentional lies\n\nwith detailed additional facts (even though he was not required to).\n\n B. The Competing-Testimony-Plus Standard is Irrelevant Here (Especially at\n This Stage) and Would in Any Event be Satisfied Here.\n\n Against this black-letter law, Horowitz argues that the Complaint fails to rebut the\n\npresumption of probable cause because the Complaint \u201cdoes not allege any facts, other than his\n\nown contrary testimony, in support of his contention that Horowitz knowingly lied under oath.\u201d\n\nThis argument\u2014seemingly invoking the Second Circuit\u2019s \u201ccompeting-testimony-plus\u201d\n\n\n\n\n 10\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 16 of 31\n\n\n\n\nprinciple\u2014has no merit because it misunderstands malicious prosecution law, the applicable\n\npleading standard, and the facts alleged in the Complaint.\n\n The \u201ccompeting-testimony-plus\u201d principle that Horowitz seems to invoke emanated from\n\nBoyd v. City of New York, 336 F.3d 72 (2d Cir. 2003). The principle provides that, in certain\n\ncircumstances, \u201c[a] plaintiff\u2019s own contrary testimony alone is insufficient to rebut evidence\n\nsupporting a presumption of probable cause.\u201d MTD at 18. This argument here, however, suffers\n\nfrom two fundamental obstacles, as laid out below: (i) the \u201ccompeting-testimony-plus\u201d standard is\n\na summary-judgment principle; and regardless, (ii) the Complaint alleges several other factors (i.e.,\n\n\u201cplusses\u201d) that Horowitz lied about Cole\u2019s involvement in the transactions.\n\n First, the competing-testimony-plus standard is a summary judgment principle that is\n\ncategorically inapplicable to a motion to dismiss. 2 Indeed, courts consistently reject Horowitz\u2019s\n\nargument at this stage. For example, rejecting the contention that a plaintiff must point to \u201csome\n\ncorroboration in the record, beyond plaintiff\u2019s mere assertions of defendants\u2019 misconduct,\u201d Judge\n\nRoss explained that a plaintiff need only allege \u201cthe nature and content of [defendants\u2019] lies in\n\norder to survive defendants\u2019 12(b)(6) motion.\u201d Demosthene, 2019 WL 181305, at *4-5. Thus, a\n\n\u201cplaintiff's \u2018averments,\u2019 unsupported by evidence, [are] \u2018sufficient, at [the motion to dismiss] stage,\n\nto rebut the presumption that his prosecution was supported by probable cause.\u2019\u201d Id at *5. (quoting\n\nAmbrose v. City of New York, 623 F. Supp. 2d 454, 476 (S.D.N.Y. 2009)). As in Demosthene,\n\n\n\n2\n The principle\u2019s inapplicability at the motion to dismiss stage is perhaps demonstrated most clearly by the fact that\nthe \u201ctestimony\u201d to which the principle refers is not\u2014as Horowitz suggests\u2014previous trial testimony (after all, many\nmalicious-prosecution cases do not have criminal-trial testimony) but to deposition testimony in the instant case. See\nBrandon v. City of New York, 705 F. Supp. 2d 261, 274 (S.D.N.Y. 2010) (discussing competing deposition testimony).\nTo state the obvious: the principle does not apply until there is potentially conflicting deposition testimony\u2014which,\nof course, exists only after discovery. Indeed, as explained in Johnson v. McMorrow, 2023 WL 1797063 (S.D.N.Y.\nFeb. 7, 2023)\u2014on which Horowitz heavily relies\u2014\u201cwhere a plaintiff's testimony is corroborated by other evidence in\nthe record, a court faced with competing versions of events may not resolve probable cause at summary judgment\nbecause there truly exists a genuine issue of material fact and the plaintiff is entitled to a trial on the merits.\u201d Id. at\n*5 (emphasis added).\n\n 11\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 17 of 31\n\n\n\n\nHorowitz \u201cerr[s] by equating factual allegations\u2014a standard of pleading that all plaintiffs must\n\nmeet in order to withstand a motion to dismiss\u2014with the heightened requirement of evidentiary\n\ncorroboration.\u201d Id.; see Hincapie v. City of New York, 434 F. Supp. 3d 61, 74 n.6 (S.D.N.Y. 2020)\n\n(rejecting argument that \u201cthe plaintiff had to submit evidence more than \u2018conjecture\u2019 and \u2018surmise\u2019\n\nsufficient for a reasonable jury to find that his indictment was procured in bad faith\u201d because that\n\nprinciple is \u201cconsistent with the well-established summary judgment standard, not a motion to\n\ndismiss\u201d). Perhaps demonstrating most clearly that this principle simply cannot be invoked at this\n\nstage is the fact that each of the six cases Horowitz cites for application of the competing-\n\ntestimony-plus principle are decisions made on summary judgment. See MTD at 19 & n.8.\n\n Regardless, even if the competing-testimony-plus rule applied at this stage (it does not),\n\nthe Complaint would satisfy it because it does not rely on Cole\u2019s averment alone. 3 See Paige-Bey\n\nv. LaCoste, 2022 WL 4641104, at *9 (E.D.N.Y. Sept. 30, 2022) (collecting cases for a broad array\n\nof \u201cplus\u201d evidence). The Complaint includes myriad other bases making it more than \u201cplausible\u201d\n\nthat Horowitz lied: (i) there was not a single piece of other evidence\u2014including a single\n\ndocument\u2014evidencing Cole\u2019s supposed agreement with Horowitz to enter into these multi-million\n\ndollar secret side deals; (ii) a jury unanimously doubted Horowitz\u2019s story, a verdict that a\n\nunanimous Second Circuit panel interpreted to mean the jury did not \u201cbelieve[] even a fraction of\n\nHorowitz\u2019s account,\u201d and \u201cdisregarded all (or nearly all) of Horowitz\u2019s testimony\u201d; (iii) Horowitz\n\nhad multiple documented and objective motives to lie; and (iv) Horowitz himself acknowledged\n\nthat he \u201cgets a thrill of doing something knowingly wrong.\u201d\n\n\n\n\n3\n In support of his contention that no additional evidence in Cole\u2019s favor exists, Horowitz cites Cole\u2019s appellate\ncounsel\u2019s argument that the case \u201ccame down\u201d to whether the jury believed Cole or Horowitz. MTD at 18. But that\nis exactly the point: no other evidence has ever existed to support Horowitz\u2019s claim that Cole committed a crime.\n\n 12\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 18 of 31\n\n\n\n\n In response to the foregoing\u2014i.e., to argue that Cole is the liar and that he was the truth-\n\nteller\u2014Horowitz offers several arguments attempting to undermine the facts in the Complaint.\n\nBut even if these contentions were available at this stage (they are not) they are unavailing.\n\n First, Horowitz argues that his \u201cpurportedly malicious motive to \u2018lie\u2019 is [] absurd.\u201d MTD\n\nat 10. According to Horowitz, it is \u201cirrational\u201d that \u201cHorowitz harbored such a \u2018deep seated hatred\u2019\n\nof his boss Cole that he was willing to turn himself into a felon, and thereby destroy his own life,\n\nsolely to inflict harm on Cole.\u201d Id. As an initial matter, this type of challenge\u2014to the Complaint\u2019s\n\nfactual persuasiveness\u2014is of course inappropriate at this juncture, where \u201c[t]he question at the\n\npleading stage is not whether there is a plausible alternative to the plaintiff's theory; the question\n\nis whether there are sufficient factual allegations to make the complaint's claim plausible.\u201d\n\nAnderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 189 (2d Cir. 2012). Regardless, Horowitz\n\nis wrong. The Complaint does not allege that Horowitz was motivated \u201csolely\u201d to harm Cole, it\n\nclearly alleged Horowitz had twin and overlapping motives: \u201cto protect himself and to harm Cole.\u201d\n\nCompl. \u00b6 30. In sum, the Complaint provides a highly plausible\u2014and true\u2014theory that Horowitz\n\nbecame nervous about his role in the SEA-2 and SEA-3 deals when the Government began\n\ninvestigating them and he saw an out where he could \u201cprotect himself\u201d by shifting blame to Cole\n\n(his boss) and then also \u201charm Cole,\u201d his perceived nemesis. Horowitz may contest the veracity\n\nof these allegations, but that is an insufficient basis for dismissal.\n\n Second, Horowitz faults the Complaint for not having incorporated more evidence from\n\nthe criminal proceedings. MTD at 10. But a plaintiff is not required \u201cto plead \u2018evidence . . . in\n\ndetail.\u2019\u201d Demosthene, 2019 WL 181305, at *5 n.3 (quoting Wynder v. McMahon, 360 F.3d 73, 77\n\n(2d Cir. 2004)). In any event, the Complaint sufficiently alleges the nature and content of\n\n\n\n\n 13\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 19 of 31\n\n\n\n\nHorowitz\u2019s lies and cites specific evidence of Horowitz\u2019s motive and resentment of Cole, both in\n\nHorowitz\u2019s own words and that of others. See infra III (listing this evidence in full).\n\n Third, Horowitz claims that it is implausible that he would have pled guilty to a crime but\n\nthat Cole did not commit one. But as a matter of both logic and law, one person may commit a\n\ncrime when another does not. See, e.g., United States v. Barret, 848 F.3d 524, 531 (2d Cir. 2017)\n\n(approvingly quoting standard jury instruction that \u201c[t]he guilt of any person . . . is not evidence\n\nof the guilt of any other person\u201d). And Horowitz may well have committed a crime, thought he\n\ncommitted a crime, or simply decided to take a favorable plea\u2014all of which is entirely consistent\n\nwith Cole\u2019s testimony that he did not believe there to be any secret side deals. 4\n\n Finally, Horowitz oddly tries to weaponize against Cole the Second Circuit\u2019s decision\n\nvacating Cole\u2019s conviction and ordering his acquittal. Specifically, Horowitz contends that the\n\nSecond Circuit found it \u201cunrealistic\u201d that \u201cHorowitz, not Cole, was the primary wrongdoer in the\n\nalleged scheme.\u201d MTD at 12. But this effort resoundingly fails. Indeed, any read of the Second\n\nCircuit\u2019s opinion leaves the reader with one conclusion: the Court earnestly believed that Horowitz\n\nwas not telling the truth. See, e.g., United States v. Cole, 158 F.4th 113, 127 (2d Cir. 2025) (the\n\njury \u201cmust have disregarded all (or nearly all) of Horowitz\u2019s testimony\u201d and did not \u201cbelieve[]\n\neven a fraction of Horowitz\u2019s account\u201d). To be clear, Horowitz\u2019s gloss on the Second Circuit\u2019s\n\nopinion is not only strained, it is totally inaccurate. In the portion of the opinion that Horowitz\n\npurports to cite, the Second Circuit was considering various hypothetical rationales the jury might\n\nhave had to acquit Cole on the top conspiracy count but be hung on the other substantive count.\n\nThe purpose of this exercise was to determine whether the jury could have possibly acquitted Cole\n\nof the conspiracy count but have nonetheless somehow believed that Cole was guilty of the\n\n\n4\n Horowitz takes issue with Cole\u2019s \u201ccertainty\u201d that there were no oral agreements, but he of course could only testify\nto his own knowledge.\n\n 14\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 20 of 31\n\n\n\n\nsubstantive count. As the Court made clear, if that were possible, Double Jeopardy would not bar\n\nretrial on the hung counts. Id. at 126. The Second Circuit, however, rejected each of the\n\nGovernment\u2019s hypotheticals, including the third on which Horowitz tries to rely here, which was\n\nthat perhaps Cole merely aided-and-abetted Horowitz. Specifically, the Court rejected the\n\npossibility \u201cthat the jury believed it was Horowitz who led the overpayments-for-givebacks\n\nscheme, and Cole merely aided and abetted (but never made any agreement with) him.\u201d Id. at 128.\n\nThis hypothetical possibility, the Court concluded, was \u201cunrealistic\u201d because the \u201ccentral premise\n\nof the government\u2019s case [was] that Cole was the \u2018man in charge\u2019 of the scheme.\u201d Id. Thus, the\n\nCourt concluded that the jury must have rejected the possibility that Cole could have participated\n\nin the scheme, or aided-and-abetted Horowitz, without joining in a conspiracy with Horowitz. Id.\n\nOnce the Court\u2019s opinion is read with minimal care, Horowitz\u2019s argument is nonsense. The Second\n\nCircuit did not state that it was \u201cunrealistic\u201d that Horowitz committed a crime; it concluded that it\n\nwas \u201cunrealistic\u201d that the jury could have concluded that Cole could have committed a crime\n\nwithout conspiring with, or aiding-and-abetting, Horowitz. Indeed, the Second Circuit\u2019s\n\nhypothetical assumed Horowitz not only committed a crime, but was its leader. Of course, because\n\nthe trial and appeal both concerned Cole, the Second Circuit had no opportunity to opine whether\n\nHorowitz was a wrongdoer apart from Cole. And Horowitz\u2019s commission of a crime without\n\nCole\u2019s participation is entirely consistent with the jury\u2019s verdict\u2014which, after all, acquitted Cole,\n\nnot Horowitz.\n\n C. Horowitz\u2019s Extended Discussions of \u201cPresumptions\u201d is a Red Herring.\n\n Horowitz spills significant ink throughout his brief discussing \u201cpresumptions\u201d of probable\n\ncause that he argues bar the Complaint\u2019s malicious prosecution claim. To be clear, as laid out\n\nbelow (and previewed above), these presumptions have no work to do in this case. Given the\n\n\n\n 15\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 21 of 31\n\n\n\n\ncentrality with which Horowitz relies on these presumptions in his papers, however, we address\n\nthem at relative length. With an understanding of these presumptions, it is clear they are\n\ncategorically irrelevant in this case. Specifically, as made clear by unambiguous legal authority, a\n\nmalicious prosecution claim is not barred by a presumption of probable cause where, as here, the\n\nplaintiff\u2019s claim is that his entire prosecution was based off a defendant\u2019s intentional lies.\n\n Presumptions of probable cause may apply in malicious prosecution cases because actors\n\nindependent of the defendant\u2014such as grand jurors\u2014determine that there was probable cause.\n\nFor example, if an officer investigated a car crash\u2014that he himself did not witness\u2014and\n\ndetermines there is probable cause that a traffic light was red, and a grand jury reviewing the same\n\nevidence also independently determines the traffic light was red, the presumption applies\n\nstraightforwardly. But if that officer witnessed the crash, knew the light was green, and falsely\n\ntold the grand jury the light was red, the presumption of probable cause is easily rebutted\u2014and\n\nimmaterial\u2014because the grand jury is unable to exercise its independent judgment: it did not view\n\nthe same evidence as the officer, so its assessment relied entirely on the officer being truthful. This\n\nprinciple is deeply engrained in the law. See supra \u00a7 II.A.\n\n It is for this reason that none of Horowitz\u2019s supposed presumptions (to the extent they even\n\nexist) carry any weight. The Complaint\u2019s central theory is that the entire criminal prosecution of\n\nCole rested singularly on Horowitz\u2019s false testimony. (A framing that is certainly not just Cole\u2019s,\n\nbut one the Second Circuit and Judge Ramos agreed with and is the only available conclusion after\n\nreviewing the trial record.) Thus, even if others believed Horowitz\u2019s false testimony, their belief\n\nis not independent and provides no basis to presume probable cause. In other words, even if\n\nHorowitz were able to credibly convince others that he was telling the truth, Cole now alleges he\n\nwas not. And once that proposition is accepted as true\u2014as it must be at this stage\u2014any\n\n\n\n 16\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 22 of 31\n\n\n\n\npresumption collapses because each actor was misled and only proceeded exclusively based on a\n\nknowingly false account. Simply put, a lying complaining witness does not obtain the benefit of\n\nprobable cause simply because they were a convincing liar.\n\n Because Horowitz spends so much time on certain of these presumptions, we go through\n\nthem each below. But the larger point should not be lost: each of these presumptions (or the ones\n\nthat actually exist) are overcome in light of the well-pled allegations that Horowitz knowingly lied.\n\n Cole\u2019s Vacated Conviction. Horowitz first contends that Cole\u2019s vacated conviction\n\nestablishes a presumption of probable cause. As a preliminary matter, the presumption is\n\nmisplaced here, where the Second Circuit held that the first jury necessarily acquitted Cole of all\n\ncharges and determined that \u201c[the jury] must have disregarded all (or nearly all) of Horowitz's\n\ntestimony.\u201d 5 Cole, 158 F.4th at 127. In any event, Sibblies v. City of New York, 196 N.Y.S.3d 47\n\n(1st Dep\u2019t 2023)\u2014on which Horowitz relies\u2014makes plain that that presumption is rebutted with\n\nthe same allegations that overcome the grand-jury-indictment presumption: \u201cperjury, fraud,\n\nsuppression of evidence, or other police conduct undertaken in bad faith,\u201d id. at 48 (quoting Colon\n\nv. City of New York, 60 N.Y. 2d 78, 83 (1983))\u2014precisely what the Complaint alleges here. See\n\nCompl. \u00b6\u00b6 31-52; supra \u00a7 II.A.\n\n Judge Ramos\u2019s Comments. Without citing any authority, Horowitz contends that Judge\n\nRamos\u2019s sentencing statements\u2014that he credited Horowitz\u2019s testimony over Cole\u2019s\u2014establish a\n\npresumption of probable cause. MTD at 13. Horowitz\u2019s argument is flawed at several levels.\n\n\n\n\n5\n Horowitz claims that because the Second Circuit \u201cdid not call into question the reliability of any evidence heard by\nthe jury,\u201d \u201cthere is, if anything, a greater reason to enforce the presumption.\u201d MTD at 13. But Horowitz gets it exactly\nbackwards. The Second Circuit did not opine on the sufficiency of the evidence because it instead concluded that the\njury acquitted Cole\u2014which means it rejected the very evidence on which Horowitz repeatedly relies. In other words,\nthe Second Circuit\u2019s acquittal is just about as powerful a statement of actual innocence as is possible.\n\n 17\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 23 of 31\n\n\n\n\n Horowitz\u2019s argument fails out of the gate because, by asking the Court to accept Judge\n\nRamos\u2019s \u201cfactual findings\u201d for their truth, Horowitz misunderstands black-letter judicial-notice\n\ndoctrine. A court may take judicial notice of materials, but \u201cnot for the truth of the facts asserted\n\ntherein,\u201d Coggins v. Cnty. of Nassau, 988 F. Supp. 2d 231, 242 (E.D.N.Y. 2013), nor to \u201cresolve\n\nany factual disputes between the parties,\u201d S.E.C. v. Siebel Sys., Inc., 384 F. Supp. 2d 694, 699 n.6\n\n(S.D.N.Y. 2005). Applying this principle and likewise rejecting defendants\u2019 request to take judicial\n\nnotice of Judge Kaplan\u2019s factual findings in a prior proceeding, Judge Oetken explained that to\n\n\u201ctake judicial notice of the underlying testimony . . . cited in Judge Kaplan\u2019s decision, as well as\n\nJudge Kaplan\u2019s findings of fact, for the truth of the matters asserted therein\u201d would be \u201ctantamount\n\nto accepting as true declarations made by [defendants].\u201d Guzman v. United States, 2013 WL\n\n543343, at *3-4 (S.D.N.Y. Feb. 14, 2013). Just as Judge Oetken held that he \u201cmay not consider\n\nJudge Kaplan's findings of fact, nor the testimony cited in his opinion,\u201d id. at *4, this well-\n\nestablished principle forecloses Horowitz\u2019s argument.\n\n Even if the Court could take judicial notice of Judge Ramos\u2019s statements, they do not\n\nestablish any sort of presumption of probable cause that would be relevant here for several reasons.\n\nFirst, the Second Circuit reversed and vacated Cole\u2019s sentence, and the jury\u2019s acquittal in the first\n\ntrial effectively nullified any later findings. See Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996)\n\n(\u201c[A] judgment [of conviction] that has been reversed, with instructions that the matter be\n\ndismissed, is null and void.\u201d). Second, and relatedly, even if Judge Ramos credited Horowitz\u2019s\n\nallegations, a unanimous jury of Cole\u2019s peers did not when it acquitted Cole of all charged conduct.\n\nFinally, but perhaps most significantly, Judge Ramos\u2019s statements directly support what is perhaps\n\nthe central theme in the Complaint: that there was no other evidence of Cole\u2019s culpability other\n\nthan Horowitz\u2019s testimony. Stated differently, Judge Ramos said that he found Horowitz credible,\n\n\n\n 18\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 24 of 31\n\n\n\n\nbut he did not say that he found Horowitz corroborated by any other independent evidence. That\n\nis because Horowitz\u2019s testimony about Cole was totally uncorroborated.\n\n Rabin & Margolis\u2019s Trial Testimony. Horowitz next argues that the trial testimony of\n\nGBG witnesses Rabin and Margolis establishes probable cause. Specifically, he contends that they\n\ntestified at Cole\u2019s criminal trials that: (i) Cole made a firm verbal commitment to return excess\n\npayments; (ii) GBG would not have executed the agreements for SEA-2 and SEA-3 without the\n\noral commitments; and (iii) Cole provided cash payments to GBG. MTD at 14-15. Horowitz is\n\nwrong, again, for at least five independent reasons.\n\n First, before turning to the myriad legal defects with Horowitz\u2019s argument, Horowitz is\n\nsimply wrong on the facts: the GBG witnesses did not, in fact, corroborate his testimony in any\n\nrelevant way. As the Second Circuit explained, to prove a \u201csecret side deals\u201d scheme, it was of\n\ncourse \u201cessential that Cole hid[] the promised giveback\u201d; Horowitz was therefore \u201cindisputably\n\nthe government\u2019s key witness\u201d because only he could testify as to Cole\u2019s purported efforts to\n\n\u201cconceal the givebacks\u201d and \u201ccover up the fraud by destroying incriminating evidence.\u201d Cole, 158\n\nF.4th at 118-20. While Rabin and Margolis each testified that GBG agreed to pay an inflated price\n\nbecause Cole agreed to return excess payments, they denied \u201cthat Cole asked them to keep the\n\ngiveback portion of the deals secret or to omit it from the written contracts.\u201d Id. at 120. Nor could\n\nthey testify to the inner workings of Iconix\u2014but \u201cHorowitz\u2019s fingerprints were all over the SEA\n\ntransactions.\u201d Id. at 128. Simply, the GBG witnesses did not corroborate the \u201cessential\u201d aspect of\n\nHorowitz\u2019s testimony: Cole\u2019s purported intent and conduct in seeking to \u201chide the promised\n\ngiveback.\u201d Id. at 118. Horowitz elsewhere in fact appears to concede as much, admitting that\n\nbecause \u201cthe GBG Witnesses played no role in Iconix\u2019s financial reporting activities, there was no\n\nreason to expect them to have knowledge about\u201d Cole\u2019s efforts to conceal the scheme. MTD at 17\n\n\n 19\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 25 of 31\n\n\n\n\n(emphasis in original). \u201cNo role,\u201d indeed: that is precisely why liability lies with Horowitz, as he\n\nsupplied the key material (and false) information linking Cole to fraudulent reporting.\n\n Second, Horowitz\u2019s argument relies on a fundamentally flawed premise. Horowitz seems\n\nto invoke the principle that corroborating witnesses\u2019 testimony voids a malicious prosecution claim\n\nas a matter of law. MTD at 15. But as each of the four cases that Horowitz cites makes plain, see\n\nid., this principle is primarily concerned with corroborating information provided to uninvolved\n\nlaw enforcement officers that provide the officer with \u201cno reason . . . to doubt the victim\u2019s account\n\nof the incident.\u201d Ahearn v. Brachowicz, 2014 WL 3408389, at *7 (S.D.N.Y. July 10, 2014); Franks\n\nv. City of New Rochelle, 2025 WL 2711281, at *6 (S.D.N.Y. Sept. 23, 2025) (granting summary\n\njudgment to police-officer defendant because \u201cthere is no evidence that would call [the\n\ncorroborating witnesses\u2019] credibility into question\u201d (quotation omitted)); Williams v. City of New\n\nYork, 176 N.Y.S.3d 492 (1st Dep\u2019t 2022) (\u201ccorroborating video evidence\u201d gave officers probable\n\ncause); Flavin v. City of New York, 99 N.Y.S.3d 259 (1st Dep\u2019t 2019) (same for \u201ccorroborating\n\ndocumentary evidence\u201d). This is a totally distinct principle than the one at issue here. Horowitz\n\nis, of course, not a law enforcement officer, nor is there an allegation he relied on such third-party\n\nevidence in maliciously prosecuting Cole. Regardless, even if this corroboration concept applied\n\nin this case, it is primarily a summary-judgment principle, not one resolvable on the pleadings. 6\n\n Third, flowing from that principle, Horowitz\u2019s reliance on the GBG Witnesses\u2019 trial\n\ntestimony is a distraction from the actual inquiry of whether Horowitz had probable cause \u201cat the\n\ntime the prosecution was initiated.\u201d Ying Li, 246 F. Supp. 3d at 611. Margolis and Rabin\u2019s\n\ntestimony at trial in 2021 and 2022 is irrelevant to whether Horowitz had probable cause in 2019,\n\n\n\n6\n The sole motion to dismiss decision on which Horowitz relies, Ahearn, 2014 WL 3408389, at *7, is easily\ndistinguishable. There, the plaintiff himself \u201ccorroborated parts of the victim\u2019s story,\u201d which gave the police officer\narguable probable cause to arrest. Id.\n\n 20\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 26 of 31\n\n\n\n\nwhen the prosecution was commenced, absent some allegation that Horowitz relied on the GBG\n\nWitnesses\u2019 accounts. Indeed, Horowitz\u2019s argument asks the Court to ignore the Complaint\u2019s\n\nspecific allegation that the Government would have had no basis to investigate Cole at all had\n\nHorowitz not first falsely implicated him. See Compl. \u00b6 36. In other words, the GBG Witnesses\u2019\n\nstories never would have been told had Horowitz not initially lied and roped Cole into this at all.\n\n Fourth, Horowitz again claims that the Court can take \u201cjudicial notice\u201d of Rabin\u2019s and\n\nMargolis\u2019s testimony. This incorrect assertion can be dealt with quickly, and for similar reasons\n\nas explained above: a court may only take judicial notice of materials from prior proceedings \u201cto\n\nestablish the fact of such litigation and related filings\u201d but \u201cnot for the truth of the matters asserted\n\nin the other litigation.\u201d Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991); see also\n\nCabrera v. Schafer, 178 F. Supp. 3d 69, 73 (E.D.N.Y. 2016) (rejecting defendant\u2019s request for the\n\ncourt to take judicial notice of prior testimony). And, in any event, to the extent that Rabin and\n\nMargolis did implicate Cole in wrongdoing, the jury rejected their testimony in acquitting Cole.\n\n Finally, the GBG witnesses said nothing about Cole obstructing justice by destroying\n\ndocuments, a theory of criminality that was indisputably proposed by Horowitz and only Horowitz,\n\nwhich is another claim the jury rejected (and that was not part of the second trial).\n\n The Indictment. Horowitz falls back on the presumption of probable cause created by a\n\ngrand jury indictment. But, as Horowitz does and must acknowledge, this presumption is (like the\n\nothers) overcome by allegations that \u201cthe indictment was procured by fraud, perjury, suppression\n\nof evidence, or other bad-faith conduct.\u201d MTD at 17. Because the Complaint rebuts that\n\npresumption, see supra \u00a7 1.A, Horowitz instead turns to further obfuscation.\n\n First, Horowitz states that he \u201cdid not even testify before the grand jury,\u201d but the GBG\n\nwitnesses did. MTD at 17. That is yet another red herring. To start, immunity generally attaches\n\n\n\n 21\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 27 of 31\n\n\n\n\nto grand jury testimony, so Cole is none the worse that Horowitz did not testify because his claim\n\nnecessarily does not depend on what happened in the grand jury. See De Lourdes Torres v. Jones,\n\n26 N.Y.3d 742, 770 (2016). Regardless, although a defendant cannot be liable for grand jury\n\ntestimony alone, immunity does not attach to \u201cother conduct \u2018laying the groundwork for an\n\nindictment,\u2019\u201d Coggins, 988 F. Supp. 2d at 244 (citation omitted)\u2014as the Complaint alleges here.\n\n More to the point, there is simply no requirement that a witness testify before the grand\n\njury to be held liable for malicious prosecution. See id. Indeed, at this stage, Cole \u201c\u2018is not required\n\nto prove that the defendants lied before the grand jury or in their discussions with . . . prosecutors;\n\ninstead, he need only provide sufficiently specific factual allegations regarding the nature and\n\ncontent of their lies.\u2019\u201d Buari, 530 F. Supp. 3d at 388 (quoting Demosthene, 2019 WL 181305, at\n\n*5). And, here, the Complaint not only specifically alleges the \u201cnature and content\u201d of Horowitz\u2019s\n\nlies but also does, in fact, allege that Horowitz made those reports to law enforcement. Compl. \u00b6\u00b6\n\n31-36. Further, although Horowitz may not have testified before the grand jury, the Complaint\n\nmakes it clear that Horowitz\u2019s lies were presented to the grand jury and served as a key pillar of\n\nits indictment. Id. \u00b6\u00b6 37-40.\n\n Second, Horowitz faults the Complaint for failing to identify in FBI 302s the specific false\n\nstatements that Horowitz made. But Horowitz again attempts to invent a new pleading rule. The\n\nComplaint was required to neither \u201cplead evidence in detail\u201d nor identify the precise statements\n\nHorowitz made, so long as it provides \u201csufficiently specific factual allegations regarding the nature\n\nand content of their lies\u201d\u2014which it readily does. Demosthene, 2019 WL 181305, at *5 & n.3\n\n(citation modified); Ambrose, 623 F. Supp. 2d at 476. In any event, Horowitz is also wrong about\n\nhis description of the FBI 302s. For one, he is incorrect in suggesting that they were each \u201centered\n\ninto evidence during Cole\u2019s first trial.\u201d MTD at 17. Rather, they were almost exclusively used\u2014\n\n\n\n 22\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 28 of 31\n\n\n\n\noften unsuccessfully, because of Horowitz\u2019s intransigence\u2014to try to refresh Horowitz\u2019s\n\nrecollection. And that exposes a related flaw in Horowitz\u2019s argument: the FBI 302s are hearsay\n\nof FBI personnel, not Horowitz\u2019s own statements.\n\nIII. The Complaint Alleges Malice.\n\n Finally, Horowitz argues that the Complaint fails to sufficiently allege malice. But the\n\nargument again easily fails in light of a basic principle of law with which he does not grapple: an\n\nabsence of probable cause establishes motive on a malicious prosecution claim. On this, the law\n\nis as clear as it is long-standing. See, e.g., Ambrose, 623 F. Supp.2d at 477 (collecting federal and\n\nNY cases for proposition that the \u201csame allegations\u201d demonstrating a lack of probable cause\n\n\u201csuffice to state a claim of actual malice as well\u201d). Indeed, this principle not only applies at the\n\nmotion to dismiss stage, see id., and the summary judgment stage, see Boyd, 336 F.3d at 78, but\n\neven at trial, see Martin v. City of Albany, 42 N.Y.2d 13, 17 (1977). Thus, the Complaint\u2019s well-\n\npled allegations that Horowitz lacked probable cause that Cole committed a crime, see supra at \u00a7\n\nII.A, itself establishes an inference of alleged malice. The Court need not inquire further.\n\n In any event, the Complaint goes well beyond the malice-pleading requirement, alleging\n\nthat Horowitz commenced the proceeding due to a \u201cwrong or improper motive.\u201d Lowth v. Town\n\nof Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) (quotation marks and citation omitted). On this,\n\nthe Complaint is rife with specific, well-pled allegations, including the following:\n\n \u2022 Horowitz \u201cdeveloped a deep-seated and mostly irrational resentment and anger towards\n Cole, principally on the perceived slight that Cole had unfairly rebuffed Horowitz\u2019s efforts\n to lead Iconix.\u201d Compl. \u00b6 16.\n\n \u2022 Horowitz stated at this time that \u201che \u2018gets a thrill of doing something knowingly wrong,\u2019\n and ask[ed] himself: \u2018I know it\u2019s right. Why don\u2019t I do it[?]\u201d Id. \u00b6 15.\n\n \u2022 Horowitz \u201cultimately concluded that Cole stood in his path to becoming CEO, [and] grew\n resentful and angry at Cole and vowed to \u2018fight back\u2019 against him.\u201d Id. \u00b6 17.\n\n\n\n 23\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 29 of 31\n\n\n\n\n \u2022 Horowitz \u201cbegan to write desperate grievance letters addressed to Cole,\u201d which \u201cprovided\n a window into Horowitz\u2019s deep-seated hatred for Cole an into Horowitz\u2019s overwhelming\n desire to take over Iconix at any cost,\u201d including one letter \u201cwhich Horowitz named\n \u2018[D]ear[N]eil,\u201d which \u201cmeticulously documented the ways in which Cole had purportedly\n \u2018disrespected\u2019 him,\u201d and \u201cindicate . . . that he only had two options as to how he could\n respond to the disrespect\u2014he could either \u2018ignore it\u2019 or \u2018fight back.\u2019\u201d Id. \u00b6\u00b6 18-21.\n\n \u2022 Horowitz \u201cdocumented his concerns that he would never move up the chain at Iconix,\n writing that he feared Cole had \u2018no plans of letting [him] actually drive and attack the\n business.\u2019\u201d Id. \u00b6 23.\n\n \u2022 \u201c[I]n 2014, Cole told Horowitz that he was not ready to \u2018give up\u2019 the title of President of\n Iconix, which was one of the positions that Horowitz strongly desired.\u201d Id. \u00b6 24.\n\n \u2022 \u201cLater, in 2015, Horowitz became \u2018very upset\u2019 with Cole, and others at the company\n observed that there was \u2018very much . . . a rift developing\u2019 between the two.\u201d Id. \u00b6 25.\n\n \u2022 \u201cHorowitz ultimately became nervous that he would be held accountable for certain terms\n that he negotiated on SEA-2 and SEA-3 and he decided to throw his perceived nemesis,\n Cole, under the bus.\u201d Id. \u00b6 29.\n\n \u2022 Horowitz crafted his story implicating Cole \u201c[t]o protect himself and to harm Cole.\u201d Id.\n\n Of course, having such a mountain of direct motive evidence at the pleadings stage (or\n\never) is highly unusual in a malicious prosecution case. See Davis v. City of New York, 373 F.\n\nSupp. 2d 322, 334 (S.D.N.Y. 2005) (\u201cMalice, however, \u2018is seldom shown by direct evidence of an\n\nulterior motive, but is usually inferred from the facts and circumstances of the investigation.\u2019\u201d\n\n(quoting Ramos v. City of New York, 285 A.D.2d 284 (1st Dep\u2019t 2001); de la Roca v. Schacht, 244\n\nA.D.3d 1570, 1572 (3d Dep\u2019t 2025) (malice \u201ccan be inferred by lack of probable cause or conduct\n\nthat was reckless or grossly negligent\u201d (quotation marks omitted)). Again, New York law does not\n\neven require actual malice evidence at trial. Nevertheless, Horowitz nitpicks around the edges of\n\nsome (but not all) of these allegations, but even those arguments have no merit.\n\n First, Horowitz questions the probative value of the \u201cDear Neil\u201d grievance letter, arguing\n\nthat because it was (supposedly) written in June 2012, it was too temporally removed from when\n\nhe maliciously prosecuted Cole. He also disputes the Complaint\u2019s factual assertion that the letter\n\n\n 24\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 30 of 31\n\n\n\n\nactually expresses a \u201cdeep-seated hatred\u201d for Cole. MTD at 20. Apart from these averred facts\n\nnot being properly before the Court, they are simply not facts at all. To be clear, Horowitz\u2019s\n\n(premature) factual account will be heavily disputed by Cole. For example, the fact that the letter\n\nwas written in June 2012\u2014years before outside observers noted the deep rift developing between\n\nHorowitz and Cole\u2014evinces how deep-seated Horowitz\u2019s resentment was. (Of course, the\n\nComplaint also cites more contemporaneous evidence of that malice.) Second, Horowitz\u2019s attempt\n\nto explain away the relevance of his note admitting to the thrill of doing something \u201cknowingly\n\nwrong\u201d is both confused and confusing. Horowitz first notes that the document was written\n\n\u201cmonths after Horowitz left Iconix,\u201d an observation whose import is left unstated. Horowitz then\n\nclaims that the document \u201cdid not call the truthfulness of [his] testimony into question.\u201d MTD at\n\n20. A fact finder may of course draw a different inference from a document in which a defendant\n\nadmits to enjoying doing \u201cknowingly wrong\u201d things. Horowitz then relies on Judge Ramos\u2019s\n\nexclusion of the document at trial. But a non-final ruling as to a document\u2019s evidentiary\n\nadmissibility in a separate securities fraud criminal trial does not govern the pleading requirements\n\nunder Rule 12(b)(6) in a civil trial. See Lewis v. Roosevelt Island Operating Corp., 246 F. Supp.\n\n3d 979, 991 n.7 (S.D.N.Y. 2017). Finally, Horowitz takes issue with the Complaint\u2019s allegation\n\nthat he made a series of cash withdrawals to purchase drugs, arguing that the allegation is irrelevant\n\nsolely because Cole\u2019s counsel did not present this evidence during his second criminal trial. But\n\nwhether Cole\u2019s counsel chose to present them in a criminal securities fraud case (although they\n\nwere introduced in the first trial) is of course a distinct question from whether his current counsel\n\nwould choose to present them in a malicious-prosecution trial.\n\n CONCLUSION\n\n For the foregoing reasons, Horowitz\u2019s motion to dismiss should be denied.\n\n\n\n 25\n\f Case 1:25-cv-09357-MKV Document 33 Filed 04/27/26 Page 31 of 31\n\n\n\n\nDated: April 27, 2026\n New York, New York\n\n\n\n\n By:\n Benjamin D. White\n\n BLOCH & WHITE LLP\n Benjamin D. White, Esq.\n Cristina Alvarez, Esq.\n Kyle W. Bigley, Esq.\n 90 Broad Street, Suite 703\n New York, NY 10004\n (212) 901-3825\n bwhite@blochwhite.com\n calvarez@blochwhite.com\n kbigley@blochwhite.com\n\n Attorneys for Plaintiff Neil Cole\n\n\n\n\n 26\n\f","ocr_status":2,"date_upload":"2026-05-03T05:45:32.483173-07:00","document_number":"33","attachment_number":null,"pacer_doc_id":"127039504983","is_available":true,"is_free_on_pacer":null,"is_sealed":false,"document_type":1,"description":"Memorandum of Law in Opposition to Motion","acms_document_guid":""}],"date_created":"2026-04-27T22:07:23.262363-07:00","date_modified":"2026-04-27T22:07:23.270500-07:00","date_filed":"2026-04-27","time_filed":"23:41:23","entry_number":33,"recap_sequence_number":"2026-04-27.001","pacer_sequence_number":106,"description":"","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/458881785/","id":458881785,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/71893430/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/473895114/","id":473895114,"tags":[],"absolute_url":"/docket/71893430/23/cole-v-iconix-international-inc/","date_created":"2026-03-27T18:07:14.773301-07:00","date_modified":"2026-03-30T02:26:49.199647-07:00","sha1":"f1531114cdb984d0e5984fc1ee00cff10fd0cbc1","page_count":2,"file_size":129183,"filepath_local":"recap/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.23.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.23.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:25-cv-09357-MKV Document 23 Filed 03/27/26 Page 1 of 2\n\n\n\n\n UNITED STATES DISTRICT COURT\n SOUTHERN DISTRICT OF NEW YORK\n\nNEIL COLE, INDEX NO. 1:25-cv-09357 (MKV)\n\n Plaintiff,\n\n -against-\n\nICONIX INTERNATIONAL INC. f/k/a/\nICONIX BRAND GROUP, INC., and SETH\nHOROWITZ,\n\n Defendants.\n\n\n\n NOTICE OF DEFENDANT ICONIX INTERNATIONAL INC.\u2019S\n MOTION TO DISMISS THE AMENDED COMPLAINT\n\n PLEASE TAKE NOTICE that upon the accompanying Memorandum of Law in support\n\nof this Motion, Defendant Iconix International Inc., by and through its undersigned counsel, will\n\nmove this Court, before The Honorable Mary Kay Vyskocil, United States District Judge, at the\n\nUnited States Courthouse for the Southern District of New York, located at 500 Pearl Street,\n\nNew York, NY 10007, on a date and time to be determined by the Court, for an order, pursuant\n\nto Fed. R. Civ. P. 12(b)(6), dismissing with prejudice Counts III through V, along with punitive\n\nand consequential damages, for failure to state a claim upon which relief can be granted.\n\f Case 1:25-cv-09357-MKV Document 23 Filed 03/27/26 Page 2 of 2\n\n\n\n\nDated: March 27, 2026 MORRISON & FOERSTER LLP\n New York, New York\n\n\n By: /s/ Jamie A. Levitt\n Jamie A. Levitt, Bar No. 2548477\n JLevitt@mofo.com\n Michael D. Birnbaum, Bar No. 3068129\n MBirnbaum@mofo.com\n 250 West 55th Street\n New York, NY 10019-9601\n Telephone: 212.468.8000\n Facsimile: 212.468.7900\n\n Attorneys for Defendant\n Iconix International Inc.\n\n\n\n\n 2\n\f","ocr_status":2,"date_upload":"2026-03-28T04:28:26.555224-07:00","document_number":"23","attachment_number":null,"pacer_doc_id":"127039321777","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Dismiss","acms_document_guid":""}],"date_created":"2026-03-27T18:07:14.740092-07:00","date_modified":"2026-03-27T18:07:14.747155-07:00","date_filed":"2026-03-27","time_filed":"19:19:33","entry_number":23,"recap_sequence_number":"2026-03-27.001","pacer_sequence_number":80,"description":"","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/458881784/","id":458881784,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/71893430/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/473895113/","id":473895113,"tags":[],"absolute_url":"/docket/71893430/24/cole-v-iconix-international-inc/","date_created":"2026-03-27T18:07:14.645230-07:00","date_modified":"2026-03-30T02:25:59.941968-07:00","sha1":"d3c14341f5be2ffe01f087ffc950f755f6f6c96e","page_count":30,"file_size":330812,"filepath_local":"recap/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.24.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.24.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 1 of 30\n\n\n\n\n UNITED STATES DISTRICT COURT\n SOUTHERN DISTRICT OF NEW YORK\n\n\nNEIL COLE, INDEX NO. 1:25-cv-09357 (MKV)\n\n Plaintiff,\n\n -against-\n\nICONIX INTERNATIONAL INC. f/k/a\nICONIX BRAND GROUP, INC., and SETH\nHOROWITZ,\n\n Defendants.\n\n\n DEFENDANT ICONIX INTERNATIONAL INC.\u2019S MEMORANDUM OF LAW IN\n SUPPORT OF MOTION TO DISMISS PLAINTIFF\u2019S AMENDED COMPLAINT\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 2 of 30\n\n\n\n\n TABLE OF CONTENTS\n\n Page\n\nPRELIMINARY STATEMENT .................................................................................................... 1\nBACKGROUND ............................................................................................................................ 3\nI. THE PARTIES ..................................................................................................................... 3\nII. COLE\u2019S PREVIOUS HISTORY OF MISCONDUCT........................................................ 4\nIII. COLE\u2019S CONTINUED FRAUDULENT CONDUCT AND CRIMINAL INDICTMENT 5\n A. The Overpayments-for-Givebacks Scheme ............................................................ 5\n B. Cole\u2019s Criminal Proceedings .................................................................................. 6\nIV. THE BY-LAWS AND AGREEMENTS RELEVANT TO INDEMNIFICATION ............ 7\n A. The By-Laws ........................................................................................................... 8\n B. Cole\u2019s Employment Agreement .............................................................................. 9\n C. The 2016 Separation Agreement .......................................................................... 10\n D. The Undertakings .................................................................................................. 10\n E. The Advancement Agreement .............................................................................. 11\nV. THIS ACTION AND COLE\u2019S CLAIMS .......................................................................... 12\nLEGAL STANDARD ................................................................................................................... 13\nARGUMENT ................................................................................................................................ 14\nI. COLE FAILS TO PLEAD FACTS SUPPORTING A CLAIM FOR BREACH OF THE\n ADVANCEMENT AGREEMENT. .................................................................................. 14\nII. COLE\u2019S BREACH OF THE IMPLIED COVENANT CLAIM FAILS BECAUSE IT IS\n DUPLICATIVE AND CANNOT CREATE AN OBLIGATION BEYOND THE\n AGREEMENTS. ................................................................................................................ 15\n A. Cole\u2019s Obstruction Theory Is Duplicative of the Breach of Contract Claim. ....... 16\n B. Cole\u2019s Claim for Return of Performance-Based Compensation Fails Because the\n Agreements Create No Such Duty. ....................................................................... 17\nIII. COLE\u2019S UNJUST ENRICHMENT CLAIM SHOULD BE DISMISSED BECAUSE IT IS\n PRECLUDED, CONTRADICTED BY THE SEPARATION AGREEMENT\n GOVERNING RECOUPMENT, AND TIME-BARRED. ................................................ 19\nIV. THE DAMAGES THEORIES AGAINST ICONIX FAIL AS A MATTER OF LAW. ... 22\n A. Punitive Damages Are Barred for Ordinary Breach of Contract Claims.............. 22\n B. Cole Is Not Entitled to Consequential Damages................................................... 23\nCONCLUSION ............................................................................................................................. 24\n\n\n\n\n i\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 3 of 30\n\n\n\n\n TABLE OF AUTHORITIES\n\n Page(s)\n\nCases\n\n900 Unlimited, Inc. v. MCI Telecom. Corp.,\n 626 N.Y.S.2d 188 (1st Dep\u2019t 1995) .........................................................................................21\n\nAshcroft v. Iqbal,\n 556 U.S. 662 (2009) .....................................................................................................13, 14, 23\n\nBDG Gotham Residential, LLC v. W. Waterproofing Co., Inc.,\n No. 19-CV-6386 (BCM), 2024 WL 5201596 (S.D.N.Y. Dec. 23, 2024)................................22\n\nBell Atl. Corp. v. Twombly,\n 550 U.S. 544 (2007) .................................................................................................................14\n\nBi-Econ. Mkt., Inc. v. Harleysville Ins. Co. of N.Y.,\n 10 N.Y.3d 187 (2008) ..............................................................................................................24\n\nClark-Fitzpatrick, Inc. v. Long Island R. Co.,\n 70 N.Y.2d 382 (1987) ........................................................................................................19, 20\n\nCohen v. Dunne,\n No. 15 Civ. 3155, 2017 WL 4516820 (S.D.N.Y. Sept. 27, 2017) ...........................................22\n\nCohen v. S.A.C. Trading Corp.,\n 711 F.3d 353 (2d Cir. 2013).....................................................................................................22\n\nCole v. Iconix Brand Grp., Inc.,\n No. 655837/2021 (N.Y. Sup. Ct. Oct. 25, 2021) .....................................................................12\n\nCole v. Iconix Brand Grp., Inc.,\n No. 655837/2021, slip op. (N.Y. Sup. Ct. Nov. 22, 2021) ......................................................12\n\nDiFolco v. MSNBC Cable LLC,\n 622 F.3d 104 (2d Cir. 2010).......................................................................................................8\n\nFreedom Holding, Inc. v. Haart,\n 172 N.Y.S.3d 873 (N.Y. Sup. Ct. 2022) ..................................................................................19\n\nGallo v. Inter-Con Sec. Sys. Inc.,\n No. 20 Civ. 4879 (KPF), 2021 WL 3913539 (S.D.N.Y. Sept. 1, 2021) ............................14, 15\n\nGreat Lakes Reinsurance (UK) SE v. Herzig,\n 764 F. Supp. 3d 164 (S.D.N.Y. 2025)......................................................................................24\n\n\n\n\n ii\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 4 of 30\n\n\n\n\nHenderson v. Golden Corral Franchising Sys., Inc.,\n 663 F. Supp. 3d 313 (S.D.N.Y. 2023)......................................................................................13\n\nIsland Ordnance Sys., LLC v. Amerimex, Inc.,\n 205 N.Y.S.3d 456 (2024) .........................................................................................................24\n\nIn Re Neil R. Cole,\n Exchange Act Release No. 34-47769, 79 SEC Docket 3433 (Apr. 30, 2003)...........................4\n\nJia Chen v. Antel Communications, LLC,\n No. 14 Civ. 10080 (SJF), 2015 WL 5793404 (E.D.N.Y. Sept. 30, 2015) ...............................15\n\nLiu Jo S.P.A. v. Jenner,\n 630 F. Supp. 3d 501 (S.D.N.Y. 2022)................................................................................16, 17\n\nMangiafico v. Blumenthal,\n 471 F.3d 391 (2d Cir. 2006).................................................................................................8, 11\n\nMarinaccio v. Town of Clarence,\n 20 N.Y.3d 506 (2013) ........................................................................................................22, 23\n\nMartin Hilti Fam. Tr. v. Knoedler Gallery, LLC,\n 137 F. Supp. 3d 430 (S.D.N.Y. 2015)......................................................................................22\n\nMarzullo v. Beekman Campanile, Inc.,\n No. 10 CIV.0364 PGG, 2011 WL 3251507 (S.D.N.Y. July 22, 2011) .....................................8\n\nMatusovsky v. Merrill Lynch,\n 186 F. Supp. 2d 397 (S.D.N.Y. 2002)................................................................................13, 20\n\nMBIA Ins. Co. v. GMAC Mortg. LLC,\n 914 N.Y.S.2d 604 (Sup. Ct. 2010) ...........................................................................................16\n\nMill Fin., LLC v. Gillett,\n 992 N.Y.S.2d 20 (App. Div. 2014) ..........................................................................................16\n\nMunno v. Town of Orangetown,\n 391 F. Supp. 2d 263 (S.D.N.Y. 2005)........................................................................................4\n\nOwoyemi v. Credit Corp Sols. Inc.,\n 596 F. Supp. 3d 514 (S.D.N.Y. 2022)......................................................................................25\n\nPiuggi v. Good for You Prods. LLC,\n 739 F. Supp. 3d 143 (S.D.N.Y. 2024)......................................................................................16\n\nQuintanilla v. WW Int\u2019l, Inc.,\n 541 F. Supp. 3d 331 (S.D.N.Y. 2021)................................................................................17, 18\n\n\n\n\n iii\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 5 of 30\n\n\n\n\nRocanova v. Equitable Life Assur. Soc. of U.S.,\n 83 N.Y.2d 603 (1994) ........................................................................................................22, 23\n\nSEC v. Cole et al.,\n No. 19-cv-11148 (S.D.N.Y.), ECF 1 .........................................................................................7\n\nSingh v. City of New York,\n 139 N.Y.S.3d 307 (2020), aff\u2019d, 40 N.Y.3d 138 (2023) ....................................................17, 18\n\nUnited States v. Cole,\n 158 F.4th 113 (2d Cir. 2025) .................................................................................................5, 6\n\nUnited States v. Cole,\n No. 19-cr-869 (S.D.N.Y.), ECF No. 316 ...........................................................................1, 6, 7\n\nUnited States v. Iconix Brand Group, Inc.,\n No. 1:07-cv-01852 (D.D.C. filed Oct. 15, 2007) .......................................................................4\n\nStatutes\n\nExchange Act Sections 10(b), 13(a), and 13(b) ...............................................................................4\n\nSecurities Exchange Act of 1934 .....................................................................................................7\n\nSecurities Act of 1933 ......................................................................................................................7\n\nOther Authorities\n\nN.Y. C.P.L.R. \u00a7 214(3) ..................................................................................................................22\n\n\n\n\n iv\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 6 of 30\n\n\n\n\n PRELIMINARY STATEMENT\n\n While serving as Chief Executive Officer of Iconix International Inc., Plaintiff Neil Cole\n\nwas responsible for an overpayments-for-givebacks scheme that inflated Iconix\u2019s reported\n\nrevenue and earnings per share and distorted its disclosures to auditors and the SEC. The\n\nscheme, which took place under Cole\u2019s leadership, triggered federal criminal prosecutions, a\n\nstill-pending SEC action against Cole, multiple shareholder derivative and securities class action\n\nlawsuits, and a restatement of Iconix\u2019s financials. The fallout cost Iconix tens of millions of\n\ndollars and significant disruptions to its business and reputation. Cole, on the other hand,\n\npersonally profited from the scheme through his sale of a million shares of Iconix for a gain of\n\napproximately $40 million.\n\n The first trial in the resulting criminal case against Cole ended with an acquittal on\n\nconspiracy charges and a hung jury on the substantive fraud counts. After retrial, a federal jury\n\nconvicted Cole of securities fraud and false SEC filing counts. As the presiding judge stated: \u201cI\n\nbelieve that you [Cole] knew that the two transactions involved had no economic substance. I\n\nbelieve that you entered into those transactions knowing that you would be paying back the\n\n$5 million and $6 million. I believe that you did that because of your desire to have the Company\n\nmeet its revenue market consensus . . . .\u201d United States v. Cole, No. 19-cr-869 (S.D.N.Y.), ECF\n\nNo. 316 at 34\u201335. Even so, throughout all the proceedings, Iconix\u2014acting in good faith and\n\npursuant to the By-Laws, governing agreements, and Cole\u2019s undertakings\u2014advanced tens of\n\nmillions of dollars in legal costs to Cole.\n\n Cole now seeks to continue harming Iconix by incurring additional legal expenses,\n\nseeking indemnification he is not entitled to, and failing to return advanced legal expenses to\n\nwhich he is not entitled. He relies on the Second Circuit\u2019s vacatur of his conviction on double-\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 7 of 30\n\n\n\n\njeopardy grounds. But that ruling was procedural. It did not dispute the jury\u2019s factual findings or\n\nconclude that the evidence against Cole was insufficient.\n\n Against that backdrop, Cole brings this Action, seeking even more from Iconix. In\n\naddition to asserting a malicious prosecution claim against his co-conspirator, Cole brings claims\n\nagainst Iconix for breach of contract, breach of the implied covenant of good faith and fair\n\ndealing, and unjust enrichment, and seeks actual, punitive, and consequential damages. His\n\nbreach of contract claim seeking more indemnification (Count II) will be subject to a\n\ndetermination that Cole acted in bad faith and is not entitled to indemnification or advancement\n\nunder the By-Laws or agreements.\n\n The remaining claims addressed here fail as a matter of law. First, Cole\u2019s breach of the\n\nAdvancement Agreement claim (Count III) fails because he does not plead facts showing that the\n\n$1.76 million he seeks was contractually due. He alleges nonpayment but not whether the\n\nclaimed fees fall within the Agreement\u2019s capped obligation.\n\n Second, Cole\u2019s implied covenant claim (Count IV) fails because it duplicates his contract\n\nclaims and seeks to impose duties the agreements do not create. Cole\u2019s allegation that Iconix\n\n\u201cobstructed\u201d his defense by failing to advance fees rests on the same alleged nonpayment\n\nunderlying his breach of contract claims and is thus duplicative. His allegation that Iconix had to\n\nreturn more than $7 million in performance-based compensation fares no better, as the governing\n\nagreement creates no such obligation and fully resolves claims relating to the recoupment.\n\n Third, Cole\u2019s unjust enrichment claim (Count V) fails because the recoupment was\n\ngoverned by a valid contract and was based on Iconix\u2019s financial restatements, not the outcome\n\nof Cole\u2019s criminal case. The claim is also time-barred because it is subject to a three-year statute\n\nof limitations and arises from conduct that occurred in 2016.\n\n\n\n\n 2\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 8 of 30\n\n\n\n\n Fourth, Cole\u2019s damages theories fail as to punitive and consequential damages. Punitive\n\ndamages are unavailable for an ordinary breach of contract claim, and Cole fails to plausibly\n\nallege consequential damages.\n\n This case is not about whether Iconix honored its agreements. It did, to the tune of tens of\n\nmillions of dollars to a CEO who masterminded a massive fraudulent scheme that led to a\n\nnightmarish cycle of investigations, litigation, and a financial restatement, all of which damaged\n\nthe reputation of the company. Rather, this case is about whether Cole may transform limited\n\ncontractual rights into open-ended entitlements based on a procedural appellate ruling. He may\n\nnot. And Cole\u2019s failure in his Amended Complaint to remedy the pleading deficiencies identified\n\nin Iconix\u2019s pre-motion letter confirms that permitting further amendment would be futile. Counts\n\nIII through V should therefore be dismissed with prejudice, as should Cole\u2019s claims for punitive\n\nand consequential damages.\n\n BACKGROUND\n\nI. THE PARTIES\n\n Iconix International Inc. is a brand management company that owns and licenses a\n\nportfolio of consumer brands across fashion, sports, and home goods. Iconix markets and\n\nlicenses its brand portfolio through more than 500 licensees, including retailers and\n\nmanufacturers worldwide.\n\n Plaintiff Neil Cole served as President, CEO, and Chairman of Iconix from 1993 through\n\n2015. During his turbulent tenure, his conduct and leadership prompted repeated government\n\ninvestigations, civil lawsuits, an accounting restatement, and criminal proceedings. Eventually,\n\nhe was forced out of his leadership roles after his misconduct relating to inflated revenue\n\nreporting and false SEC statements became public. Cole was also indicted and tried for criminal\n\nmisconduct. Iconix paid for all of this.\n\n\n\n 3\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 9 of 30\n\n\n\n\nII. COLE\u2019S PREVIOUS HISTORY OF MISCONDUCT\n\n Cole\u2019s misconduct at Iconix was not limited to the events that ultimately led to his\n\ndeparture. For example, between 1997 and 1999, Cole oversaw accounting fraud at Iconix\n\ndesigned to improve the Company\u2019s publicly reported financial condition. See In Re Neil R.\n\nCole, Exchange Act Release No. 34-47769, 79 SEC Docket 3433 (Apr. 30, 2003), available at\n\nhttps://www.sec.gov/enforcement-litigation/administrative-proceedings/34-47769. 1 The SEC\n\ndetermined that he, among other things, signed SEC filings that improperly recorded revenue and\n\nincome and authorized a materially misleading earnings press release after auditors raised\n\nconcerns. Id. Accordingly, the SEC found that Cole caused violations of Sections 10(b), 13(a),\n\nand 13(b) of the Exchange Act and related rules. Id. Cole consented and paid a civil penalty. Id.\n\n Then in 2007, the Federal Trade Commission (\u201cFTC\u201d) and Antitrust Division of the\n\nDepartment of Justice brought a lawsuit against Iconix in the U.S. District Court for the District\n\nof Columbia arising out of Cole\u2019s submission of a false statement to the FTC. See Complaint,\n\nUnited States v. Iconix Brand Group, Inc., No. 1:07-cv-01852 (D.D.C. filed Oct. 15, 2007),\n\navailable at https://www.justice.gov/atr/case-document/file/499196/dl. The complaint alleged\n\nthat when Iconix acquired licensing rights related to a clothing brand, Cole personally signed a\n\nNotification and Report Form filed with the FTC and Antitrust Division attesting to its accuracy\n\nand completeness. Id. Shortly thereafter, the Antitrust Division discovered the inaccuracy of\n\nCole\u2019s sworn statement, which led to Iconix paying a significant civil penalty.\n\n\n\n\n1\n \u201cThe court may [ ] consider matters of which judicial notice may be taken,\u201d including public\nrecords, \u201ceven if the corresponding documents are not attached to or incorporated by reference in\nthe complaint.\u201d Munno v. Town of Orangetown, 391 F. Supp. 2d 263, 268 (S.D.N.Y. 2005). This\nCourt may therefore consider the public documents cited in this Background Section.\n\n\n\n 4\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 10 of 30\n\n\n\n\nIII. COLE\u2019S CONTINUED FRAUDULENT CONDUCT AND CRIMINAL\n INDICTMENT\n\n The sanctions imposed by federal regulators did not deter Cole from continuing to skirt\n\nthe law and act in bad faith. From 2014 to 2015, Cole abused his position as President and CEO\n\nof Iconix to actively mislead the Company\u2019s auditors and misrepresent the Company\u2019s financial\n\ncondition. And he cost the Company dearly.\n\n A. The Overpayments-for-Givebacks Scheme\n\n Starting in 2014, a preponderance of the voluminous evidence shows that Cole engaged\n\nin a scheme to falsely inflate Iconix\u2019s reported revenues and earnings per share through\n\nfraudulent overpayments-for-givebacks deals negotiated with a Hong Kong-based joint venture\n\n(\u201cJV\u201d) partner, Global Brands Group Asia Limited (\u201cGBG\u201d), involving the Southeast Asia\n\nregion. See United States v. Cole, 158 F.4th 113, 117\u201318 (2d Cir. 2025). The scheme involved\n\ntwo deals: a June 2014 joint venture (\u201cSEA-2\u201d) and a September 2014 joint venture (\u201cSEA-3\u201d).\n\nId. Cole executed the scheme so that Iconix could hit quarterly revenue and earnings numbers\n\nand fraudulently convey the impression to the investing public that Iconix was growing quarter\n\nafter quarter, as Cole had touted to the market. Id. at 118.\n\n \u201cIn negotiations for both the SEA-2 and SEA-3 deals, the price that GBG was offering\n\nand eventually agreed to pay rose substantially shortly before the close of negotiations\u2014by\n\n$5 million for SEA-2 (a 54 percent increase) and by $6 million for SEA-3 (a 39 percent\n\nincrease). The government\u2019s theory was that the deal price increased not because GBG had\n\nreassessed the value of the licenses it was acquiring, but because Cole had promised to return\n\nportions of the payments to GBG at a later date.\u201d Id. Thus, Cole induced GBG to agree to pay an\n\ninflated buy-in price for its interest in the JV\u2014the overpay. Id. And GBG did so because Cole\n\nmade a commitment to return the excess amount of the payments to GBG at a later date\u2014the\n\n\n\n\n 5\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 11 of 30\n\n\n\n\ngiveback. Id. at 116. Cole then hid the inflated purchase from Iconix\u2019s auditors and SEC filings.\n\nId. at 118\u201319. \u201cAnd when it came time to return the overage to GBG, Cole allegedly disguised\n\nthe payments as legitimate business expenses by persuading his coconspirators at GBG to\n\ngenerate sham invoices for \u2018marketing\u2019 costs.\u201d Id. at 119. This fraudulent revenue inflation\n\n\u201chelped Iconix meet its quarterly revenue goals for Q2 and Q3 2014.\u201d Id. at 125.\n\n In 2016, following \u201ca comment letter process with the Staff of the U.S. Securities and\n\nExchange Commission relating to an ongoing review of the Company\u2019s Form 10-K for the year\n\nended December 31, 2014,\u201d Iconix\u2019s Board, Audit Committee, and management concluded that a\n\nrestatement was necessary to correct Cole\u2019s reporting errors. See Declaration of Jamie A. Levitt,\n\ndated Mar. 27, 2026 (\u201cLevitt Decl.\u201d) \u00b6 3 (attaching Iconix Brand Grp. Inc., Annual Report (Form\n\n10-K) (Mar. 30, 2016), Ex. 1, at 119). These adjustments affected previously reported financial\n\nresults and required the company to revise both its income statement presentation and underlying\n\naccounting treatment. Id.\n\n B. Cole\u2019s Criminal Proceedings\n\n In December 2019, the U.S. Attorney\u2019s Office for the Southern District of New York\n\nindicted Cole in United States v. Cole, No. 19-cr-869 (S.D.N.Y.), charging conspiracy and\n\nmultiple substantive counts, including securities fraud, false SEC filings, and audit interference.\n\nCole, 158 F.4th at 119\u201320. The first trial began on October 5, 2021 and resulted in an acquittal\n\non the conspiracy charge and a hung jury on the substantive counts. Id. at 119, 121. Cole was\n\nretried in 2022, and a unanimous jury convicted him on each substantive count. Id. at 122\u201323.\n\nThe district court sentenced Cole to 18 months\u2019 imprisonment and three years of supervised\n\nrelease and applied an obstruction-of-justice enhancement based on perjury. Id. at 123.\n\n In so doing, Judge Ramos opined, \u201cI sat through both trials. I saw Mr. Horowitz and Mr.\n\nCole testify both times, and I have to say I believed Mr. Horowitz. I believed the version of facts\n\n\n\n 6\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 12 of 30\n\n\n\n\nthat he told. I think it was consistent with the documents that were put into evidence, the\n\ntestimony of Mr. Margolis and Mr. Rabin, notwithstanding their disclaiming any liability or any\n\nwrongdoing. Specifically, I did not credit Mr. Cole\u2019s testimony that he had very little role in\n\nnegotiating these joint ventures; that, you know, to the extent that anything untoward happened,\n\nit was all Mr. Horowitz[\u2019s] doing.\u201d United States v. Cole, No. 19-cr-869 (S.D.N.Y.), ECF No.\n\n316 at 8\u20139. Judge Ramos continued, \u201cI believe that you [Cole] knew that the two transactions\n\ninvolved had no economic substance. I believe that you entered into those transactions knowing\n\nthat you would be paying back the $5 million and $6 million. I believe that you did that because\n\nof your desire to have the Company meet its revenue market consensus\u2014consensus revenue\n\ntargets, as it had for so many quarters before, and you did it for that reason.\u201d Id. at 34\u201335\n\n(emphasis added).\n\n Cole appealed his conviction on double jeopardy grounds, and the Second Circuit\n\nreversed the judgment of the district court, finding that Cole\u2019s acquittal for conspiracy during the\n\nfirst trial precluded retrial on the substantive counts. Am. Compl. \u00b6 53. Notably, the court was\n\nsilent as to the sufficiency of the evidence underlying Cole\u2019s conviction.\n\n Cole remains subject to an SEC action initiated in December 2019 (the \u201cSEC Action\u201d).\n\nSEC v. Cole, et al., No. 19-cv-11148 (S.D.N.Y.), ECF 1. During the pendency of the criminal\n\ncase against Cole, the SEC Action against him\u2014which alleges violations of the Securities\n\nExchange Act of 1934 and the Securities Act of 1933 for the scheme\u2014was stayed, and remains\n\nso today. See id., ECF No. 71.\n\nIV. THE BY-LAWS AND AGREEMENTS RELEVANT TO INDEMNIFICATION\n\n Iconix\u2019s By-Laws make clear that an officer or director, like Cole, is not entitled to\n\nindemnification where a judgment or final adjudication establishes that he acted in bad faith or\n\nwith active and deliberate dishonesty. Cole signed multiple undertakings affirming that he would\n\n\n\n 7\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 13 of 30\n\n\n\n\nreturn any fees or expenses advanced if it was subsequently determined that he was not entitled\n\nto indemnification under the By-Laws. The agreements relating to indemnification here all\n\nincorporate the Company\u2019s By-Laws.\n\n A. The By-Laws\n\n Article VII, Section 2(a) of Iconix\u2019s By-Laws provides, in pertinent part, that the\n\ncorporation will indemnify each officer and/or director thereof involved in:\n\n any action, suit, claim or proceeding, . . . investigation, . . . or any other actual,\n threatened, pending or completed proceeding, whether civil or criminal, . . . by\n reason of the fact that such officer and/or director . . . (i) is or was a director or\n officer of the corporation, or (ii) while serving as a director or officer of the\n corporation, is or was serving, at the request of the corporation, as a director,\n officer, or in any other capacity, of any other Enterprise, against any and all\n judgments, fines, penalties, amounts paid in settlement, and expenses, including\n attorneys\u2019 fees, actually and reasonably incurred as a result of or in connection with\n any Proceeding, except as provided in Section 2(c) of this Article VII.\n\nLevitt Decl. \u00b6 4 (attaching By-Laws, Ex. 2); see also Am. Compl. \u00b6\u00b6 59, 73, 114\u201316 & at\n\n19 (referencing By-Laws). 2\n\nAnd Article VII, Section 2(c) of the By-Laws provides, in pertinent part:\n\n No indemnification shall be made to or on behalf of any Indemnities if a judgment\n or other final adjudication adverse to him or her establishes that such Indemnities\n acts were committed in bad faith or were the result of active and deliberate\n\n2\n This Court, \u201c[i]n considering a motion to dismiss for failure to state a claim pursuant to\nRule 12(b)(6) . . . may consider the facts alleged in the complaint, documents attached to the\ncomplaint as exhibits, and documents incorporated by reference in the complaint.\u201d DiFolco v.\nMSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010) (citation omitted); see also Marzullo v.\nBeekman Campanile, Inc., No. 10 Civ.0364 PGG, 2011 WL 3251507, at *1 n.3 (S.D.N.Y.\nJuly 22, 2011) (citing DiFolco). Additionally, \u201c[w]here a document is not incorporated by\nreference, the court may never[the]less consider it where the complaint \u2018relies heavily upon its\nterms and effect,\u2019 thereby rendering the document integral to the complaint.\u201d Mangiafico v.\nBlumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (citing Chambers v. Time Warner, Inc., 282 F.3d\n147, 152\u201353 (2d Cir. 2022)). Here, Cole\u2019s Amended Complaint incorporates by reference, and\nrelies heavily on, the By-Laws (see, e.g., Am. Compl. \u00b6\u00b6 59, 73, 114\u201316 & at 19), Separation\nAgreement (see, e.g., id., \u00b6\u00b6 111\u201315, 128\u201329 & at p. 19), Employment Agreement (see, e.g., id.\n& \u00b6 59), and Advancement Agreement (see, e.g., id., \u00b6\u00b6 78\u201380, 101, 119\u201325) by either citing or\nquoting these documents to support his position. This Court may therefore consider these\ndocuments when evaluating the motion to dismiss.\n\n\n\n 8\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 14 of 30\n\n\n\n\n dishonesty and were material to the cause of action so adjudicated, or that such\n Indemnitee personally gained in fact a financial profit or other advantage to which\n he or she was not legally entitled.\n\nId.\n\n Further, Article VII, Section 2(b) of the By-Laws provides that \u201c[e]xpenses, including\n\nattorneys\u2019 fees\u201d shall only be paid by the Company \u201cupon receipt of an undertaking by or on behalf\n\nof such person to repay such amount if it shall ultimately be determined that such person is not\n\nentitled to be indemnified by the corporation.\u201d Id.; see also supra note 2.\n\n B. Cole\u2019s Employment Agreement\n\n In 2008, Iconix and Cole entered into a written employment agreement, which was\n\namended that same year (as amended, the \u201cEmployment Agreement\u201d). 3 Under Section 1.2.1 of\n\nthe Employment Agreement, Cole was obligated to \u201cfaithfully and diligently discharge his\n\nduties\u201d and to \u201cdevote all of his business time, attention, knowledge and skills faithfully,\n\ndiligently and to the best of his ability, in furtherance of the business and activities of\u201d Iconix.\n\nSee Levitt Decl. \u00b6 5, Ex. 3A; supra note 2.\n\n And under Section 8, the parties agreed that \u201cthe Company shall indemnify and hold\n\nharmless the Executive and his heirs and representatives as, and to the extent, provided in the\n\nCompany\u2019s by-laws.\u201d Id. (emphasis added).\n\n The Employment Agreement contains a New York choice-of-law provision, see Levitt\n\nDecl. \u00b6 5, Ex. 3A, \u00a7 9.6, the governing Separation Agreement incorporates and continues that\n\nprovision, see Levitt Decl. \u00b6 7 (attaching Separation Agreement, Ex. 4, \u00b6 15), and the\n\nAdvancement Agreement and By-Laws arise from and are part of that same contractual\n\n\n\n3\n See Levitt Decl. \u00b6\u00b6 5, 6 (attaching Employment Agreement, Ex. 3A, and Amendment, Ex. 3B);\nsupra note 2 (this Court may consider the Employment Agreement because it is incorporated by\nreference into the Amended Complaint).\n\n\n\n 9\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 15 of 30\n\n\n\n\nframework, see Levitt Decl. \u00b6 8, (attaching Advancement Agreement, Ex. 5, \u00b6 1); id., Ex. 3A,\n\n\u00a7 8; id., Ex. 4, \u00b6 10.\n\n C. The 2016 Separation Agreement\n\n In 2016, Iconix and Cole entered into a separation agreement (the \u201cSeparation\n\nAgreement\u201d). 4 Under Section 10 of the Separation Agreement, Iconix agreed that it continued to\n\nbe bound by Section 8 of the Employment Agreement \u201cto the extent set forth in the Company\u2019s\n\nby-laws as in effect\u201d at the time of Cole\u2019s resignation from Iconix. See Levitt Decl. \u00b6 7, Ex. 4\n\n(emphasis added); supra note 2.\n\n Moreover, following the financial restatements triggered by the fraudulent reporting\n\nunder Cole\u2019s leadership and direction, the Separation Agreement set forth the terms for\n\nrecouping \u201ccertain performance-based cash bonus and equity awards previously paid or\n\ndelivered to Cole . . . pursuant to the terms and conditions of such cash and incentive equity\n\nawards, the Company\u2019s Recoupment Policy, and the Employment Agreement.\u201d Id. at 1. To that\n\nend, \u201c[i]n satisfaction of Cole\u2019s recoupment obligations with respect to the Prior Awards[,] . . . as\n\na result of the Restatements, Cole\u201d was required to \u201cdeliver to the Company cash in an amount\n\nequal to $2,175,000 and 575,127 shares of Common Stock.\u201d Id., \u00b6 2.\n\n Critically, the Company and Cole agreed \u201cto settle and resolve, fully and finally, all\n\nclaims related to the Resignation and the recoupment of Cole\u2019s performance-based cash bonus\n\nand equity awards as a result of the Restatements.\u201d Id. at 1.\n\n D. The Undertakings\n\n Iconix advanced the many millions of dollars of attorneys\u2019 fees and other related\n\nexpenses to Cole pursuant to undertakings Cole signed (as required by Article VII, Section 2(b)\n\n\n4\n See Levitt Decl. \u00b6 7, Ex. 4; supra note 2 (this Court may consider the Separation Agreement\nbecause it is incorporated by reference into the Amended Complaint).\n\n\n\n 10\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 16 of 30\n\n\n\n\nof Iconix\u2019s By-Laws), stating he would repay the Company if it was later determined that he was\n\nnot entitled to indemnification under the By-Laws. For example, in a written undertaking (\u201cFirst\n\nUndertaking\u201d), Cole agreed to repay the fees and expenses advanced by Iconix on his behalf if it\n\nwas ultimately determined that he was not entitled to indemnification under the By-Laws. See\n\nLevitt Decl. \u00b6 9 (attaching First Undertaking, Ex. 6). 5\n\n In another written undertaking dated January 2020 (\u201cSecond Undertaking,\u201d and\n\ncollectively with the First Undertaking, the \u201cUndertakings\u201d), Cole again agreed to repay the fees\n\nand expenses advanced by Iconix on his behalf if it was ultimately determined that he was not\n\nentitled to indemnification under the By-Laws. See Levitt Decl. \u00b6 10 (attaching Second\n\nUndertaking, Ex. 7).\n\n E. The Advancement Agreement\n\n Pursuant to the By-Laws, Undertakings, and Cole\u2019s Employment Agreement, Iconix\n\nadvanced Cole millions for his legal fees and related expenses due to SEC and DOJ\n\ninvestigations, multiple shareholder derivative and securities class action lawsuits, the criminal\n\ntrials, and a restatement of financials. See Am. Compl. \u00b6 96 (acknowledging advancement of \u201cthe\n\nmillions of dollars that Iconix had advanced for [Cole\u2019s] legal fees\u201d); see also id. at \u00b6 63.\n\n In 2021, Iconix challenged the reasonableness of Cole\u2019s legal fees, disputing whether\n\nthey were reasonably incurred and arguing that the proper approach before advancing funds is\n\n\n\n5\n This Court may consider the Undertakings because they are integral to the Advancement\nAgreement cited and quoted in the Amended Complaint, which expressly calls for undertakings.\nSee Levitt Decl. \u00b6 8, Ex. 5, \u00b6 4 (\u201cMr. Cole hereby acknowledges that the previous two\nUndertakings previously signed by him remain in full force and effect; further, Mr. Cole hereby\nacknowledges that the Undertaking dated January 22, 2020 signed by him remains in full force\nand effect and continues to apply with respect to all legal fees and expenses advanced and/or to\nbe advanced by Iconix in connection with the Criminal Action.\u201d). Thus, Cole\u2019s claimed right to\nadvancement cannot be understood without considering the Undertakings that are integral to the\nin-dispute agreement. See Mangiafico, 471 F.3d at 398.\n\n\n\n 11\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 17 of 30\n\n\n\n\nfor Cole to seek advancement of reasonably incurred fees and to provide Iconix with time to\n\nverify such reasonableness. See Am. Compl. \u00b6 69; Tr. of Proceedings at 5, Cole v. Iconix Brand\n\nGrp., Inc., No. 655837/2021 (N.Y. Sup. Ct. Oct. 25, 2021) (available at\n\nhttps://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=jOw5iU_PLUS_8Xk\n\n4_PLUS_WBgjd5g6MQ==&system=prod). The Supreme Court of New York disagreed as to\n\nwhen fees must be advanced and ordered Iconix to advance the fees contemporaneously with\n\nCole\u2019s proceedings; however, it did not make a finding as to Cole\u2019s good or bad faith conduct or\n\nwhether he is ultimately entitled to the fees advanced to him. See Cole v. Iconix Brand Grp., Inc.,\n\nNo. 655837/2021, slip op. at 1 (N.Y. Sup. Ct. Nov. 22, 2021).\n\n In June 2022, Cole and Iconix entered into an agreement resolving the issue of the\n\nadvancement of legal fees for the second criminal action (the \u201cAdvancement Agreement\u201d). See\n\nAm. Compl. \u00b6 77 (referencing Advancement Agreement); Levitt Decl. \u00b6 8, Ex. 5. 6 Section 1 of\n\nthe Advancement Agreement made clear that this agreement covered trial expenses alone and\n\ncapped Iconix\u2019s obligations for Cole\u2019s legal fees at $5 million. See id., \u00b6 1. Iconix complied with\n\nthe agreement, in good faith, because no court had yet reached any final determination as to\n\nwhether Cole acted in bad faith or with active and deliberate dishonesty.\n\n In Section 4 of the Advancement Agreement, Cole acknowledged that the Undertakings\n\nremained in full force and effect. Id., \u00b6 4. After Cole\u2019s conviction, Iconix sent a letter reminding\n\nCole of his obligation to preserve assets and notifying him of Iconix\u2019s intent to recover the\n\nadvanced fees. See Am. Compl. \u00b6 83. Cole did not reimburse Iconix and filed this Action instead.\n\nV. THIS ACTION AND COLE\u2019S CLAIMS\n\n On November 10, 2025, Cole commenced this Action seeking yet more payments for\n\n\n\n6\n See supra note 2.\n\n\n\n 12\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 18 of 30\n\n\n\n\nalleged legal expenses and other relief. See ECF No. 1. He amended his complaint on February\n\n25, 2026. See ECF No. 22.\n\n Cole asserts four causes of action against Iconix 7: Count II for breach of contract under\n\nthe Employment Agreement, Separation Agreement, and By-Laws; Count III for breach of the\n\nAdvancement Agreement; Count IV for breach of the implied covenant of good faith and fair\n\ndealing; and Count V for unjust enrichment. Id.\n\n LEGAL STANDARD\n\n Under Federal Rule of Civil Procedure 12(b)(6), a complaint must \u201ccontain sufficient\n\nfactual matter . . . to \u2018state a claim to relief that is plausible on its face.\u2019\u201d Henderson v. Golden\n\nCorral Franchising Sys., Inc., 663 F. Supp. 3d 313, 323 (S.D.N.Y. 2023) (quoting Ashcroft v.\n\nIqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))).\n\nWhile courts take all material factual allegations as true, they are \u201c\u2018not bound to accept as true a\n\nlegal conclusion couched as a factual allegation,\u2019 or to credit \u2018mere conclusory statements\u2019 or\n\n\u2018[t]hreadbare recitals of the elements of a cause of action.\u2019\u201d Henderson, 663 F. Supp. at 323\u201324\n\n(quoting Iqbal, 556 U.S. at 663\u201364).\n\n \u201cIn adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to\n\nfacts stated on the face of the complaint, in documents appended to the complaint or incorporated\n\nin the complaint by reference, and to matters of which judicial notice may be taken.\u201d Id. at 324\n\n(quoting Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal\n\nquotation marks and citation omitted)). \u201cIf a plaintiff\u2019s allegations are contradicted by such [ ]\n\ndocument[s], those allegations are insufficient to defeat a motion to dismiss.\u201d Matusovsky v.\n\n\n\n\n7\n Count I for malicious prosecution is against Seth Horowitz (Iconix\u2019s former Chief Operating\nOfficer).\n\n\n\n 13\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 19 of 30\n\n\n\n\nMerrill Lynch, 186 F. Supp. 2d 397, 400 (S.D.N.Y. 2002) (citation omitted).\n\n ARGUMENT\n\nI. COLE FAILS TO PLEAD FACTS SUPPORTING A CLAIM FOR BREACH OF\n THE ADVANCEMENT AGREEMENT.\n\n In Count III of his Amended Complaint, Cole alleges that Iconix \u201cfailed to make\n\npayments\u201d under the Advancement Agreement. Am. Compl. \u00b6 123. That wholly conclusory\n\nallegation is insufficient to state a claim under Twombly and Iqbal. Cole failed to allege facts\n\nthat, even taken as true, would demonstrate he is owed the amount he claims is due under the\n\nAdvancement Agreement. This claim should therefore be dismissed.\n\n The Advancement Agreement expressly capped trial-related fees at $5 million. Levitt\n\nDecl. \u00b6 8, Ex. 5, \u00b6 1. Yet despite two bites at the apple, the Amended Complaint does not plead\n\nfacts establishing that the $1.76 million Cole seeks falls within the bounds of that capped\n\nobligation. Critically, although all of these facts would be within his knowledge, Cole fails even\n\nto allege whether the claimed $1.76 million falls within the remaining balance of that cap. He\n\nalso does not plead whether the amount relates to trial fees (the only fees subject to the\n\nAgreement) or appellate fees (which the Agreement did not include). Absent those factual\n\nallegations, the Court cannot determine whether the claimed sum was contractually due, and\n\nCole has not sufficiently pled his breach of contract claim.\n\n The pleading deficiencies here are similar to those that warranted dismissal in Gallo v.\n\nInter-Con Sec. Sys. Inc., No. 20 Civ. 4879 (KPF), 2021 WL 3913539, at *10 (S.D.N.Y. Sept. 1,\n\n2021), where the plaintiff alleged that the defendant failed to reimburse him $1,250 in medical\n\nexpenses under a settlement agreement. The Court dismissed the claim because the plaintiff\n\nfailed to plead facts showing contractual entitlement. Id. In particular, plaintiff did \u201cnot\n\nallege . . . when he completed this test, what the cost of the stress test was, or if and when the\n\n\n\n\n 14\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 20 of 30\n\n\n\n\nresults were conveyed to Defendant.\u201d Id. Without such factual detail, the allegations were\n\n\u201cinsufficient to sustain a breach of contract claim.\u201d Id. As in Gallo, the absence of basic\n\nallegations supporting Cole\u2019s claims prevents the Court from determining whether the claimed\n\namount was contractually due.\n\n Similarly instructive is Jia Chen v. Antel Commc\u2019n, LLC, No. 14-CV-10080 (SJF), 2015\n\nWL 5793404 (E.D.N.Y. Sept. 30, 2015). There, the court dismissed portions of a breach of\n\ncontract claim where the plaintiff sought reimbursement for severance, bonuses, and moving\n\nexpenses that the governing agreement did not provide for. Id. at *4. The court permitted certain\n\nreimbursement claims to proceed, but only where the allegations were sufficient to claim the\n\ncontract plausibly covered those expenses. See Id. at *5.\n\n Taken together, Gallo and Jia Chen underscore that a plaintiff must allege facts showing\n\nthat the damages sought are of a type the contract covers. Because Cole has not done that here,\n\nCount III should be dismissed.\n\nII. COLE\u2019S BREACH OF THE IMPLIED COVENANT CLAIM FAILS BECAUSE\n IT IS DUPLICATIVE AND CANNOT CREATE AN OBLIGATION BEYOND\n THE AGREEMENTS.\n\n Cole\u2019s claim for breach of the implied covenant of good faith and fair dealing in Count\n\nIV should be dismissed in its entirety. The claim advances two theories: (1) that Iconix\n\n\u201cobstructed\u201d Cole\u2019s ability to defend himself by failing to advance legal fees, and (2) that Iconix\n\nwas obligated to return previously recouped incentive-based compensation. See Am. Compl.\n\n\u00b6\u00b6 128\u201329. The first theory is duplicative of Cole\u2019s breach of contract claims and should be\n\ndismissed on that basis. The second theory fails independently because the implied covenant\n\ncannot create a repayment obligation that does not appear in the governing agreements and could\n\nnot reasonably be inferred from them.\n\n\n\n\n 15\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 21 of 30\n\n\n\n\n A. Cole\u2019s Obstruction Theory Is Duplicative of the Breach of Contract Claim.\n\n Cole\u2019s \u201cbreach of the implied covenant of good faith and fair dealing claim [ ] is\n\nduplicative of [the] breach of contract claim [and] must be dismissed.\u201d MBIA Ins. Co. v. GMAC\n\nMortg. LLC, 914 N.Y.S.2d 604, 611 (N.Y. Sup. Ct. 2010) (citing N.Y. Univ. v. Cont\u2019l Ins. Co.,\n\n87 N.Y.2d 308, 319\u201320 (1995)). \u201cNew York law does not recognize a separate cause of action\n\nfor breach of the implied covenant of good faith and fair dealing when a breach of contract\n\nclaim, based upon the same facts, is also pled.\u201d Piuggi v. Good for You Prods. LLC, 739 F. Supp.\n\n3d 143, 169 (S.D.N.Y. 2024) (quoting Harris v. Provident Life & Acc. Ins. Co., 310 F.3d 73, 81\n\n(2d Cir. 2002)). To be duplicative, the conduct alleged need not be identical so long as the claims\n\narise from the same operative facts. See Mill Fin., LLC v. Gillett, 992 N.Y.S.2d 20, 25 (N.Y.\n\nApp. Div. 2014).\n\n Here, Cole\u2019s breach of the implied covenant claim is based on the same facts and\n\ncircumstances as his breach of contract claims. The breach of contract claims allege that Iconix\n\nfailed to \u201cadvance Cole his legal fees and expenses\u201d and harmed Cole \u201cat his most vulnerable\u201d\n\nand seek actual, consequential, and punitive damages. See Am. Compl. \u00b6\u00b6 116\u201318. The breach of\n\nthe implied covenant claim alleges that Iconix \u201cobstructed\u201d Cole\u2019s ability to defend himself by\n\nfailing to make those same payments and seeks consequential damages arising from that alleged\n\nobstruction. Id. \u00b6\u00b6 128\u201333. That theory rests on the same operative conduct: failure to advance\n\nlegal fees under the governing agreements. Furthermore, even if Cole offered different\n\nallegations to support this breach of implied covenant claim (which he did not), his pursuit of the\n\nsame relief for both claims independently warrants dismissal because \u201cclaims for breach of the\n\nimplied covenant of good faith which seek to recover damages that are intrinsically tied to the\n\ndamages allegedly resulting from the breach of contract must be dismissed as redundant.\u201d Liu Jo\n\nS.P.A. v. Jenner, 630 F. Supp. 3d 501, 520 (S.D.N.Y. 2022) (citations omitted). This portion of\n\n\n\n 16\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 22 of 30\n\n\n\n\nthe implied covenant claim is therefore duplicative and should be dismissed.\n\n B. Cole\u2019s Claim for Return of Performance-Based Compensation Fails Because\n the Agreements Create No Such Duty.\n\n The Amended Complaint alleges that the Employment Agreement and Separation\n\nAgreement contained \u201can implied understanding that Iconix would return incentive-based\n\ncompensation it elected to recoup.\u201d Am. Compl. \u00b6 129. But as the resort to pleading an implied\n\ncovenant reveals, these agreements contain no such provision. The allegation is instead made of\n\nwhole cloth, not reasonably inferred, and thus fails as a matter of law.\n\n First, it is axiomatic that an implied covenant cannot create a duty that does not exist in\n\nthe contract. To state a claim for breach of the implied covenant of good faith and fair dealing, a\n\nplaintiff must allege the \u201cexistence of a duty, breach of that duty, causation, and damages.\u201d Liu\n\nJo S.P.A., 630 F. Supp. 3d at 514 (internal quotation marks omitted). The alleged duty Cole\n\nposits here is the supposed obligation to return previously recouped incentive compensation. See\n\nAm. Compl. \u00b6\u00b6 129\u201331. But New York law is clear that the implied covenant does not create\n\nindependent contractual rights or impose obligations that cannot fairly be inferred from the\n\nexpress terms of the agreement. Quintanilla v. WW Int\u2019l, Inc., 541 F. Supp. 3d 331, 351\n\n(S.D.N.Y. 2021) (explaining the \u201cimplied covenant does not include any term inconsistent with\n\nthe terms of the contractual relationship, or create duties which are not fairly inferable from the\n\nexpress terms of that contract[,]\u201d and cannot \u201cbe construed so broadly as effectively to nullify\n\nother express terms of a contract, or to create independent contractual rights\u201d (cleaned up)).\n\nRather, it encompasses only \u201cpromises which a reasonable person in the position of the promisee\n\nwould be justified in understanding were included.\u201d Singh v. City of New York, 139 N.Y.S.3d\n\n307, 311 (2020), aff\u2019d, 40 N.Y.3d 138 (2023) (quotations omitted).\n\n Here, the Employment Agreement makes no mention of return of compensation once\n\n\n\n\n 17\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 23 of 30\n\n\n\n\nrecouped, see Levitt Decl. \u00b6 5, Ex. 3A; \u00b6 6, Ex. 3B, and the Separation Agreement expressly\n\nprovides for Iconix\u2019s recoupment of funds, not Cole\u2019s, see Levitt Decl. \u00b6 7, Ex. 4. Further, the\n\nSeparation Agreement reflects the parties\u2019 agreement \u201cto settle and resolve, fully and finally, all\n\nclaims related to the Resignation and the recoupment of Cole\u2019s performance-based cash bonus\n\nand equity awards as a result of the Restatements,\u201d foreclosing any further recovery. Levitt Decl.\n\n\u00b6 7, Ex. 4, at 1. Moreover, Cole pleads no facts showing that a right to recover previously\n\nreturned compensation can be inferred from the text of the agreements or from the parties\u2019\n\nexpectations at the time it was executed. See Am. Compl. \u00b6\u00b6 126\u201333. Absent such allegations,\n\nthe implied covenant cannot be used to rewrite the contract. Quintanilla, 541 F. Supp. 3d at 351;\n\nSingh, 139 N.Y.S.3d at 311.\n\n Second, and critically, the Separation Agreement forecloses this claim by expressly\n\nresolving the recoupment and leaving no contractual basis for the repayment Cole seeks. In\n\nDecember 2016, Cole signed a Separation Agreement pursuant to which he agreed to return\n\n\u201ccertain performance-based cash bonus and equity awards previously paid\u201d after the Company\n\nrestated its financial statements. See Am. Compl. \u00b6\u00b6 88\u201389; Levitt Decl. \u00b6 7, Ex. 4, \u00b6 2 (\u201c[i]n\n\nsatisfaction of Cole\u2019s recoupment obligations with respect to the Prior Awards[,] . . . as a result\n\nof the Restatements, Cole\u201d was required to \u201cdeliver to the Company cash in an amount equal to\n\n$2,175,000 and 575,127 shares of Common Stock\u201d). The recoupment was tied to the restatement\n\nand the Board\u2019s determination that the compensation was no longer earned. See generally Am.\n\nCompl. \u00b6\u00b6 88\u201390. The Separation Agreement, which Cole ignores even though it governs the\n\nrecoupment at issue, does not provide Cole a right to seek return of the recouped compensation\n\nor condition recoupment on a criminal indictment or conviction. See Levitt Decl. \u00b6 7, Ex. 4, at 1.\n\n In short, the attempt in the Amended Complaint to use the implied covenant to insert a\n\n\n\n\n 18\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 24 of 30\n\n\n\n\nrepayment obligation absent from the governing agreements is prohibited by New York law and\n\nCount IV should be dismissed.\n\nIII. COLE\u2019S UNJUST ENRICHMENT CLAIM SHOULD BE DISMISSED BECAUSE\n IT IS PRECLUDED, CONTRADICTED BY THE SEPARATION AGREEMENT\n GOVERNING RECOUPMENT, AND TIME-BARRED.\n\n Cole alleges that \u201cin 2016, Iconix elected to recoup certain of [his] compensation valued\n\nat more than $7 million after restating its previously issued financial statements, thus enriching\n\nitself at Cole\u2019s expense.\u201d Am. Compl. \u00b6 136. This claim fails for at least three reasons: it is\n\n(i) precluded because recoupment is governed by the 2016 Separation Agreement, which Cole\n\nacknowledges is a valid and binding contract that fully and finally resolved the recoupment;\n\n(ii) contradicted by the plain language of the Separation Agreement, which expressly attributes\n\nthe recoupment to the financial restatements, not a \u201cfalse understanding\u201d of fraud; and (iii) time-\n\nbarred because the alleged wrongful conduct occurred in 2016 and is subject to a three-year\n\nstatute of limitations.\n\n First, the claim is precluded by a valid and enforceable contract. An unjust enrichment\n\nclaim cannot proceed where a valid and enforceable written contract governs the same subject\n\nmatter. Freedom Holding, Inc. v. Haart, 172 N.Y.S.3d 873, 887\u201388 (N.Y. Sup. Ct. 2022) (\u201cIn\n\nNew York, where there is both a claim for unjust enrichment and a contract claim, and there is\n\nno disagreement about the existence or terms of the contract, the unjust enrichment claim can be\n\ndismissed as duplicative of the contract claim.\u201d); see also Clark-Fitzpatrick, Inc. v. Long Island\n\nR. Co., 70 N.Y.2d 382, 388 (1987) (\u201cThe existence of a valid and enforceable written contract\n\ngoverning a particular subject matter ordinarily precludes recovery in quasi contract for events\n\narising out of the same subject matter.\u201d). Further, a party cannot \u201cseek damages in an action\n\nsounding in quasi contract where the suing party has fully performed on a valid written\n\nagreement, the existence of which is undisputed, and the scope of which clearly covers the\n\n\n\n 19\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 25 of 30\n\n\n\n\ndispute between the parties.\u201d Id. at 389.\n\n Here, Iconix\u2019s recoupment from Cole of $7 million in performance-based compensation\n\nis indisputably governed by the 2016 Separation Agreement. Cole himself describes the\n\nSeparation Agreement as a \u201clegally binding and valid contract.\u201d Am. Compl. \u00b6 111. He further\n\nalleges that, in 2016, Iconix restated its financial disclosures and \u201celected to recoup\u201d\n\nperformance-based compensation earned between 2012 and 2014. Id. \u00b6\u00b6 89, 135\u201336. Thus, by\n\nhis own pleading, the recoupment occurred pursuant to and in connection with the Separation\n\nAgreement. Because the alleged enrichment arises directly from obligations defined by an\n\nenforceable written contract whose existence and validity are not disputed, and which were fully\n\nperformed under the contract, see generally Am. Compl. \u00b6 89, Cole\u2019s unjust enrichment claim is\n\nduplicative and quasi-contract relief is unavailable as a matter of law, see Clark-Fitzpatrick, 70\n\nN.Y.2d at 388\u201389. This conclusion is reinforced by the parties\u2019 express agreement \u201cto settle and\n\nresolve, fully and finally, all claims related to the Resignation and the recoupment of Cole\u2019s\n\nperformance-based cash bonus and equity awards as a result of the Restatements.\u201d Levitt Decl.\n\n\u00b6 7, Ex. 4, at 1.\n\n Second, the plain language of the Separation Agreement cited in the Amended Complaint\n\ncontradicts Cole\u2019s allegation that Iconix recouped performance-based compensation based on a\n\n\u201cfalse understanding\u201d that he had committed fraud. Am. Compl. \u00b6 137. To the contrary, the\n\nSeparation Agreement instead states that the recoupment is \u201ca result of the Restatements.\u201d Levitt\n\nDecl. \u00b6 7, Ex. 4, at 1; see Matusovsky, 186 F. Supp. 2d at 400 (explaining a plaintiff\u2019s\n\n\u201callegations are insufficient to defeat a motion to dismiss\u201d where they are \u201ccontradicted\u201d by\n\ndocuments cited in the complaint). Indeed, the Amended Complaint itself establishes that the\n\nrecoupment followed the Company\u2019s 2016 restatement of its financial results and the resulting\n\n\n\n\n 20\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 26 of 30\n\n\n\n\nfailure to satisfy the performance metrics tied to Cole\u2019s incentive compensation. See Am. Compl.\n\n\u00b6\u00b6 88\u201390. In turn, those performance metrics were defined by Cole\u2019s Employment Agreement,\n\nwhich provided for annual bonuses based on the Company\u2019s financial performance. See Levitt\n\nDecl. \u00b6 5, Ex. 3A, \u00a7 2.3. When the financial results were restated, Iconix determined that the\n\nearnings no longer met the thresholds required for performance-based pay. See generally Am.\n\nCompl. \u00b6\u00b6 88\u201389. Consistent with that determination, the Separation Agreement addressed the\n\nrecoupment expressly. See Levitt Decl. \u00b6 7, Ex. 4, at 1. Under that agreement, Cole agreed to\n\nreturn the performance-based cash and equity awards. Id. Notably, the recoupment was not\n\nconditioned on a criminal indictment or conviction, and the Amended Complaint does not and\n\ncannot allege otherwise. Id.; Am. Compl. \u00b6\u00b6 88\u201390, 110\u201315.\n\n Cole attempts to anchor this claim to his procedural reversal, arguing that it is now\n\n\u201cagainst equity and good conscience for Iconix to retain the benefit it obtained by recouping\n\nfunds from [him].\u201d Am. Compl. \u00b6 139. But that argument has nothing to do with the basis for the\n\nrecoupment. Iconix recouped compensation following financial restatements issued under Cole\u2019s\n\nleadership. Whether Cole was acquitted on procedural grounds, acquitted on the merits, or\n\nconvicted does not change that the Company was obligated to restate its financial statements.\n\n Because Iconix retained funds pursuant to rights defined by contract, there can be no\n\nquasi-contractual unjust enrichment. See 900 Unlimited, Inc. v. MCI Telecom. Corp., 626\n\nN.Y.S.2d 188 (N.Y. App. Div. 1995) (holding that \u201cthere can be no unjust enrichment, since\n\n[defendant] had the right to retain monies . . . pursuant to contract between these parties\u201d).\n\n Third, given the recoupment was not tied to the criminal proceedings but instead to\n\nIconix\u2019s 2016 restatement of its financial results and the resulting determination to recoup\n\nperformance-based compensation, 2016 is the operative accrual date for statute of limitations\n\n\n\n\n 21\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 27 of 30\n\n\n\n\npurposes and Cole\u2019s claim is time-barred. Unjust enrichment claims seeking monetary relief are\n\nsubject to a three-year statute of limitations under N.Y. C.P.L.R. \u00a7 214(3). See Martin Hilti Fam.\n\nTr. v. Knoedler Gallery, LLC, 137 F. Supp. 3d 430, 466 (S.D.N.Y. 2015); see also Cohen v.\n\nDunne, No. 15 Civ. 3155, 2017 WL 4516820, at *3\u20134 (S.D.N.Y. Sept. 27, 2017). The statute of\n\nlimitations for unjust enrichment begins to run \u201c\u2018upon the occurrence of the wrongful act giving\n\nrise to a duty of restitution.\u2019\u201d Cohen v. S.A.C. Trading Corp., 711 F.3d 353, 364 (2d Cir. 2013)\n\n(quoting Coombs v. Jervier, 906 N.Y.S.2d 267 (N.Y. App. Div. 2010)). Here, Cole seeks to\n\nrecover the 2016 recoupment of performance-based compensation he made pursuant to the\n\nSeparation Agreement. Am. Compl. \u00b6\u00b6 88\u201390, 136. This Action, filed nearly nine years later in\n\nNovember 2025, is untimely and should be dismissed as a matter of law.\n\nIV. THE DAMAGES THEORIES AGAINST ICONIX FAIL AS A MATTER OF\n LAW.\n\n Cole seeks punitive and consequential damages on his contract claims. Those remedies\n\nare unavailable as a matter of law and should be dismissed.\n\n A. Punitive Damages Are Barred for Ordinary Breach of Contract Claims.\n\n The Amended Complaint seeks punitive damages for alleged breaches of the\n\nEmployment Agreement, Separation Agreement, By-Laws, and Advancement Agreement. Am.\n\nCompl. \u00b6\u00b6 117, 124, 125. Under New York law, \u201c[p]unitive damages are not recoverable for an\n\nordinary breach of contract as their purpose is not to remedy private wrongs but to vindicate\n\npublic rights.\u201d BDG Gotham Residential, LLC v. W. Waterproofing Co., Inc., No. 19-CV-6386\n\n(BCM), 2024 WL 5201596, at *2 (S.D.N.Y. Dec. 23, 2024) (quoting Rocanova v. Equitable Life\n\nAssur. Soc. of U.S., 83 N.Y.2d 603, 613 (1994)). Accordingly, \u201cthe standard for imposing\n\npunitive damages is a strict one and punitive damages will be awarded only in exceptional\n\ncases[.]\u201d Marinaccio v. Town of Clarence, 20 N.Y.3d 506, 511 (2013). To recover punitive\n\n\n\n\n 22\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 28 of 30\n\n\n\n\ndamages in a contract case, a plaintiff must plead an independent tort, egregious conduct, and a\n\npattern of similar conduct directed at the public generally. Rocanova, 83 N.Y.2d at 613. Cole\n\nfails to do so.\n\n The Amended Complaint does not and cannot plead an independent tort separate from the\n\nalleged contractual failure to indemnify or advance funds. Instead, in insufficient and conclusory\n\nfashion, it states that Iconix\u2019s conduct was \u201cwillful, wanton, abusive, fraudulent, in bad faith\u201d\n\nand \u201cindependently tortious,\u201d and that it was \u201caimed at the public.\u201d Am. Compl. \u00b6\u00b6 85, 117, 124.\n\nThose are labels, not facts. See Iqbal, 556 U.S. at 678. Moreover, the Amended Complaint does\n\nnot allege any pattern of similar misconduct affecting the public at large. The allegations concern\n\na dispute over Cole\u2019s own compensation and advancement rights. Am. Compl. \u00b6\u00b6 88\u2013101, 113\u2013\n\n125; Rocanova, 83 N.Y.2d at 613. That is a private contractual dispute.\n\n Cole had the opportunity to amend his complaint after failing to plead a viable tort or\n\npublic harm theory but chose to add only conclusory assertions about Iconix\u2019s former status as a\n\npublic company and alleged violations of a court order. This effort to repackage a private\n\ncontractual dispute as a public harm fails. See Am. Compl. \u00b6 95. Here, the alleged breaches\n\nconcern Iconix\u2019s supposed obligations to Cole alone, not an alleged pattern of misconduct from\n\nIconix affecting shareholders or the public at large. Under Rocanova, the absence of allegations\n\nshowing repeated conduct directed at the public is dispositive. 83 N.Y.2d at 613.\n\n Because Cole has not pled facts satisfying the strict standard for punitive damages under\n\nNew York law, see Marinaccio, 20 N.Y.3d at 511, his demand for punitive damages should be\n\ndismissed with prejudice.\n\n B. Cole Is Not Entitled to Consequential Damages.\n\n Cole seeks consequential damages on his breach of contract claims. Am. Compl. \u00b6\u00b6 118,\n\n125. Under New York law, consequential damages are recoverable only if they were foreseeable\n\n\n\n 23\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 29 of 30\n\n\n\n\nand within the contemplation of the parties at the time of contracting. Island\n\n Ordnance Sys., LLC v. Amerimex, Inc., 205 N.Y.S.3d 456, 458 (N.Y. App. Div. 2024);\n\nBi-Econ. Mkt., Inc. v. Harleysville Ins. Co. of N.Y., 10 N.Y.3d 187, 193 (2008). In assessing\n\nforeseeability, courts examine \u201cthe nature, purpose and particular circumstances of the contract\n\nknown by the parties\u201d and what liability the defendant reasonably may be supposed to have\n\nassumed when the contract was made. Bi-Econ., 10 N.Y.3d at 193 (quoting Kenford Co. v.\n\nCounty of Erie, 73 N.Y.2d 312, 319 (1989)). In addition, consequential damages may not be\n\nspeculative. See Great Lakes Reinsurance (UK) SE v. Herzig, 764 F. Supp. 3d 164, 189\n\n(S.D.N.Y. 2025).\n\n Here, Cole fails to allege in his Amended Complaint that the claimed consequential\n\ndamages were foreseeable or within the parties\u2019 contemplation at the time the relevant\n\nagreements were executed. Instead, he broadly seeks undefined damages \u201cnot to exceed\n\n$25,000,000\u201d for \u201cpast, present, and future pain, suffering, and other hardships.\u201d Am. Compl. at\n\n18\u201319 (Prayer for Relief). He identifies no specific consequential losses, no facts explaining how\n\nthose losses were calculated, and no allegations showing that such damages were contemplated\n\nwhen the contracts were formed. That is insufficient, and the claim for consequential damages\n\nshould be dismissed.\n\n CONCLUSION\n\n In its pre-motion letter, Iconix identified the deficiencies in Cole\u2019s pleading, yet he failed\n\nto address them with allegations sufficient to withstand this Motion to Dismiss. The Court can\n\nreasonably conclude, therefore, that further amendment would be futile and Counts III through\n\nV, along with punitive and consequential damages, should be dismissed with prejudice. See\n\ngenerally Owoyemi v. Credit Corp Sols. Inc., 596 F. Supp. 3d 514, 521 (S.D.N.Y. 2022)\n\n\n\n\n 24\n\f Case 1:25-cv-09357-MKV Document 24 Filed 03/27/26 Page 30 of 30\n\n\n\n\n(\u201cDismissal with prejudice is appropriate . . . where the problem with [plaintiff\u2019s] causes of\n\naction is substantive such that amendment would be futile.\u201d) (cleaned up).\n\n\n\nDated: March 27, 2026 MORRISON & FOERSTER LLP\n New York, New York\n\n\n By: Jamie A. Levitt\n Jamie A. Levitt, Bar No. 2548477\n JLevitt@mofo.com\n Michael D. Birnbaum, Bar No. 3068129\n MBirnbaum@mofo.com\n 250 West 55th Street\n New York, NY 10019-9601\n Telephone: 212.468.8000\n Facsimile: 212.468.7900\n\n Attorneys for Defendant\n Iconix International Inc.\n\n\n\n\n 25\n\f","ocr_status":2,"date_upload":"2026-03-28T04:36:29.605768-07:00","document_number":"24","attachment_number":null,"pacer_doc_id":"127039321780","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Memorandum of Law in Support of Motion","acms_document_guid":""}],"date_created":"2026-03-27T18:07:14.618037-07:00","date_modified":"2026-03-27T18:07:14.625003-07:00","date_filed":"2026-03-27","time_filed":"19:20:26","entry_number":24,"recap_sequence_number":"2026-03-27.001","pacer_sequence_number":82,"description":"","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/458881774/","id":458881774,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/71893430/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/473895103/","id":473895103,"tags":[],"absolute_url":"/docket/71893430/25/cole-v-iconix-international-inc/","date_created":"2026-03-27T18:07:13.074330-07:00","date_modified":"2026-03-30T02:24:24.184037-07:00","sha1":"b7d7bedf3fabe1b4f6649338c056db737c818a3d","page_count":2,"file_size":101346,"filepath_local":"recap/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.25.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.25.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:25-cv-09357-MKV Document 25 Filed 03/27/26 Page 1 of 2\n\n\n\n\nUNITED STATES DISTRICT COURT\nSOUTHERN DISTRICT OF NEW YORK\n------------------------------------x\n :\n : Index No. 1:25-cv-09357-MKV\n NEIL COLE, :\n :\n Plaintiff, :\nv. :\n :\nICONIX INTERNATIONAL INC. f/k/a/ :\nICONIX BRAND GROUP, INC., and :\nSETH HOROWITZ, :\n :\n Defendants. :\n :\n :\n------------------------------------X\n\n\n NOTICE OF MOTION\n\n\n\n PLEASE TAKE NOTICE that upon the accompanying Memorandum of law and\n\nAffirmation of David R. Lurie, each dated March 27, 2026, defendant Seth Horowitz\n\n(\u201cHorowitz\u201d), by his undersigned counsel, hereby moves this Court for the dismissal of\n\nplaintiff\u2019s Amended Complaint herein, with prejudice, as against Horowitz, pursuant to Federal\n\nRule of Civil Procedure 12(b)(6).\n\f Case 1:25-cv-09357-MKV Document 25 Filed 03/27/26 Page 2 of 2\n\n\n\n\n Pursuant to the Court\u2019s Order of February 25, 2026 (Dkt. No. 21), plaintiff\u2019s opposition to\n\nthe instant motion is due on or before April 27, 2026 and Horowitz\u2019s reply in further support of\n\nthe Motion is due on before May 11, 2026.\n\nDated: March 27, 2026\nBrooklyn, New York\n Respectfully submitted,\n\n LAW OFFICE OF DAVID R. LURIE, PLLC\n\n By: ________/s/____________\n David R. Lurie\n 194 President Street\n Brooklyn, NY 11231\n 347-651-0194\n\n Attorneys for Defendant Seth Horowitz\n\n\n\n\n 2\n\f","ocr_status":2,"date_upload":"2026-03-28T04:38:57.835011-07:00","document_number":"25","attachment_number":null,"pacer_doc_id":"127039321821","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Dismiss","acms_document_guid":""}],"date_created":"2026-03-27T18:07:13.049969-07:00","date_modified":"2026-03-27T18:07:13.056068-07:00","date_filed":"2026-03-27","time_filed":"19:25:37","entry_number":25,"recap_sequence_number":"2026-03-27.001","pacer_sequence_number":85,"description":"","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/458881773/","id":458881773,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/71893430/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/473895102/","id":473895102,"tags":[],"absolute_url":"/docket/71893430/26/cole-v-iconix-international-inc/","date_created":"2026-03-27T18:07:12.946707-07:00","date_modified":"2026-03-30T02:28:48.813534-07:00","sha1":"01fb41524632917e8455949b84e5585d0954f701","page_count":2,"file_size":187666,"filepath_local":"recap/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.26.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.26.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:25-cv-09357-MKV Document 26 Filed 03/27/26 Page 1 of 2\n\n\n\n\n UNITED STATES DISTRICT COURT\n SOUTHERN DISTRICT OF NEW YORK\n\n\nNEIL COLE, INDEX NO. 1:25-cv-09357 (MKV)\n\n Plaintiff,\n\n -against-\n\nICONIX INTERNATIONAL INC. f/k/a\nICONIX BRAND GROUP, INC., and SETH\nHOROWITZ,\n\n Defendants.\n\n\n DECLARATION OF JAMIE A. LEVITT IN SUPPORT OF DEFENDANT ICONIX\n INTERNATIONAL INC.\u2019S MOTION TO DISMISS PLAINTIFF\u2019S AMENDED\n COMPLAINT\n\n I, Jamie A. Levitt, declare under penalty of perjury as follows:\n\n 1. I am a partner at the law firm of Morrison & Foerster LLP (\u201cMorrison &\n\nFoerster\u201d). Morrison & Foerster is legal counsel for Iconix International Inc. (\u201cIconix\u201d).\n\n 2. I submit this declaration in support of Iconix\u2019s Motion to Dismiss Plaintiff\u2019s\n\nAmended Complaint.\n\n 3. Attached hereto as Exhibit 1 is a true and correct copy of Iconix\u2019s 2015 Annual\n\nReport pursuant to the Exchange Act (Form 10-K), dated March 30, 2016.\n\n 4. Attached hereto as Exhibit 2 is a true and correct copy of Iconix\u2019s Restated and\n\nAmended By-Laws.\n\n 5. Attached hereto as Exhibit 3A is a true and correct copy of the Employment\n\nAgreement, entered into on January 28, 2008, between Iconix and Neil R. Cole.\n\n 6. Attached hereto as Exhibit 3B is a true and correct copy of the Amendment to the\n\nEmployment Agreement, entered into on December 24, 2008, between Iconix and Neil R. Cole.\n\f Case 1:25-cv-09357-MKV Document 26 Filed 03/27/26 Page 2 of 2\n\n\n\n\n 7. Attached hereto as Exhibit 4 is a true and correct copy of the Separation\n\nAgreement, entered into on December 28, 2016, between Iconix and Neil R. Cole.\n\n 8. Attached hereto as Exhibit 5 is a true and correct copy of the Advancement\n\nAgreement between Iconix and Neil R. Cole, dated June 7, 2022.\n\n 9. Attached hereto as Exhibit 6 is a true and correct copy of the First Undertaking to\n\nrepay advanced amounts signed by Neil R. Cole.\n\n 10. Attached hereto as Exhibit 7 is a true and correct copy of the Second Undertaking\n\nto repay advanced amounts signed by Neil R. Cole and dated January 22, 2020.\n\n Pursuant to 28 U.S.C. \u00a7 1746, I declare under penalty of perjury that the foregoing is true\n\nand correct to the best of my knowledge and belief.\n\n\n\nDated: March 27, 2026 MORRISON & FOERSTER LLP\n New York, New York\n\n\n By: Jamie A. Levitt\n Jamie A. Levitt, Bar No. 2548477\n JLevitt@mofo.com\n 250 West 55th Street\n New York, NY 10019-9601\n Telephone: 212.468.8000\n Facsimile: 212.468.7900\n\n Attorneys for Defendant\n Iconix International Inc.\n\n\n\n\n 2\n\f","ocr_status":2,"date_upload":"2026-03-28T04:41:15.691641-07:00","document_number":"26","attachment_number":null,"pacer_doc_id":"127039321824","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Declaration in Support of Motion","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/473916169/","id":473916169,"tags":[],"absolute_url":"/docket/71893430/26/1/cole-v-iconix-international-inc/","date_created":"2026-03-28T04:39:30.184634-07:00","date_modified":"2026-03-28T04:39:30.184648-07:00","sha1":"","page_count":183,"file_size":6372301,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"26","attachment_number":1,"pacer_doc_id":"127039321825","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit 1: Iconix's 2015 Annual Report","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/473916170/","id":473916170,"tags":[],"absolute_url":"/docket/71893430/26/2/cole-v-iconix-international-inc/","date_created":"2026-03-28T04:39:30.303473-07:00","date_modified":"2026-03-30T02:25:53.835364-07:00","sha1":"787210ec8b19ce1b2cc1b4be759436e0d98f1a53","page_count":17,"file_size":125084,"filepath_local":"recap/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.26.2.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.26.2.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 1:25-cv-09357-MKV Document 26-2 Filed 03/27/26 Page 1 of 17\n\n\n\n\n EXHIBIT 2\n\f Case 1:25-cv-09357-MKV Document 26-2 Filed 03/27/26 Page 2 of 17\n\n\n\n\nICONIX BRAND GROUP, INC. (ICON)\n1450 BROADWAY, 4TH FL\nNEW YORK, NY 10018\n212\u2212730\u22120030\n\n\n\n\nEX\u22123.IV\nRESTATED AND AMENDED BY\u2212LAWS OF ICONIX BRAND GROUP, INC.\n8\u2212K Filed on 08/07/2012 \u2212 Period: 08/06/2012\nFile Number 001\u221210593\n\n\n\n\n \u00ae\n LIVEDGAR Information Provided by Thomson Reuters Westlaw, \u00a92011. All Rights Reserved.\n 800.669.1154\n www.gsionline.com\n\f Case 1:25-cv-09357-MKV Document 26-2 Filed 03/27/26 Page 3 of 17\n Exhibit 3iv\n\n\n RESTATED AND AMENDED\n BY\u2212LAWS\n OF\n ICONIX BRAND GROUP, INC.\n (a Delaware corporation)\n ARTICLE I\n STOCKHOLDERS\n\n 1. CERTIFICATES REPRESENTING STOCK. Certificates representing stock in the corporation shall be signed by, or in the name of, the\ncorporation by the Chairman or Vice\u2212Chairman of the Board of Directors of the corporation (the \u201cBoard\u201d or \u201cBoard of Directors\u201d), if any, or by the\nPresident or a Vice\u2212President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the corporation. Any or all the\nsignatures on any such certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been\nplaced upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation\nwith the same effect as if he were such officer, transfer agent, or registrar at the date of issue.\n\nWhenever the corporation shall be authorized to issue more than one class of stock or more than one series of any class of stock, and whenever the\ncorporation shall issue any shares of its stock as partly paid stock, the certificates representing shares of any such class or series or of any such partly paid\nstock shall set forth thereon the statements prescribed by the General Corporation Law of the State of Delaware, as amended from time to time (the\n\u201cGeneral Corporation Law\u201d). Any restrictions on the transfer or registration of transfer of any shares of stock of any class or series shall be noted\nconspicuously on the certificate representing such shares.\n\nThe corporation may issue a new certificate of stock or uncertificated shares in place of any certificate theretofore issued by it, alleged to have been lost,\nstolen, or destroyed, and the Board of Directors may require the owner of the lost, stolen, or destroyed certificate, or his legal representative, to give the\ncorporation a bond sufficient to indemnify the corporation against any claim that may be made against it on account of the alleged loss, theft, or destruction\nof any such certificate or the issuance of any such new certificate or uncertificated shares.\n\n 2. UNCERTIFICATED SHARES. Subject to any conditions imposed by the General Corporation Law, the Board of Directors may provide by\nresolution or resolutions that some or all of any or all classes or series of the stock of the corporation shall be uncertificated shares. Within a reasonable time\nafter the issuance or transfer of any uncertificated shares, the corporation shall send to the registered owner thereof the written notice prescribed by the\nGeneral Corporation Law.\n\n 3. FRACTIONAL SHARE INTERESTS. The corporation may, but shall not be required to, issue fractions of a share. If the corporation does not\nissue fractions of a share, it shall (1) arrange for the disposition of fractional interests by those entitled thereto, (2) pay in cash the fair value of fractions of a\nshare as of the time when those entitled to receive such fractions are determined, or (3) issue scrip or warrants in registered form (either represented by a\ncertificate or uncertificated) or bearer form (represented by a certificate) which shall entitle the holder to receive a full share upon the surrender of such scrip\nor warrants aggregating a full share. A certificate for a fractional share or an uncertificated fractional share shall, but scrip or warrants shall not unless\notherwise provided therein, entitle the holder to exercise voting rights, to receive dividends thereon, and to participate in any of the assets of the corporation\nin the event of liquidation. The Board of Directors may cause scrip or warrants to be issued subject to the conditions that they shall become void if not\nexchanged for certificates representing the full shares or uncertificated full shares before a specified date, or subject to the conditions that the shares for\nwhich scrip or warrants are exchangeable may be sold by the corporation and the proceeds thereof distributed to the holders of scrip or warrants, or subject\nto any other conditions which the Board of Directors may impose.\n\f Case 1:25-cv-09357-MKV Document 26-2 Filed 03/27/26 Page 4 of 17\n\n 4. STOCK TRANSFERS. Upon compliance with provisions restricting the transfer or registration of transfer of shares of stock, if any, transfers or\nregistration of transfers of shares of stock of the corporation shall be made only on the stock ledger of the corporation by the registered holder thereof, or by\nhis attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the corporation or with a transfer agent or a registrar, if\nany, and, in the case of shares represented by certificates, on surrender of the certificate or certificates for such shares of stock properly endorsed and the\npayment of all taxes due thereon.\n\n 5. RECORD DATE FOR STOCKHOLDERS. (a) For the purpose of determining the stockholders entitled to notice of or to vote at any meeting of\nstockholders or any adjournment thereof or entitled to receive payment of any dividend or other distribution or the allotment of any rights, or entitled to\nexercise any rights in respect of any change, conversion, or exchange of stock or for the purpose of any other lawful action, the directors may fix, in\nadvance, a record date, which shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any\nother action. If no record date is fixed, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at\nthe close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding\nthe day on which the meeting is held and the record date for determining stockholders for any other purpose shall be at the close of business on the day on\nwhich the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at any meeting\nof stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned\nmeeting.\n\n (b) (i) Notwithstanding Section 5(a) of Article I, the record date for determining stockholders entitled to express consent to corporate action in writing\nwithout a meeting shall be as fixed by the Board or as otherwise established under this Section 5(b) of Article I. Any person seeking to have the\nstockholders authorize or take corporate action by written consent without a meeting shall, by written notice addressed to the Secretary and delivered to the\ncorporation, request that a record date be fixed for such purpose. The Board may fix a record date for such purpose which shall be no more than 10 days\nafter the date upon which the resolution fixing the record date is adopted by the Board and shall not precede the date on which such resolution is adopted. If\nthe Board fails within 10 days after the corporation receives such notice to fix a record date for such purpose, the record date shall be the day on which the\nfirst written consent is delivered to the corporation in the manner described in this Section 5(b) of Article I of these Bylaws unless prior action by the Board\nis required under the General Corporation Law, in which event the record date shall be at the close of business on the day on which the Board adopts the\nresolution taking such prior action.\n\n (ii) (A) Every written consent purporting to take or authorizing the taking of corporate action and/or related revocations (each such written consent\nand related revocation is referred to in Section 5(b) of Article I as a \u201cConsent\u201d) shall bear the date of signature of each stockholder who signs the Consent,\nand no Consent shall be effective to take the corporate action referred to therein unless, within 60 days of the earliest dated Consent delivered in the manner\nrequired by Section 5(b) of Article I, Consents signed by a sufficient number of stockholders to take such action are so delivered to the corporation.\n\n (B) A Consent shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an\nofficer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery to the corporation\u2019s\nregistered office shall be made by hand or by certified or registered mail, return receipt requested.\n\n (C) In the event of the delivery to the corporation of a Consent, the Secretary shall provide for the safe\u2212keeping of such Consent and shall promptly\nconduct such ministerial review of the sufficiency of the Consents and of the validity of the action to be taken by stockholder consent as he deems necessary\nor appropriate, including, without limitation, whether the holders of a number of shares having the requisite voting power to authorize or take the action\nspecified in the Consent have given consent; provided, however, that if the corporate action to which the Consent relates is the removal or replacement of\none or more members of the Board, the Secretary shall promptly designate two persons, who shall not be members of the Board, to serve as inspectors with\nrespect to such Consent and such inspectors shall discharge the functions of the Secretary under Section 5(b) of Article I. If after such investigation the\nSecretary or the inspectors (as the case may be) shall determine that the Consent is valid and that the action therein specified has been validly authorized,\nthat fact shall forthwith be certified on the records of the corporation kept for the purpose of recording the proceedings of meetings of stockholders, and the\nConsent shall be\n \u22122\u2212\n\f Case 1:25-cv-09357-MKV Document 26-2 Filed 03/27/26 Page 5 of 17\n\nfiled in such records, at which time the Consent shall become effective as stockholder action. In conducting the investigation required by Section 8(b) of\nArticle I, the Secretary or the inspectors (as the case may be) may, at the expense of the corporation, retain special legal counsel and any other necessary or\nappropriate professional advisors, and such other personnel as they may deem necessary or appropriate to assist them, and shall be fully protected in relying\nin good faith upon the opinion of such counsel or advisors.\n\n 6. MEANING OF CERTAIN TERMS. As used herein in respect of the right to notice of a meeting of stockholders or a waiver thereof or to\nparticipate or vote thereat or to consent or dissent in writing in lieu of a meeting, as the case may be, the term \u201cshare\u201d or \u201cshares\u201d or \u201cshare of stock\u201d or\n\u201cshares of stock\u201d or \u201cstockholder\u201d or \u201cstockholders\u201d refers to an outstanding share or shares of stock and to a holder or holders of record of outstanding\nshares of stock when the corporation is authorized to issue only one class of shares of stock, and said reference is also intended to include any outstanding\nshare or shares of stock and any holder or holders of record of outstanding shares of stock of any class upon which or upon whom the certificate of\nincorporation confers such rights where there are two or more classes or series of shares of stock or upon which or upon whom the General Corporation\nLaw confers such rights notwithstanding that the certificate of incorporation may provide for more than one class or series of shares of stock, one or more of\nwhich are limited or denied such rights thereunder; provided however, that no such right shall vest in the event of an increase or a decrease in the authorized\nnumber of shares of stock of any class or series which is otherwise denied voting rights under the provisions of the certificate of incorporation except as any\nprovision of law may otherwise require.\n\nThe corporation shall be entitled to treat the holder of record of any share of its capital stock as the holder, in fact, and shall not be bound to recognize any\nequitable or other claim to or interest in such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as\notherwise expressly provided by the General Corporation Law or other applicable law.\n\n 7. STOCKHOLDER MEETINGS.\n\nTIME. The annual meeting shall be held on the date and at the time fixed, from time to time, by the Board of Directors. Special meetings shall be held on\nthe date and at the time fixed by the Board of Directors. Any previously scheduled annual meeting or special meeting may be postponed by action of the\nBoard taken prior to the time previously scheduled for such meeting.\n\nPLACE. Annual meetings and special meetings shall be held at such place, within or without the State of Delaware, as the Board of Directors may, from\ntime to time, fix.\n\nCALL. Annual meetings and special meetings may be called by a majority of the whole board (as defined in Section 2 of Article I) or by any officer\ninstructed by a majority of the whole board to call the meeting.\n\nNOTICE OF MEETING: WAIVER OF NOTICE. (a) Written notice of all meetings shall be given stating the place, date, and hour of the meeting and\nstating the place within the city or other municipality or community at which the list of stockholders of the corporation may be examined. The notice of an\nannual meeting shall state that the meeting is called for the election of directors and for the transaction of other business which may properly come before\nthe meeting, and shall, (if any other action which could be taken at a special meeting is to be taken at such annual meeting) state the purpose or purposes.\nThe notice of a special meeting shall in all instances state the purpose or purposes for which the meeting is called. The notice of any meeting shall also\ninclude, or be accompanied by, any additional statements, information, or documents prescribed by the General Corporation Law. Except as otherwise\nprovided by the General Corporation Law, a copy of the notice of any meeting shall be given, personally or by mail, not less than ten days nor more than\nsixty days before the date of the meeting, unless the lapse of the prescribed period of time shall have been waived, and directed to each stockholder at his\nrecord address or at such other address which he may have furnished by request in writing to the Secretary of the corporation. Notice by mail shall be\ndeemed to be given when deposited, with postage thereon prepaid, in the United States Mail. If a meeting is adjourned to another time, not more than thirty\ndays hence, and/or to another place, and if an announcement of the adjourned time and/or place is made at the meeting, it shall not be necessary to give\nnotice of the adjourned meeting unless the directors, after adjournment, fix a new record date for the adjourned meeting. Notice need not be given to any\nstockholder who submits a written waiver of notice signed by him before or after the time stated therein. Attendance of a stockholder at a meeting of\nstockholders shall constitute a waiver of notice of such meeting, except when the stockholder attends the meeting for the express purpose of objecting, at the\nbeginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at,\nnor the purpose of, any regular or special meeting of the stockholders need be specified in any written waiver of notice.\n \u22123\u2212\n\f Case 1:25-cv-09357-MKV Document 26-2 Filed 03/27/26 Page 6 of 17\n\n (b) The only business which shall be conducted at any meeting of the stockholders shall (i) have been specified in the written notice of the meeting (or\nany supplement thereto) given as provided in the preceding Section, (ii) be brought before the meeting at the direction of the Board of Directors or the\nchairman of the meeting or (iii) in the case of an annual meeting, have specified in a written notice (a \u201cStockholder Meeting Notice\u201d) given to the\ncorporation, in accordance with all of the following requirements, by or on behalf of any stockholder who shall have been a stockholder of record on the\nrecord date for such meeting and who shall continue to be entitled to vote there at. Each Stockholder Meeting Notice must be delivered personally to, or be\nmailed to and received by, the Secretary of the corporation, at the principal executive offices of the corporation, not earlier than the close of business on the\n120th calendar day, and not later than the close of business on the 90th calendar day, prior to the first anniversary of the immediately preceding year\u2019s\nannual meeting of stockholders; provided , however , that in the event that no annual meeting was held in the previous year or the annual meeting is called\nfor a date that is more than 30 calendar days earlier or more than 60 calendar days later than\n th\n such anniversary date, notice by the stockholder in order to be\ntimely must be so delivered or received not earlier than the close of business on the 120 calendar day prior to the date of such annual meeting and not later\n th\nthan the close of business on the later of the 90 calendar day prior to the date of such annual meeting or, if the first public disclosure of the date of such\nannual meeting is less than 100 calendar days prior to the date of such annual meeting, the 10th calendar day following the day on which public disclosure\nof the date of such annual meeting is first made by the corporation. In no event shall any adjournment or postponement of an annual meeting or the public\ndisclosure thereof commence a new time period (or extend any time period) for the giving of a stockholder\u2019s notice as described above. Each Stockholder\nMeeting Notice shall set forth as to each matter the stockholder proposes to bring before the meeting: (i) a description of each item of business proposed to\nbe brought before the meeting (including the text of the proposal or business and the text of any resolutions proposed for consideration and the reasons for\nconducting such business at the meeting; (ii) the name and record address, as they appear on the corporation\u2019s books, of the stockholder proposing to bring\nsuch item of business before the meeting and the name and address of all Stockholder Associated Persons, (iii) (A) the class and series and number of shares\nof each class and series of capital stock of the corporation which are, directly or indirectly, owned beneficially and/or of record by such stockholder or any\nStockholder Associated Person, documentary evidence of such record or beneficial ownership, and the date or dates such shares were acquired and the\ninvestment intent at the time such shares were acquired, (B) any Derivative Instrument directly or indirectly owned beneficially by such stockholder or any\nStockholder Associated Person and any other direct or indirect right held by such stockholder or any Stockholder Associated Person to profit from, or share\nin any profit derived from, any increase or decrease in the value of shares of the corporation, (C) any proxy, contract, arrangement, understanding, or\nrelationship pursuant to which such stockholder or any Stockholder Associated Person has a right to vote any securities of the corporation, (D) any Short\nInterest indirectly or directly held by such stockholder or any Stockholder Associated Person in any security issued by the corporation, (E) any rights to\ndividends on the shares of the corporation owned beneficially by such stockholder or any Stockholder Associated Person that are separated or separable\nfrom the underlying securities of the corporation, (F) any proportionate interest in securities of the corporation or Derivative Instruments held, directly or\nindirectly, by a general or limited partnership in which such stockholder or any Stockholder Associated Person is a general partner or, directly or indirectly,\nbeneficially owns an interest in a general partner, and (G) any performance\u2212related fees (other than an asset\u2212based fee) that such stockholder or any\nStockholder Associated Person is entitled to based on any increase or decrease in the value of securities of the corporation or Derivative Instruments, if any,\nas of the date of such notice, including without limitation any such interests held by members of such stockholder\u2019s or any Stockholder Associated Person\u2019s\nimmediate family sharing the same household (which information, in each case, shall be supplemented by such stockholder and any Stockholder Associated\nPerson not later than ten (10) calendar days after the record date for the meeting to disclose such ownership as of the record date); (iv) a description of all\narrangements or understandings between such stockholder and/or any Stockholder Associated Person and any other person or persons (naming such person\nor persons) in connection with the proposal of such business by such stockholder; (v) any material interest of such stockholder or any Stockholder\nAssociated Person in such business, individually or in the aggregate, including any anticipated benefit to such stockholder or any Stockholder Associated\nPerson therefrom; (vi) a representation from such stockholder as to whether the stockholder or any Stockholder Associated Person intends or is part of a\ngroup which intends (1) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the corporation\u2019s outstanding capital stock\nrequired to approve or adopt the proposal and/or (2) otherwise to solicit proxies from stockholders in support of such proposal; (vii) a representation that\nsuch stockholder is a holder of\n \u22124\u2212\n\f Case 1:25-cv-09357-MKV Document 26-2 Filed 03/27/26 Page 7 of 17\n\nrecord of stock of the corporation entitled to vote at such meeting, that such stockholder intends to vote such stock at such meeting, and that such\nstockholder intends to appear at the meeting in person or by proxy to bring such business before such meeting; (viii) whether and the extent to which any\nagreement, arrangement or understanding has been made, the effect or intent of which is to increase or decrease the voting power of such stockholder or any\nStockholder Associated Person with respect to any securities of the corporation, without regard to whether such transaction is required to be reported on a\nSchedule 13D or other form in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the \u201cExchange Act\u201d), or any successor\nprovisions thereto and the rules and regulations promulgated thereunder; (ix) in the event that such business includes a proposal to amend these Bylaws, the\ncomplete text of the proposed amendment; and (x) such other information regarding each matter of business to be proposed by such stockholder, regarding\nthe stockholder in his or her capacity as a proponent of a stockholder proposal, or regarding any Stockholder Associated Person, that would be required to\nbe disclosed in a proxy statement or other filings required to be made with the Securities Exchange Commission (the \u201cSEC\u201d) in connection with the\nsolicitations of proxies for such business pursuant to Section 14 of the Exchange Act (or pursuant to any law or statute replacing such section) and the rules\nand regulations promulgated thereunder.\n\n (c) In addition, to be timely, a Stockholder Meeting Notice shall further be updated and supplemented, if necessary, so that the information provided\nor required to be provided in such notice shall be true and correct as of the record date for the meeting and as of the date that is ten business days prior to the\nmeeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary at the\nprincipal executive offices of the corporation not later than five business days after the record date for the meeting in the case of the update and supplement\nrequired to be made as of the record date, and not later than eight business days prior to the date for the meeting, any adjournment or postponement thereof\nin the case of the update and supplement required to be made as of ten business days prior to the meeting or any adjournment or postponement thereof.\n\n (d) If the information submitted pursuant to Section 7(b) of Article I by any stockholder proposing business for consideration at an annual meeting\nshall be inaccurate to any material extent, such information may be deemed not to have been provided in accordance with this section. Upon written request\nby the Secretary, the Board or any committee thereof, any stockholder proposing business for consideration at an annual meeting shall provide, within seven\nbusiness days of delivery of such request (or such other period as may be specified in such request), written verification, satisfactory in the discretion of the\nBoard, any committee thereof or any authorized officer of the corporation, to demonstrate the accuracy of any information submitted by the stockholder\npursuant to Section 7(b) of Article I. If a stockholder fails to provide such written verification within such period, the information as to which written\nverification was requested may be deemed not to have been provided in accordance with Section 7(b) of Article I.\n\n (e) For purposes of these Bylaws, \u201cpublic disclosure\u201d shall be deemed to include a disclosure made in a (A) press release reported by the Dow Jones\nNews Service, Reuters Information Service, Associated Press or any comparable or successor national news wire service, or (B) in a document filed by the\ncorporation with the SEC pursuant to Section 13, 14 or 15(d) of the Exchange Act or any successor provisions thereto.\n\n (f) For purposes of these Bylaws, \u201cDerivative Instrument\u201d means any option, warrant, convertible security, stock appreciation right, or similar right\nwith an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of securities of the corporation or\nwith a value derived in whole or in part from the value of any class or series of shares of the corporation, whether or not such instrument or right shall be\nsubject to settlement in the underlying class or series of capital stock of the corporation.\n\n (g) For purposes of these Bylaws, a \u201cStockholder Associated Person\u201d shall mean with respect to any stockholder (A) any person controlling, directly\nor indirectly, or acting in concert with, such stockholder, (B) any beneficial owner of securities of the corporation owned of record or beneficially by such\nstockholder, and (C) any person controlling, controlled by or under common control with such Stockholder Associated Person.\n\n (h) Except as otherwise required by the General Corporation Law and other applicable law, the certificate of incorporation or these Bylaws, the\nChairman of the Board or other person presiding at an annual meeting or special meeting in accordance with Section 7 of Article I shall have the power and\nduty (i) to determine\n \u22125\u2212\n\f Case 1:25-cv-09357-MKV Document 26-2 Filed 03/27/26 Page 8 of 17\n\nwhether any business proposed to be brought before the annual meeting was properly brought before the meeting in accordance with the procedures set forth\nin Section 7 of Article I of these Bylaws, including whether the stockholder or any Stockholder Associated Person on whose behalf the proposal is made,\nsolicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in support of such stockholder\u2019s proposal in compliance with\nsuch stockholder\u2019s representation as required by Section 7 of Article I, and (ii) if any proposed business was not brought in compliance with Section 7 of\nArticle I to declare that such proposal is defective and shall be disregarded.\n\n (i) In addition to the provisions of Section 7 of Article I, a stockholder shall also comply with all applicable requirements of the General Corporation\nLaw, other applicable law and the Exchange Act, and the rules and regulations thereunder, with respect to the matters set forth herein, provided , however ,\nthat any references in these Bylaws to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the requirements\napplicable to stockholder proposals to be considered pursuant to Section 7 of Article I.\n\n (j) This Section 7 of Article I shall be the exclusive means for a stockholder to make nominations or other business proposals (other than matters\nproperly brought under Rule 14a\u22128 under the Exchange Act and included in the Corporation\u2019s notice of meeting) before an annual meeting of stockholders.\nNothing in Section 7 of Article I shall be deemed to affect any rights (i) of stockholders to request the inclusion of proposals in the corporation\u2019s proxy\nstatement pursuant to Rule 14a\u22128 under the Exchange Act, or (ii) of the holders of any series of preferred stock to elect directors pursuant to any applicable\nprovision of the certificate of incorporation.\n\n (k) Notwithstanding anything in Section 7 of Article I to the contrary, a stockholder intending to nominate one or more persons for election as a\ndirector at any meeting of stockholders must comply with Section 5 of Article II for any such nomination to be properly brought before such meeting.\n\n (l) Any proposal by a stockholder which has not previously received the approval of the Board of Directors shall require for its adoption the\naffirmative vote of holders of more than fifty percent (50%) of the votes which all stockholders are entitled to cast thereon, in addition to any other approval\nwhich is required by law, the certificate of incorporation, these By\u2212laws or otherwise.\n\n (m) Notwithstanding anything in these By\u2212laws to the contrary, no business shall be conducted at any meeting of the stockholders except in\naccordance with the procedures set forth in these By\u2212laws.\n\nSTOCKHOLDER LIST. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of\nstockholders, a complete list of the stockholders arranged in alphabetical order, and showing the address of each stockholder and the number of shares\nregistered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during\nordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city or other municipality or community where the\nmeeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be held. The list\nshall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.\nThe stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this section or the books\nof the Corporation, or to vote at any meeting of stockholders.\n\nCONDUCT OF MEETING. Meetings of the stockholders shall be presided over by one of the following officers in the order of seniority and if present and\nacting, the Chairman of the Board, if any, the Vice Chairman of the Board, if any, the President, a Vice\u2212President or, if none of the foregoing is in office\nand present and acting, by a chairman to be designated by the Board. The Secretary of the corporation, or in his absence, an Assistant Secretary, shall act as\nsecretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present the Chairman of the meeting shall appoint a secretary of the\nmeeting. In the event that the Secretary presides at a meeting of the stockholders, an Assistant Secretary shall record the minutes of the meeting. To the\nmaximum extent permitted by law, the Board shall be entitled to make such rules or regulations for the conduct of meetings of stockholders as it shall deem\nnecessary, appropriate or convenient. Subject to such rules and regulations of the Board, if any, the chairman of the meeting shall have the right and\nauthority to prescribe such rules, regulations and procedures and take such action as, in the discretion of such chairman, are deemed necessary, appropriate\nor convenient for the\n \u22126\u2212\n\f Case 1:25-cv-09357-MKV Document 26-2 Filed 03/27/26 Page 9 of 17\n\nproper conduct of the meeting. Such rules, regulations and procedures, whether adopted by the Board or prescribed by the chairman of the meeting, may\ninclude, without limitation, the following: (i) establishing an agenda for the meeting and the order for the consideration of the items of business on such\nagenda; (ii) restricting admission to the time set for the commencement of the meeting; (iii) limiting attendance at the meeting to stockholders of record of\nthe corporation entitled to vote at the meeting, their duly authorized proxies or other such persons as the chairman of the meeting may determine;\n(iv) limiting participation at the meeting on any matter to stockholders of record of the corporation entitled to vote on such matter, their duly authorized\nproxies or other such persons as the chairman of the meeting may determine to recognize and, as a condition to recognizing any such participant, requiring\nsuch participant to provide the chairman of the meeting with evidence of his or her name and affiliation, whether he or she is a stockholder or a proxy for a\nstockholder, and the class and series and number of shares of each class and series of capital stock of the corporation which are owned beneficially and/or of\nrecord by such stockholder; (v) limiting the time allotted to questions or comments by participants; (vi) determining when the polls should be opened and\nclosed for voting; (vii) taking such actions as are necessary or appropriate to maintain order, decorum, safety and security at the meeting; (viii) removing\nany stockholder who refuses to comply with meeting procedures, rules or guidelines as established by the chairman of the meeting; (ix) adjourning the\nmeeting to a later date, time and place announced at the meeting by the chairman; and (x) complying with any state and local laws and regulations\nconcerning safety and security. Unless otherwise determined by the chairman of the meeting, meetings of stockholders shall not be required to be held in\naccordance with the rules of parliamentary procedure.\n\nPROXY REPRESENTATION. Every stockholder may authorize another person or persons to act for him by proxy in all matters in which a stockholder is\nentitled to participate whether by waiving notice of any meeting, voting or participating at a meeting, or expressing consent or dissent without a meeting.\nEvery proxy must be signed by the stockholder or by his attorney\u2212in\u2212fact. No proxy shall be voted or acted upon after three years from its date unless such\nproxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and, if, and only as long as, it is coupled with\nan interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is\nan interest in the stock itself or an interest in the corporation generally.\n\nINSPECTORS. The directors, in advance of any meeting, shall appoint one or more inspectors of election to act at the meeting or any adjournment thereof.\nIf an inspector or inspectors are not appointed, the person presiding at the meeting shall appoint one or more inspectors. In case any person who may be\nappointed as an inspector fails to appear or act, the vacancy shall be filled by appointment made by the directors in advance of the meeting or at the meeting\nby the person presiding thereat. Each inspector, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties\nof inspector at such meeting with strict impartiality and according to the best of his ability. The inspectors, shall determine the number of shares of stock\noutstanding and the voting power of each, the shares of stock represented at the meeting, the existence of a quorum, the validity and effect of proxies, and\nshall receive votes, ballots or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all\nvotes, ballots or consents, determine the result, and do such acts as are proper to conduct the election or vote with fairness to all stockholders. On request of\nthe person presiding at the meeting, the inspector or inspectors, shall make a report in writing of any challenge, question or matter determined by him or\nthem and execute a certificate of any fact found by him or them.\n\nQUORUM. The holders of a majority of the outstanding shares of stock present at a meeting of stockholders shall constitute a quorum at a meeting of\nstockholders for the transaction of any business. The stockholders present may adjourn the meeting despite the absence of a quorum.\n\nVOTING. Each share of stock shall entitle the holder thereof to one vote. The election of directors and any other action, shall be authorized by a majority of\nthe votes cast except where the General Corporation Law prescribes a different percentage of votes and/or a different exercise of voting power, and except\nas may be otherwise prescribed by the provisions of the certificate of incorporation and these By\u2212laws. In the election of directors, and for any other action,\nvoting need not be by ballot.\n8. STOCKHOLDER ACTION WITHOUT MEETINGS. Any action required by the General Corporation Law to be taken at any annual or special\nmeeting of stockholders, or any action which may be taken at any annual or special meeting of stockholders, may be taken without a meeting, in accordance\nwith this Section 8 of Article I, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less\nthan the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were\npresent and voted. Prompt notice of the taking of the\n \u22127\u2212\n\f Case 1:25-cv-09357-MKV Document 26-2 Filed 03/27/26 Page 10 of 17\n\ncorporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who,\nif the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written\nconsents signed by a sufficient number of holders to take the action were delivered to the corporation.\n\n9. ADJOURNMENT. At any meeting of the stockholders of the corporation, whether annual or special, the chairman of the meeting may adjourn the\nmeeting from time to time, without notice other than announcement at the meeting, whether or not a quorum is present. At any such adjourned meeting at\nwhich a quorum may be present, any business may be transacted which might have been transacted at the meeting as originally called.\n\n\n ARTICLE II\n DIRECTORS\n\n1. FUNCTIONS AND DEFINITION. The business and affairs of the corporation shall be managed by or under the direction of the Board of Directors of\nthe corporation. The Board of Directors shall have the authority to fix the compensation of the members thereof. The use of the phrase \u201cwhole board\u201d herein\nrefers to the total number of directors which the corporation would have if there were no vacancies.\n\n2. QUALIFICATIONS AND NUMBER. A director need not be a stockholder, a citizen of the United States, or a resident of the State of Delaware. The\ninitial Board of Directors shall consist of three persons. Thereafter the number of directors constituting the whole board shall be at least one. Subject to the\nforegoing limitation and except for the first Board of Directors, such number may be fixed from time to time by action of the stockholders or of the\ndirectors. The number of directors may be increased or decreased by action of the stockholders or of the directors.\n\n3. ELECTION AND TERM. The first Board of Directors, unless the members thereof shall have been named in the certificate of incorporation, shall be\nelected by the incorporator or incorporators and shall hold office until the first annual meeting of stockholders and until their successors are elected and\nqualified or until their earlier resignation or removal. Any director may resign at any time upon written notice to the corporation. Thereafter, directors who\nare elected at an annual meeting of stockholders, and directors who are elected in the interim to fill vacancies and newly created directorships, shall hold\noffice until the next annual meeting of stockholders and until their successors are elected and qualified or until their earlier resignation or removal. In the\ninterim between annual meetings of stockholders or of special meetings of stockholders called for the election of directors and/or for the removal of one or\nmore directors and for the filling of any vacancy in that connection, newly created directorships and any vacancies in the Board of Directors, including\nunfilled vacancies resulting from the removal of directors for cause or without cause, resignation, death, disqualification or other causes shall be filled only\nby the vote of a majority of the remaining directors then in office, although less than a quorum, or by the sole remaining director.\n\n4. MEETINGS.\nTIME. Meetings shall be held at such time as the Board shall fix, except that the first meeting of a newly elected Board shall be held as soon after its\nelection as the directors may conveniently assemble.\n\nPLACE. Meetings shall be held at such place within or without the State of Delaware as shall be fixed by the Board.\n\nCALL. No call shall be required for regular meetings for which the time and place have been fixed. Special meetings may be called by or at the direction of\nthe Chairman of the Board, if any, the Vice\u2212Chairman of the Board, if any, of the President, or of a majority of the directors in office.\n\nNOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be required for regular meetings for which the time and place have been fixed.\nWritten, oral, or any other mode of notice of the time and place shall be given for special meetings in sufficient time for the convenient assembly of the\ndirectors thereat. Notice need not be given to any director or to any member of a committee of directors who submits a written waiver of notice signed by\nhim before or after the time stated therein. Attendance of any such person at a meeting shall constitute a waiver of notice of such meeting, except when he\nattends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not\nlawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the directors need be specified in\nany written waiver of notice.\n \u22128\u2212\n\f Case 1:25-cv-09357-MKV Document 26-2 Filed 03/27/26 Page 11 of 17\n\nQUORUM AND ACTION. A majority of the whole Board shall constitute a quorum except when a vacancy or vacancies prevents such majority,\nwhereupon a majority of the directors in office shall constitute a quorum, provided, that such majority shall constitute at least one\u2212third of the whole Board.\nA majority of the directors present, whether or not a quorum is present, may adjourn a meeting to another time and place. Except as herein otherwise\nprovided, and except as otherwise provided by the General Corporation Law, the vote of the majority of the directors present at a meeting at which a\nquorum is present shall be the act of the Board. The quorum and voting provisions herein stated shall not be construed as conflicting with any provisions of\nthe General Corporation Law and these By\u2212laws which govern a meeting of directors held to fill vacancies and newly created directorships in the Board or\naction of disinterested directors.\n\nAny member or members of the Board of Directors or of any committee designated by the Board, may participate in a meeting of the Board, or any such\ncommittee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons participating in the\nmeeting can hear each other.\n\nCHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if present and acting, shall preside at all meetings. Otherwise, the\nVice\u2212Chairman of the Board, if any and if present and acting, or the President, if present and acting, or any other director chosen by the Board, shall\npreside.\n\n5. NOTICE OF NOMINATIONS FOR DIRECTORS.\n (a) Annual Meetings of Stockholders\n\n (1) Nominations of persons for election to the Board at an annual meeting of stockholders may be made (A) by or at the direction of the Board or a\ncommittee appointed by the Board, or (B) by any stockholder of the Corporation (i) who is a stockholder of record on the date of the giving of the notice\nprovided for in this Section 5(a) of Article II, on the record date for the determination of the stockholders entitled to vote at such annual meeting of\nstockholders and at the time of such annual meeting of stockholders, (ii) who is entitled to vote at the annual meeting of stockholders, and (iii) who\ncomplies with the notice procedures set forth in Section 5(a) of Article II as to such nominations, including, but not limited to, the procedures regarding\nsuch notice\u2019s timeliness and required form.\n\n (2) For a stockholder\u2019s notice of nomination of persons for election to the Board at an annual meeting of stockholders to be brought before an annual\nmeeting by a stockholder pursuant to Section5(a)(1)(B) of Article II, the stockholder must have given timely notice thereof, in proper written form, to the\nSecretary. To be considered timely, a stockholder\u2019s notice of nomination must be delivered to, or mailed and received by, the Secretary at the principal\nexecutive offices of the corporation not earlier than the close of business on the 120th calendar day, and not later than the close of business on the 90th\ncalendar day, prior to the first anniversary of the immediately preceding year\u2019s annual meeting; provided, however, that in the event that no annual meeting\nwas held in the previous year or the annual meeting is called for a date that is more than 30 calendar days earlier or more than 60 calendar days later thanth\nsuch anniversary date, notice by the stockholder in order to be timely must be so delivered or received not earlier than the close of business on the 120\n th\ncalendar day prior to the date of such annual meeting and not later than the close of business on the later of the 90 calendar day prior to the date of such\nannual meeting or, if the first public disclosure of the date of such annual meeting is less than 100 calendar days prior to the date of such annual meeting, the\n10th calendar day following the day on which public disclosure of the date of such annual meeting is first made by the Corporation. In no event shall any\nadjournment or postponement of an annual meeting or the public disclosure thereof commence a new time period (or extend any time period) for the giving\nof a stockholder\u2019s notice as described above.\n\nTo be in proper written form, a stockholder\u2019s notice of nomination to the Secretary (whether given pursuant to Section 5(a) of Article II or Section 5(b) of\nArticle II) shall set forth in writing the following: (a) as to each person whom the stockholder proposes to nominate for election or reelection as a director\n(i) the name, age, business address and residence address of such person; (ii) the principal occupation and employment of such person; (iii) the class and\nseries and number of shares of each class and series of capital stock of the corporation which are owned beneficially or of record by such person (which\ninformation shall be supplemented not later than ten calendar days after the record date for the meeting to disclose such ownership as of the record date);\n(iv) such person\u2019s executed written consent to being named in the proxy statement as a nominee and to serving as a director if elected; (v) all\n \u22129\u2212\n\f Case 1:25-cv-09357-MKV Document 26-2 Filed 03/27/26 Page 12 of 17\n\ninformation relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made with the SEC in\nconnection with the solicitation of proxies for the election of directors in a contested election pursuant to Section 14 of the Exchange Act (or pursuant to any\nlaw or statute replacing such section), and the rules and regulations promulgated thereunder; (vi) a description of all direct and indirect compensation and\nother material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among\nsuch person being nominated, on the one hand, and the stockholder and any Stockholder Associated Person, on the other hand, including, without limitation\nall information that would be required to be disclosed pursuant to Item 404 promulgated under Regulation S\u2212K of the Exchange Act if the stockholder\nmaking the nomination and any Stockholder Associated Person were the \u201cregistrant\u201d for purposes of such rule and the person being nominated were a\ndirector or executive officer of such registrant; and (vii) the information and agreement required under Section 16 of these Bylaws; and (b) as to the\nstockholder giving the notice (i) the name and record address of such stockholder, as they appear on the corporation\u2019s stock ledger, and the name and\naddress of any Stockholder Associated Person; (ii) (A) the class and series and number of shares of each class and series of capital stock of the corporation\nwhich are, directly or indirectly, owned beneficially and/or of record by such stockholder or any Stockholder Associated Person, documentary evidence of\nsuch record or beneficial ownership, and the date or dates such shares were acquired and the investment intent at the time such shares were acquired,\n(B) any Derivative Instrument directly or indirectly owned beneficially by such stockholder or any Stockholder Associated Person and any other direct or\nindirect right held by such stockholder or any Stockholder Associated Person to profit from, or share in any profit derived from, any increase or decrease in\nthe value of shares of the corporation, (C) any proxy, contract, arrangement, understanding, or relationship pursuant to which such stockholder or any\nStockholder Associated Person has a right to vote any shares of any security of the corporation, (D) any Short Interest indirectly or directly held by such\nstockholder or any Stockholder Associated Person in any security issued by the corporation, (E) any rights to dividends on the shares of the Corporation\nowned beneficially by such stockholder or any Stockholder Associated Person that are separated or separable from the underlying shares of the corporation,\n(F) any proportionate interest in shares of the corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which\nsuch stockholder or any Stockholder Associated Person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner, and\n(G) any performance\u2212related fees (other than an asset\u2212based fee) that such stockholder or any Stockholder Associated Person is entitled to based on any\nincrease or decrease in the value of shares of the corporation or Derivative Instruments, if any, as of the date of such notice, including without limitation any\nsuch interests held by members of such stockholder\u2019s or any Stockholder Associated Person\u2019s immediate family sharing the same household (which\ninformation shall, in each case, be supplemented by such stockholder and any Stockholder Associated Person not later than 10 calendar days after the record\ndate for the meeting to disclose such ownership as of the record date); (iii) a description of all arrangements or understandings between such stockholder or\nany Stockholder Associated Person and each proposed nominee and any other person or persons (naming such person or persons) pursuant to which the\nnomination(s) are to be made by such stockholder; (iv) any material interest of such stockholder or any Stockholder Associated Person in the election of\nsuch proposed nominee, individually or in the aggregate, including any anticipated benefit to the stockholder or any Stockholder Associated Person\ntherefrom; (v) a representation that such stockholder is a holder of record of stock of the corporation entitled to vote at such meeting and that such\nstockholder intends to appear in person or by proxy at the meeting to nominate the person or persons named in its notice; (vi) a representation from the\nstockholder as to whether the stockholder or any Stockholder Associated Person intends or is part of a group which intends (A) to deliver a proxy statement\nand/or form of proxy to holders of at least the percentage of the corporation\u2019s outstanding capital stock required to elect the person proposed as a nominee\nand/or (B) otherwise to solicit proxies from stockholders in support of the election of such person; (vii) whether and the extent to which any agreement,\narrangement or understanding has been made, the effect or intent of which is to increase or decrease the voting power of such stockholder or such\nStockholder Associated Person with respect to any shares of the capital stock of the corporation, without regard to whether such transaction is required to be\nreported on a Schedule 13D or other form in accordance with Section 13(d) of the Exchange Act or any successor provisions thereto and the rules and\nregulations promulgated thereunder; and (viii) any other information relating to such stockholder and any Stockholder Associated Person that would be\nrequired to be disclosed in a proxy statement or other filings required to be made with the SEC in connection with solicitations of proxies for the election of\ndirectors in a contested election pursuant to Section 14 of the Exchange Act (or pursuant to any law or statute replacing such section) and the rules and\nregulations promulgated thereunder. In addition to the information required above, the corporation may require any proposed nominee to furnish such other\ninformation as may reasonably be required by the corporation to determine the eligibility of such proposed nominee to serve as an independent director of\nthe corporation or that could be material to a reasonable stockholder\u2019s understanding of the independence, or lack thereof, of such nominee.\n \u221210\u2212\n\f Case 1:25-cv-09357-MKV Document 26-2 Filed 03/27/26 Page 13 of 17\n\n (3) Notwithstanding anything in Section 5 of Article II to the contrary, in the event that the number of directors to be elected to the Board at an annual\nmeeting of the stockholders is increased and there is no public disclosure by the corporation, naming all of the nominees for directors or specifying the size\nof the increased Board, at least 90 calendar days prior to the first anniversary of the date of the immediately preceding year\u2019s annual meeting, a\nstockholder\u2019s notice required by Section 5 of Article II shall also be considered timely, but only with respect to nominees for any new positions created by\nsuch increase, if it shall\n th\n be delivered to, or mailed and received by, the Secretary at the principal executive offices of the corporation not later than the close\nof business on the 10 calendar day following the day on which such public disclosure is first made by the corporation.\n\n (b) Special Meetings of Stockholders. Nominations of persons for election to the Board may be made at a special meeting of stockholders at which\ndirectors are to be elected (i) pursuant to the corporation\u2019s notice of meeting, (ii) by or at the direction of the Board, or (iii) provided that the Board has\ndetermined that directors shall be elected at such meeting, by any stockholder of the corporation who (A) is a stockholder of record at the time of giving of\nnotice provided for in Section 5(b) of Article II, (B) is a stockholder of record on the record date for the determination of the stockholders entitled to vote at\nsuch meeting, (C) is a stockholder of record at the time of such meeting, (D) is entitled to vote at such meeting, and (E) complies with the notice procedures\nset forth in Section 5(b) of Article II as to such nomination. In the event the corporation calls a special meeting of stockholders for the purpose of electing\none or more directors to the Board, any such stockholder may nominate a person or persons (as the case may be) for election to such position(s) as specified\nin the corporation\u2019s notice of meeting, if the proper form of stockholder\u2019s notice required by Section 5(a)(2) of Article II of these Bylaws with respect to any\nnomination\n th\n shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the closeth\n of business on the one hundred\n120 calendar day prior to the date of such special meeting and not later than the close of business on the later of the 90 calendar day prior to the date of\nsuch special meeting or, if the first public disclosure\n th\n made by the corporation of the date of such special meeting is less than 100 days prior to the date of\nsuch special meeting, not later than the 10 calendar day following the day on which public disclosure is first made of the date of the special meeting and\nof the nominees proposed by the Board to be elected at such meeting. In no event shall any adjournment or postponement of a special meeting or the public\ndisclosure thereof commence a new time period (or extend any time period) for the giving of a stockholder\u2019s notice as described above.\n\n (c) General\n (1) In addition, to be timely, a stockholder\u2019s notice of nomination shall further be updated and supplemented, if necessary, so that the\ninformation provided or required to be provided in such notice shall be true and correct as of the record date for the meeting and as of the date that is ten\nbusiness days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and\nreceived by, the Secretary at the principal executive offices of the Corporation not later than five business days after the record date for the meeting in the\ncase of the update and supplement required to be made as of the record date, and not later than eight business days prior to the date for the meeting, any\nadjournment or postponement thereof in the case of the update and supplement required to be made as of ten business days prior to the meeting or any\nadjournment or postponement thereof.\n\n (2) If the information submitted pursuant to Section 5 of Article II by any stockholder proposing a nominee for election as a director at a\nmeeting of stockholders shall be inaccurate to any material extent, such information may be deemed not to have been provided in accordance with Section 5\nof Article II. Upon written request by the Secretary, the Board or any committee thereof, any stockholder proposing a nominee for election as a director at a\nmeeting shall provide, within seven business days of delivery of such request (or such other period as may be specified in such request), written verification,\nsatisfactory in the discretion of the Board, any committee thereof or any authorized officer of the corporation, to demonstrate the accuracy of any\ninformation submitted by the stockholder pursuant to Section 5 of Article II. If a stockholder fails to provide such written verification within such period,\nthe information as to which written verification was requested may be deemed not to have been provided in accordance with Section 5 of Article II .\n\n (3) Notwithstanding anything in these Bylaws to the contrary, no person shall be eligible for election as a director of the Corporation at any\nmeeting of stockholders unless nominated in accordance with the procedures set forth in this Article II Section 4.\n \u221211\u2212\n\f Case 1:25-cv-09357-MKV Document 26-2 Filed 03/27/26 Page 14 of 17\n\n (4) Notwithstanding anything in these Bylaws to the contrary, if a stockholder who has submitted a written notice of intention to propose a\nnominee for election as a director at a meeting of stockholders (or a designated representative of the stockholder) does not appear at the annual or special\nmeeting of stockholders of the corporation to present the nomination, such nomination shall be disregarded notwithstanding that proxies in respect of such\nvote may have been received by the corporation.\n\n (5) Except as otherwise required by the General Corporation Law and other applicable law, the certificate of incorporation or these Bylaws, the\nChairman of the Board or other person presiding at the meeting shall have the power and duty (a) to determine whether any nomination proposed to be\nbrought before the meeting was properly made in accordance with the procedures set forth in Section 5 of Article II, including whether the stockholder or\nany Stockholder Associated Person on whose behalf the nomination is made, solicited (or is part of a group which solicited) or did not so solicit, as the case\nmay be, proxies in support of the election of such stockholder\u2019s nominee(s) in compliance with such stockholder\u2019s representation as required by Section 5 of\nArticle II, and (b) if any proposed nomination was not made in compliance with Section 5 of Article II to declare that such nomination is defective and shall\nbe disregarded.\n\n (6) In addition to the provisions of Section 5 of Article II, a stockholder shall also comply with all applicable requirements of the General\nCorporate Law, other applicable law and the Exchange Act, and the rules and regulations thereunder, with respect to the matters set forth herein, provided ,\nhowever , that any references in these Bylaws to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the applicable\nrequirements for nominations by stockholders to be considered pursuant to Section 5(a) of Article II.\n\n (7) Nothing in Section 5 of Article II shall be deemed to affect any rights of the holders of any series of preferred stock, if and to the extent\nprovided for, under applicable law, the certificate of incorporation or these Bylaws.\n\n6. REMOVAL OF DIRECTORS. Except as may otherwise be provided by the General Corporation Law, any director or the entire Board of Directors\nmay be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors.\n\n7. COMMITTEES. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each\ncommittee to consist of one or more of the directors of the corporation. The Board may designate one or more directors as alternate members of any\ncommittee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of any\nsuch committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they\nconstitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or\ndisqualified member. Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise the powers and authority of the\nBoard of Directors in the management of the business and affairs of the corporation with the exception of any authority the delegation of which is prohibited\nby Section 141 of the General Corporation Law, and may authorize the seal of the corporation to be affixed to all papers which may require it.\n\n8. WRITTEN ACTION. Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken\nwithout a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the\nminutes of proceedings of the Board or committee.\n\n9. QUALIFICATIONS.\n\n (a) Each director shall be at least 21 years of age. Directors need not be stockholders of the corporation.\n\n (b) Each director and nominee for election as a director of the corporation must deliver to the Secretary at the principal office of the corporation a\nwritten questionnaire with respect to the background and qualifications of such person (which questionnaire shall be provided by the Secretary upon written\nrequest and approved from time to time by the Board or its Governance/Nominating Committee) and a written representation and agreement (in the form\nprovided by the Secretary upon written request) (the \u201cProspective Director Agreement\u201d). The Prospective Director Agreement (i) shall provide that such\nperson (A) is not and will not become a party to (1) any agreement, arrangement or understanding with, and has not given any commitment or assurance to,\nany person or entity as to\n \u221212\u2212\n\f Case 1:25-cv-09357-MKV Document 26-2 Filed 03/27/26 Page 15 of 17\n\nhow such person, if such person is at the time a director or is subsequently elected as a director of the Corporation, will act or vote on any issue or question\n(a \u201cVoting Commitment\u201d) that has not been disclosed to the corporation, or (2) any Voting Commitment that could limit or interfere with such person\u2019s\nability to comply, if such person is at the time a director or is subsequently elected as a director of the corporation, with such person\u2019s duties as a director\nunder applicable law, (B) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the\ncorporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has\nnot been disclosed therein, and (C) would be in compliance, if elected as a director of the corporation, and will, if such person is at the time a director or is\nsubsequently elected as a director of the corporation, comply with all applicable corporate governance, conflicts of interest, confidentiality, corporate\nopportunities, securities ownership and stock trading policies, and other policies and guidelines of the corporation (copies of which shall be provided by the\nSecretary upon written request), and (ii) shall include, if such person is at the time a director or is subsequently elected as a director of the corporation, such\nperson\u2019s irrevocable resignation as a director if such person is found by a court of competent jurisdiction to have breached the Prospective Director\nAgreement in any material respect.\n\n\n ARTICLE III\n OFFICERS\n\nThe officers of the corporation shall consist of a President and a Secretary, and, if deemed necessary, expedient, or desirable by the Board of Directors, a\nChairman of the Board, a Vice\u2212Chairman of the Board, an Executive Vice\u2212President, one or more other Vice\u2212Presidents, one or more Assistant Secretaries,\na Treasurer, one or more Assistant Treasurers, and such other officers with such titles as the resolution of the Board of Directors choosing them shall\ndesignate. Except as may otherwise be provided in the resolution of the Board of Directors choosing him, no officer other than the Chairman or\nVice\u2212Chairman of the Board, if any, need be a director. Any number of offices may be held by the same person, as the directors may determine.\n\nUnless otherwise provided in the resolution choosing him, each officer shall be chosen for a term which shall continue until the meeting of the Board of\nDirectors following the next annual meeting of stockholders and until his successor shall have been chosen and qualified.\n\nAll officers of the corporation shall have such authority and perform such duties in the management and operation of the corporation as shall be prescribed\nin the resolutions of the Board of Directors designating and choosing such officers and prescribing their authority and duties, and shall have such additional\nauthority and duties as are incident to their office except to the extent that such resolutions may be inconsistent therewith. The Secretary or an Assistant\nSecretary of the corporation shall record all of the proceedings of all meetings and actions in writing of stockholders, directors, and committees of directors,\nand shall exercise such additional authority and perform such additional duties as the Board shall assign to him. Any officer may be removed, with or\nwithout cause, by the Board of Directors. Any vacancy in any office may be filled by the Board of Directors.\n\n\n ARTICLE IV\n CORPORATE SEAL\nThe corporate seal shall be in such form as the Board of Directors shall prescribe.\n\n\n ARTICLE V\n FISCAL YEAR\nThe fiscal year of the corporation shall be fixed, and shall be subject to change, by the Board of Directors.\n \u221213\u2212\n\f Case 1:25-cv-09357-MKV Document 26-2 Filed 03/27/26 Page 16 of 17\n\n ARTICLE VI\n CONTROL OVER BY\u2212LAWS\n\nSubject to the provisions of the Certificate of Incorporation and the provisions of the General Corporation Law, the power to amend, alter or repeal these\nBy\u2212laws and to adopt new By\u2212laws may exercised by the Board of Directors or the stockholders.\n\n\n ARTICLE VII\n INDEMNIFICATION\n\n1. INDEMNIFICATION OF EMPLOYEES. Employees of the corporation may, if so provided by the Board, be entitled to indemnification to the same\nextent as are directors and officers of the corporation under Section 2 of this Article VII. The corporation shall not be required to provide any such\nindemnification to any employee in any action or proceeding, or appeal therein, arising out of services rendered by any such person to any person, firm or\nassociation, or any corporation other than the corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, whether profit or\nnon\u2212profit (any such entity, other than the corporation, being hereinafter referred to as an \u201cEnterprise\u201d), unless such services were rendered at the request of\nthe Board.\n\n2. INDEMNIFICATION OF OFFICERS AND DIRECTORS. (a) The corporation shall indemnify to the fullest extent now or hereafter provided for or\npermitted by law each officer and/or director of the corporation involved in, or made or threatened to be made a party to, any action, suit, claim or\nproceeding, arbitration, alternative dispute resolution mechanism, investigation, administrative or legislative hearing or any other actual, threatened, pending\nor completed proceeding, whether civil or criminal, or whether formal or informal, and including an action by or in the right of the corporation or any\nEnterprise, and including appeals therein (any such process being hereinafter referred to as a \u201cProceeding\u201d) by reason of the fact that such officer and/or\ndirector or such person\u2019s testator or intestate (any such person being hereinafter referred to as an \u201cIndemnity\u201d) (i) is or was a director or officer of the\ncorporation, or (ii) while serving as a director or officer of the corporation, is or was serving, at the request of the corporation, as a director, officer, or in any\nother capacity, of any other Enterprise, against any and all judgments, fines, penalties, amounts paid in settlement, and expenses, including attorneys\u2019 fees,\nactually and reasonably incurred as a result of or in connection with any Proceeding, except as provided in Section 2(c) of this Article VII.\n\n (b) Expenses, including attorneys\u2019 fees, incurred by an Indemnitee in defending a Proceeding shall be paid by the corporation in advance of the final\ndisposition of such Proceeding upon receipt of an undertaking by or on behalf of such person to repay such amount if it shall ultimately be determined that\nsuch person is not entitled to be indemnified by the corporation, except as otherwise provided in Section 2(c) of this Article VII.\n\n (c) No indemnification shall be made to or on behalf of any Indemnities if a judgment or other final adjudication adverse to him or her establishes that\nsuch Indemnities acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so\nadjudicated, or that such Indemnitee personally gained in fact a financial profit or other advantage to which he or she was not legally entitled. In addition, no\nindemnification shall be made with respect to any Proceeding initiated by any Indemnitee against the corporation, or a director or officer of the corporation,\nother than to enforce the terms of this Article VII, unless such Proceeding was authorized by the Board. Further, no indemnification shall be made with\nrespect to any settlement or compromise of any Proceeding unless and until the corporation has consented to such settlement or compromise.\n\n (d) Written notice of any Proceeding for which indemnification may be sought by any Indemnitee shall be given to the corporation as soon as\npracticable. The corporation shall then be permitted to participate in the defense of any such proceeding or, unless conflicts of interest or position exist\nbetween such Indemnitee and the corporation in the conduct of such defense, to assume such defense. In the event that the corporation assumes the defense\nof any\n \u221214\u2212\n\f Case 1:25-cv-09357-MKV Document 26-2 Filed 03/27/26 Page 17 of 17\n\nsuch Proceeding, legal counsel selected by the corporation shall be acceptable to the Indemnitee. After such an assumption, the corporation shall not be\nliable to such Indemnitee for any legal or other expenses subsequently incurred unless such expenses have been expressly authorized by the corporation. In\nthe event that the corporation participates in the defense of any such Proceeding, the Indemnitee may select counsel to represent him or her in regard to such\na Proceeding; however such Indemnitee shall cooperate in good faith with any request that common counsel be utilized by the parties to any Proceeding\nwho are similarly situated, unless to do so would be inappropriate due to actual or potential differing interests between or among such parties.\n\n (e) In making any determination regarding any Indemnities\u2019 entitlement to indemnification hereunder, it shall be presumed that such Indemnitee is\nentitled to indemnification, and the corporation shall have the burden of proving the contrary.\n\n (f) If the corporation wrongfully denies a claim for indemnification or for the advancement or reimbursement of expenses pursuant hereto, the\nIndemnitee shall be entitled to be paid, in addition to all other amounts provided for in this Article VII, the expenses, including attorneys\u2019 fees, of\nprosecuting such claim.\n\n3. RIGHTS NOT EXCLUSIVE. The rights to indemnification and advancement or reimbursement of expenses granted by or pursuant to this Article VII:\n(i) shall not limit or exclude, but shall be in addition to, any other rights which may be granted by or pursuant to any statute, corporate charter, by\u2212law,\nresolution or shareholders or directors or agreement; (ii) shall not be construed to limit the rights and powers the corporation possesses under applicable\nprovisions of the General Corporation Law (as amended from time to time), or otherwise, including, but not limited to, the powers to purchase and maintain\ninsurance, create funds to secure or insure its indemnification obligations, and any other rights or powers the corporation may otherwise have under\napplicable law; (iii) shall be deemed to constitute contractual obligations of the corporation to any director or officer who serves in a capacity referred to in\nSection 2(a) of this Article VII at any time while this Article VII is in effect; (iv) shall continue to exist after the repeal or modification of this Article VII\nwith respect to events occurring prior thereto; and (v) shall continue as to any Indemnitee who has ceased to be a director or officer and shall inure to the\nbenefit of the estate, spouse, heirs, executors, administrators or assigns of such Indemnitee. Persons who, after the date of the adoption of this Article VII\nbecome or remain directors or officers of the corporation or who, while a director or officer of the corporation, become or remain a director, officer,\nemployee or agent of a subsidiary, shall be conclusively presumed to have relied on the rights to indemnification and advancement of expenses combined in\nthis Article VII. It is the intent of this Article VII to require the corporation to indemnify the persons referred to herein for the aforementioned judgments,\nfines, penalties, amounts paid in settlement, and expenses, including attorney\u2019s fees, in each and every circumstance in which such indemnification could\nlawfully be permitted by express provisions of By\u2212laws, and the indemnification required by this Article VII shall not be limited by the absence of an\nexpress recital of such circumstances.\n\n4. AUTHORIZATION OF CONTRACTS. The corporation may, with the approval of the Board, enter into an agreement with any person who is, or is\nabout to become a director, officer, employee or agent of the corporation, or who is serving, or is about to serve, at the request of the corporation, as\ndirector, officer, or in any other capacity, any other Enterprise; which agreement may provide for indemnification of such person and advancement of\nexpenses to such person upon terms, and the extent, not prohibited by law. The failure to enter into any such agreement shall not affect or limit the rights of\nany such person under this Article VII.\n \u221215\u2212\n\f","ocr_status":1,"date_upload":"2026-03-28T04:41:16.172129-07:00","document_number":"26","attachment_number":2,"pacer_doc_id":"127039321826","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit 2: Iconix's Restated and Amended By-Laws","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/473916171/","id":473916171,"tags":[],"absolute_url":"/docket/71893430/26/3/cole-v-iconix-international-inc/","date_created":"2026-03-28T04:39:30.320045-07:00","date_modified":"2026-03-30T02:26:45.839791-07:00","sha1":"596bf9b99dc69b148d40fbc5721a1589e77128bb","page_count":50,"file_size":245375,"filepath_local":"recap/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.26.3.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.26.3.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 1 of 50\n\n\n\n\n EXHIBIT 3A\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 2 of 50\n\n EXECUTION COPY\n\n\n EMPLOYMENT AGREEMENT\n\n EMPLOYMENT AGREEMENT (\u201cAgreement\u201d), entered into January 28, 2008\n (the \u201cSigning Date\u201d) to be effective as of January 1, 2008 (the \u201cEffective Date\u201d), by and\n between Iconix Brand Group, Inc., a Delaware corporation (the \u201cCompany\u201d), and Neil R. Cole\n (the \u201cExecutive\u201d).\n\n W I T N E S S E T H:\n\n WHEREAS, the Executive possesses unique personal knowledge, experience and\n expertise concerning the business and operations conducted by the Company;\n\n WHEREAS, the Employment Agreement by and between the Company and the\n Executive, dated effective as of January 1, 2005 (the \u201cPrior Agreement\u201d), expired pursuant to\n its terms on December 31, 2007 and the Company desires to continue to employ the Executive,\n and the Executive desires to continue to be employed by the Company, upon the terms and\n subject to the conditions set forth in this Agreement; and\n\n WHEREAS, effective as of the Effective Date, the Company and the Executive\n desire to enter into this Agreement as to the terms and conditions of the Executive\u2019s continued\n employment with the Company.\n\n NOW, THEREFORE, in consideration of the covenants and agreements\n hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of\n which are hereby acknowledged, the parties hereto agree as follows:\n\n 1. EMPLOYMENT AND DUTIES\n\n 1.1. Term of Employment. The Executive\u2019s initial term of employment under\n this Agreement shall commence on the Effective Date and shall continue until December 31,\n 2012 (the \u201cInitial Term\u201d), unless further extended or earlier terminated as provided in this\n Agreement. Unless written notice of non-renewal is provided by either party at least 180 days\n prior to the end of the Initial Term, the Executive\u2019s term of employment under this Agreement\n will automatically be renewed for a single one (1) year period from January 1, 2013 until\n December 31, 2013, unless earlier terminated as provided in this Agreement. The period of time\n between the Effective Date and the termination of the Executive\u2019s employment under this\n Agreement shall be referred to herein as the \u201cTerm.\u201d\n\n 1.2. General.\n\n 1.2.1. During the Term, the Executive shall have the titles of President\n and Chief Executive Officer of the Company and shall have the authorities, duties and\n responsibilities customarily exercised by an individual serving in these positions in a corporation\n of the size and nature of the Company and such other authorities, duties and responsibilities as\n may from time to time be delegated to him by the Board of Directors of the Company (the\n \u201cBoard\u201d) that are consistent with the foregoing. If requested by the Board or the Executive, the\n Executive will work with the Board to identify a person to serve as President of the Company\n reporting directly and solely to the Executive and, upon the appointment of such person, the\n\n\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 3 of 50\n\n\n\n\n Executive shall cease to have the title of President and the associated authorities, duties and\n responsibilities of President shall be exercised by such successor, subject to the authority of the\n Executive as Chief Executive Officer. The Executive shall faithfully and diligently discharge his\n duties hereunder and use his best efforts to implement the policies established by the Board from\n time to time. During the Term, the Executive shall be the highest ranking executive of the\n Company and no other officer will be appointed with authority over the Executive, and the\n Executive shall report directly to the Board. Subject to the foregoing, it is recognized that while\n the Executive is currently Chairman of the Board, the Board reserves the right to remove him as\n such and to appoint another member of the Board as non-executive Chairman, with the\n associated authorities, responsibilities and duties.\n\n 1.2.2. The Executive shall devote all of his business time, attention,\n knowledge and skills faithfully, diligently and to the best of his ability, in furtherance of the\n business and activities of the Company; provided, however, that nothing in this Agreement shall\n preclude the Executive from devoting reasonable periods of time required for:\n\n (i) serving as a director or member of a committee of up to two (2)\n organizations or corporations that do not, in the good faith determination\n of the Board, compete with the Company or otherwise create, or could\n create, in the good faith determination of the Board, a conflict of interest\n with the business of the Company;\n\n (ii) delivering lectures, fulfilling speaking engagements, and any\n writing or publication relating to his area of expertise; provided, that any\n fees, royalties or honorariums received therefrom shall be promptly turned\n over to the Company;\n\n (iii) engaging in professional organization and program activities;\n\n (iv) managing his personal passive investments and affairs, and may\n operate the business of NRC Aviation LLC (providing its sole business\n relates to the utilization and management of one airplane); and\n\n (v) participating in charitable or community affairs;\n\n provided that such activities do not materially, individually or in the aggregate, interfere with the\n due performance of his duties and responsibilities under this Agreement or create a conflict of\n interest with the business of the Company, as determined in good faith by the Board.\n\n 1.2.3. During the Term, at each annual meeting of the Company\u2019s\n stockholders, the Company shall nominate the Executive for election, and the Board shall\n recommend the election of the Executive, by the Company\u2019s stockholders as a director.\n\n 1.3. Reimbursement of Expenses. During the Term, the Company shall pay\n the reasonable expenses incurred by the Executive in the performance of his duties hereunder,\n including, without limitation, those incurred in connection with business related travel (subject to\n Section 4.5) or entertainment, or, if such expenses are paid directly by the Executive, the\n Company shall promptly reimburse him for such payments, provided that the Executive properly\n 2\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 4 of 50\n\n\n\n\n accounts for such expenses in accordance with the Company\u2019s business expense reimbursement\n policy. To the extent any such reimbursements (and any other reimbursements of costs and\n expenses provided for herein) are includable in the Executive\u2019s gross income for Federal income\n tax purposes, all such reimbursements shall be made no later than March 15 of the calendar year\n next following the calendar year in which the expenses to be reimbursed are incurred.\n\n 2. COMPENSATION\n\n 2.1. Base Salary. During the Term, the Executive shall be entitled to receive a\n base salary at a rate of one million dollars ($1,000,000.00) per annum, which base salary shall be\n payable in accordance with the payroll practices of the Company, with such increases (but no\n decreases) as may be determined by the Board from time to time (as increased from time to time,\n the \u201cBase Salary\u201d).\n\n 2.2. Sign-on Bonus. The Company shall pay the Executive a lump sum cash\n bonus in the amount of five hundred thousand dollars ($500,000.00) within five (5) business\n days after the Signing Date (the \u201cSign-On Bonus\u201d). In the event that the Executive resigns from\n his employment hereunder without Good Reason (as defined below) or the Employee\u2019s\n employment is terminated by the Company for Cause (as defined below) (x) on or prior to June\n 30, 2008, the Executive shall promptly pay to the Company an amount equal to one hundred\n percent (100%) of the Sign-On Bonus; or (y) on or following July, 1 2008, but prior to January 1,\n 2009, the Executive shall promptly pay to the Company an amount equal to one hundred percent\n (100%) of the Sign-On Bonus less a pro rata portion of the Sign-On Bonus determined by\n multiplying $500,000 by a fraction, the numerator of which is the number of days during 2008\n that the Executive is employed by the Company and the denominator of which is 365.\n\n 2.3. Annual Bonuses. In addition to Base Salary, the Executive shall be\n eligible to receive an annual cash bonus (the \u201cAnnual Bonus\u201d) for each completed calendar year\n (subject to Section 5.4 hereof) of the Company during the Term in accordance with this Section\n 2.3. The Company shall promptly establish (subject to shareholder approval) an incentive bonus\n plan intended to satisfy the requirements of Section 162(m) of the Internal Revenue Code of\n 1986, as amended (the \u201cCode\u201d), including as a performance goal thereunder the targets specified\n in this Section (the \u201c162(m) Plan\u201d). The 162(m) Plan shall be submitted for shareholder\n approval at the next meeting of the Company\u2019s shareholders (and thereafter as required by\n Section 162(m) of the Code) and the awards under this Section (except as provided in the last\n sentence hereof) shall be conditioned upon such shareholder approval and any required future\n approval as required by Section 162(m) of the Code. The Annual Bonus shall be a percentage of\n the Base Salary determined based on the level of the Company\u2019s consolidated earnings before\n interest, taxes, depreciation and amortization of fixed assets and intangible assets (\u201cEBITDA\u201d)\n achieved for such year against the target level of EBITDA (\u201cTarget EBITDA\u201d) established for\n such year by the Compensation Committee of the Board (the \u201cCompensation Committee\u201d), in\n its sole discretion, but with prior consultation with the Executive, as follows:\n\n\n\n\n 3\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 5 of 50\n\n\n\n\n Annual Level of Target\n EBITDA Achieved % of Base Salary\n\n less than 80% 0%\n 80% (Threshold) 50%\n 90% 75%\n 100% (Target) 100%\n 105% 110%\n 110% 122.50%\n 115% 135%\n 120% or more (Maximum) 150%\n\n There shall be no interpolation between each target level. Any Annual Bonus earned shall be\n payable in full in a lump sum cash payment in the calendar year following the calendar year for\n which it is earned. Such payment shall be made as soon as reasonably practicable following the\n audit by the Company\u2019s independent public accountants of the Company\u2019s financial statements\n for the calendar year for which it is earned, and the certification of the amount due by the\n Compensation Committee, and in accordance with the Company\u2019s normal payroll practices for\n the payment of bonuses to senior executives. The Compensation Committee shall use reasonable\n business efforts to meet for the purposes of such certification within 30 days after completion of\n the audit for the applicable fiscal year. Except as otherwise expressly provided in Section 5, any\n Annual Bonus payable under this Section 2.3 shall be contingent on the Executive\u2019s continued\n employment with the Company through the date such payment is made. In the event any\n necessary shareholder approvals under Code Section 162(m) for the Annual Bonus payable for\n any year is not timely received, the Executive shall not be entitled to any Annual Bonus for that\n year pursuant to the aforesaid formula, but the Compensation Committee may award him a\n discretionary bonus for such year. Notwithstanding the foregoing, if the Executive is employed\n upon expiration of the Term, he shall be entitled to the Annual Bonus for such last year even if\n he is not employed by the Company on the date the Annual Bonus is paid for such last year.\n\n 2.4. Sign-On Equity Award. Subject to the next sentence hereof, on February\n 19, 2008 (the \u201cDetermination Date\u201d), the Executive shall receive a one-time grant of equity\n incentive awards (the \u201cSign-On Grant\u201d) issued under the Company\u2019s 2006 Equity Incentive\n Plan (the \u201cEquity Plan\u201d), as provided below. If, and to the extent that, on the Determination\n Date the number of shares of Common Stock (as defined below) available for award under the\n Equity Plan, less 75,000 shares, is not sufficient to make the full Sign-on Grant, a number of\n PSU\u2019s (as defined below) to be granted pursuant to Section 2.4.2 below equal to the number\n shares of Common Stock that cannot be awarded as a result of such inadequate number of shares\n shall be reduced from the PSU\u2019s portion of the Sign-on Grant in reverse order of eligibility to\n vest. An additional grant for such number of PSU\u2019s that could not be issued as a result of the\n limitation in the prior sentence shall instead be made to the Executive promptly after, and subject\n to, approval by the shareholders of the Company of an additional number of shares of Common\n Stock available for awards under the Equity Plan (or a successor plan). The number of shares of\n Common Stock required for any such delayed grant shall be adjusted as the Compensation\n Committee shall deem appropriate to reflect any change that is made to the outstanding Common\n Stock by reason of any stock split, stock dividend, combination of shares, exchange of shares, or\n\n 4\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 6 of 50\n\n\n\n\n other change affecting the outstanding Common Stock during the period from the Determination\n Date through the date such delayed grant is made. The PSU\u2019s granted pursuant to any such\n delayed grant shall be subject to same terms and conditions as the PSU\u2019s to be initially awarded\n as part of the Sign-On Award pursuant to Section 2.4.2 below. If, and to the extent, such delayed\n grant is necessary, the Company shall submit to its shareholders for approval at its next annual\n shareholder meeting an increase in the number of shares of Common Stock available for awards\n under the Equity Plan (or a successor plan) sufficient to at least cover the number of shares of\n Common Stock necessary to make such delayed grant.\n\n 2.4.1. RSU\u2019s. The Executive shall receive a grant of restricted stock\n units of the Company (the \u201cRSU\u2019s\u201d) equal to a number of shares of the Company\u2019s common\n stock, par value $0.001 per share (\u201cCommon Stock\u201d) with a Fair Market Value (as defined\n below) on the Determination Date of Twenty-Four Million Dollars ($24,000,000). The RSU\u2019s\n shall be subject to the terms and conditions of the Equity Plan and a Restricted Stock Unit Award\n Agreement between the Company and the Executive in the form attached hereto as Exhibit A,\n but which Restricted Stock Unit Award Agreement shall set forth the following terms and\n conditions (and shall not contain any terms or conditions that are inconsistent with this\n Agreement):\n\n (i) Vesting. Vesting of the RSU\u2019s shall be time based and shall vest\n in five (5) substantially equal annual installments subject to the\n Executive\u2019s continuous employment with the Company through each such\n vesting date, with the first installment vesting on December 31, 2008 and\n each subsequent installment vesting each December 31 thereafter, with the\n final installment vesting on December 31, 2012 (each a \u201cTime Vesting\n Date\u201d). Notwithstanding the foregoing, in the event of a Change in\n Control (as defined below in Section 5.4.4), one hundred (100%) of the\n then remaining unvested RSU\u2019s shall immediately become vested\n effective simultaneous with such Change in Control.\n\n (ii) Distribution. Subject to Section 5.4 as to conditions and timing of\n distribution of Common Stock with respect to RSU\u2019s vesting as a result of\n a termination of employment and Section 9.8.2 with regard to timing of\n equity distributed as a result of a Separation from Service (as defined\n below) as an employee of the Company, any vested portion of the RSU\u2019s\n shall be distributed to the Executive in shares of Common Stock as\n follows:\n\n (A) The RSU\u2019s shall be distributed to the Executive fifteen (15)\n days after the applicable Time Vesting Date;\n\n (B) Notwithstanding anything to the contrary contained herein,\n other than Sections 5.4.8 and 9.8.2, all vested RSU\u2019s (including\n those vested pursuant to the last sentence of the clause (i) above)\n shall be distributed in shares of Common Stock to the Executive\n simultaneous with the Company\u2019s incurring a Change in Control.\n\n\n 5\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 7 of 50\n\n\n\n\n (iii) Termination. Notwithstanding the foregoing, in the event of a\n termination of the Executive\u2019s employment with the Company prior to any\n Time Vesting Date, the unvested RSU\u2019s at the time of such termination\n shall vest or be forfeited as set forth in Section 5.4 below, as applicable.\n\n 2.4.2. PSU\u2019s. Subject to the first paragraph of this Section 2.4, the\n Executive shall receive a grant of performance stock units of the Company (the \u201cPSU\u2019s,\u201d and\n together with the RSU\u2019s, the \u201cEquity Units\u201d) equal to a number of shares of Common Stock\n with a Fair Market Value on the Determination Date of Sixteen Million Dollars ($16,000,000).\n The PSU\u2019s shall be subject to the terms and conditions of the Equity Plan and a Performance\n Stock Unit Award Agreement between the Company and the Executive in the form attached\n hereto as Exhibit B, but which Performance Stock Unit Award Agreement shall set forth the\n following terms and conditions (and shall not contain any terms or conditions that are\n inconsistent with the terms of this Agreement):\n\n (i) Vesting. Vesting of the PSU\u2019s shall be performance based and\n shall vest based on the achievement of annual performance goals as\n described on Exhibit C attached hereto upon certification of achievement\n by the Compensation Committee as set forth on Exhibit C attached hereto.\n Notwithstanding anything to the contrary contained herein, in the event of\n a Change in Control, (x) the unvested PSU\u2019s shall vest as follows: (a) with\n regard to the PSU\u2019s that could vest in the calendar year of the Change in\n Control, based on the achievement of the performance goals for the year in\n which such Change in Control occurs (including as a result of achieved\n aggregate growth), calculated as of the date of such Change in Control\n (with the date on which the Change of Control occurs being deemed to be\n the end of a Performance Period for purposes of the calculations set forth\n on Exhibit C attached hereto, but with no adjustment of the level of the\n goals), and (b) with regard to the PSU\u2019s that could otherwise only vest in\n calendar years after the Change in Control, based on the achievement of\n the performance goals for later Performance Periods that would be deemed\n to have been achieved as of the date of the Change of Control (with the\n date on which the Change of Control occurs being deemed to be the end of\n each such later Performance Period for purposes of the calculations set\n forth on Exhibit C attached hereto, but with no adjustment of the level of\n the goals), including, in the case of clauses (a) and (b), as a consequence\n of the price per share of the Common Stock (including as a result of a\n deemed liquidation following a Change in Control which is a sale of the\n Company\u2019s assets) being paid by the acquirer in connection with the\n Change in Control and (y) any portion of the PSU\u2019s that remains unvested\n on the date of such Change in Control after giving effect to the foregoing\n clause (x) shall be forfeited as of the date of such Change in Control.\n\n (ii) Distribution. Subject to Section 5.4 as to conditions and timing of\n distribution of Common Stock with respect to PSU\u2019s vesting as a result of\n a termination of employment and Section 9.8.2 with regard to timing of\n equity distributed as a result of a Separation from Service as an employee\n 6\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 8 of 50\n\n\n\n\n of the Company, any vested portion of the PSU\u2019s shall be distributed to\n the Executive in shares of Common Stock in the year following the year of\n each applicable Performance Vesting Date (as defined in Exhibit C)\n following the Compensation Committee\u2019s certification of the level of\n attainment of the annual performance goals. Notwithstanding anything to\n the contrary contained herein, except as to Sections 5.4.8 and 9.8.2, all\n vested PSU\u2019s (including those vested pursuant to the last sentence of\n clause (i) above) shall be distributed to the Executive in shares of\n Common Stock simultaneous with the Company\u2019s incurring a Change in\n Control.\n\n (iii) Termination. Notwithstanding anything to the contrary contained\n herein, in the event of a termination of the Executive\u2019s employment with\n the Company prior to any Performance Vesting Date, the unvested PSU\u2019s\n at the time of such termination shall vest or be forfeited as set forth in\n Section 5.4 below, as applicable.\n\n 2.4.3. Dividends. With respect to the Equity Units, the Executive will\n have the right to receive dividend equivalents (in cash or in kind, as the case may be) in respect\n of any dividend distributed to holders of Common Stock of record on and after the\n Determination Date (or in the case of any PSU\u2019s awarded pursuant to a delayed grant in\n accordance with the first paragraph of this Section 2.4, on and after the date such delayed grant is\n made); provided, that any such dividend equivalents shall be subject to the same restrictions as\n the Equity Units with regard to which they are issued, including without limitation, as to vesting\n and time of distribution.\n\n 2.4.4. Fair Market Value. For the purposes of this Section 2.4, \u201cFair\n Market Value\u201d means the average of the last sale price reported for the Common Stock for each\n of the ten (10) trading days commencing on the third trading date following the Signing Date as\n reported on the NASDAQ National Market. The number of RSU\u2019s and PSU\u2019s to be issued shall\n be determined by dividing the required dollar value by the Fair Market Value.\n\n 2.4.5. Ownership Retention. The shares of Common Stock underlying\n the RSU\u2019s and PSU\u2019s shall only be saleable or otherwise transferable by the Executive prior to\n termination of his employment with the Company (i) as necessary to pay taxes on the distributed\n stock, (ii) to trusts or other entities established for the benefit of the Executive and/or his\n immediate family members, subject to such trusts or other entities agreeing in writing to retain\n such shares of Common Stock during the period of the Executive\u2019s employment with the\n Company, subject to sub-section (iii), (iii) if at the time of such sale or other transfer, the value\n of the Common Stock owned by the Executive and by trusts or other entities established for the\n benefit of the Executive and/or his immediate family members (and not subject to forfeiture\n conditions and not including options) shall, and would immediately after any sale or other\n transfer, exceed five million dollars ($5,000,000) in value, or (iv) as otherwise approved by the\n Board in its sole discretion.\n\n\n\n\n 7\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 9 of 50\n\n\n\n\n 2.5. Additional Compensation. During the Term, in addition to the foregoing,\n the Executive shall be eligible to receive such other compensation as may from time to time be\n awarded him by the Board (or the Compensation Committee), in its sole discretion.\n\n 3. PLACE OF PERFORMANCE. In connection with his employment by the\n Company, the Executive shall be based at the Company\u2019s principal executive offices, currently\n located in New York, New York.\n\n 4. EMPLOYEE BENEFITS AND PERQUISITES\n\n 4.1. Benefit Plans. During the Term, the Executive shall be eligible to\n participate on the terms and conditions, including eligibility, no less favorable than provided to\n other senior executives of the Company in all employee benefit plans, programs or arrangements\n (other than equity and incentive plans, unless determined by the Board (or the Compensation\n Committee), in its sole discretion), which shall be established or maintained by the Company\n generally for its employees, or generally made available to its senior executives. The parties\n acknowledge that because of the Sign-on Grant, it is currently contemplated that the Executive\n will not receive additional equity grants for a period of five (5) years following the Effective\n Date.\n\n 4.2. Vacation. The Executive shall be entitled to not less than five (5) weeks\n vacation at full pay for each year during the Term. Such vacation may be taken in the\n Executive\u2019s discretion, and at such time or times as are not inconsistent with the reasonable\n business needs of the Company.\n\n 4.3. Life Insurance Coverage. Subject to Executive\u2019s insurability at standard\n or better insurance rates and his cooperating with any required physical examinations, the\n Company shall use its reasonable business efforts to obtain and maintain in full force and effect\n during the Term, life insurance issued by an insurance company(s) with at least an \u201cA\u201d rating by\n A.M. Best Company covering the life of the Executive for the benefit of his designated\n beneficiary(s) in the amount of $5,000,000, which amount shall include the current $1,000,000\n whole-life policy. In the event such amount is not available at standard or better insurance rates,\n then the Company shall use its reasonable business efforts to obtain and maintain such life\n insurance in the amount that is purchasable at the same cost as if such amount could have been\n purchased at standard insurance rates. The remainder of the coverage shall be a term policy.\n\n 4.4. Automobile. During the Term, the Company shall provide the Executive\n for his use, at the Company\u2019s expense, an automobile commensurate with the Executive\u2019s needs\n as the Company\u2019s most senior executive officer and commensurate with the automobile provided\n by the Company to the Executive on the Signing Date. In addition, the Company shall supply\n the Executive with a Company paid and insured driver for business purposes only. The\n Company shall be responsible for the cost of insurance, maintenance, gas and other related\n operating expenses incurred for business purposes for such automobile during the Term,\n including the reasonable cost of parking near the Company\u2019s executive office. The Executive\n hereby acknowledges that he will be subject to taxation for any personal use of the automobile in\n accordance with applicable law.\n\n\n 8\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 10 of 50\n\n\n\n\n 4.5. Air Travel. During the Term, the Executive shall be entitled to travel for\n business purposes by private aircraft chartered by the Company (including from NRC Aviation\n LLC or a successor thereto) in accordance with the Company\u2019s policies (established by the\n Board, or an authorized committee thereof) as in effect from time to time.\n\n 5. TERMINATION OF EMPLOYMENT\n\n 5.1. General. The Executive\u2019s employment under this Agreement may be\n terminated without any breach of this Agreement only on the following circumstances:\n\n 5.1.1. Death. The Executive\u2019s employment under this Agreement shall\n terminate upon his death.\n\n 5.1.2. Disability. If the Executive suffers a Disability (as defined below),\n the Company may terminate the Executive\u2019s employment under this Agreement upon thirty (30)\n days prior written notice; provided that the Executive has not returned to full time performance\n of his duties during such thirty (30) day period. For purposes hereof, \u201cDisability\u201d shall mean the\n Executive\u2019s inability to perform his duties and responsibilities hereunder, with or without\n reasonable accommodation, due to any physical or mental illness or incapacity, which condition\n either (i) has continued for a period of 180 days (including weekends and holidays) in any\n consecutive 365-day period, or (ii) is projected by the Board in good faith after consulting with a\n doctor selected by the Company and consented to by the Executive (or, in the event of the\n Executive\u2019s incapacity, his legal representative), such consent not to be unreasonably withheld,\n that the condition is likely to continue for a period of at least six (6) consecutive months from its\n commencement.\n\n 5.1.3. Good Reason. The Executive may terminate his employment\n under this Agreement for Good Reason at any time on or prior to the 120th day after the\n occurrence of any of the Good Reason events set forth in the following sentence. For purposes\n of this Agreement, \u201cGood Reason\u201d shall mean the occurrence of any of the following events\n without the Executive\u2019s consent:\n\n (i) the failure by the Company to timely comply with its material\n obligations and agreements contained in this Agreement;\n\n (ii) a material diminution of the authorities, duties or responsibilities of\n the Executive set forth in Section 1.2 above (other than temporarily while\n the Executive is physically or mentally incapacitated and unable to\n properly perform such duties, as determined by the Board in good faith);\n\n (iii) the loss of any of the titles of the Executive with the Company set\n forth in Section 1.2 above (other than the loss of the title of President in\n connection with the appointment of another person as the President of the\n Company in accordance with Section 1.2 hereof);\n\n (iv) a reduction by the Company in the Base Salary or in any of the\n percentages of Base Salary payable as an Annual Bonus as set forth in\n Section 2.3 hereof (or, for purposes of determining an Annual Bonus, an\n 9\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 11 of 50\n\n\n\n\n increase in any of the percentages of Annual Level of Target EBITDA that\n must be achieved to obtain the related percentage of Base Salary as set\n forth in Section 2.3 hereof);\n\n (v) the re-location of the Executive to an office outside of New York,\n New York (Borough of Manhattan);\n\n (vi) the failure by the Company to nominate or re-nominate the\n Executive to serve as a member of the Board (other than as a result of the\n Executive\u2019s death or Disability, or because of a legal prohibition under\n applicable law or regulation);\n\n (vii) the assignment to the Executive of duties or responsibilities which\n are materially inconsistent with any of his duties and responsibilities set\n forth in Section 1.2 hereof;\n\n (viii) a change in the reporting structure so that the Executive reports to\n someone other than solely and directly to the Board; or\n\n (ix) the failure of the Company to obtain the assumption in writing of\n its obligation to perform this Agreement by any successor in connection\n with a sale or other disposition by the Company of all or substantially all\n of the Company\u2019s assets or businesses within ten (10) days after such sale\n or other disposition;\n\n provided, however, that, within ninety (90) days of any such events having occurred, the\n Executive shall have provided the Company with written notice that such events have occurred\n and afforded the Company thirty (30) days to cure same. The parties hereby acknowledge that\n the Executive\u2019s being removed from the position of Chairman, or another person being appointed\n as the Company\u2019s Chairman, in accordance with Section 1.2 hereof, shall not be Good Reason;\n provided, however, the foregoing shall not authorize any person other than the Executive serving\n as Executive Chairman.\n\n 5.1.4. Without Good Reason. The Executive may voluntarily terminate\n his employment under this Agreement without Good Reason upon written notice by the\n Executive to the Company at least (i) sixty (60) days prior to the effective date of such\n termination if the Executive has the title of President, or (ii) thirty (30) days prior to the effective\n date of such termination if the Executive does not have the title of President (which termination\n the Company may, in either case and its sole discretion, make effective earlier than the date set\n forth in the Notice of Termination (as defined below)).\n\n 5.1.5. Cause. The Company may terminate the Executive\u2019s employment\n under this Agreement at any time for Cause. Termination for \u201cCause\u201d shall mean termination of\n the Executive\u2019s employment because of the occurrence of any of the following as determined by\n the Board:\n\n (i) the willful and continued failure by the Executive to attempt in\n good faith to substantially perform his obligations under this Agreement\n 10\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 12 of 50\n\n\n\n\n (other than any such failure resulting from the Executive\u2019s incapacity due\n to a Disability); provided, however, that the Company shall have provided\n the Executive with written notice that such actions are occurring and the\n Executive has been afforded at least fifteen (15) days to cure same;\n\n (ii) the indictment of the Executive for, or his conviction of or plea of\n guilty or nolo contendere to, a felony or any other crime involving moral\n turpitude or dishonesty;\n\n (iii) the Executive\u2019s willfully engaging in misconduct in the\n performance of his duties for the Company (including theft, fraud,\n embezzlement, and securities law violations or a violation of the\n Company\u2019s Code of Conduct or other written policies) that is injurious to\n the Company, monetarily or otherwise; or\n\n (iv) the Executive\u2019s willfully engaging in misconduct other than in the\n performance of his duties for the Company (including theft, fraud,\n embezzlement, and securities law violations) that is materially injurious to\n the Company or, in the good faith determination of the Board, is\n potentially materially injurious to the Company, monetarily or otherwise.\n\n For purposes of this Section 5.1.5, no act, or failure to act, on the part of the Executive shall be\n considered \u201cwillful,\u201d unless done, or omitted to be done, by him in bad faith and without\n reasonable belief that his action or omission was in, or not opposed to, the best interest of the\n Company (including reputationally). Prior to any termination for Cause, the Executive will be\n given five (5) business days written notice specifying the alleged Cause event and will be\n entitled to appear (with counsel) before the full Board to present information regarding his views\n on the Cause event, and after such hearing, there is at least a majority vote of the full Board\n (other than the Executive) to terminate him for Cause. After providing the notice in foregoing\n sentence, the Board may suspend the Executive with full pay and benefits until a final\n determination pursuant to this Section has been made.\n\n 5.1.6. Without Cause. The Company may terminate the Executive\u2019s\n employment under this Agreement without Cause immediately upon written notice by the\n Company to the Executive, other than for death or Disability.\n\n 5.2. Notice of Termination. Any termination of the Executive\u2019s employment\n by the Company or by the Executive (other than termination by reason of the Executive\u2019s death)\n shall be communicated by written Notice of Termination to the other party of this Agreement.\n For purposes of this Agreement, a \u201cNotice of Termination\u201d shall mean a written notice which\n shall indicate the specific termination provision in this Agreement relied upon and shall set forth\n in reasonable detail the facts and circumstances claimed to provide a basis for termination of the\n Executive\u2019s employment under the provision so indicated.\n\n 5.3. Date of Termination. The \u201cDate of Termination\u201d shall mean (a) if the\n Executive\u2019s employment is terminated by his death, the date of his death, (b) if the Executive\u2019s\n employment is terminated pursuant to subsection 5.1.2 above, thirty (30) days after Notice of\n\n 11\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 13 of 50\n\n\n\n\n Termination is given (provided that the Executive shall not have returned to the performance of\n his duties on a full-time basis during such thirty (30) day period), (c) if the Executive\u2019s\n employment is terminated pursuant to subsections 5.1.3 or 5.1.5 above, the date specified in the\n Notice of Termination after the expiration of any applicable cure periods, (d) if the Executive\u2019s\n employment is terminated pursuant to subsection 5.1.4 above, the date specified in the Notice of\n Termination which shall be at least thirty (30) or sixty (60) days, as applicable, after Notice of\n Termination is given, or such earlier date as the Company shall determine, in its sole discretion,\n and (e) if the Executive\u2019s employment is terminated pursuant to subsections 5.1.6, the date on\n which a Notice of Termination is given.\n\n 5.4. Compensation Upon Termination.\n\n 5.4.1. Termination for Cause or without Good Reason. If the Executive\u2019s\n employment shall be terminated by the Company for Cause or by the Executive without Good\n Reason, the Executive shall receive from the Company: (a) any earned but unpaid Base Salary\n through the Date of Termination, paid in accordance with the Company\u2019s standard payroll\n practices; (b) reimbursement for any unreimbursed expenses properly incurred and paid in\n accordance with Section 1.3 through the Date of Termination; (c) payment for any accrued but\n unused vacation time in accordance with Company policy; (d) shares of Common Stock in\n respect of any vested Equity Units with respect to which the Executive has not received\n distribution and any vested, accrued and unpaid dividend equivalents thereon; and (e) such\n vested accrued benefits, and other payments, if any, as to which the Executive (and his eligible\n dependents) may be entitled under, and in accordance with the terms and conditions of, the\n employee benefit arrangements, plans and programs of the Company as of the Date of\n Termination, other than any severance pay plan ((a) though (e), the \u201cAmounts and Benefits\u201d),\n and the Company shall have no further obligation with respect to this Agreement other as\n provided in Sections 8 and 9 of this Agreement. In addition, any portion of the Equity Units that\n remain unvested on the Date of Termination shall be forfeited as of the Date of Termination.\n\n 5.4.2. Termination without Cause or For Good Reason. If, prior to the\n expiration of the Term, the Executive resigns from his employment hereunder for Good Reason\n or the Company terminates the Executive\u2019s employment hereunder without Cause (other than a\n termination by reason of death or Disability), and Section 5.4.3 does not apply, then the\n Company shall pay or provide the Executive the Amounts and Benefits and, subject to\n Section 5.4.8:\n\n (i) subject to Section 9.8.2, an amount equal to:\n\n (A) in the event such resignation or termination occurs on or prior\n to December 31, 2010, the sum of (x) two (2) times the Base\n Salary as then in effect (without taking into account any reduction\n therein that constitutes a basis for Good Reason), plus (y) an\n amount equal to two (2) times the average of the Annual Bonus the\n Executive received from the Company for the two (2) completed\n fiscal years prior to such termination; or\n\n\n\n 12\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 14 of 50\n\n\n\n\n (B) in the event such resignation or termination occurs on or\n following January 1, 2011, two (2) times the Base Salary as then in\n effect (without taking into account any reduction therein that\n constitutes a basis for Good Reason);\n in either case with one half of the amount due paid in equal installments\n on the Company\u2019s normal payroll dates for a period of one (1) year from\n the Date of Termination in accordance with the usual payroll practices of\n the Company, but off the employee payroll, and the other one half of the\n amount due being paid in a lump sum on the first anniversary of the Date\n of Termination, with each such payment deemed to be a separate payment\n for the purposes of Code Section 409A (as defined below);\n\n (ii) any Annual Bonus earned but unpaid for a prior fiscal year, paid in\n accordance with Section 2.3 (including payment timing) (the \u201cPrior Year\n Bonus\u201d);\n\n (iii) in the event such resignation or termination occurs following the\n Company\u2019s first fiscal quarter of any year, a pro-rata portion of the\n Executive\u2019s Annual Bonus for the fiscal year in which the Executive\u2019s\n termination occurs based on actual results for such year (determined by\n multiplying the amount of such Annual Bonus which would be due for the\n full fiscal year by a fraction, the numerator of which is the number of days\n during the fiscal year of termination that the Executive is employed by the\n Company and the denominator of which is 365), paid in accordance with\n Section 2.3 (including payment timing, \u201cPro Rata Bonus\u201d); and\n\n (iv) subject to the Executive\u2019s (a) timely election of continuation\n coverage under the Consolidated Omnibus Budget Reconciliation Act of\n 1985, as amended (\u201cCOBRA\u201d) with respect to the Company\u2019s group\n health insurance plans in which the Employee participated immediately\n prior to the Date of Termination (\u201cCOBRA Continuation Coverage\u201d),\n and (b) continued payment of premiums for such plans at the active\n employee rate (excluding, for purposes of calculating cost, an employee\u2019s\n ability to pay premiums with pre-tax dollars), the Company shall provide\n COBRA Continuation Coverage for the Executive and his eligible\n dependents until the earliest of (x) the Executive or his eligible\n dependents, as the case may be, ceasing to be eligible under COBRA, (y)\n eighteen (18) months following the Date of Termination, and (z) the\n Executive becoming eligible for coverage under the health insurance plan\n of a subsequent employer (the benefits provided under this sub-section\n (iii), the \u201cMedical Continuation Benefits\u201d).\n\n In addition, subject to Section 5.4.8, (A) seventy-five percent (75%) of the then remaining\n unvested RSU\u2019s shall immediately become vested on the Date of Termination and shall be\n distributed to the Executive in shares of Common Stock as provided in, and subject to, Sections\n 5.4.8 and 9.8.2, and (B) the portion of the PSU\u2019s subject to vesting in the calendar year in which\n the Date of Termination occurs (including, as a result of achieved aggregate growth) shall\n 13\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 15 of 50\n\n\n\n\n immediately become vested on the certification of the Compensation Committee promptly after\n the Date of Termination based on the achievement of the performance goals for such year\n calculated through the Date of Termination (with the Date of Termination being deemed to be\n the end of a Performance Period for purposes of the calculations set forth on Exhibit C attached\n hereto, but with no adjustment of the level of the goals), and shall be distributed in shares of\n Common Stock to the Executive as provided in, and subject to, Sections 5.4.8 and 9.8.2. After\n giving effect to the foregoing, any portion of the Equity Units that remain unvested on the\n certification following the Date of Termination shall be forfeited as of the Date of Termination.\n\n 5.4.3. Termination Following Change in Control. Anything contained\n herein to the contrary notwithstanding, but without limiting Section 2.4 hereof with respect to the\n vesting of Equity Units and the delivery of Common Stock underlying such vested Equity Units\n (and any unpaid dividend equivalents) in connection with the occurrence of a Change in Control,\n in the event the Executive resigns from his employment hereunder for Good Reason or the\n Company terminates the Executive\u2019s employment hereunder without Cause (other than a\n termination by reason of death or Disability) within twelve (12) months following a Change in\n Control (as defined below), the Company shall pay or provide the Executive the Amounts and\n Benefits and, subject to Section 5.4.8:\n\n (i) subject to Section 9.8.2, an amount equal to:\n\n (A) in the event such resignation or termination occurs on or prior\n to December 31, 2010, the sum of (x) three (3) times the Base\n Salary as then in effect (without taking into account any reduction\n therein that constitutes a basis for Good Reason), plus (y) an\n amount equal to three (3) times the average of the Annual Bonus\n the Executive received from the Company for the three (3)\n completed fiscal years prior to such termination; or\n\n (B) in the event such resignation or termination occurs on or\n following January 1, 2011, three (3) times the Base Salary as then\n in effect (without taking into account any reduction therein that\n constitutes a basis for Good Reason);\n in either case payable in a cash lump sum on the sixtieth (60th) day following the\n Date of Termination;\n\n (ii) the Prior Year Bonus;\n\n (iii) in the event such resignation or termination occurs following the\n Company\u2019s first fiscal quarter of any year, a Pro Rata Bonus; and\n\n (iv) the Medical Continuation Benefits.\n\n 5.4.4. For purposes of this Agreement, a \u201cChange in Control\u201d shall be\n deemed to occur upon any of the following events, provided that such an event is a Change in\n Control Event within the meaning of Code Section 409A: (a) any \u201cperson\u201d as such term is used in\n Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the \u201cExchange\n\n 14\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 16 of 50\n\n\n\n\n Act\u201d) (other than the Company, any trustee or other fiduciary holding securities under any\n employee benefit plan of the Company, or any company owned, directly or indirectly, by the\n stockholders of the Company in substantially the same proportions as their ownership of the\n Common Stock), becoming the beneficial owner (as defined in Rule 13d-3 under the Exchange\n Act), directly or indirectly, of securities of the Company representing more than 50% of the\n combined voting power of the Company\u2019s then outstanding securities; (b) during any period of\n twelve (12) consecutive months, the individuals who, at the beginning of such period, constitute\n the Board, and any new director whose election by the Board or nomination for election by the\n Company\u2019s stockholders was approved by a vote of at least two-thirds (2/3) of the directors then\n still in office who either were directors at the beginning of the 12-month period or whose\n election or nomination for election was previously so approved, cease for any reason to\n constitute at least a majority of the Board; (c) a merger or consolidation of the Company with\n any other corporation or other entity, other than a merger or consolidation which would result in\n the voting securities of the Company outstanding immediately prior thereto (and held by persons\n that are not affiliates of the acquirer) continuing to represent (either by remaining outstanding or\n by being converted into voting securities of the surviving entity) more than 50% of the combined\n voting power of the voting securities of the Company or such surviving entity outstanding\n immediately after such merger or consolidation; provided, however, that a merger or\n consolidation effected to implement a recapitalization of the Company (or similar transaction) in\n which no person (other than those covered by the exceptions in clause (a) of this Section\n 5.4.4(iii)) acquires more than 50% of the combined voting power of the Company\u2019s then\n outstanding securities shall not constitute a Change in Control; or (d) the consummation of a sale\n or other disposition by the Company of all or substantially all of the Company\u2019s assets, including\n a liquidation, other than the sale or other disposition of all or substantially all of the assets of the\n Company to a person or persons who beneficially own, directly or indirectly, more than 50% of\n the combined voting power of the outstanding voting securities of the Company immediately\n prior to the time of the sale or other disposition.\n\n 5.4.5. Termination upon Death. In the event of the Executive\u2019s death, the\n Company shall pay or provide to the Executive\u2019s estate: (i) the Amounts and Benefits, (ii) the\n Prior Year Bonus, and (iii) a Pro Rata Bonus. In addition, (A) one hundred percent (100%) of\n the then remaining unvested RSU\u2019s shall immediately become vested on the Date of Termination\n and shall be distributed to the Executive\u2019s estate in shares of Common Stock within sixty (60)\n days of the Date of Termination and (B) the portion of the PSU\u2019s subject to vesting in the\n calendar year the Date of Termination occurs (including, as a result of achieved aggregate\n growth) shall immediately become vested on the certification of the Compensation Committee\n promptly after the Date of Termination based on the achievement of the performance goals for\n such year, calculated through the Date of Termination (with the Date of Termination being\n deemed to be the end of a Performance Period for purposes of the calculations set forth on\n Exhibit C attached hereto, but with no adjustment of the level of goals), and shall be distributed\n to the Executive\u2019s estate in shares of Common Stock sixty (60) days after the Date of\n Termination. After giving effect to the foregoing, any portion of the PSU\u2019s that remain unvested\n on the certification following the Date of Termination shall be forfeited as of the Date of\n Termination.\n\n 5.4.6. Termination upon Disability. In the event the Company terminates\n the Executive\u2019s employment hereunder for reason of Disability, the Company shall pay or\n 15\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 17 of 50\n\n\n\n\n provide to the Executive: (i) the Amounts and Benefits, (ii) the Prior Year Bonus, (iii) a Pro Rata\n Bonus and (iv) the Medical Benefits. In addition, subject to Section 5.4.8, (A) fifty percent\n (50%) of the then remaining unvested RSU\u2019s shall immediately become vested on the Date of\n Termination and shall be distributed to the Executive in shares of Common Stock as provided in,\n and subject to, Sections 5.4.8 and 9.8.2 and (B) the portion of the PSU\u2019s subject to vesting in the\n calendar year the Date of Termination occurs (including, as a result of achieved aggregate\n growth) shall immediately become vested on the certification of the Compensation Committee\n promptly after the Date of Termination based on the achievement of the performance goals for\n such year, calculated through the Date of Termination (with the Date of Termination being\n deemed to be the end of a Performance Period for purposes of the calculations set forth on\n Exhibit C attached hereto, but with no adjustment of the level of goals), and shall be distributed\n in shares of Common Stock to the Executive as provided in, and subject to, Sections 5.4.8 and\n 9.8.2. After giving effect to the foregoing, any portion of the Equity Units that remain unvested\n on the certification following the Date of Termination shall be forfeited as of the Date of\n Termination.\n\n 5.4.7. No Mitigation or Offset. The Executive shall not be required to\n mitigate the amount of any payment provided for in this Section 5.4 by seeking other\n employment or otherwise, nor shall the amount of any payment provided for in this Section 5.4\n be reduced by any compensation earned by the Executive as the result of employment by another\n employer or business or by profits earned by the Executive from any other source at any time\n before and after the Date of Termination. The Company\u2019s obligation to make any payment\n pursuant to, and otherwise to perform its obligations under, this Agreement shall not be affected\n by any offset, counterclaim or other right that the Company may have against the Executive for\n any reason.\n\n 5.4.8. Release. Notwithstanding any provision to the contrary in this\n Agreement, the Company\u2019s obligation to pay or provide the Executive with the payments and\n benefits under Sections 5.4.2 and 5.4.3 (other than the Amounts and Benefits), and any\n distributions with respect to the Equity Units under Sections 5.4.2, 5.4.3 and 5.4.6, shall be\n conditioned on the Executive\u2019s executing and not revoking a waiver and general release in the\n form set forth as Exhibit D attached to this Agreement (with such changes therein, if any, as are\n legally necessary at the time of execution to make it enforceable) (the \u201cRelease\u201d). The Company\n shall provide the Release to the Executive within seven (7) days following the applicable Date of\n Termination. In order to receive the payments and benefits under Sections 5.4.2 and 5.4.3 (other\n than the Amounts and Benefits) and the distributions with respect to the Equity Units under\n Sections 5.4.2, 5.4.3 and 5.4.6, the Executive will be required to sign the Release within twenty-\n one (21) or forty-five (45) days after the date it is provided to him, whichever is applicable under\n applicable law, and not revoke it within the seven (7) day period following the date on which it is\n signed by him. Notwithstanding anything to the further contrary contained herein, (i) all\n payments delayed pursuant to this Section, except to the extent delayed pursuant to Section 9.8.2,\n shall be paid to the Executive in a lump sum on the first Company payroll date on or following\n the sixtieth (60th) day after the Date of Termination, and any remaining payments due under this\n Agreement shall be paid or provided in accordance with the normal payment dates specified for\n them herein and (ii) all distributions with respect to the Equity Units delayed pursuant to this\n Section, except to the extent delayed pursuant to Section 9.8.2, shall be distributed to the\n Executive on the sixtieth (60th) day after the Date of Termination.\n 16\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 18 of 50\n\n\n\n\n 6. INSURABILITY; RIGHT TO INSURE\n\n The Company shall have the right to maintain key man life insurance in its own\n name covering the Executive\u2019s life in an amount of up to fifty million dollars ($50,000,000.00).\n The Executive shall fully cooperate in the procuring of such insurance, including, without\n limitation, by submitting to the required medical examinations, if any, and by filling out,\n executing and delivering such applications and other instrument in writing as may be reasonably\n required by an insurance company or companies to which application or applications for\n insurance may be made by or for the Company.\n\n 7. CONFIDENTIALITY; NON-COMPETITION; NON-SOLICITATION; NON-\n DISPARAGEMENT; COOPERATION\n\n 7.1. The Company and the Executive acknowledge that the services to be\n performed by the Executive under this Agreement are unique and extraordinary and, as a result\n of such employment, the Executive shall be in possession of Confidential Information relating to\n the business practices of the Company and its subsidiaries and affiliates (collectively, the\n \u201cCompany Group\u201d). The term \u201cConfidential Information\u201d shall mean any and all information\n (oral and written) relating to the Company Group, or any of their respective activities, or of the\n clients, customers or business practices of the Company Group, other than such information\n which (i) is generally available to the public or within the relevant trade or industry, other than as\n the result of breach of the provisions of this Section 7.1, or (ii) the Executive is required to\n disclose under any applicable laws, regulations or directives of any government agency, tribunal\n or authority having jurisdiction in the matter or under subpoena or other process of law. The\n Executive shall not, during the Term nor at any time thereafter, except as may be required in the\n course of the performance of his duties hereunder (including without limitation, pursuant to\n Section 7.6 below) and except with respect to any litigation or arbitration involving this\n Agreement, including the enforcement hereof, directly or indirectly, use, communicate, disclose\n or disseminate to any person, firm or corporation any Confidential Information regarding the\n Company Group nor of the clients, customers or business practices of the Company Group\n acquired by the Executive during, or as a result of, his employment with the Company, without\n the prior written consent of the Company. Without limiting the foregoing, the Executive\n understands that Executive shall be prohibited from misappropriating any trade secret of the\n Company Group or of the clients or customers of the Company Group acquired by the Executive\n during, or as a result of, his employment with the Company, at any time during or after the Term.\n\n 7.2. Upon the termination of the Executive\u2019s employment for any reason\n whatsoever all Company Group property that is in the possession of the Executive shall be\n promptly returned to the Company, including, without limitation, all documents, records,\n notebooks, equipment, price lists, specifications, programs, customer and prospective customer\n lists and other materials that contain Confidential Information which are in the possession of the\n Executive, including all copies thereof. Anything to the contrary notwithstanding, the Executive\n shall be entitled to retain (i) papers and other materials of a personal nature, including, but not\n limited to, photographs, correspondence, personal diaries, calendars and rolodexes, personal files\n and phone books, (ii) information showing his compensation or relating to reimbursement of\n expenses, (iii) information that he reasonably believes may be needed for tax purposes and (iv)\n\n\n 17\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 19 of 50\n\n\n\n\n copies of plans, programs and agreements relating to his employment, or termination thereof,\n with the Company.\n\n 7.3. The Executive hereby agrees that he shall not, during the Term and for a\n period of one (1) year thereafter, in any location in which the Company Group or a licensee\n thereof operates or sells its products, directly or indirectly, engage, have an interest in or render\n any services to any business (whether as owner, manager, operator, licensor, licensee, lender,\n partner, stockholder, joint venturer, employee, consultant or otherwise) (collectively, \u201cEngage\u201d)\n competitive with the business activities conducted by the Company Group, or the business\n activities that the Company Group has plans to conduct, on the Date of Termination.\n Notwithstanding the foregoing, nothing herein shall prevent the Executive from (i) owning\n securities in a publicly traded entity whose activities compete with those of the Company Group\n (or any member thereof), provided that such securities holdings are not greater than five percent\n (5%) of such entity; (ii) Engaging in the business of the ownership and licensing (as licensor) of\n trademarks and brands if the products or services carrying such trademarks and brands do not\n compete with the products or services carrying the trademarks and brands owned and licensed\n (as licensor) by the Company, or that the Company is actively planning to own or license (as\n licensor), on the Date of Termination; or (iii) Engaging in an operating company(s) (including\n ownership of securities of such operating company(s)\u2019 holding company) that does not compete\n with the business activities conducted by the Company Group (or any member thereof), or that\n the Company Group (or any member thereof) has active plans to conduct, on the Date of\n Termination.\n\n 7.4. The Executive shall not, except in the furtherance of the Executive\u2019s\n duties hereunder, directly or indirectly, individually or on behalf of any other person, firm,\n corporation or other entity, (i) during the Term (except in the good faith performance of his\n duties) and for a period of two (2) years thereafter, solicit, aid or induce any employee,\n representative or agent of the Company Group to leave such employment or retention or to\n accept employment with or render services to or with any other person, firm, corporation or other\n entity unaffiliated with the Company Group or hire or retain any such employee, representative\n or agent, or take any action to materially assist or aid any other person, firm, corporation or other\n entity in identifying, hiring or soliciting any such employee, representative or agent, (ii) during\n the Term (except in the good faith performance of his duties) and for a period of one (1) year\n thereafter, solicit, aid or induce any customer of the Company Group to purchase goods or\n services then sold by the Company Group from another person, firm, corporation or other entity\n or assist or aid any other persons or entity in identifying or soliciting any such customer or (iii)\n during the Term (except in the good faith performance of his duties) and for a period of one (1)\n year thereafter, interfere in any manner with the relationship of the Company Group and any of\n their vendors. An employee, representative or agent shall be deemed covered by this Section\n while so employed or retained by the Company and for six (6) months thereafter. Anything to\n the contrary notwithstanding, the Company agrees that the following shall not be deemed a\n violation of this Section 7.4: (a) the Executive\u2019s solicitation of the Company Group\u2019s customers\n and/or vendors in connection with, and directly related to, his Engaging in a business that\n complies with Sections 7.3(ii) or (iii); (b) the Executive\u2019s responding to an unsolicited request\n for an employment reference regarding any former employee of the Company Group from such\n former employee, or from a third party, by providing a reference setting forth his personal views\n about such former employee; or (c) if an entity with which the Executive is associated hires or\n 18\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 20 of 50\n\n\n\n\n engages any employee of the Company Group, if the Executive was not, directly or indirectly,\n involved in hiring or identifying such person as a potential recruit or assisting in the recruitment\n of such employee. For purposes hereof, the Executive shall only be deemed to have been\n involved \u201cindirectly\u201d in soliciting, hiring or identifying an employee if the Executive (x) directs\n a third party to solicit or hire the Employee, (y) identifies an employee to a third party as a\n potential recruit or (z) aids, assists or participates with a third party in soliciting or hiring an\n employee.\n\n 7.5. At no time during or within five (5) years after the Term shall the\n Executive, directly or indirectly, disparage the Company Group or any of the Company Group\u2019s\n past or present employees, directors, products or services. The Company shall advise its senior\n officers and the members of the Board (while serving in such capacities) not to disparage the\n Executive during the Term or within the five (5) year period after the Term, except in the good\n faith performance of their duties or fiduciary obligations. Notwithstanding the foregoing,\n nothing in this Section 7.5 shall prevent any person from making any truthful statement to the\n extent (i) necessary to rebut any untrue public statements made about him or her; (ii) necessary\n with respect to any litigation, arbitration or mediation involving this Agreement, including, but\n not limited to, the enforcement of this Agreement; (iii) required by law or by any court,\n arbitrator, mediator or administrative or legislative body (including any committee thereof) with\n jurisdiction over such person; or (iv) made as good faith competitive statements in the ordinary\n course of business.\n\n 7.6. Upon the receipt of reasonable notice from the Company (including the\n Company\u2019s outside counsel), the Executive agrees that while employed by the Company and\n thereafter, the Executive will respond and provide information with regard to matters of which\n the Executive has knowledge as a result of the Executive\u2019s employment with the Company, and\n will provide reasonable assistance to the Company Group and their respective representatives in\n defense of any claims that may be made against the Company Group (or any member thereof),\n and will provide reasonable assistance to the Company Group in the prosecution of any claims\n that may be made by the Company Group (or any member thereof), to the extent that such claims\n may relate to matters related to the Executive\u2019s period of employment with the Company (or any\n predecessors). Any request for such cooperation shall take into account the Executive\u2019s other\n personal and business commitments. The Executive also agrees to promptly inform the\n Company (to the extent the Executive is legally permitted to do so) if the Executive is asked to\n assist in any investigation of the Company Group (or any member thereof) or their actions,\n regardless of whether a lawsuit or other proceeding has then been filed with respect to such\n investigation, and shall not do so unless legally required. If the Executive is required to provide\n any services pursuant to this Section 7.6 following the Term, upon presentation of appropriate\n documentation, the Company shall promptly reimburse the Executive for reasonable out-of-\n pocket travel, lodging, communication and duplication expenses incurred in connection with the\n performance of such services and in accordance with the Company\u2019s expense policy for its\n senior officers, and for legal fees to the extent the Board in good faith reasonably believes that\n separate representation is warranted. The Executive\u2019s entitlement to reimbursement of such\n costs and expenses, including legal fees, pursuant to this Section 7.6, shall in no way affect the\n Executive\u2019s rights, if any, to be indemnified and/or advanced expenses in accordance with the\n Company\u2019s (or any of its subsidiaries\u2019) corporate or other organizational documents, any\n applicable insurance policy, and/or in accordance with this Agreement.\n 19\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 21 of 50\n\n\n\n\n 7.7. Without intending to limit the remedies available to the Company, the\n Executive acknowledges that a breach of any of the covenants contained in this Section 7 may\n result in material and irreparable injury to the Company, or its affiliates or subsidiaries, for\n which there is no adequate remedy at law, that it will not be possible to measure damages for\n such injuries precisely and that, in the event of such a breach or threat the Company shall be\n entitled to a temporary restraining order and/or a preliminary or permanent injunction restraining\n the Executive from engaging in activities prohibited by this Section 7 or such other relief as may\n be required specifically to enforce any of the covenants in this Section 7. If for any reason it is\n held that the restrictions under this Section 7 are not reasonable or that consideration therefor is\n inadequate, such restrictions shall be interpreted or modified to include as much of the duration\n and scope identified in this Section as will render such restrictions valid and enforceable.\n\n 7.8. In the event of any violation of the provisions of this Section 7, the\n Executive acknowledges and agrees that the post-termination restrictions contained in this\n Section 7 shall be extended by a period of time equal to the period of such violation, it being the\n intention of the parties hereto that the running of the applicable post-termination restriction\n period shall be tolled during any period of such violation.\n\n 8. INDEMNIFICATION/ DIRECTORS AND OFFICERS LIABILITY\n INSURANCE\n\n During the Term and thereafter, the Company shall indemnify and hold harmless\n the Executive and his heirs and representatives as, and to the extent, provided in the Company\u2019s\n by-laws. During the Term and thereafter, the Company shall also cover Executive under the\n Company\u2019s directors\u2019 and officers\u2019 liability insurance on the same basis as it covers other senior\n executive officers and directors of the Company.\n\n 9. MISCELLANEOUS\n\n 9.1. Notices. All notices or communications hereunder shall be in writing,\n addressed as follows (or to such other address as either party may have furnished to the other in\n writing by like notice):\n\n To the Company: Iconix Brand Group, Inc.\n 1450 Broadway\n 4th Floor\n New York, NY 10018\n Attn: Andrew R. Tarshis\n Senior Vice President and General Counsel\n\n with a copy (which shall not constitute notice) to:\n\n Blank Rome LLP\n 405 Lexington Avenue\n New York, NY 10174\n Attn: Robert J. Mittman, Esq.\n\n\n 20\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 22 of 50\n\n\n\n\n To the Executive, at the last address for the Executive on the books of the\n Company.\n\n All such notices shall be conclusively deemed to be received and shall be\n effective (i) if sent by hand delivery, upon receipt, (ii) if sent by telecopy or facsimile\n transmission, upon confirmation of receipt by the sender of such transmission, (iii) if sent by\n overnight courier, one business day after being sent by overnight courier, or (iv) if sent by\n registered or certified mail, postage prepaid, return receipt requested, on the fifth (5th) day after\n the day on which such notice is mailed.\n\n 9.2. Severability. Each provision of this Agreement shall be interpreted in\n such manner as to be effective and valid under applicable law, but if any provision of this\n Agreement is held to be prohibited by or invalid under applicable law, such provision will be\n ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of\n such provision or the remaining provisions of this Agreement.\n\n 9.3. Binding Effect; Benefits. Executive may not delegate his duties or assign\n his rights hereunder. No rights or obligations of the Company under this Agreement may be\n assigned or transferred by the Company other than pursuant to a merger or consolidation in\n which the Company is not the continuing entity, or a sale, liquidation or other disposition of all\n or substantially all of the assets of the Company, provided that the assignee or transferee is the\n successor to all or substantially all of the assets or businesses of the Company and assumes the\n liabilities, obligations and duties of the Company under this Agreement, either contractually or\n by operation of law. The Company further agrees that, in the event of any disposition of its\n business and assets described in the preceding sentence, it shall use its best efforts to cause such\n assignee or transferee expressly to assume the liabilities, obligations and duties of the Company\n hereunder. For the purposes of this Agreement, the term \u201cCompany\u201d shall include the Company\n and, subject to the foregoing, any of its successors and assigns. This Agreement shall inure to\n the benefit of, and be binding upon, the parties hereto and their respective heirs, legal\n representatives, successors and permitted assigns.\n\n 9.4. Entire Agreement. This Agreement, including the Exhibits hereto,\n represent the entire agreement of the parties with respect to the subject matter hereof and shall\n supersede any and all previous contracts, arrangements or understandings between the Company\n and the Executive, including, without limitation, the Prior Agreement and the agreement by and\n between the Company (f/k/a Candie\u2019s Inc.) and the Executive entered into March 29, 2005, each\n of which shall be deemed to have terminated on December 31, 2007. This Agreement (including\n any of the Exhibits hereto) may be amended at any time by mutual written agreement of the\n parties hereto. In the case of any conflict between any express term of this Agreement and any\n statement contained in any plan, program, arrangement, employment manual, memo or rule of\n general applicability of the Company, this Agreement shall control.\n\n 9.5. Withholding. The payment of any amount pursuant to this Agreement\n shall be subject to applicable withholding and payroll taxes, and such other deductions as may be\n required by applicable law.\n\n\n\n 21\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 23 of 50\n\n\n\n\n 9.6. Governing Law. This Agreement and the performance of the parties\n hereunder shall be governed by the internal laws (and not the law of conflicts) of the State of\n New York.\n\n 9.7. Arbitration. Any dispute or controversy arising under or in connection\n with this Agreement or the Executive\u2019s employment with the Company, other than injunctive\n relief under Section 7.7 hereof, but excluding any dispute or controversy arising out of the\n administration of Section 2.4.2 hereof and the related provisions of Exhibit C hereto, which shall\n be resolved as set forth in Exhibit C hereto, shall be settled exclusively by arbitration, conducted\n before a single arbitrator in New York, New York (applying New York law) in accordance with\n the Commercial Arbitration Rules and Procedures of the American Arbitration Association then\n in effect. The decision of the arbitrator will be final and binding upon the parties hereto.\n Judgment may be entered on the arbitrator\u2019s award in any court having jurisdiction. The parties\n acknowledge and agree that in connection with any such arbitration and regardless of outcome\n (a) each party shall pay all its own costs and expenses, including without limitation its own legal\n fees and expenses, and (b) joint expenses shall be borne equally among the parties. EACH\n PARTY WAIVES RIGHT TO TRIAL BY JURY.\n\n 9.8. Section 409A of the Code.\n\n 9.8.1. It is intended that the provisions of this Agreement comply with\n Section 409A of Code and the regulations and guidance promulgated thereunder (collectively\n \u201cCode Section 409A\u201d), and all provisions of this Agreement shall be construed in a manner\n consistent with the requirements for avoiding taxes or penalties under Code Section 409A. If\n any provision of this Agreement (or of any award of compensation, including equity\n compensation or benefits) would cause the Executive to incur any additional tax or interest under\n Code Section 409A, the Company shall, upon the specific request of the Executive, use its\n reasonable business efforts to in good faith reform such provision to comply with Code\n Section 409A; provided, that to the maximum extent practicable, the original intent and\n economic benefit to the Executive and the Company of the applicable provision shall be\n maintained, but the Company shall have no obligation to make any changes that could create any\n additional economic cost or loss of benefit to the Company. The Company shall timely use its\n reasonable business efforts to amend any plan or program in which the Executive participates to\n bring it in compliance with Code Section 409A. Notwithstanding the foregoing, the Company\n shall have no liability with regard to any failure to comply with Code Section 409A so long as it\n has acted in good faith with regard to compliance therewith.\n\n 9.8.2. A termination of employment shall not be deemed to have\n occurred for purposes of any provision of this Agreement providing for the payment of any\n amounts or benefits upon or following a termination of employment unless such termination is\n also a \u201cSeparation from Service\u201d within the meaning of Section 409A and, for purposes of any\n such provision of this Agreement, references to a \u201cresignation,\u201d \u201ctermination,\u201d \u201ctermination of\n employment\u201d or like terms shall mean Separation from Service. If the Executive is deemed on\n the date of termination of his employment to be a \u201cspecified employee\u201d, within the meaning of\n that term under Section 409A(a)(2)(B) of the Code and using the identification methodology\n selected by the Company from time to time, or if none, the default methodology, then with\n regard to any payment, the providing of any benefit or any distribution of equity made subject to\n 22\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 24 of 50\n\n\n\n\n this Section 9.8.2, to the extent required to be delayed in compliance with Section 409A(a)(2)(B)\n of the Code, and any other payment, the provision of any other benefit or any other distribution\n of equity that is required to be delayed in compliance with Section 409A(a)(2)(B) of the Code,\n such payment, benefit or distribution shall not be made or provided prior to the earlier of (i) the\n expiration of the six-month period measured from the date of the Executive\u2019s Separation from\n Service or (ii) the date of the Executive\u2019s death. On the first day of the seventh month following\n the date of Executive\u2019s Separation from Service or, if earlier, on the date of his death, (x) all\n payments delayed pursuant to this Section 9.8.2 (whether they would have otherwise been\n payable in a single sum or in installments in the absence of such delay) shall be paid or\n reimbursed to the Executive in a lump sum, and any remaining payments and benefits due under\n this Agreement shall be paid or provided in accordance with the normal payment dates specified\n for them herein and (y) all distributions of equity delayed pursuant to this Section 9.8.2 shall be\n made to the Executive. In addition to the foregoing, to the extent required by Section\n 409A(a)(2)(B) of the Code, prior to the occurrence of a Disability termination as provided in\n Section 5.1.2 hereof, the payment of any compensation to the Executive under this Agreement\n shall be suspended for a period of six months commencing at such time that the Executive shall\n be deemed to have had a Separation from Service because either (A) a sick leave ceases to be a\n bona fide sick leave of absence, or (B) the permitted time period for a sick leave of absence\n expires (an \u201cSFS Disability\u201d), without regard to whether such SFS Disability actually results in\n a Disability termination. Promptly following the expiration of such six-month period, all\n compensation suspended pursuant to the foregoing sentence (whether it would have otherwise\n been payable in a single sum or in installments in the absence of such suspension) shall be paid\n or reimbursed to the Executive in a lump sum. On any delayed payment date under this Section\n 9.8.2, there shall be paid to the Executive or, if the Executive has died, to his estate, in a single\n cash lump sum together with the payment of such delayed payment, interest on the aggregate\n amount of such delayed payment at the Delayed Payment Interest Rate (as defined below)\n computed from the date on which such delayed payment otherwise would have been made to the\n Executive until the date paid. For purposes of the foregoing, the \u201cDelayed Payment Interest\n Rate\u201d shall mean the short term Applicable Federal Rate as of the business day immediately\n preceding the payment date for the applicable delayed payment.\n\n 9.8.3. With regard to any provision herein that provides for\n reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section\n 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or\n exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind\n benefits, provided during any taxable year shall not affect the expenses eligible for\n reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the\n foregoing clause (ii) shall not be violated with regard to expenses reimbursed under any\n arrangement covered by Section 105(b) of the Code solely because such expenses are subject to\n a limit related to the period the arrangement is in effect and (iii) such payments shall be made on\n or before the last day of the Executive\u2019s taxable year following the taxable year in which the\n expense was incurred.\n\n 9.9. The Company shall promptly pay upon presentation of appropriate\n documentation the reasonable legal fees incurred by the Executive in connection with the\n negotiation and documentation of this Agreement in an amount not to exceed seventy-five\n thousand dollars ($75,000).\n 23\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 25 of 50\n\n\n\n\n 9.10. Survivorship. Except as otherwise expressly set forth in this Agreement,\n upon the expiration of the Term, the respective rights and obligations of the parties shall survive\n such expiration to the extent necessary to carry out the intentions of the parties as embodied in\n this Agreement. This Agreement shall continue in effect until there are no further rights or\n obligations of the parties outstanding hereunder and shall not be terminated by either party\n without the express prior written consent of both parties.\n\n 9.11. Counterparts. This Agreement may be executed in counterparts (including\n by fax or pdf) which, when taken together, shall constitute one and the same agreement of the\n parties.\n\n 9.12. Company Representations. The Company represents and warrants to the\n Executive that (i) the execution, delivery and performance of this Agreement (and the\n agreements referred to herein) by the Company has been fully and validly authorized by all\n necessary corporate action, (ii) the officer signing this Agreement on behalf of the Company is\n duly authorized to do so, (iii) the execution, delivery and performance of this Agreement does\n not violate any applicable law, regulation, order, judgment or decree or any agreement, plan or\n corporate governance document to which the Company is a party or by which it is bound and (iv)\n upon execution and delivery of this Agreement by the Executive and the Company, it shall be a\n valid and binding obligation of the Company enforceable against it in accordance with its terms,\n except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or\n similar laws affecting the enforcement of creditors\u2019 rights generally.\n\n\n\n\n [End of Text - Signature page follows]\n\n\n\n\n 24\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 26 of 50\n\n\n\n\n IN WITNESS WHEREOF, the Company has caused this Agreement to be duly\n executed and the Executive has hereunto set his hand, as of the Signing Date.\n\n\n\n THE COMPANY:\n\n ICONIX BRAND GROUP, INC\n\n\n By: /s/ Mark Friedman\n Name: Mark Friedman\n Title: Chairman of the Compensation Committee\n\n\n EXECUTIVE\n\n /s/ Neil R. Cole\n Neil R. Cole\n\n\n\n\n 25\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 27 of 50\n\n\n\n\n EXHIBIT A\n\n Form of Restricted Stock Unit Award Agreement\n\n\n\n ICONIX BRAND GROUP, INC.\n\n RESTRICTED STOCK UNIT AGREEMENT\n\n To: Neil R. Cole\n\n Date of Award: _______________________\n\n You are hereby awarded (the \u201cAward\u201d), effective as of the date hereof, ________ restricted stock\n units (\u201cUnit or RSUs\u201d, as the case may be) each of which shall represent the right to receive one\n share (the \u201cShare\u201d) of common stock $.001 par value (\u201cCommon Stock\u201d), of Iconix Brand\n Group, Inc., a Delaware corporation (the \u201cCompany\u201d), pursuant to the Company\u2019s 2006 Equity\n Incentive Plan (the \u201cPlan\u201d), subject to certain vesting restrictions specified below (the\n \u201cVesting\u201d).\n\n This Award is made pursuant to Section 2.4.1 of the Employment Agreement (\u201cEmployment\n Agreement\u201d) entered into between you and the Company effective January 1, 2008. Pursuant to\n Sections 3 and 6(a)(8) of the Plan, for purposes of this Award, the term \u201cCause\u201d shall be as\n defined in the Employment Agreement. Defined terms that are not otherwise defined in the Plan\n or this Award, are as defined in the Employment Agreement. This Award is intended to comply\n with the terms of the Employment Agreement and the terms of the Plan, and in the event of any\n inconsistency between the terms of the Employment Agreement and the terms of the Plan, the\n terms of the Plan shall control.\n\n During the period commencing on the Award date and terminating on the fifth anniversary of the\n Effective Date, except as otherwise provided herein, the Units may not be sold, assigned,\n transferred, pledged, or otherwise encumbered and are subject to forfeiture as provided herein.\n\n Vesting\n\n The RSUs shall vest in five equal annual installments with the first such installment vesting on\n December 31, 2008, and each of the four subsequent installments vesting each December 31\n thereafter, with a final vesting date of December 31, 2012 (each a \u201cTime Vesting Date\u201d) subject\n to your continuous employment with the Company through each Time Vesting Date.\n\n Notwithstanding the foregoing, any then remaining unvested RSUs shall immediately become\n vested effective simultaneous with a Change in Control (as defined, for the purposes of this\n Award, in Section 5.4.4 of the Employment Agreement).\n\n Notwithstanding the foregoing, in the event of a termination of your employment with the\n\n\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 28 of 50\n\n\n\n\n Company prior to any Time Vesting Date, your then unvested RSUs as of a Date of Termination\n shall vest or be forfeited as follows:\n\n 1. If Termination upon Death, 100% of the then remaining unvested RSUs shall\n immediately become vested.\n 2. If Termination upon Disability, subject to Section 5.4.8 of the Employment\n Agreement, 50% of the then remaining unvested RSUs shall immediately become\n vested and the balance shall be forfeited.\n 3. If Termination is without Cause or for Good Reason, subject to Section 5.4.8 of\n the Employment Agreement, 75% of the then remaining unvested RSUs shall vest\n and the balance shall be forfeited.\n 4. If Termination is for Cause or without Good Reason, 100% of the then remaining\n unvested RSUs shall be forfeited.\n Payment\n\n Except as set forth below, any vested portion of the RSUs shall be distributed to you, or your\n successors and assigns, as the case may be, in shares of Common Stock within 15 days after the\n applicable Time Vesting Date. Notwithstanding the foregoing, (i) all vested RSUs shall be\n distributed to you in shares of Common Stock simultaneous with the Company incurring a\n Change in Control; (ii) any RSUs that vest by reason of your Death, shall be distributed in\n shares of Common Stock to your estate 60 days after the Date of Termination; and (iii) to the\n extent that RSUs become vested by reason of termination of your employment upon Disability or\n without Cause or for Good Reason, such RSUs shall be payable in shares of Common Stock as\n provided in, and subject to, Sections 5.4.8 and 9.8.2 of the Employment Agreement.\n\n Dividends With respect to the RSUs, you will have the right to receive dividend\n equivalents (in cash or in kind, as the case may be) in respect of any\n dividend distributed to holders of Common Stock of record on and after\n the Date of Award; provided, that any such dividend equivalents shall be\n subject to the same restrictions as the RSUs with regard to which they are\n issued, including without limitation, as to vesting (including accelerated\n vesting) and time of distribution. All such withheld dividends shall not\n earn interest, except as otherwise determined by the Administrator. You\n will not receive withheld dividends on any RSUs which are forfeited\n and all such dividends shall be forfeited along with the RSUs which\n are forfeited.\n\n Tax Withholding The Company shall have the right to withhold from your\n compensation an amount sufficient to fulfill its or its Affiliate\u2019s\n obligations for any applicable withholding and employment taxes.\n Alternatively, the Company may require you to pay to the Company\n the amount of any taxes which the Company is required to withhold\n with respect to the Shares, or, in lieu thereof, to retain or sell without\n notice a sufficient number of Shares to cover the amount required to\n be withheld. The Company may withhold from any cash dividends\n\n 27\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 29 of 50\n\n\n\n\n paid with respect to RSUs an amount sufficient to cover taxes owed, if\n any, as a result of the dividend payment. The Company\u2019s method of\n satisfying its withholding obligations shall be solely in the discretion\n of the Administrator, subject to applicable federal, state, local and\n foreign laws. The Company shall have a lien and security interest in\n the Shares and any accumulated dividends to secure your obligations\n hereunder.\n\n Tax You hereby represent and warrant to the Company as follows:\n Representations\n (a) You have reviewed with your own tax advisors the federal, state,\n local and foreign tax consequences of this investment and the transactions\n contemplated by this Agreement. You are relying solely on such advisors\n and not on any statements or representations of the Company or any of its\n Employees or agents.\n\n (b) You understand that you (and not the Company) shall be\n responsible for your own tax liability that may arise as a result of this\n investment or the transactions contemplated by this Agreement.\n\n Securities Law The following two paragraphs shall be applicable if, on the date of\n Representations issuance of the Shares, no registration statement and current prospectus\n under the Securities Act of 1933, as amended (the \u201c1933 Act\u201d), covers the\n issuance by the Company to you of Shares, and shall continue to be\n applicable for so long as such registration has not occurred and such\n current prospectus is not available:\n\n (a) You hereby agree, warrant and represent that you will acquire the\n Shares to be issued hereunder for your own account for investment\n purposes only, and not with a view to, or in connection with, any resale or\n other distribution of any of such shares, except as hereafter permitted.\n You further agree that you will not at any time make any offer, sale,\n transfer, pledge or other disposition of such Shares to be issued hereunder\n without an effective registration statement under the 1933 Act, and under\n any applicable state securities laws or an opinion of counsel acceptable to\n the Company to the effect that the proposed transaction will be exempt\n from such registration. You agree to execute such instruments,\n representations, acknowledgments and agreements as the Company may,\n in its sole discretion, deem advisable to avoid any violation of federal,\n state, local or foreign law, rule or regulation, or any securities exchange\n rule or listing agreement.\n\n (b) The certificates for Shares to be issued to you hereunder shall bear\n the following legend:\n\n \u201cThe shares represented by this certificate have not been\n registered under the Securities Act of 1933, as amended, or\n\n 28\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 30 of 50\n\n\n\n\n under applicable state securities laws. The shares have\n been acquired for investment and may not be offered, sold,\n transferred, pledged or otherwise disposed of without an\n effective registration statement under the Securities Act of\n 1933, as amended, and under any applicable state securities\n laws or an opinion of counsel acceptable to the Company\n that the proposed transaction will be exempt from such\n registration.\u201d\n\n Stock Dividend, In the event of any change in the outstanding shares of the Common Stock\n Stock Split and of the Company by reason of a stock dividend, stock split, combination of\n Similar Capital shares, recapitalization, merger, consolidation, transfer of assets,\n Changes reorganization, conversion or what the Administrator deems in its sole\n discretion to be similar circumstances, the number and kind of Units and\n shares subject to this Agreement shall be appropriately adjusted in a\n manner to be determined in the sole discretion of the Administrator,\n whose decision shall be final, binding and conclusive in the absence of\n clear and convincing evidence of bad faith. Any Units or shares of\n Common Stock or other securities received, as a result of the foregoing,\n by you with respect to the RSUs shall be subject to the same restrictions\n as the RSUs, the certificate or other instruments evidencing such shares of\n Common Stock or other securities shall be legended as provided above\n with respect to the RSUs, and any cash dividends received with respect to\n such Units shall be subject to the same restrictions as dividend equivalents\n with respect to the RSUs.\n\n Non-Transferability Unvested RSUs are not transferable.\n\n No Effect on Nothing herein guarantees you employment for any specified period\n Employment of time. This means that, except as provided in the Employment\n Agreement, either you or the Company or any of its Affiliates may\n terminate your employment at any time for any reason, with or\n without cause, or for no reason. You recognize that, for instance, you\n may terminate your employment or the Company or any of its\n Affiliates may terminate your employment prior to the date on which\n your Units become vested.\n\n\n\n\n 29\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 31 of 50\n\n\n\n\n No Effect on You understand and agree that the existence of this Agreement will not\n Corporate affect in any way the right or power of the Company or its shareholders to\n Authority make or authorize any or all adjustments, recapitalizations,\n reorganizations, or other changes in the Company\u2019s capital structure or its\n business, or any merger or consolidation of the Company, or any issuance\n of bonds, debentures, preferred or other stocks with preferences ahead of\n or convertible into, or otherwise affecting the common shares or the rights\n thereof, or the dissolution or liquidation of the Company, or any sale or\n transfer of all or any part of its assets or business, or any other corporate\n act or proceeding, whether of a similar character or otherwise.\n\n Arbitration Any dispute or disagreement between you and the Company with respect\n to any portion of this Agreement or its validity, construction, meaning,\n performance or your rights hereunder shall be settled by arbitration in\n accordance with Section 9.7 of the Employment Agreement. However,\n prior to submission to arbitration you will attempt to resolve any disputes\n or disagreements with the Company over this Agreement amicably and\n informally, in good faith, for a period not to exceed two weeks.\n Thereafter, subject to the foregoing, the dispute or disagreement will be\n submitted to arbitration. At any time prior to a decision from the\n arbitrator(s) being rendered, you and the Company may resolve the\n dispute by settlement.\n\n Governing Law The laws of the State of Delaware will govern all matters relating to this\n Agreement, without regard to the principles of conflict of laws.\n\n Notices Any notice you give to the Company must be in writing and either hand-\n delivered or mailed to the executive office of the Company. If mailed, it\n should be addressed to the [ ] of the Company. Any\n notice given to you will be addressed to you at your address as reflected\n on the personnel records of the Company. You and the Company may\n change the address for notice by like notice to the other. Notice will be\n deemed to have been duly delivered when hand-delivered or, if mailed, on\n the day such notice is postmarked.\n\n Agreement Subject This Agreement shall be subject to the terms of the Plan in effect on the\n to Plan; Entire date hereof, subject to \u201cConflicting Terms\u201d below, which terms are\n Agreement hereby incorporated herein by reference and made a part hereof. This\n Agreement constitutes the entire understanding between the Company and\n you with respect to the subject matter hereof and no amendment,\n supplement or waiver of this Agreement, in whole or in part, shall be\n binding upon the Company unless in writing and signed by the President\n of the Company\n\n\n\n\n 30\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 32 of 50\n\n\n\n\n Conflicting Terms Wherever a conflict may arise between the terms of this Agreement and\n the terms of the Plan in effect on the date hereof, the terms of the Plan\n will control.\n\n\n\n Please sign the Acknowledgement attached to this Restricted Stock Unit Agreement and return it\n to the Company\u2019s Secretary, thereby indicating your understanding of and agreement with its\n terms and conditions.\n\n\n ICONIX BRAND GROUP, INC.\n\n\n\n By: ________________________\n\n\n\n\n 31\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 33 of 50\n\n\n\n\n ACKNOWLEDGMENT\n\n I hereby acknowledge receipt of a copy of the Plan. I hereby represent that I have\n read and understood the terms and conditions of the Plan and of the Restricted Stock Unit\n Agreement. I hereby signify my understanding of, and my agreement with, the terms and\n conditions of the Plan and of the Restricted Stock Unit Agreement. I agree to accept as binding,\n conclusive, and final all decisions or interpretations of the Administrator concerning any\n questions arising under the Plan with respect to this Restricted Stock Unit Agreement. I accept\n this Restricted Stock Unit Agreement in full satisfaction of any previous written or oral promise\n made to me by the Company or any of its Affiliates with respect to option or stock grants.\n\n Date: _________________\n\n\n\n ______________________________\n Neil R. Cole\n\n\n\n\n 32\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 34 of 50\n\n\n\n\n EXHIBIT B\n\n Form of Performance Stock Unit Award Agreement\n\n\n\n ICONIX BRAND GROUP, INC.\n\n RESTRICTED STOCK PERFORMANCE UNIT AGREEMENT\n\n To: Neil R. Cole\n\n Date of Award: _______________________\n\n You are hereby awarded (the \u201cAward\u201d), effective as of the date hereof, ________ restricted stock\n performance units (\u201cUnit or PSUs\u201d, as the case may be) each of which shall represent the right to\n receive one share (the \u201cShare\u201d) of common stock $.001 par value (\u201cCommon Stock\u201d), of Iconix\n Brand Group, Inc., a Delaware corporation (the \u201cCompany\u201d), pursuant to the Company\u2019s 2006\n Equity Incentive Plan (the \u201cPlan\u201d), subject to certain vesting restrictions specified below (the\n \u201cVesting\u201d).\n\n This Award is made pursuant to Section 2.4.2 of the Employment Agreement (\u201cEmployment\n Agreement\u201d) entered into between you and the Company effective January 1, 2008. Pursuant to\n Sections 3 and 6(a)(8) of the Plan, for purposes of this Award, the term \u201cCause\u201d shall be as\n defined in the Employment Agreement. Defined terms that are not otherwise defined in the Plan\n or this Award, are as defined in the Employment Agreement. This Award is intended to comply\n with the terms of the Employment Agreement and the terms of the Plan, and in the event of any\n inconsistency between the terms of the Employment Agreement and the terms of the Plan, the\n terms of the Plan shall control.\n\n During the period commencing on the Award date and terminating on the fifth anniversary of the\n Effective Date, except as otherwise provided herein, the Units may not be sold, assigned,\n transferred, pledged, or otherwise encumbered and are subject to forfeiture as provided herein.\n\n Vesting\n\n The PSUs shall be performance based and shall vest based on the achievement of annual\n performance goals as described on Exhibit C to your Employment Agreement, which is\n incorporated herein by reference (\u201cExhibit C\u201d), and upon certification of achievement by the\n Compensation Committee as set for on Exhibit C.\n\n Notwithstanding anything to the contrary contained herein or in the Employment Agreement, in\n the event of a Change in Control (as defined, for the purposes of this Award, in Section 5.4.4 of\n the Employment Agreement), (x) the unvested PSUs shall vest as follows: (a) with regard to the\n PSUs that could vest in the calendar year of the Change of Control, based on the achievement of\n the performance goals for the year in which such Change in Control occurs (including as a result\n\n\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 35 of 50\n\n\n\n\n of achieved aggregate growth), calculated as of the date of such Change in Control (with the date\n on which the Change of Control occurs being deemed to be the end of a Performance Period for\n purposes of the calculations set forth on Exhibit C, but with no adjustment of the level of the\n goals), and (b) with regard to the PSUs that could otherwise only vest in calendar years after the\n Change in Control, based on the achievement of the performance goals for later Performance\n Periods that would be deemed to have been achieved as of the date of the Change of Control\n (with the date on which the Change of Control occurs being deemed to be the end of each such\n later Performance Period for purposes of the calculations set forth on Exhibit C, but with no\n adjustment of the level of the goals), including, in the case of clauses (a) and (b), as a\n consequence of the price per share of the Common Stock (including as a result of a deemed\n liquidation following a Change in Control which is a sale of the Company\u2019s assets) being paid by\n the acquirer in connection with the Change in Control and (y) any portion of the PSUs that\n remains unvested on the date of such Change in Control after giving effect to the foregoing\n clause (x) shall be forfeited as of the date of such Change in Control.\n\n Notwithstanding the foregoing, in the event of a termination of your employment with the\n Company prior to any Performance Vesting Date, your then unvested PSUs as of a Date of\n Termination shall vest or be forfeited as follows:\n\n 1. If Termination upon Death, the portion of the PSUs subject to vesting in the\n calendar year the Date of Termination occurs (including, as a result of achieved\n aggregate growth) shall immediately become vested on the certification of the\n Compensation Committee promptly after the Date of Termination based on the\n achievement of the performance goals for such year, calculated through the Date\n of Termination (with the Date of Termination being deemed to be the end of a\n Performance Period for purposes of the calculations set forth on Exhibit C, but\n with no adjustment of the level of goals), and shall be distributed to your estate in\n shares of Common Stock sixty (60) days after the Date of Termination. After\n giving effect to the foregoing, any portion of the PSUs that remain unvested on\n the certification following the Date of Termination shall be forfeited as of the\n Date of Termination.\n 2. If Termination upon Disability, subject to Section 5.4.8 of the Employment\n Agreement, the portion of the PSUs subject to vesting in the calendar year the\n Date of Termination occurs (including, as a result of achieved aggregate growth)\n shall immediately become vested on the certification of the Compensation\n Committee promptly after the Date of Termination based on the achievement of\n the performance goals for such year, calculated through the Date of Termination\n (with the Date of Termination being deemed to be the end of a Performance\n Period for purposes of the calculations set forth on Exhibit C, but with no\n adjustment of the level of goals), and shall be distributed in shares of Common\n Stock to you as provided in, and subject to, Sections 5.4.8 and 9.8.2. of the\n Employment Agreement. After giving effect to the foregoing, any portion of the\n PSUs that remain unvested on the certification following the Date of Termination\n shall be forfeited as of the Date of Termination.\n 3. If Termination is without Cause or for Good Reason, subject to Section 5.4.8 of\n the Employment Agreement, the portion of the PSUs subject to vesting in the\n 34\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 36 of 50\n\n\n\n\n calendar year the Date of Termination occurs (including, as a result of achieved\n aggregate growth) shall immediately become vested on the certification of the\n Compensation Committee promptly after the Date of Termination based on the\n achievement of the performance goals for such year calculated through the Date\n of Termination (with the Date of Termination being deemed to be the end of a\n Performance Period for purposes of the calculations set forth on Exhibit C, but\n with no adjustment of the level of the goals), and shall be distributed in shares of\n Common Stock to you as provided in, and subject to, Sections 5.4.8 and 9.8.2. of\n the Employment Agreement. After giving effect to the foregoing, any portion of\n the PSUs that remain unvested on the certification following the Date of\n Termination shall be forfeited as of the Date of Termination..\n 4. If Termination is for Cause or without Good Reason, 100% of the then unvested\n PSUs shall be forfeited.\n Payment\n\n Other than as provided in the immediately preceding clauses 1, 2 and 3 as to conditions and\n timing of distribution of Common Stock with respect to PSUs vesting as a result of a termination\n of your employment and Section 9.8.2 of the Employment Agreement with regard to equity\n distributed as a result of your incurring a Separation from Service as an employee of the\n Company, any vested portion of the PSUs shall be distributed to you in shares of Common Stock\n in the year following the year of each applicable Performance Vesting Date following the\n Compensation Committee\u2019s certification of the level of attainment of the annual performance\n goals. Notwithstanding anything to the contrary contained herein or in the Employment\n Agreement, except as to Sections 5.4.8 and 9.8.2 of the Employment Agreement, all vested PSUs\n (including those vested in connection with a Change in Control) shall be distributed to you in\n shares of Common Stock simultaneous with the Company\u2019s incurring a Change in Control.\n\n Dividends With respect to the PSUs, you will have the right to receive dividend\n equivalents (in cash or in kind, as the case may be) in respect of any\n dividend distributed to holders of Common Stock of record on and after\n the Date of Award; provided, that any such dividend equivalents shall be\n subject to the same restrictions as the PSUs with regard to which they are\n issued, including without limitation, as to vesting (including accelerated\n vesting) and time of distribution. All such withheld dividends shall not\n earn interest, except as otherwise determined by the Administrator. You\n will not receive withheld dividends on any PSUs which are forfeited\n and all such dividends shall be forfeited along with the PSUs which\n are forfeited.\n\n Tax Withholding The Company shall have the right to withhold from your compensation\n an amount sufficient to fulfill its or its Affiliate\u2019s obligations for any\n applicable withholding and employment taxes. Alternatively, the\n Company may require you to pay to the Company the amount of any\n taxes which the Company is required to withhold with respect to the\n Shares, or, in lieu thereof, to retain or sell without notice a sufficient\n number of Shares to cover the amount required to be withheld. The\n 35\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 37 of 50\n\n\n\n\n Company may withhold from any cash dividends paid with respect to\n PSUs an amount sufficient to cover taxes owed, if any, as a result of the\n dividend payment. The Company\u2019s method of satisfying its withholding\n obligations shall be solely in the discretion of the Administrator, subject\n to applicable federal, state, local and foreign laws. The Company shall\n have a lien and security interest in the Shares and any accumulated\n dividends to secure your obligations hereunder.\n\n Tax Representations You hereby represent and warrant to the Company as follows:\n\n (a) You have reviewed with your own tax advisors the federal, state,\n local and foreign tax consequences of this investment and the transactions\n contemplated by this Agreement. You are relying solely on such advisors\n and not on any statements or representations of the Company or any of its\n Employees or agents.\n\n (b) You understand that you (and not the Company) shall be responsible\n for your own tax liability that may arise as a result of this investment or the\n transactions contemplated by this Agreement.\n\n Securities Law The following two paragraphs shall be applicable if, on the date of issuance\n Representations of the Shares, no registration statement and current prospectus under the\n Securities Act of 1933, as amended (the \u201c1933 Act\u201d), covers the issuance by\n the Company to you of Shares, and shall continue to be applicable for so\n long as such registration has not occurred and such current prospectus is not\n available:\n\n (a) You hereby agree, warrant and represent that you will acquire the\n Shares to be issued hereunder for your own account for investment purposes\n only, and not with a view to, or in connection with, any resale or other\n distribution of any of such shares, except as hereafter permitted. You\n further agree that you will not at any time make any offer, sale, transfer,\n pledge or other disposition of such Shares to be issued hereunder without an\n effective registration statement under the 1933 Act, and under any\n applicable state securities laws or an opinion of counsel acceptable to the\n Company to the effect that the proposed transaction will be exempt from\n such registration. You agree to execute such instruments, representations,\n acknowledgments and agreements as the Company may, in its sole\n discretion, deem advisable to avoid any violation of federal, state, local or\n foreign law, rule or regulation, or any securities exchange rule or listing\n agreement.\n\n (b) The certificates for Shares to be issued to you hereunder shall bear\n the following legend:\n\n \u201cThe shares represented by this certificate have not\n been registered under the Securities Act of 1933, as\n\n 36\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 38 of 50\n\n\n\n\n amended, or under applicable state securities laws. The\n shares have been acquired for investment and may not be\n offered, sold, transferred, pledged or otherwise disposed of\n without an effective registration statement under the\n Securities Act of 1933, as amended, and under any applicable\n state securities laws or an opinion of counsel acceptable to\n the Company that the proposed transaction will be exempt\n from such registration.\u201d\n\n Stock Dividend, In the event of any change in the outstanding shares of the Common Stock\n Stock Split and of the Company by reason of a stock dividend, stock split, combination of\n Similar Capital shares, recapitalization, merger, consolidation, transfer of assets,\n Changes reorganization, conversion or what the Administrator deems in its sole\n discretion to be similar circumstances, the number and kind of Units and\n shares subject to this Agreement shall be appropriately adjusted in a\n manner to be determined in the sole discretion of the Administrator,\n whose decision shall be final, binding and conclusive in the absence of\n clear and convincing evidence of bad faith. Any Units or shares of\n Common Stock or other securities received, as a result of the foregoing,\n by you with respect to the PSUs shall be subject to the same restrictions as\n the PSUs, the certificate or other instruments evidencing such shares of\n Common Stock or other securities shall be legended as provided above\n with respect to the PSUs, and any cash dividends received with respect to\n such Units shall be subject to the same restrictions as dividend equivalents\n with respect to the PSUs.\n\n Non-Transferability Unvested PSUs are not transferable.\n\n No Effect on Nothing herein guarantees you employment for any specified period\n Employment of time. This means that, except as provided in the Employment\n Agreement, either you or the Company or any of its Affiliates may\n terminate your employment at any time for any reason, with or\n without cause, or for no reason. You recognize that, for instance, you\n may terminate your employment or the Company or any of its\n Affiliates may terminate your employment prior to the date on which\n your Units become vested.\n\n\n\n\n 37\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 39 of 50\n\n\n\n\n No Effect on You understand and agree that the existence of this Agreement will not\n Corporate affect in any way the right or power of the Company or its shareholders to\n Authority make or authorize any or all adjustments, recapitalizations,\n reorganizations, or other changes in the Company\u2019s capital structure or its\n business, or any merger or consolidation of the Company, or any issuance\n of bonds, debentures, preferred or other stocks with preferences ahead of\n or convertible into, or otherwise affecting the common shares or the rights\n thereof, or the dissolution or liquidation of the Company, or any sale or\n transfer of all or any part of its assets or business, or any other corporate\n act or proceeding, whether of a similar character or otherwise.\n\n Arbitration Any dispute or disagreement between you and the Company with respect\n to any portion of this Agreement or its validity, construction, meaning,\n performance or your rights hereunder shall be settled by arbitration in\n accordance with Section 9.7 of the Employment Agreement and to the\n extent provided therein Section 2.4.2 of the Employment Agreement and\n Exhibit C. However, prior to submission to arbitration you will attempt to\n resolve any disputes or disagreements with the Company over this\n Agreement amicably and informally, in good faith, for a period not to\n exceed two weeks. Thereafter, subject to the foregoing, the dispute or\n disagreement will be submitted to arbitration. At any time prior to a\n decision from the arbitrator(s) being rendered, you and the Company may\n resolve the dispute by settlement.\n\n Governing Law The laws of the State of Delaware will govern all matters relating to this\n Agreement, without regard to the principles of conflict of laws.\n\n Notices Any notice you give to the Company must be in writing and either hand-\n delivered or mailed to the executive office of the Company. If mailed, it\n should be addressed to the [___________________] of the Company. Any\n notice given to you will be addressed to you at your address as reflected on\n the personnel records of the Company. You and the Company may change\n the address for notice by like notice to the other. Notice will be deemed to\n have been duly delivered when hand-delivered or, if mailed, on the day such\n notice is postmarked.\n\n Agreement Subject This Agreement shall be subject to the terms of the Plan in effect on the date\n to Plan; Entire hereof, subject to \u201cConflicting Terms\u201d below, which terms are hereby\n Agreement incorporated herein by reference and made a part hereof. This Agreement\n constitutes the entire understanding between the Company and you with\n respect to the subject matter hereof and no amendment, supplement or\n waiver of this Agreement, in whole or in part, shall be binding upon the\n Company unless in writing and signed by the President of the Company\n\n Conflicting Terms Wherever a conflict may arise between the terms of this Agreement and the\n terms of the Plan in effect on the date hereof, the terms of the Plan will\n\n\n 38\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 40 of 50\n\n\n\n\n control.\n\n Please sign the Acknowledgement attached to this Restricted Stock Performance Unit Agreement\n and return it to the Company\u2019s Secretary, thereby indicating your understanding of and\n agreement with its terms and conditions.\n\n\n ICONIX BRAND GROUP, INC.\n\n\n By: ________________________\n\n\n\n\n 39\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 41 of 50\n\n\n\n\n ACKNOWLEDGMENT\n\n I hereby acknowledge receipt of a copy of the Plan. I hereby represent that I have\n read and understood the terms and conditions of the Plan and of the Restricted Stock\n Performance Unit Agreement. I hereby signify my understanding of, and my agreement with,\n the terms and conditions of the Plan and of the Restricted Stock Performance Unit Agreement. I\n agree to accept as binding, conclusive, and final all decisions or interpretations of the\n Administrator concerning any questions arising under the Plan with respect to this Restricted\n Stock Performance Unit Agreement. I accept this Restricted Stock Performance Unit Agreement\n in full satisfaction of any previous written or oral promise made to me by the Company or any of\n its Affiliates with respect to PSUs.\n\n Date: _________________\n\n\n\n ______________________________\n Neil R. Cole\n\n\n\n\n 40\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 42 of 50\n\n\n\n\n EXHIBIT C\n\n PSU Performance Goals\n\n\n A. PSU Allocation.\n\n The PSU\u2019s shall be allocated to each performance goal set below as follows: (i) 50% of the\n PSU\u2019s to the achievement of EBITDA Growth (as defined below) (the \u201cEBITDA Shares\u201d);\n (ii) 25% of the PSU\u2019s to the achievement of Market Capitalization Growth (as defined below)\n (the \u201cMCG Shares\u201d); and (iii) 25% of the PSU\u2019s to the achievement of Stock Price Growth (as\n defined below) (the \u201cSPG Shares\u201d).\n\n B. Performance Goals.\n\n i. Performance goals established for purposes of the grant of the PSU\u2019s are intended\n to be \u201cperformance-based\u201d under Section 162(m) of the Code and constitute a \u201cPerformance\n Criteria\u201d as defined in the Equity Plan.\n\n ii. Except as expressly provided in Section 2.4 of the Agreement, with regard to\n acceleration, the performance goals for each Performance Period (as defined below) shall be\n based on the attainment of specified levels of the Company\u2019s EBITDA, Market Capitalization,\n and Stock Price over the Performance Periods. The number of PSU\u2019s will be vested and\n delivered based on the level of EBITDA Growth, Market Capitalization Growth, and Stock Price\n Growth achieved, as specified below. The Company agrees that the Compensation Committee\n shall certify the attainment of EBITDA Growth, Market Capitalization Growth and Stock Price\n Growth for each Performance Period to the extent and in the manner required by Section 162(m)\n of the Code.\n\n iii. The five (5) year performance goals for EBITDA, Market Capitalization and\n Stock Price shall be based on the Company\u2019s actual EBITDA for the year ended December 31,\n 2007 (calculated as set forth in the definition of EBITDA Growth below as if January 1, 2007 to\n December 31, 2007 was a Performance Period), the Company\u2019s actual market capitalization at\n the close of business on December 31, 2007 (calculated as set forth in the definition of Market\n Capitalization Growth as if December 31, 2007 was the last day of a Performance Period), and\n the actual closing market price of the Company\u2019s Common Stock on December 31, 2007 as\n reported on Nasdaq. For the five (5) year Performance Periods, the Target levels for each of the\n three measures (with such levels being based on the actual 2007 results as aforesaid) shall be\n compounded annually at 15% over the five (5) year period and the Threshold levels for each of\n the three measures (with such levels being based on the actual 2007 results as aforesaid) shall be\n compounded annually at 12% over the five (5) year period. For avoidance of doubt, and\n recognizing that the following numbers are intended to be provided as an example and are not be\n based on any projections or actual results, in the event that the Company\u2019s actual EBITDA for\n the year ended December 31, 2007 was $110 million, then $126.5 million shall be the Target\n EBITDA Level against which to judge EBITDA Growth for the January 1, 2008 through\n\n\n\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 43 of 50\n\n\n\n\n December 31, 2008 Performance Period, and accordingly, the five (5) year Target EBITDA\n Levels (that is, 15% increases in respect of the base Target level compounded annually) for each\n of the Performance Periods would be $126.5 million (2008), $145.475 million (2009),\n $167.29625 million (2010), $192.39068 million (2011), and $221.24928 million (2012);\n correspondingly, the five (5) year Threshold EBITDA Levels (that is, 12% increases\n compounded annually) for each of the Performance Periods would be $123.2 million (2008),\n $137.984 million (2009), $154.54208 million (2010), $173.08712 million (2011), and\n $193.85757 million (2012). The same methodology shall be used based on the Company\u2019s\n actual market capitalization and closing stock price on December 31, 2007.\n\n 1. EBITDA Growth: For each Performance Period, one-fifth (1/5) of the EBITDA\n Shares (the \u201cAnnual EBITDA Shares\u201d), shall vest on the applicable Performance\n Vesting Date based upon the achievement of EBITDA Growth during such Performance\n Period as provided in Section B(iii) of this Exhibit (the \u201cEBITDA Level\u201d) as follows:\n\n Percentage of Annual EBITDA Shares\n EBITDA Level Vested\n\n 15% and above (Target) 100%\n at least 12% but less than 15% (Threshold) 50%\n less than 12% 0%\n\n 2. Market Capitalization Growth: For each Performance Period, one-fifth (1/5) of\n the MCG Shares (the \u201cAnnual MCG Shares\u201d), shall vest on the applicable Performance\n Vesting Date based upon the achievement of Marker Capitalization Growth during such\n Performance Period as provided in Section B(iii) of this Exhibit (the \u201cMCG Level\u201d) as\n follows:\n\n MCG Level Percentage of Annual MCG Shares Vested\n\n 15% and above (Target) 100%\n at least 12% but less than 15% (Threshold) 50%\n less than 12% 0%\n\n 3. Stock Price Growth: For each Performance Period, one-fifth (1/5) of the SPG\n Shares (the \u201cAnnual SPG Shares\u201d), shall vest on the applicable Performance Vesting\n Date based upon the achievement of Stock Price Growth during such Performance Period\n as provided in Section B(iii) of this Exhibit (the \u201cSPG Level\u201d) as follows:\n\n SPG Level Percentage of Annual SPG Shares Vested\n\n 15% and above (Target) 100%\n at least 12% but less than 15% (Threshold) 50%\n less than 12% 0%\n\n\n\n 42\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 44 of 50\n\n\n\n\n C. Catch-Up; Forfeiture. In the event that any of the performance goals set forth above is\n not attained for any Performance Period, the PSU\u2019s subject to such performance goal shall\n nevertheless vest as of any succeeding Performance Vesting Date if, as determined as of such\n succeeding Performance Vesting Date, the Company achieves an applicable aggregate\n performance level as of such succeeding Performance Vesting Date equal to the attainment of the\n applicable Target or Threshold levels for each of the applicable succeeding Performance\n Period(s) and the applicable prior Performance Period(s) on an aggregate basis. If PSU\u2019s\n scheduled to vest on a Performance Vesting Date have not vested on such date or on a\n succeeding Performance Vesting Date or on the final Performance Vesting Date, they shall\n automatically be forfeited.\n\n D No Interpolation; Fractional Shares. There shall be no interpolation between each\n applicable target level (i.e., the EBITDA Level, MCG Level, and the SPG Level). Any\n fractional PSU\u2019s resulting from the achievement of any of the performance goals shall be\n aggregated and any resulting fractional PSU\u2019s from such aggregation shall be eliminated.\n\n E. Definitions.\n\n \u201cEBITDA Growth\u201d means, with respect to each Performance Period, the percentage\n growth in the Company\u2019s consolidated earnings before interest, taxes, depreciation and\n amortization (EBITDA), with each such component of EBITDA determined in accordance with\n generally accepted accounting principles consistently applied, during such Performance Period\n as provided in Section B(iii) of this Exhibit, calculated, in good faith by the Company, from the\n Company\u2019s annual audited financial statements, or, for any Performance Period that is not a\n complete fiscal year, the Company\u2019s most recently filed Quarterly Report on Form 10-Q, and if\n so reviewed, as reviewed by the Company\u2019s independent certified accountants.\n\n \u201cMarket Capitalization Growth\u201d means, with respect to each Performance Period, the\n percentage growth in the market capitalization of the Company during such Performance Period\n as provided in Section B(iii) of this Exhibit, calculated by multiplying the number of issued and\n outstanding shares of Common Stock (plus any shares repurchased by the Company as of the\n close of the applicable Performance Period whenever so purchased) on the last business day of\n the applicable Performance Period by the closing market price of a share of Common Stock, as\n reported on the principal national securities exchange in the United States on which the Common\n Stock is then traded, on the last business day of the applicable Performance Period.\n\n \u201cPerformance Period\u201d means each period from January 1 through December 31 during\n the Initial Term, commencing with the period from January 1, 2008 though December 31, 2008,\n and ending with the period from January 1, 2012 through December 31, 2012.\n\n \u201cPerformance Vesting Date\u201d means each December 31 during the Initial Term,\n commencing with December 31, 2008, and ending with December 31, 2012. Actual vesting\n shall occur upon certification of achievement of the performance goals by the Compensation\n Committee.\n\n \u201cStock Price Growth\u201d means, with respect to each Performance Period, the percentage\n growth in the Fair Market Value of Common Stock during such Performance Period as provided\n 43\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 45 of 50\n\n\n\n\n in Section B(iii) of this Exhibit, determined by reference to the closing market price of a share of\n Common Stock, as reported on the principal national securities exchange in the United States on\n which the Common Stock is then traded, on the last business day immediately preceding the\n beginning of the applicable Performance Period and to the closing market price of a share of\n Common Stock, as so reported, on the last business day of the applicable Performance Period.\n\n F. Miscellaneous.\n\n With respect to the each Performance Period, to the extent any provision contained herein\n creates impermissible discretion under Section 162(m) of the Code, such provision will be of no\n force or effect.\n\n Certification, other than as to stock price, shall be based on the Company\u2019s audited\n financial statements for the applicable Performance Period, or, for any Performance Period that\n is not a complete fiscal year, the Company\u2019s most recently filed Quarterly Report on Form 10-Q\n and, if so reviewed, as reviewed by the Company\u2019s independent certified public accountants.\n Any determination or certification with respect to EBITDA required under this Exhibit C shall be\n made in accordance with the generally accepted accounting principles (GAAP) in the United\n States, as applied by the Company to the preparation of its financial statements, as in effect on\n the Effective Date. In the event of a change in GAAP, or the Company's application thereof, any\n determination or certification with respect to EBITDA as provided in the Company's financial\n statements shall be adjusted as required to comply with the foregoing sentence. Vesting shall\n only occur upon the certification by the Compensation Committee of the achievement. The\n Compensation Committee shall meet for the purpose of certification and, to the extent\n appropriate, provide the applicable certification promptly (and in any event within 30 days) after\n the completion of the audit for the fiscal year; provided, that in the case of a termination of the\n Executive\u2019s employment, the Compensation Committee shall use reasonable business efforts to\n meet for the purpose of certification and, to the extent appropriate, provide the applicable\n certification promptly (and in any event within 30 days) after the Date of Termination; and\n provided further, that in the case of a Change in Control, the Compensation Committee shall\n meet for the purpose of certification and, to the extent appropriate, provide the applicable\n certification immediately prior to the Change in Control. The Company shall cause the\n foregoing meetings and certifications to occur in a timely manner, which agreement by the\n Company the parties agree is a material obligation and agreement of the Company.\n\n Notwithstanding anything to the contrary contained in the Agreement or this Exhibit C,\n any dispute under Section 2.4.2 and/or this Exhibit C (including in respect of any dispute arising\n following any certification by the Compensation Committee) shall, at the request of the\n Company or the Executive, be resolved by the Company\u2019s independent certified public\n accountants (with such accountants\u2019 fees and expenses being paid by the Company).\n\n In the event that following the vesting of any PSU\u2019s there is a restatement of the\n Company\u2019s financial statements for the period utilized for determining said vesting, and the\n Compensation Committee determines in good faith that such PSU\u2019s would not have vested based\n on the restated financials, including as to its impact on the stock price or market capitalization,\n the Compensation Committee may require the Executive to repay to the Company (in cash or by\n delivery of shares of Common Stock) the value (determined as of the time of distribution) of any\n 44\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 46 of 50\n\n\n\n\n shares of Common Stock distributed to the Executive with respect to such PSU\u2019s, reduced by any\n un-refundable taxes paid thereon by the Executive, and upon such demand such amount shall\n promptly be paid by the Executive to the Company.\n\n\n\n\n 45\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 47 of 50\n\n\n\n\n EXHIBIT D\n\n Form of General Release and Waiver\n\n THIS GENERAL RELEASE AND WAIVER (this \u201cRelease\u201d) is entered into\n effective as of ______________ ___, 20__, by Neil Cole (the \u201cExecutive\u201d) in favor of Iconix\n Brand Group, Inc. (the \u201cCompany\u201d).\n\n 1. Confirmation of Termination. The Executive\u2019s employment with the\n Company is terminated as of ________________ ___, 20__ (the \u201cTermination Date\u201d). The\n Executive acknowledges that the Termination Date is the termination date of his employment for\n purposes of participation in and coverage under all benefit plans and programs sponsored by or\n through the Company. The Executive acknowledges and agrees that the Company shall not have\n any obligation to rehire the Executive, nor shall the Company have any obligation to consider\n him for employment, after the Termination Date. The Executive agrees that he will not seek\n employment with the Company at any time in the future.\n\n 2. Resignation. Effective as of the Termination Date, the Executive hereby\n resigns as an officer and director of the Company and any of its affiliates and from any such\n positions held with any other entities at the direction or request of the Company or any of its\n affiliates. The Executive agrees to promptly execute and deliver such other documents as the\n Company shall reasonably request to evidence such resignations. In addition, the Executive\n hereby agrees and acknowledges that the Termination Date shall be date of his termination from\n all other offices, positions, trusteeships, committee memberships and fiduciary capacities held\n with, or on behalf of, the Company or any of its affiliates.\n\n 3. Termination Benefits. Assuming that the Executive executes this Release\n and does not revoke it within the time specified in Section 10 below, then, subject to Section 9\n below, the Executive will be entitled to the [payments and benefits (subject to taxes and all\n applicable withholding requirements) set forth under Section [5.4.2] [5.4.3] of the Employment\n Agreement, entered into on January 28, 2008, and effective as of January 1, 2008, between the\n Company and the Executive (the \u201cEmployment Agreement\u201d) and] [the distribution with respect\n to the Equity Units (as defined in the Employment Agreement) set forth under Section [5.4.2]\n [5.4.3] [5.4.6] of the Employment Agreement] (the \u201cTermination Benefits\u201d). Notwithstanding\n anything herein to the contrary, the Amounts and Benefits (as defined in the Employment\n Agreement) shall not be subject to Executive\u2019s execution of this Release. The Executive\n acknowledges and agrees that the Termination Benefits exceed any payment, benefit, or other\n thing of value to which the Executive might otherwise be entitled under any policy, plan or\n procedure of the Company and/or any agreement between the Executive and the Company,\n except as provided above.\n\n 4. General Release and Waiver. In consideration of the Termination\n Benefits, and for other good and valuable consideration, receipt of which is hereby\n acknowledged, the Executive for himself and for his heirs, executors, administrators, trustees,\n legal representatives and assigns (collectively, the \u201cReleasors\u201d), hereby releases, remises, and\n acquits the Company and its affiliates and all of their respective past, present and future parent\n\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 48 of 50\n\n\n\n\n entities, subsidiaries, divisions, affiliates and related business entities, any of their successors and\n assigns, assets, employee benefit plans or funds, and any of their respective past and/or present\n directors, officers, fiduciaries, agents, trustees, administrators, managers, supervisors,\n shareholders, investors, employees, legal representatives, agents, counsel and assigns, whether\n acting on behalf of the Company or its affiliates or, in their individual capacities (collectively,\n the \u201cReleasees\u201d and each a \u201cReleasee\u201d) from any and all claims, known or unknown, which the\n Releasors have or may have against any Releasee arising on or prior to the date of this Release\n and any and all liability which any such Releasee may have to the Executive, whether\n denominated claims, demands, causes of action, obligations, damages or liabilities arising from\n any and all bases, however denominated, including but not limited to (a) any claim under the\n Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990,\n the Family and Medical Leave Act of 1993, the Civil Rights Act of 1964, the Civil Rights Act of\n 1991, Section 1981 of the Civil Rights Act of 1866, the Equal Pay Act, the Immigration Reform\n and Control Act of 1986, the Employee Retirement Income Security Act of 1974, (excluding\n claims for accrued, vested benefits under any employee benefit or pension plan of the Company,\n subject to the terms and conditions of such plan and applicable law), the Sarbanes-Oxley Act of\n 2002, all as amended; (b) any claim under the New York State Human Rights Law, New York\n City Human Rights Law, New York Equal Pay Law and N.Y. Lab. Law, Sections 201-c\n (adoptive parent leave) and 740 (whistle blower statute), all as amended; (c) any claim under any\n other Federal, state, or local law and any workers\u2019 compensation or disability claims under any\n such laws; and (d) any claim for attorneys\u2019 fees, costs, disbursements and/or the like. This\n Release includes, without limitation, any and all claims arising from or relating to the\n Executive\u2019s employment relationship with Company and his service relationship as an officer or\n director of the Company, or as a result of the termination of such relationships. The Executive\n further agrees that the Executive will not file or permit to be filed on the Executive\u2019s behalf any\n such claim. Notwithstanding the preceding sentence or any other provision of this Release, this\n Release is not intended to interfere with the Executive\u2019s right to file a charge with the Equal\n Employment Opportunity Commission (\u201cEEOC\u201d) in connection with any claim he believes he\n may have against any Releasee. However, by executing this Release, the Executive hereby\n waives the right to recover in any proceeding the Executive may bring before the EEOC or any\n state human rights commission or in any proceeding brought by the EEOC or any state human\n rights commission on the Executive\u2019s behalf. This Release is for any relief, no matter how\n denominated, including, but not limited to, injunctive relief, wages, back pay, front pay,\n compensatory damages, or punitive damages. This Release shall not apply to (i) the obligation\n of the Company to provide the Executive with the Amounts and Benefits and the Termination\n Benefits and any provision relating thereto under the Employment Agreement; (ii) the\n Executive\u2019s rights to indemnification from the Company or rights to be covered under any\n applicable insurance policy with respect to any liability the Executive incurred or might incur as\n an employee, officer or director of the Company including, without limitation, the Executive\u2019s\n rights under Section 8 of the Employment Agreement; or (iii) any right the Executive may have\n to obtain contribution as permitted by law in the event of entry of judgment against the Executive\n as a result of any act or failure to act for which the Executive, on the one hand, and Company or\n any other Releasee, on the other hand, are jointly liable.\n\n 5. Continuing Covenants. The Executive acknowledges and agrees that he\n remains subject to the provisions of Section 7 of the Employment Agreement which shall remain\n in full force and effect for the periods set forth therein.\n 47\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 49 of 50\n\n\n\n\n 6. No Admission. This Release does not constitute an admission of liability\n or wrongdoing of any kind by the Company or any other Releasee. This Release is not intended,\n and shall not be construed, as an admission that any Releasee has violated any federal, state or\n local law (statutory or decisional), ordinance or regulation, breached any contract or committed\n any wrong whatsoever against any Releasor.\n\n 7. Heirs and Assigns. The terms of this Release shall be binding upon and\n inure to the benefit of the parties named herein and their respective successors and permitted\n assigns.\n\n 8. Miscellaneous. This Release will be construed and enforced in\n accordance with the laws of the State of New York without regard to the principles of conflicts\n of law. If any provision of this Release is held by a court of competent jurisdiction to be illegal,\n void or unenforceable, such provision shall have no effect; however, the remaining provisions\n will be enforced to the maximum extent possible. The parties acknowledge and agree that,\n except as otherwise set forth herein, this Release constitutes the complete understanding between\n the parties with regard to the matters set forth herein and, except as otherwise set forth herein,\n supersede any and all agreements, understandings, and discussions, whether written or oral,\n between the parties. No other promises or agreements are binding unless in writing and signed\n by each of the parties after the Release Effective Date (as defined below). Should any provision\n of this Release require interpretation or construction, it is agreed by the parties that the entity\n interpreting or constructing this Release shall not apply a presumption against one party by\n reason of the rule of construction that a document is to be construed more strictly against the\n party who prepared the document.\n\n 9. Knowing and Voluntary Waiver. The Executive acknowledges that he: (a)\n has carefully read this Release in its entirety; (b) has had an opportunity to consider it for at least\n forty-five (45) days; (c) is hereby advised by the Company in writing to consult with an attorney\n of his choosing in connection with this Release; (d) fully understands the significance of all of\n the terms and conditions of this Release and has discussed them with his independent legal\n counsel, or had a reasonable opportunity to do so; (e) has had answered to his satisfaction any\n questions he has asked with regard to the meaning and significance of any of the provisions of\n this Release and has not relied on any statements or explanations made by any Releasee or their\n counsel; (f) understands that he has seven (7) days in which to revoke this Release (as described\n in Section 10) after signing it and (g) is signing this Release voluntarily and of his own free will\n and agrees to abide by all the terms and conditions contained herein.\n\n 10. Effective Time of Release. The Executive may accept this Release by\n signing it and returning it to Iconix Brand Group, Inc., 1450 Broadway, 4th Floor, New York,\n New York, Attention: [\u2022] within [twenty-one (21)] [forty-five (45)] days of his receipt of the\n same. After executing this Release, the Executive will have seven (7) days (the \u201cRevocation\n Period\u201d) to revoke this Release by indicating his desire to do so in writing delivered to [\u2022] at the\n address above (or by fax at [\u2022]) by no later than 5:00 p.m. EST on the seventh (7th) day after the\n date he signs this Agreement. The effective date of this Agreement shall be the eight (8th) day\n after the Executive signs this Agreement (the \u201cRelease Effective Date\u201d). If the last day of the\n Revocation Period falls on a Saturday, Sunday or holiday, the last day of the Revocation Period\n will be deemed to be the next business day. If the Executive does not execute this Release or\n 48\n7332/39472-001 Current/10270796v18\n\f Case 1:25-cv-09357-MKV Document 26-3 Filed 03/27/26 Page 50 of 50\n\n\n\n\n exercises his right to revoke hereunder, he shall forfeit his right to receive any of the Termination\n Benefits, and to the extent such Termination Benefits have already been provided, the Executive\n agrees that he will immediately reimburse the Company for the amounts of such payment.\n\n IN WITNESS WHEREOF, the Executive has duly executed this Release as of the date\n first set forth above.\n\n EXECUTIVE:\n\n\n Name: Neil Cole\n\n\n\n\n 49\n7332/39472-001 Current/10270796v18\n\f","ocr_status":1,"date_upload":"2026-03-28T04:41:16.599544-07:00","document_number":"26","attachment_number":3,"pacer_doc_id":"127039321827","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit 3A: Employment Agreement","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/473916172/","id":473916172,"tags":[],"absolute_url":"/docket/71893430/26/4/cole-v-iconix-international-inc/","date_created":"2026-03-28T04:39:30.336630-07:00","date_modified":"2026-03-30T02:24:16.164100-07:00","sha1":"976b7f7ce9c4eefe1ea5945071289809514b9f00","page_count":5,"file_size":1409115,"filepath_local":"recap/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.26.4.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.26.4.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 1:25-cv-09357-MKV Document 26-4 Filed 03/27/26 Page 1 of 5\n\n\n\n\n EXHIBIT 3B\n\f Case 1:25-cv-09357-MKV Document 26-4 Filed 03/27/26 Page 2 of 5\n\n\n\n\n AGREEMENT\n\n AGREEMENT dated December 24, 2008, by and between Iconix Brand Group,\nInc., a Delaware corporation (the \"Company\"), and Neil R. Cole (the \"Executive\").\n\n\n\n W I TN E S S ET H:\n\n WHEREAS, on January 28, 2008, the Company and the Executive entered into an\nemployment agreement, effective as of January 1, 2008 (the \"Employment Agreement\");\n\n WHEREAS, Pursuant to Section 2.4.1 of the Employment Agreement on\nFebruary 19, 2008 the Executive was granted an award of 1,181,684 restricted stock units (the\n\"RSU's\");\n\n WHEREAS, the RSU's are evidenced by a Restricted Stock Unit Agreement\ndated February 19, 2008 (the \"RSU Agreement\");\n\n WHEREAS, pursuant to (i) Section 2.4.l(i) of the Employment Agreement and\n(ii) the RSU Agreement, the RSU's shall vest in five (5) substantially equal annual installments\nsubject to the Executive's continuous employment with the Company through each such vesting\ndate, with the first installment vesting on December 31, 2008 and each subsequent installment\nvesting each December 31 thereafter, with the final installment vesting on December 31, 2012\n(each a \"Time Vesting Date\"). Notwithstanding the foregoing, in the event of a \"Change in\nControl\" (as defined in Section 5.4.4 of the Employment Agreement), one hundred (100%) of\nthe then remaining unvested RSU's shall immediately become vested;\n\n WHEREAS, (i) Section 2.4.l(ii) of the Employment Agreement and (ii) the RSU\nAgreement provide that any vested portion of the RSU's shall be distributed to the Executive in\nshares of the Company's common stock fifteen (15) days after the applicable Time Vesting Date\n(or simultaneously upon the occurrence of a Change of Control);\n\n WHEREAS, the Executive and the Company believe it would be in the best\ninterests of the Company to provide for a delay in the distribution to the Executive of the shares\nof the Company's common stock to which he will be entitled to receive under the RSU's upon\noccurrence of any of the Time Vesting Dates upon the terms provided below;\n\n WHEREAS, in consideration of Executive's agreement to delay the distribution\nto the Executive of the shares of the Company's common stock to which he will be entitled to\nreceive under the RSU's as provided above the Company believes it would be in the best\ninterests of the Company to provide the Executive with the opportunity to receive under the\nCompany's Executive Incentive Bonus Plan an additional annual bonus of $500,000 for each of\nthe four calendar years in the period commencing January 1, 2009 and ending December 31,\n2012;\n\f Case 1:25-cv-09357-MKV Document 26-4 Filed 03/27/26 Page 3 of 5\n\n\n\n\n WHEREAS, capitalized terms used but not defined herein shall have the\nmeanings set forth in the Employment Agreement.\n\n NOW, THEREFORE, in consideration of the covenants and agreements\nhereinafter set forth, the parties hereto agree as follows:\n\n 1.1. Notwithstanding anything in the Employment Agreement or in the RSU\nAgreement to the contrary, the shares of the Company's common stock to which the Executive\nshall be entitled to receive under the RSU's upon the occurrence of any Time Vesting Date shall\nnot be issued by the Company and shall not be distributed to the Executive until the earlier of (i)\nthe date the Executive is no longer employed by either (a) the Company or (b) any corporation or\nother entity owning, directly or indirectly, 50% or more of the outstanding common stock of the\nCompany, or in which the Company or any such corporation or other entity owns, directly or\nindirectly, 50% or more of the outstanding capital stock (determined by aggregate voting rights)\nor other voting interests or (ii) a Change in Control. Executive shall have no rights to vote or\ndispose of the shares of the Company's common stock issuable under the RSU's until such\nshares are issued\n\n 1.2. Notwithstanding anything in the Employment Agreement to the contrary,\nin addition to Base Salary, the Annual Bonus and any other compensation to which the Executive\nis currently entitled to under the Employment Agreement, for each of the four completed\ncalendar years of the Company commencing with the calendar year from January 1, 2009 though\nDecember 31, 2009, and ending with the calendar year from January 1, 2012 through December\n31, 2012, the Executive shall be entitled to receive an additional bonus in the amount of five\nhundred thousand dollars ($500,000.00) {\"Additional Annual Bonus\") if either of the two\nfollowing performance measures have been satisfied:\n\n (i) the percentage determined by dividing the Company's EBITDA by its revenues\n for the calendar year in question places it in the top fifty percent (50%) of those\n companies contained in the Standard & Poor's SmallCap Retailing Index at the\n end of that calendar year; or\n\n (ii) the Company's annual revenue percentage growth for the calendar year in\n question when compared to the immediately preceding calendar year places it in\n the top 50% of those companies contained in the Standard & Poor's SmallCap\n Retailing Index at the end of that calendar year.\n\nFor purposes of determining whether the conditions of either Sections l.2(i) or l.2(ii) above for\nthe payment of an Additional Annual Bonus have been met, the calculations will be made on the\nfirst business day after April 16 of the year following the applicable performance period (the\n\"Measurement Date\"). The calculations will be made using the audited fiscal year end financial\ninformation available to the Company at the Measurement Date for the most recent fiscal year of\nthose companies contained in the Standard & Poor's SmallCap Retailing Index at the end of the\napplicable performance period. If such audited financial information for any such company\ncontained in the Standard & Poor's SmallCap Retailing Index is not publicly available at the\nMeasurement Date, then such company shall not be considered to be included in the list of\ncompanies referred to in Sections l .2(i) and l .2(ii) above. In addition, if the information\n\n 2\n\f Case 1:25-cv-09357-MKV Document 26-4 Filed 03/27/26 Page 4 of 5\n\n\n\n\nnecessary to determine EBITDA of any company in the Standard & Poor's SmallCap Retailing\nIndex is not publicly available at the Measurement Date, then such company shall not be\nconsidered to be included in the list of companies referred to in Section 1.2(i) above.\n\n The payment of any such Additional Annual Bonus shall be made as soon as reasonably\npracticable following the Measurement Date upon a certification of the amount due by the\nCompensation Committee, and in accordance with the Company's normal payroll practices for\nthe payment of bonuses to senior executives. The Compensation Committee shall use reasonable\nbusiness efforts to meet for the purposes of such certification within 30 days after the\nMeasurement Date. If the Executive's employment with the Company is terminated before the\nexpiration of the Term, for purposes of determining the right of the Executive under Section 5 of\nthe Employment Agreement to receive any amount of an earned but unpaid Additional Annual\nBonus for a prior fiscal year or a pro-rata portion of such bonus for any portion of a fiscal year in\nwhich such resignation occurs, the terms Prior Year Bonus and Pro Rata Bonus as set forth in\nSection 5 of the Employment Agreement shall be deemed to include the Additional Annual\nBonus as well as the Annual Bonus. Except as otherwise provided above, any Additional Annual\nBonus payable under this Section shall be contingent on the Executive's continued employment\nwith the Company through the date such payment is made.\n\n 1.3. This Agreement shall not modify the Time Vesting Date of any RSU nor,\nexcept as otherwise specifically provided in Section 1.1 or Section 1.2 above, amend or\nsupersede any provision of the Employment Agreement or the RSU Agreement.\n\n 1.4. This Agreement, together with the Employment Agreement and RSU\nAgreement (each as amended above), represents the entire agreement of the parties with respect\nto the subject matter hereof and shall supersede any and all previous contracts, arrangements or\nunderstandings between the Company and the Executive. This Agreement may be amended at\nany time by mutual written agreement of the parties hereto\n\n 1.5. The payment of any amount pursuant to this Agreement shall be subject to\napplicable withholding and payroll taxes, and such other deductions as may be required by\napplicable law.\n\n 1.6. This Agreement and the performance of the parties hereunder shall be\ngoverned by the internal laws (and not the law of conflicts) of the State of New York.\n\n 1.7. This Agreement may be executed in counterparts (including by fax or pdf)\nwhich, when taken together, shall constitute one and the same agreement of the parties.\n\n\n\n\n 3\n\f Case 1:25-cv-09357-MKV Document 26-4 Filed 03/27/26 Page 5 of 5\n\n\n\n IN WITNESS WHEREOF, the Company has caused this Agreement to be duly\nexecuted, and the Executive has hereunto set his hand.\n\n\n\n THE COMPANY:\n\n ICONIX BRAND GROUP, INC\n\n\n By: ~~~\n Name: Mark Friedman\n Title: Chairman of the Compensation Committee\n\n\n\n\n 4\n\f","ocr_status":1,"date_upload":"2026-03-28T04:41:17.088145-07:00","document_number":"26","attachment_number":4,"pacer_doc_id":"127039321828","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit 3B: Amendment to the Employment Agreement","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/473916173/","id":473916173,"tags":[],"absolute_url":"/docket/71893430/26/5/cole-v-iconix-international-inc/","date_created":"2026-03-28T04:39:30.358299-07:00","date_modified":"2026-03-30T02:27:24.084886-07:00","sha1":"c006f611bb70e4409e9cbbf488710552ccb91f63","page_count":9,"file_size":378508,"filepath_local":"recap/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.26.5.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.26.5.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 1:25-cv-09357-MKV Document 26-5 Filed 03/27/26 Page 1 of 9\n\n\n\n\n EXHIBIT 4\n\f Case 1:25-cv-09357-MKV Document 26-5 Filed 03/27/26 Page 2 of 9\n\n\n\n\n SEPARATION AGREEMENT\n\n SEPARATION AGREEMENT (\"Agreement\") entered into and effective as of the 28th\nday of December, 2016 (the \"Effective Date\") by and among Iconix Brand Group, Inc., a\nDelaware corporation (the \"Company\") and Neil Cole (\"Cole\").\n\n WHEREAS, Cole resigned from his positions as Chairman, CEO and President of the\nCompany and as a member of its Board of Directors, effective August 5, 2015 (the \"Resignation\nDate,\" and such resignation, the \"Resignation\"), and in connection therewith, the Company and\nCole entered into the Confidential Term Sheet for Resignation and Separation Agreement dated\nAugust 5, 2015 (the \"Binding Term Sheet\") (capitalized terms used herein and not otherwise\ndefined herein shall have the meaning ascribed to such terms in the Binding Term Sheet);\n\n WHEREAS, subsequent to the Resignation Date, the Company restated its financial\nstatements, as more fully described in the Company's Current Reports on Form 8-K filed with\nthe Securities and Exchange Commission on November 5, 2015 and February 18, 2016\n(collectively, the \"Restatements\");\n\n WHEREAS, the Board of Directors of the Company (the \"Board\") determined that, as a\nresult of the cumulative effect of the Restatements, as reflected in the February 18, 2016\nRestatement, certain performance-based cash bonus and equity awards previously paid or\ndelivered to Cole are subject to recoupment, pursuant to the terms and conditions of such cash\nand incentive equity awards, the Company's Recoupment Policy, and the Employment\nAgreement; and\n\n WHEREAS, the Company and Cole desire to settle and resolve, fully and finally, all\nclaims related to the Resignation and the recoupment of Cole's performance-based cash bonus\nand equity awards as a result of the Restatements, without any admission of liability, incapacity,\nundue influence, fault or wrongdoing.\n\n NOW, THEREFORE, for good and valuable consideration, the mutual receipt and\nsufficiency of which is hereby acknowledged, the parties hereto agree as follows:\n\n 1. The total remaining amount due from the Company to Cole in connection\nwith his Resignation under the Employment Agreement and the Binding Term Sheet, subject to\nrequired tax withholding, is $2,750,000 as cash severance to Cole pursuant to Section 5.4.2(i) of\nthe Employment Agreement and the Binding Term Sheet and 1,346,757 shares of the Company's\ncommon stock, par value $0.001 per share (\"Common Stock\") pursuant to the terms of the\nEmployment Agreement and the Binding Term Sheet, comprised of(a) 1,181,684 shares of\nCommon Stock, which number of shares is equal to those restricted stock units granted pursuant\nto the terms of that certain award agreement by and between Cole and the Company dated\nFebruary 19, 2008, as amended on December 24, 2008; (b) 51,230 shares of Conuuon Stock,\nwhich number of shares is equal to the partial acceleration of the 68,306 outstanding unvested\nrestricted stock units granted pursuant to the terms of that certain award agreement by and\nbetween Cole and the Company dated as of June 17, 2011; and (c) 113,843 shares of Common\n\f Case 1:25-cv-09357-MKV Document 26-5 Filed 03/27/26 Page 3 of 9\n\n\n\n\nStock, which number of shares is equal to the portion of the 455,373 outstanding unvested\nperformance share units granted pursuant to the terms of that certain award agreement by and\nbetween Cole and the Company dated June 17, 2011, which vested as a result of the achievement\nby the Company of the free cash flow target in respect of fiscal year 2015 applicable to such\nperformance share units, all of which shall be treated as delivered by the Company on the date of\nthis Agreement. The $2,750,000 cash payment and the delivery of the 1,346,757 shares of\nCommon Stock by the Company to Cole shall be made pursuant to Paragraph 3.\n\n 2. In satisfaction of Cole's recoupment obligations with respect to the Prior\nAwards (defined below) as a result of the Restatements, Cole shall deliver to the Company cash\nin an amount equal to $2,175,000 and 575,127 shares of Common Stock. The term \"Prior\nAwards\" means the following cash bonus that was paid and equity based awards that vested prior\nto having effected the Restatements: (i) the $2,175,000 cash bonus paid to Cole based on\nachievement of the 2013 Adjusted EBITDA target ($1,050,000) and 2014 Adjusted EBITDA\ntarget ($1,125,000); (ii) 113,843 PSUs based on the achievement of the 2014 EPS target; (iii)\n89,669 PSUs based on the partial achievement of the 2013 EBITDA target; and (iv) 65,252\nshares of Common Stock based upon the catch up provision for 2012 EPS based on 2013 EPS\nresults. The $2, l 75,000 cash payment and the delivery of 575,127 shares of Common Stock by\nCole to the Company shall be made pursuant to Paragraph 3.\n\n 3. Solely as a matter of convenience, the parties agree that their respective\npayment obligations pursuant to Paragraphs I and 2 above shall be satisfied in the following\nmanner on the Effective Date:\n\n (a) The Company shall deliver to ADP Services Inc. (\"ADP\") an\nauthorization letter in the form of Exhibit B hereto instructing ADP to issue and deliver to Cole a\ncheck, in an amount equal to $575,000, which amount is equal to the difference between (x)\n$2,750,000 (i.e., the cash amount payable to Cole by the Company pursuant to Paragraph 1) less\n(y) $2,175,000 (i.e., the cash amount payable to the Company by Cole pursuant to Paragraph 2);\nand\n (b) The Company shall deliver to Cole 771,630 shares of Co1mnon Stock,\nwhich number of shares is equal to the difference between (x) 1,346,757 shares of Common\nStock (i.e., the number of shares of Common Stock that Cole is entitled to receive pursuant to\nParagraph l above) less (y) 575,127 shares of Common Stock (i.e., the number of shares of\nCommon Stock the Company is entitled to receive from Cole pursuant to Paragraph 2).\n 4. On the Effective Date, Cole shall deliver to the Company an amount equal\nto his tax withholding obligations with respect to the $2,750,000 cash payment and the delivery\nof 1\u00b7,346,757 shares of Common Stock set forth in Paragraph 1 above (the \"Withholding\nPayment\"). For purposes of the Withholding Payment, the shares of Common Stock delivered\npursuant to Paragraph 1 above shall be valued at the closing sale price of the Common Stock on\nthe trading day immediately preceding the Effective Date. The amount of the Withholding\nPayment shall be the sum of the following subparagraphs (a), (b) and (c) (totaling\n$8,106,748.05):\n\n\n\n\n 2-\n\f Case 1:25-cv-09357-MKV Document 26-5 Filed 03/27/26 Page 4 of 9\n\n\n\n\n (a) The Federal income tax withholding obligation shall be the sum of (i)\n$250,000, plus (ii) $693,000, plus (iii) 39.6% of the value of the Common Stock delivered\npursuant to Paragraph I (such that subtotal (a) equals $5,705,509.84); plus\n (b) The Federal social security and Medicare withholding tax obligation shall be\nthe sum of (i) $9,065.25, plus (ii) $118.17, plus (iii) $59,925, plus (iv) 2.35% of the value of the\nCommon Stock delivered pursuant to Paragraph l (such that subtotal (b) equals $351,732.11);\nand\n (c) The New York state and local withholding tax obligations shall be the sum of\n(i) $381,425 plus (ii) 13.87% of the value of the Common Stock delivered pursuant to Paragraph\nI (such that subtotal (c) equals $2,049,506.10).\n 5. The Company and Cole agree as follows:\n\n (a) The Company shall seek a refund of the overpaid FICA Taxes (defined\nbelow) associated with the wages that are repaid by Cole pursuant to Cole's satisfaction of his\nrecoupment obligation in Paragraph 2 (the \"FICA Tax Refund\"). Such request for a refund shall\nbe filed by the Company (with a copy evidencing such filing to be sent to Cole) within thi1ty (30)\ndays after Cole provides the following to the Company: (i) a written consent to the allowance of\na refund of the employee's portion of the overpaid FICA Taxes, and (ii) a written statement\nconfirming that Cole has not made any previous claims, and will not make any future claims, for\nrefund or credit of the overpaid FICA Taxes. The form of the written consent and written\nstatement referred to in this Paragraph 5(a) shall be (i) provided by the Company to Cole within\nfifteen (15) days after the Effective Date and (ii) executed and returned to the Company by Cole\nwithin fifteen (15) days after Cole's receipt thereof. As promptly as practical, but in any event\nno more than thirty (30) days after the Company receives the FICA Tax Refund, the Company\nshall pay to Cole (without any right to offset against such amounts) the portion of the FICA Tax\nRefund attributable to FICA Taxes paid pursuant to section 3101 of the Code: provided,\nhowever, that if the portion of the FICA Tax Refund that is paid by the Company to Cole is\nsubsequently disallowed or otherwise reduced by the Internal Revenue Service, Cole shall repay\nto the Company the amount of such disallowance or other reduction no later than thirty (30) days\nafter the Company provides Cole with written notice of such disallowance or reduction. Cole\nagrees to indemnify the Company for all costs (including, without limitation, reasonable\nattorneys' fees and expenses) that the Company incurs in collecting the repayment, should Cole\nfail to timely make such repayment. For purposes of this Paragraph, \"FICA Taxes\" means both\nthe social security and Medicare portions of the FICA tax imposed on the employee under\nsection 3101 of the Internal Revenue Code (the \"Code\") and imposed on the employer under\nsection 3111 of the Code, but docs not include the additional tax imposed on the employee under\nSection 3101 (b )(2) of the Code (the \"Additional Medicare Tax\").\n (b) If the Company has not filed a request for the FICA Tax Refund and\nprovided to Cole satisfactory evidence of the filing of such request within forty five (45) days\nafter the date that Cole returns the executed written consent and written statement referred to in\nParagraph 5(a) above to the Company, Cole shall be entitled to file a Form 843 (Claim for\nRefund and Request for Abatement) to request a refi.md in respect of the portion of the\noverpayment of FICA Taxes incurred by Cole as a result of his satisfaction of the recoupment\nobligation in Paragraph 2, and thereafter the Company shall, within fifteen (I 5) days after its\n\n 3-\n\f Case 1:25-cv-09357-MKV Document 26-5 Filed 03/27/26 Page 5 of 9\n\n\n\n\nreceipt of a written request from Cole, provide to Cole a statement confirming that the Company\nhas not filed the FICA Tax Refond pursuant to Paragraph 5(a) hereof.\n (c) In addition to the Company's request for the FICA Tax Refond pursuant to\nParagraph 5(a) above or Cole's request for a refund pursuant to Paragraph 5(b) above, as\napplicable, the Company acknowledges that Cole shall be entitled to file a Form I 040X and\nattach a corrected Form 8959 to obtain a refund of the excess Additional Medicare Tax paid by\nCole as a result of his satisfaction of the recoupment obligation in Paragraph 2 above.\n 6. Simultaneously with the execution of this Agreement, Cole is delivering to\nthe Company a General Release and Waiver (the \"Release\") in the form of Exhibit A hereto.\n\n 7. Except for the amounts specifically set forth in Paragraph 3 of this\nAgreement, Cole agrees that no amounts of cash, equity or other property are owed to him by the\nCompany or any of its affiliates pursuant to the Employment Agreement, any equity awards\nagreements to which Cole is a party or the Binding Term Sheet or otherwise and that all other\nequity awards have not vested and are forfeited; provided, that, the foregoing does not limit (i)\nany claim expressly reserved by Cole pursuant to Section 4 of the Release and (ii) the\nCompany's obligations pursuant to Paragraphs 8 and 10 of this Agreement.\n\n 8. Other than the obligations set forth in Paragraphs 3 and 10 of this\nAgreement, Cole acknowledges and agrees that none of the Company, its subsidiaries or\naffiliates, nor any of their respective officers, directors, employees, equityholders, agents,\nadvisors or other representatives have had or continue to have any further obligations to Cole or\nany of his affiliates or TheNext.org (formerly The Candie's Foundation); provided, that the\nCompany hereby agrees to use its reasonable efforts, without the obligation to incur significant\nexpense, to provide Cole, as promptly as practicable after the Effective Date, with copies of\ncreative materials, if any, that it possesses relating to TheNcxt.org (formerly the Candie's\nFoundation), other than those materials which incorporate intellectual property owned or held for\nuse at any time by the Company and/or its subsidiaries or affiliates.\n\n 9. Cole acknowledges and agrees that he remains subject to the provisions of\nSection 7 of the Employment Agreement (other than subsection 7.3. which expired by its terms\non August 5, 2016) which shall remain in foll force and effect for the periods set forth therein.\nFurther, Cole will, upon reasonable notice, reasonably cooperate with the Company and its\naffiliates, subsidiaries and other entities in which it directly or indirectly holds an equity interest\nand with any legal counsel, expert or consultant they may retain to assist them or any of their\nrespective officers, directors, employees, agents or other representatives in connection with any\nexisting or future judicial proceeding, arbitration, administrative proceeding, governmental\ninvestigation or inquiry or internal audit in which the Company or any of its affiliates,\nsubsidiaries or entities in which it directly or indirectly holds an equity interest or any of their\nrespective officers, directors, employees, agents or other representatives may be or become\ninvolved. The agreement to cooperate includes Cole's reasonable assistance, cooperation and\nparticipation with respect to any pending litigation in which he has been identified as a witness\nor defendant and includes preparing for and attending depositions, assisting in answering factual\nquestions for discovery, and preparing for and attending any hearing or trial. Except as provided\nabove, Cole agrees to notify the Company promptly if he is subpoenaed by any person or entity\n(including, but not limited to, any governmental agency) to give testimony (in a deposition, court\n 4-\n\f Case 1:25-cv-09357-MKV Document 26-5 Filed 03/27/26 Page 6 of 9\n\n\n\n\nproceeding or otherwise) or to provide documents that in any way relates to the Company or any\nof its affiliates, subsidiaries or entities in which it directly or indirectly holds an equity interest or\nany of their respective officers, directors, employees, agents or other representatives, unless such\nprior notification is prohibited by applicable law. Cole also agrees not to give such testimony or\nprovide such documents prior to giving notification to the Company unless compelled to do so\nby lawful subpoena issued by a body of competent jurisdiction. Cole agrees that nothing in this\nAgreement is intended or shall be construed in any way as being dependent upon or contingent\non the content of Cole's testimony. Cole understands and acknowledges that notwithstanding\nany other provision in this Agreement, he is not prohibited or in any way restricted from\nreporting possible violations of law to a governmental agency or entity, and he is not required to\ninform the Company ifhe makes such reports.\n\n I0. The parties agree that, notwithstanding the termination of the Employment\nAgreement, the Company continues to be bound by Section 8 of the Employment Agreement\n(including, without limitation, any rights to indemnification and advancement to the extent set\nforth in the Company's by-laws as in effect as of the Resignation Date).\n\n 11. Except with respect to the FICA Tax Refund as provided in Paragraph 5,\nCole acknowledges and agrees that he shall be responsible for obtaining federal, state and/or\nlocal tax refunds, if any, as a result of this Agreement, including, without limitation, as a result of\nCole's satisfaction of his recoupment obligation under Paragraph 2 hereof and of the\n\\Vithholding Payment under Paragraph 4 hereof, and that the Company is not responsible for\nobtaining any such refunds on Cole's behalf.\n\n 12. Cole and the Company will bear their own respective legal costs incurred\nby each in connection with the negotiation and execution of this Agreement.\n\n 13. This Agreement shall be binding npon and shall inure to the benefit of the\nparties hereto, and their respective successors and assigns. Cole shall not assign or otherwise\ntransfer this Agreement or his rights, interests or obligations under this Agreement, except with\nthe prior written consent of the Company.\n\n 14. The invalidity or unenforceability of any provision hereof shall not in any\nway affect the validity or enforceability of any other provision.\n\n 15. The parties agree that notwithstanding the termination of the Employment\nAgreement, Subsections 9.6 and 9.7 of the Employment Agreement will continue in full force\nand effect and shall be applicable to this Agreement and the performance of the pmiies\nhereunder.\n\n 16. Cole hereby represents and warrants to the Company that the execution,\ndelivery and performance of this Agreement by Cole does not and will not conflict with, breach,\nviolate or cause a default under (i) any agreement, contract or instrument to which Cole is a\nparty, including, but not limited to, any employment, consulting, advisory, noncompetition, non-\nsolicitation, confidentiality or similar agreement or arrangement or (ii) any judgment, order or\ndecree to which Cole is subject.\n\n\n 5-\n\f Case 1:25-cv-09357-MKV Document 26-5 Filed 03/27/26 Page 7 of 9\n\n\n\n 17. The Company hereby represents and warrants to Cole that the execution,\ndelivery and performance of this Agreement by the Company does not and will not conflict with,\nbreach, violate or cause a default under (i) any agreement, contract or instrument to which the\nCompany is a party or (ii) any judgment, order or decree to which the Company is subject.\n\n 18. Except as specifically provided herein or in the Release, this Agreement\nand the Release reflect the entire understanding between the pmiies with respect to the subject\nmatter hereof and thereof. This Agreement and the Release supersede any and all other\nagreements, either oral or in writing, between the parties hereto with respect to the employment\nof Cole with the Company and his Resignation, and contains all of the covenants and agreements\n between the pmties with respect to such employment and Resignation, other than, in each case,\nthe provisions of the Employment Agreement pursuant to which Cole and/or the Company\ncontinue to be bound as specifically set forth in this Agreement or the Release. Any\nmodification or termination of this Agreement will be effective only if it is in writing signed by\nboth parties. Cole acknowledges and agrees that, in executing this Agreement he has not relied,\nand when executing the Release he is not relying, on any representation, promise, discussion,\nunderstanding or agreement of any kind other than those set forth in this Agreement and the\nRelease. Cole acknowledges and agrees that the Company has not made any representation as to\nthe tax treatment of the cash payment or delivery of Common Stock by the Company to Cole, the\nrecoupment being made by Cole pursuant to this Agreement or the Withholding Payment\npursuant to Paragraph 4 hereof, nor have any representations been made by the Company to Cole\nregarding the likelihood of success of the FICA Tax Refund, and he is not relying on any tax,\nlegal or other advice of the Company or any of its affiliates or subsidiary or any of their\nrespective officers, directors, employees, equityholders, agents, advisors or their representatives\nwith respect to this Agreement and he has consulted his own advisors to advise him with respect\nto all tax, legal and other issues relating to this Agreement.\n\n 19. Other than as required by law and general statements in periodic earnings\nreleases and earnings calls relating to the impact of the recoupment on the Company's financial\nstatements, including updating and follow-on communications, the Company represents that it\ndoes not intend to issue any press release or public announcement with respect to this Agreement\nor its terms. Notwithstanding the foregoing, it is understood that the Company may disclose this\nAgreement and its terms in reports and other filings that it files with the Securities and Exchange\nCommission as it deems appropriate.\n\n 20. The Company, to the extent permitted by law, on behalf of itself and each\nof its affiliates and subsidiaries, and all of their respective past, present and future parent entities,\nsubsidiaries, divisions, affiliates, and related business entities any of their successors and assigns,\nassets, employee benefit plans or funds, and all of their respective past and/or present directors,\nofficers, fiduciaries, trustees, administrators, managers, supervisors, shareholders, investors,\nemployees, and assigns, whether acting on behalf of the Company or its affiliates or, in their\nindividual capacities (collectively, the \"Company Parties\" and each a \"Company Party\"), does\nhereby knowingly and voluntarily release, remisc, and acquit each of the Executive, his heirs,\nexecutors, administrators, trustees, legal representatives and assigns (collectively, the \"Executive\nParties\" and each an \"Executive Party\") from any and all claims, demands, causes of action,\nobligations, damages or liabilities, known or unknown, however denominated, which the\nCompany Parties have or may have against any Executive Party for return or recoupment of any\n\n 6-\n\f Case 1:25-cv-09357-MKV Document 26-5 Filed 03/27/26 Page 8 of 9\n\n\n\n\n amounts of cash, equity or other property paid, delivered or owed to Cole by the Company or\n any of its affiliates due to the Restatements, except as provided in Paragraph 2 hereof.\n\n 21. This Agreement may be executed by the parties in one or more\ncounterparts, each of which shall be deemed to be an original but all of which taken together\nshall constitute one and the same agreement, and shall become effective when one or more\ncounterparts has been signed by each of the parties hereto and delivered to each of the other\npmties hereto.\n\n 22. All notices relating to this Agreement shall be in writing and shall be\neither personally delivered, sent by overnight courier, sent by tclecopy (receipt confirmed) or\nmailed by certified mail, return receipt requested, to be delivered at such address as is indicated\nbelow, or at such other address or to the attention of such other person as the recipient has\nspecified by prior written notice to the sending party. Notice shall be effective upon receipt.\n\n To the Company:\n Iconix Brand Group, Inc.\n 1450 Broadway, 3'd Floor\n New York, New York 10018\n Attention: John Haugh, President and Chief Executive Officer and\n Jason Schaefer, Executive Vice President and General Counsel\n With a copy in the same manner to:\n Blank Rome LLP\n 405 Lexington Avenue\n New York, New York 10174\n Attention: Robe,t J. Mittman, Esq.\n\n To Cole:\n Neil Cole\n 200 East 65 th Street\n New York, New York 10021\n\n With a copy in the same manner to:\n Paul, Weiss, Rifkind, Wharton & Garrison LLP\n 1285 Avenue of the Americas\n New York, New York 10019\n Attention: Lorin L. Reisner, Esq.\n\n 23. The parties each participated in the drafting of this Agreement after\nconsulting with counsel. Therefore, the language of this Agreement shall not be presumptively\nconstrued in favor of or against either of the parties.\n\n\n\n\n 7-\n\f Case 1:25-cv-09357-MKV Document 26-5 Filed 03/27/26 Page 9 of 9\n\n\n\n\n IN WITNESS ,vHEREOF, the pmiies have executed this Agreement as of the date first\nwritten above.\n\n\n\n ICONIX BRAND GROUP, INC.\n\n\n\n By:\n\n\n\n\n NEIL COLE\n\n\n\n\n [Signature Page to Neil Cole Separation Agreement]\n\f","ocr_status":1,"date_upload":"2026-03-28T04:41:17.867439-07:00","document_number":"26","attachment_number":5,"pacer_doc_id":"127039321829","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit 4: Separation Agreement","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/473916174/","id":473916174,"tags":[],"absolute_url":"/docket/71893430/26/6/cole-v-iconix-international-inc/","date_created":"2026-03-28T04:39:30.377386-07:00","date_modified":"2026-03-30T02:27:18.424760-07:00","sha1":"774a86fd9dec2f6bfe17523eeacf5ccd017a8208","page_count":4,"file_size":2161330,"filepath_local":"recap/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.26.6.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.26.6.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 1:25-cv-09357-MKV Document 26-6 Filed 03/27/26 Page1of4\n\nEXHIBIT 5\n\fCase 1:25-cv-09357-MKV Document 26-6 Filed 03/27/26 Page 2of4\n\nAgreement as between Neil Cole (\u201cMr. Cole\u201d) and Iconix Brand Group Inc. (\u201cIconix\u201d) in\nreference to the ongoing criminal action captioned United States v. Cole, No. 19-cr-869\n(S.D.N.Y.) (the \u201cCriminal Action\u201d)\n\nMr. Cole and Iconix hereby agree to the following terms:\n\n1. Iconix will advance a flat fee (not including expenses) of Five Million Dollars\n($5,000,000.00) (the \u201cFee\u201d) for legal services to defend Mr. Cole in the ongoing Criminal Action\nthrough trial pursuant to the following terms:\n\na. The Fee applies to the Criminal Action through trial. The Fee shall\nconstitute Iconix\u2019s sole, maximum liability for advancing legal fees to defend Mr. Cole in the trial\nof the Criminal Action, regardless of (1) when such trial may occur and/or (11) whether Mr. Cole\u2019s\nactual legal fees incurred in connection with such trial may exceed the amount of the Fee.\n\nb. The parties acknowledge that the Fee referenced in Paragraph 1.a. is only\nfor legal fees through trial, and does not include expenses, or the fees and/or expenses for post-\ntrial work, including if there is an appeal taken from the Criminal Action;\n\nC. Iconix agrees to advance the Fee in eight payments consistent with the\n\nfollowing schedule:\n\nInstallment No. | Date Payable Amount\n1 6/13/2022 $750,000.00\n2 7/1/2022 $750,000.00\n3 8/1/2022 $583,333.33\n4 9/1/2022 $583,333.33\n5 10/1/2022 $583,333.34\n6 11/1/2022 $583,333.33\n7 12/1/2022 $583,333.33\n8 1/1/2023 $583,333.34\nd. Iconix agrees that Installments Nos. 1 and 2 shall be sent in equal parts of\n\n$375,000.00 each, respectively, to the firms of Markus/Moss, PLLC and Kaplan Heckler & Fink\nLLP, Mr. Cole\u2019s trial counsel in the Criminal Action; Iconix agrees that Installments Nos. 3\nthrough 8 shall be sent in equal installments on the above dates as follows: (a) $191,666.67 to\nMarkus/Moss, PLLC; and (b) $391,666.67 to Kaplan Heckler & Fink LLP.\n\n2. Iconix agrees to pay Nardello & Co. the sum of Fifty Thousand Dollars\n($50,000.00) in full satisfaction of any and all responsibility that Iconix may have for the\n\nPage 1 of 2\n\fCase 1:25-cv-09357-MKV Document 26-6 Filed 03/27/26 Page 3of4\n\noutstanding invoice of Nardello & Co., Invoice No. 21304, dated October 1, 2021 by June 30,\n2022. Mr. Cole shall be solely responsible for obtaining the return of the $100,000.00 retainer he\nallegedly paid to Nardello & Co. Mr. Cole shall cause the Paul Weiss firm to issue an email\nattesting to the fact that the services rendered by Nardello were necessary for the defense of Mr.\nCole in connection with the first trial in the Criminal Action.\n\n3. All rights are further preserved by all parties, provided that Mr. Cole waives all\nrights, if any, to seek the advancement or payment of further legal fees from Iconix in excess of\nthe Fee in connection with the trial of the Criminal Action, whenever such trial may occur. In\naccordance with 1.b. above, the Fee is only applicable to this trial of the Criminal Action; Mr. Cole\nreserves his right to seek advancement of legal fees associated with any post-trial work, including\nappeal, retrial, remand or any other potential post-trial work.\n\n4. Mr. Cole hereby acknowledges that the previous two Undertakings previously\nsigned by him remain in full force and effect; further, Mr. Cole hereby acknowledges that the\nUndertaking dated January 22, 2020 signed by him remains in full force and effect and continues\nto apply with respect to all legal fees and expenses advanced and/or to be advanced by Iconix in\n\nconnection with the Criminal Action.\n\nICONIX B Np IRROUP, INC. NEIL COLE\nBy: By:\n\nT\n\nPrint Name: Kyle C. Harmon Date:\n\nTitle: President\n\nPage 2 of 2\n\fCase 1:25-cv-09357-MKV Document 26-6 Filed 03/27/26 Page4of4\noutstanding invoice of Nardello & Co., Invoice No. 21304, dated October 1, 2021 by June 30.\n\n2022. Mr. Cole shall be solely responsible for obtaining the return of the $100,000.00 retainer he\nMr. Cole shall cause the Paul Weiss firm to issue an email\n\nallegedly paid to Nardello & Co.\nattesting to the fact that the services rendered by Nardello were necessary for the defense of Mr.\n\nCole in connection with the first trial in the Criminal Action.\n3: All rights are further preserved by all parties, provided that Mr. Cole waives all\nrights, if any, to seek the advancement or payment of further legal fees from Iconix in excess of\n\nthe Fee in connection with the trial of the Criminal Action, whenever such trial may occur. In\naccordance with 1.b. above, the Fee is only applicable to this trial of the Criminal Action; Mr. Cole\n\nreserves his right to seek advancement of legal fees associated with any post-trial work, eens\n\nappeal, retrial, remand or any other potential post-trial work.\n4. Mr. Cole hereby acknowledges that the previous two Undertakings previously \u2014\n\nsigned by him remain in full force and effect; further, Mr. Cole hereby acknowledges iat\none dated January 22, 2020 signed by him remains in full force and a\n\nconnection with the Criminal Action.\n\nICONIX BRAND GROUP, INC.\n\nBy:\n\nPrint Name:\n\nTitle:\n\nDate:\n\n","ocr_status":1,"date_upload":"2026-03-28T04:41:18.431711-07:00","document_number":"26","attachment_number":6,"pacer_doc_id":"127039321830","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit 5: Advancement Agreement","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/473916175/","id":473916175,"tags":[],"absolute_url":"/docket/71893430/26/7/cole-v-iconix-international-inc/","date_created":"2026-03-28T04:39:30.395274-07:00","date_modified":"2026-03-30T02:28:38.651232-07:00","sha1":"18dba696957df3455284fc7f0c9c0f1166f8f7dd","page_count":2,"file_size":110258,"filepath_local":"recap/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.26.7.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.26.7.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 1:25-cv-09357-MKV Document 26-7 Filed 03/27/26 Page 1 of 2\n\n\n\n\n EXHIBIT 6\n\fFILED: NEW YORK COUNTY CLERK 10/07/2021 01:54 PM INDEX NO. 655837/2021\nNYSCEF DOC. NO. Case\n 9 1:25-cv-09357-MKV Document 26-7 Filed 03/27/26 RECEIVED\n Page 2 of 2\n NYSCEF: 10/07/2021\n\n\n\n\n In accordance with Article VII Section 2(c) of the Restated and Amended By-laws of\n\n lconix Brand Group, Inc. (the \"Company\"), the C01'npany has agreed to advance to Neil Cole,\n\n Chairman, President and ChiefExecutive Officer oftbe Company, expenses, including\n\n attorneys' fees, incurred in connection with (i) the investigation by the Board ofDirectors of the\n\n Company of certain allegations made to the Board by Seth Horowitz, in connection \u2022vith his\n\n resignation dated April13, 2015, (ii) any .investigation or proceeding instituted by the Securities\n\n and Exchange Conm1ission and (iii) any civil action that may be commenced against the\n\n Company.\n\n\n In consideration of the Company's agreement to pay such amounts in advance, the\n\n undersigned hereby undertakes to repay such amounts only if and to the extent that it shaH\n\n ulthnately be determined that the undersigned is not entitled to be indemniJied by the Compa11y\n\n as authorized by the Amended and Restated By-Ic:s.Qr otherwise.\n\n\n\n\n 521949.01111/100124479v.l\n\f","ocr_status":1,"date_upload":"2026-03-28T04:41:18.888327-07:00","document_number":"26","attachment_number":7,"pacer_doc_id":"127039321831","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit 6: First Undertaking","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/473916176/","id":473916176,"tags":[],"absolute_url":"/docket/71893430/26/8/cole-v-iconix-international-inc/","date_created":"2026-03-28T04:39:30.412702-07:00","date_modified":"2026-03-30T02:25:14.060545-07:00","sha1":"efc58241e4ad6a4daaa60b05b2eec5270c055052","page_count":2,"file_size":319215,"filepath_local":"recap/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.26.8.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.26.8.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 1:25-cv-09357-MKV Document 26-8 Filed 03/27/26 Page 1 of 2\n\n\n\n\n EXHIBIT 7\n\fFILED: NEW YORK COUNTY CLERK 10/07/2021 01:54 PM INDEX NO. 655837/2021\nNYSCEF DOC. NO. Case\n 10 1:25-cv-09357-MKV Document 26-8 Filed 03/27/26 RECEIVED\n Page 2 of 2\n NYSCEF: 10/07/2021\n\n\n\n In accordance with Article VII Section of the Restated and Amended By-\n 2(c)\n laws of Iconix Brand Group, Inc. (the \"Company\") in effect as of August 5, 2015, the\n Employment Agreement entered into January 28, 2008 by and between the Company and\n Neil Cole (\"Cole\") and any amendments thereto (the \"Employment Agreement\"), and the\n Separation Agreement entered into and effective as of December 29, 2016 by and\n between the Company and Cole (the \"Separation Agreement\"), the Company shall\n attorneys'\n advance to Cole expenses, including fees, incurred in connection with (i) any\n investigation or proceeding brought by the United States Securities & Exchange\n\n Commission, (ii) any investigation or proceeding brought by the United States Attorney's\n Office for the Southern District of New York, and (iii) any civil action against the\n\n Company or against Cole relating to his former role as an Iconix officer or director.\n\n\n In consideration of the Company's agreement to pay such amounts in advance,\n\n Cole hereby undertakes to repay such amounts only if and to the extent that it shall\n\n ultimately be determined that Cole is not entitled to be indemnified by the Company as\n\n authorized by the Amended and Restated By-laws, the Employment Agreement and the\n Separation Agreement.\n\n\n\n\n Neil R. Cole\n\n\n Dated: January 22, 20\n\f","ocr_status":1,"date_upload":"2026-03-28T04:41:19.405441-07:00","document_number":"26","attachment_number":8,"pacer_doc_id":"127039321832","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit 7: Second Undertaking","acms_document_guid":""}],"date_created":"2026-03-27T18:07:12.920398-07:00","date_modified":"2026-03-27T18:07:12.927217-07:00","date_filed":"2026-03-27","time_filed":"19:26:05","entry_number":26,"recap_sequence_number":"2026-03-27.001","pacer_sequence_number":87,"description":"","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/458881768/","id":458881768,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/71893430/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/473895097/","id":473895097,"tags":[],"absolute_url":"/docket/71893430/27/cole-v-iconix-international-inc/","date_created":"2026-03-27T18:07:12.341469-07:00","date_modified":"2026-03-30T02:27:14.573082-07:00","sha1":"041939350a9d313afcbb571c18926768fe8c92e8","page_count":1,"file_size":121975,"filepath_local":"recap/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.27.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.27.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:25-cv-09357-MKV Document 27 Filed 03/27/26 Page 1 of 1\n\n 250 WEST 55TH STREET MORRISON & FOERSTER LLP\n\n NEW YORK AMSTERDAM, AUSTIN, BERLIN, BOSTON,\n BRUSSELS, DENVER, HONG KONG,\n NEW YORK 10019-9601 LONDON, LOS ANGELES, MIAMI, NEW\n YORK, PALO ALTO, SAN DIEGO, SAN\n TELEPHONE: 212.468.8000 FRANCISCO, SHANGHAI, SINGAPORE,\n TOKYO, WASHINGTON, D.C.\n FACSIMILE: 212.468.7900\n\n WWW.MOFO.COM\n\n\n\n\nMarch 27, 2026 Writer\u2019s Direct Contact\n +1 (212) 468-8203\n JLevitt@mofo.com\n\n\nHon. Mary Kay Vyskocil\nDaniel Patrick Moynihan\nUnited States Courthouse\n500 Pearl St.\nNew York, NY 10007-1312\nCourtroom 18C\n\nRe: Cole v. Iconix International Inc., et al., Case No. 1:25-cv-09357-MKV,\n Request for Oral Argument on Defendant\u2019s Motion to Dismiss\n\nDear Judge Vyskocil:\n\n We represent Iconix International Inc. and respectfully write, in accordance with Rule\n4.A.vii of Your Honor\u2019s Individual Rules of Practice in Civil Cases, to request oral argument\non Iconix\u2019s partial Motion to Dismiss Plaintiff\u2019s Amended Complaint.\n\n The Motion presents dispositive legal issues about the sufficiency of Plaintiff\u2019s\nclaims under Fed. R. Civ. P. 12(b)(6), including whether Plaintiff\u2019s theories are foreclosed as\na matter of law and whether the Amended Complaint adequately pleads entitlement to relief.\nIconix therefore respectfully submits that oral argument would aid the Court in its\nconsideration of these issues.\n\n We thank the Court for its consideration of this request.\n\n\nRespectfully submitted,\n\n/s/ Jamie A. Levitt\nJamie A. Levitt\n\f","ocr_status":2,"date_upload":"2026-03-28T04:51:00.496944-07:00","document_number":"27","attachment_number":null,"pacer_doc_id":"127039321846","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Oral Argument","acms_document_guid":""}],"date_created":"2026-03-27T18:07:12.316823-07:00","date_modified":"2026-03-27T18:07:12.323451-07:00","date_filed":"2026-03-27","time_filed":"19:28:26","entry_number":27,"recap_sequence_number":"2026-03-27.001","pacer_sequence_number":90,"description":"","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/458881767/","id":458881767,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/71893430/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/473895096/","id":473895096,"tags":[],"absolute_url":"/docket/71893430/28/cole-v-iconix-international-inc/","date_created":"2026-03-27T18:07:12.222656-07:00","date_modified":"2026-03-30T02:28:38.759987-07:00","sha1":"ee86b0c2053f485754c0762c80bee13b81bcffce","page_count":3,"file_size":132459,"filepath_local":"recap/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.28.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.28.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:25-cv-09357-MKV Document 28 Filed 03/27/26 Page 1 of 3\n\n\n\n\nUNITED STATES DISTRICT COURT\nSOUTHERN DISTRICT OF NEW YORK\n------------------------------------x\n :\n : Index No. 1:25-cv-09357-MKV\n NEIL COLE, :\n :\n Plaintiff, :\nv. :\n :\nICONIX INTERNATIONAL INC. f/k/a/ :\nICONIX BRAND GROUP, INC., and :\nSETH HOROWITZ, :\n :\n Defendants. :\n :\n :\n------------------------------------X\n\n\n AFFIRMATION OF DAVID R. LURIE\n\n\n\n DAVID R. LURIE, an attorney duly admitted to practice before this Court, does hereby state\n\nthe following under penalty of perjurym pursuant to 28 U.S.C. \u00a7 1746:\n\n 1. I am counsel to Seth Horowitz, a defendant in the above-captioned Action1\n\n 2. I submit this Affirmation in support of Horowitz\u2019s Motion to Dismiss the\n\nAmended Complaint herein, as against himself, with prejudice, pursuant to Federal Rule of Civil\n\nProcedure 12(b)(6).\n\n\n\n\n1\n Unless otherwise indicated, initially capitalized terms employed herein are intended to have the\ndefinitions set forth in the Memorandum of Law in support of Horowitz\u2019s Motion to Dismiss\nherein, dated March 27, 2026.\n\f Case 1:25-cv-09357-MKV Document 28 Filed 03/27/26 Page 2 of 3\n\n\n\n\n 3. Annexed hereto as Exhibit A is a true and correct copy of the grand jury\n\nindictment in the proceeding captioned as United State of America v. Neil Cole, Case No. 1:19-\n\ncr-00869-ER (S.D.N.Y.) (the \u201cCole Criminal Case\u201d).\n\n 4. Annexed hereto as Exhibit B is a true and correct copy of the Information\n\nfiled by the government in the proceeding captioned as United State of America v. Seth\n\nHorowitz, Case No. 1:19-cr-00861-ER (the \u201cHorowitz Criminal Case\u201d).\n\n 5. Annexed hereto as Exhibit C are true and correct copies of excerpts from\n\nthe transcript of the first trial held in the Cole Criminal Case. Additional excerpts from the\n\ntranscript of that trial may be found at pages A-78 to A-492 of the Appendix for Defendant-\n\nAppellant in the Second Circuit appellate proceeding captioned as United States of America v.\n\nNeil Cole, 23-7566 (the \u201cCole Appendix\u201d or \u201cApp\u2019x\u201d).\n\n 6. Annexed hereto as Exhibit D are true and correct copies of excerpts from\n\nthe transcript second trial held in the Cole Criminal Case, held during. Additional excerpts from\n\nthe transcript of that trial may be found at pages A-64892 to A-1138 of the Cole Appendix.\n\n 7. Annexed hereto as Exhibit E is a true and correct copy of the transcript of\n\nthe sentencing proceedings in the Cole Criminal Case, held on October 10, 2023.\n\n 8. Annexed hereto as Exhibit F is a true and correct copy of the transcript of\n\nthe sentencing proceedings in the Horowitz Criminal Case, held on November 16, 2023.\n\n 9. Annexed hereto as Exhibit G is a true and correct copy of a document that\n\nwas denominated as Defense Exhibit 1023 during the first and second trials of the Cole Criminal\n\nCase.\n\n\n\n\n 2\n\f Case 1:25-cv-09357-MKV Document 28 Filed 03/27/26 Page 3 of 3\n\n\n\n\nDated: March 27, 2026\nBrooklyn, New York\n\n\n _______________/s/_____________\n David R. Lurie\n\n\n\n\n 3\n\f","ocr_status":1,"date_upload":"2026-03-28T04:52:09.006823-07:00","document_number":"28","attachment_number":null,"pacer_doc_id":"127039321849","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Affirmation in Support of Motion","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/473916184/","id":473916184,"tags":[],"absolute_url":"/docket/71893430/28/1/cole-v-iconix-international-inc/","date_created":"2026-03-28T04:51:16.121890-07:00","date_modified":"2026-03-30T02:27:27.119434-07:00","sha1":"d6954b62e30f802d54e0ddbefa2d85efeadf996a","page_count":38,"file_size":4301087,"filepath_local":"recap/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.28.1.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nysd.652794/gov.uscourts.nysd.652794.28.1.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 1:25-cv-09357-MKV Document 28-1 Filed 03/27/26 Page 1 of 38\n\n\n\n\n EXHIBIT A\n\f Case: 23-7566, 02/28/2024, DktEntry: 23.1, Page 46 of 305\n Case 1:25-cv-09357-MKV Document 28-1 Filed 03/27/26 Page 2 of 38\n A-41\n Case 1:19-cr-00869-ER Document 1 Filed 12/04/19 Page 1 of 37\n\n\n\nUNITED STATES DISTRICT COURT\nSOUTHERN DISTRICT OF NEW YORK\n X\n\n\n UNITED STATES OF AMERICA SEALED INDICTMENT\n\n - v. - 19 Cr.\n\n NEIL COLE,\n\n Defendant. l9CBIM\n - - - - X\n\n\n COUNT ONE\n (Conspiracy to Commit Securities Fraud, to Make False\n Filings with the SEC, and to Improperly Influence\n the Conduct of Audits)\n\n The Grand Jury charges:\n\n Relevant Individuals and Entities\n\n 1. At all times relevant to this Indictment, Iconix Brand\n\nGroup, Inc. (\"Iconix\") was a publicly traded brand management\n\ncompany headquartered in New York, New York. Iconix's\n\nsecurities traded under the symbol \"ICON\" on the NASDAQ. Iconix\n\nwas in the business -of acquiring various brands, including\n\nclothing and fashion brands, and then licensing those brands to\n\nretailers, wholesalers, and suppliers, who, in turn, produced\n\nand sold clothing and other products bearing the brand names.\n\n 2. At all times relevant to this Indictment, NEIL COLE,\n\nthe defendant, was the Chief Executive Officer (\"CEO\") of\n\nIconix.\n\f Case: 23-7566, 02/28/2024, DktEntry: 23.1, Page 47 of 305\n Case 1:25-cv-09357-MKV Document 28-1 Filed 03/27/26 Page 3 of 38\n A-42\n Case 1:19-cr-00869-ER Document 1 Filed 12/04/19 Page 2 of 37\n\n\n\n 3. At all times relevant to this Indictment, Seth\n\nHorowitz, a co-conspirator not named as a defendant herein, was\n\nthe Chief Operating .Officer (\"COO\"} of Iconix.\n\n Iconix's Joint Ventures\n\n 4. Iconix, in certain instances, utilized joint ventures\n\n(\"JVs\"} to profit from its brands in foreign markets. With\n\nrespect to these JVs, Iconix transferred ownership of a\n\ntrademark or brand to the JV while maintaining a 50 percent\n\nownership interest in the JV itself. The other party involved\n\nin the JV purchased a 50 percent interest in the JV from Iconix.\n\nThe purchase price for a 50 percent interest in the JV was\n\ngenerally set at the valuation of half of the future cash\n\nstreams from exploitation of the trademarks at issue in the\n\nre~evant territory., As part of the JV agreements, each JV\n\npartner was generally entitled to 50 percent of the JV's\n\nlicensing revenue.\n\n 5. When it entered into a JV, Iconix recognized as\n\nrevenue the buy-in purchase price paid by the JV partner, less\n\nIconix's cost basis in the trademarks. At all times relevant to\n\nthis Indictment, the buy-in purchase price that Iconix received\n\nfrom its JV partners comprised a significant portion of Iconix's\n\nearnings.\n\n\n\n\n 2\n\f Case: 23-7566, 02/28/2024, DktEntry: 23.1, Page 48 of 305\n Case 1:25-cv-09357-MKV Document 28-1 Filed 03/27/26 Page 4 of 38\n A-43\n Case 1:19-cr-00869-ER Document 1 Filed 12/04/19 Page 3 of 37\n\n\n\n Public Company Reporting Requirements\n\n 6. At all times relevant to this Indictment, Iconix was\n\nrequired to comply with the federal securities laws, which are\n\ndesigned to ensure that a publicly traded company's financial\n\ninformation is accurately recorded and disclosed to the\n\ninvesting public. ~pecifically, pursuant to the Securities\n\nExchange Act of 1934 and the rules and regulations promulgated\n\nthereunder, Iconix was required to: (a) file with the United\n\nStates Securities and Exchange Commission (the \"SEC\") annual\n\nfinancial statements (on SEC Form 10-K}; (b} file with the SEC\n\nquarterly financial reports (on SEC Form 10-Q}; and (c) make and\n\nkeep books, records \u00b7and accounts that accurately and fairly\n\nreflected Iconix's business transactions.\n\n 7. At all times relevant to this Indictment, NEIL COLE,\n\nthe defendant, signed Iconix's quarterly and annual financial\n\nreports. Additionally, Iconix filed with each of its quarterly\n\nand annual financial reports certifications entitled\n\n\"Certification of Periodic Report Under Section 302 of the\n\nSarbanes-Oxley Act of 2002\" in which COLE certified, in part:\n\n 1. I have reviewed this [quarterly or annual] report [] of\n Iconix Brand Group, Inc.;\n\n 2. Based on my knowledge, this report does not contain any\n untrue statement of a material fact or omit to state a\n material fact ~ecessary to make the statements made, in\n light of the circumstances under which such statements were\n made, not misleading with respect to the period covered by\n this report;\n\n 3\n\f Case: 23-7566, 02/28/2024, DktEntry: 23.1, Page 49 of 305\n Case 1:25-cv-09357-MKV Document 28-1 Filed 03/27/26 Page 5 of 38\n A-44\n Case 1:19-cr-00869-ER Document 1 Filed 12/04/19 Page 4 of 37\n\n\n\n\n 3. Based on my knowledge, the financial statements, and\n other financial information included in this report, fairly\n present in all material respects the financial condition,\n results of operations and cash flows of the registrant as\n of, and for, the periods presented in this report;\n\nIn these certifications, COLE also certified that he had\n\ndisclosed to Iconix's outside auditor (the \"Audit Firm\") and the\n\nAudit Committee of ~ts Board of Directors (or persons performing\n\nthe equivalent functions): \"Any fraud, whether or not material,\n\nthat involves management or other employees who have a\n\nsignificant role in\u00b7the registrant's internal control over\n\nfinancial reporting.\"\n\n 8. In conjunction with each of its quarterly and annual\n\nfinancial reports, Iconix included a second set of\n\ncertifications entitled \"Certification Pursuant to 18 U.S.C.\n\nSection 1350 As Adopted Pursuant to Section 906 of the Sarbanes-\n\nOxley Act of 2002,\" in which NEIL COLE, the defendant, further\n\ncertified, in part, that the quarterly or annual financial\n\nreport:\n\n [F]ully complies with the requirements of Section 13(a) of\n the Securities Exchange Act of 1934; and . . . the\n information contained in the Report fairly presents, in all\n material respe~ts, the financial condition and result of\n operations of the Company.\n\n 9. Federal securities law further required that Iconix's\n\nannual financial statements be audited by independent certified\n\npublic accountants.\n\n 4\n\f Case: 23-7566, 02/28/2024, DktEntry: 23.1, Page 50 of 305\n Case 1:25-cv-09357-MKV Document 28-1 Filed 03/27/26 Page 6 of 38\n A-45\n Case 1:19-cr-00869-ER Document 1 Filed 12/04/19 Page 5 of 37\n\n\n\n 10. Among the most critical financial metrics disclosed in\n\nIconix's public filings with the SEC were Iconix's quarterly and\n\nannual revenue and earnings per share {\"EPS\"). EPS is generally\n\nderived from calcul~ting revenue, less expenses, and dividing\n\nthat amount by the number of outstanding shares of common stock.\n\nIn the press releases it issued in connection with its periodic\n\nfilings, Iconix regularly touted increases in its revenue and\n\nnon-GAAP diluted EPS, an EPS metric that excluded certai'n gains\n\nand charges not relevant here. Iconix's press releases, which\n\nwere typically issued shortly before the company's quarterly\n\nfilings, included Iconix's actual revenue and EPS for the\n\nquarter and year-to-date, as reflected in Iconix's SEC filings.\n\n 11. At all times relevant to this Indictment, at the end\n\nof each reporting period, in connection with the preparation of\n\nIconix's quarterly and annual financial statements, NEIL COLE,\n\nthe defendant, signed and caused to be submitted to the Audit\n\nFirm a management representation letter, in which COLE\n\nrepresented, among other things:\n\n a. \"[t]here are no material transactions that have not\n\nbeen properly recorded in the accounting records underlying the\n\nconsolidated financial statements,\" and that \"[j]oint ventures\n\nor other participations\" \"have been properly recorded or\n\ndisclosed in the consolidated financial statements;\"\n\n\n\n\n 5\n\f Case: 23-7566, 02/28/2024, DktEntry: 23.1, Page 51 of 305\n Case 1:25-cv-09357-MKV Document 28-1 Filed 03/27/26 Page 7 of 38\n A-46\n Case 1:19-cr-00869-ER Document 1 Filed 12/04/19 Page 6 of 37\n\n\n\n b. COLE was \"not aware of any linked or barter\n\ntransactions, including transactions entered into under separate\n\nagreements where one of the arrangements is contingent upon\n\nexecution of another arrangements, except for agreements where\n\nsuch linkage, barter, or contingent nature is explicitly stated\n\nin the contract terms;\" and\n\n c. COLE was \"not aware of any concessions for additional\n\nfree or discounted services or products under any license\n\narrangements,\" nor of \"any plans to provide more favorable terms\n\nthan were originallY, negotiated, especially related to\n\narrangements known internally as fixed term arrangements, that\n\nhave not been properly accounted for.\"\n\n Iconix Touted-Its Revenue and EPS Growth and the Fact\n That It Had Met Revenue and EPS Analyst Consensus\n\n 12. Iconix executives, including NEIL COLE, the defendant,\n\npublicly identified revenue and EPS as the principal metrics\n\ndemonstrating Iconix's growth. They also touted Iconix's\n\nconsistent record of revenue and earnings growth and of meeting\n\nor exceeding Wall Street analyst consensus with respect to these\n\nmetrics. The following are excerpts of Iconix's press releases\n\naccompanying its quarterly filings in late 2013 and 2014:\n\n\n\n\n 6\n\f Case: 23-7566, 02/28/2024, DktEntry: 23.1, Page 52 of 305\n Case 1:25-cv-09357-MKV Document 28-1 Filed 03/27/26 Page 8 of 38\n A-47\n Case 1:19-cr-00869-ER Document 1 Filed 12/04/19 Page 7 of 37\n\n\n\n\nHeadline Iconix Brand Group Reports Record Revenue And\n Earnings For The Fourth Quarter And Full Year\n 2013\nQ4 2013 \u2022 Record Q4 revenue of $105.3 million, a 24%\nResults increase over prior year quarter\n o Record 2013 revenue of $432.6 million, a\n 22\u00b7% increase over prior year\n \u2022 Record Q4 non-GAAP diluted EPS of $0.54, a\n 32% increase over prior year quarter\n \u2022 Record 2013 non-GAAP diluted EPS of $2.39,\n a 41% increase over prior year\n\n\n\n\nHeadline Iconix Brand Group Reports Record Revenue And\n Earnings For The Second Quarter 2014\nQ2 2014 \u2022 Record Q2 revenue of $118.9 million and\nResults non-GAAP diluted EPS of $0.75\n \u2022 Non-GAAP diluted EPS for the second quarter\n of 2014 increased 4% to $0.75 compared to\n $0.72 in the prior year quarter\n\n\n\n\nHeadline Iconix Brand Group Reports Record Revenue\n Earnings For The Third Quarter 2014\nQ3 2014 o Record Q3 revenue of $113.8 million, a 6%\nResults increase over prior year quarter\n \u2022 Record Q3 diluted non-GAAP EPS of $0.73, a\n 23% increase over prior year quarter\n\n\n\n\n 7\n\f Case: 23-7566, 02/28/2024, DktEntry: 23.1, Page 53 of 305\n Case 1:25-cv-09357-MKV Document 28-1 Filed 03/27/26 Page 9 of 38\n A-48\n Case 1:19-cr-00869-ER Document 1 Filed 12/04/19 Page 8 of 37\n\n\n\n\nHeadline Iconix Brand Group Reports Financial Results\n For The Fourth Quarter And Full Year 2014\nFull Year o 2014 revenue of $461.2 million, a 7%\n 2014 increase over prior year\n Results \u2022 Q4 total revenue of $112.4 million, a 7%\n increase over prior year quarter\n \u2022 2914 diluted non GAAP EPS of $2.78, a 16%\n increase over prior year\n \u2022 Q4 diluted non GAAP EPS of $0.56, a 4%\n increase over prior year\n\nThese press releases were filed with the SEC as exhibits to a Form\n\n8-K, a report companies must file with the SEC to inform the\n\ninvesting public about major corporate events or announcements.\n\n Overvi~w of the Accounting Fraud Scheme\n\n 13. NEIL COLE, the defendant, Seth Horowitz, and others\n\nengaged in a scheme to falsely inflate Iconix's reported revenue\n\nand EPS by orchestrating a series of \"round trip\" transactions\n\nin which COLE and Horowitz induced a JV partner, a Hong Kong-\n\nbased international apparel licensing company (\"Company-1\"), to\n\npay inflated buy-in purchase prices for JV interests, with the\n\nunderstanding that Iconix would then reimburse Company-1 for the\n\noverpayments. COLE and Horowitz executed the scheme for the\n\npurpose of enabling Iconix to report fraudulently inflated\n\nrevenue and EPS figures based on the inflated buy-in purchase\n\nprices it obtained ~rom Company-1.\n\n 14. Specifically, NEIL COLE, the defendant, arranged for\n\nIconix to enter into three JVs with Company-1 that included\n\n\n 8\n\f Case: 23-7566, 02/28/2024, DktEntry: 23.1, Page 54 of 305\n Case 1:25-cv-09357-MKV Document 28-1 Filed 03/27/26 Page 10 of 38\n A-49\n Case 1:19-cr-00869-ER Document 1 Filed 12/04/19 Page 9 of 37\n\n\n\ninflated buy-in purchase prices from Company-1: (1) the\n\nSoutheast Asia JV, which closed on or about October 1, 2013\n\n( \"SEA-1\"), (2) the qoutheast Asia first amendment, which closed\n\non or about June 30, 2014 (\"SEA-2\"), and (3) the Southeast Asia\n\nsecond amendment, which closed on or about September 17, 2014\n\n( \"SEA-3\") (collectively, the \"SEA JVs\"). Each of the SEA JVs\n\ninvolved a fraudulent \"round trip\" transaction, lacking in\n\neconomic substance, in which Company-1 paid an artificially\n\ninflated buy-in purchase price for its interest in the JV, in\n\nexchange for COLE's agreement that Iconix would give back the\n\ninflated portion of the purchase price to Company-1, through\n\nsham payments for \"consulting\" or \"marketing\" work or, in the\n\ncase of SEA-3, through relief from an existing financial\n\nobligation.\n\n 15. Through the scheme, NEIL COLE, the defendant, and Seth\n\nHorowitz caused Iconix to report, among other things,\n\nfraudulently inflated revenue and EPS figures to the investing\n\npublic. COLE and Horowitz did so, in part, to ensure that the\n\nreported figures met analyst consensus and to fraudulently\n\nconvey the impression to the investing public that Iconix was\n\n\n\n\n 9\n\f Case: 23-7566, 02/28/2024, DktEntry: 23.1, Page 55 of 305\n Case 1:25-cv-09357-MKV Document 28-1 Filed 03/27/26 Page 11 of 38\n A-50\n Case 1:19-cr-00869-ER Document 1 Filed 12/04/19 Page 10 of 37\n\n\n\ngrowing quarter after quarter, as COLE had touted to the\n\ninvesting public.\n\n SEA-1\n\n 16. In or about mid-2013, NEIL COLE, the defendant, and\n\nrepresentatives of Company-1 negotiated SEA-1, a JV between\n\nIconix and Company-1, in which Iconix sold to Company-1 the\n\nright to manufacture and sell any of approximately 25 Iconix-\n\nowned trademarks in approximately ten countries in Southeast\n\nAsia.\n\n 17. During negotiations, in or about the summer of 2013,\n\nNEIL COLE, the defendant, and representatives of Company-1\n\nreached a side agreement that Company-1 would increase the\n\nconsideration it paid to Iconix by approximately $2 million,\n\nfrom approximately $10 million to $12 million, in exchange for\n\nIconix's agreement to round trip $2 million back to Company-1.\n\nAs COLE well understood, Iconix would recognize revenue in an\n\namount equal to the inflated consideration paid by Company-1 to\n\nIconix, $12 million, less Iconix's cost basis in the underlying\n\nassets.\n\n 18. To conceal the fact that the approximately $2 million\n\npayment that Iconix agreed to make to Company-1 was a give-back\n\nto compensate Company-1 for overpaying for its interest in SEA-\n\n1, NEIL COLE, the defendant, and a representative of Company-1\n\nagreed to a written \"Consultancy Agreement,\" which characterized\n\n 10\n\f Case: 23-7566, 02/28/2024, DktEntry: 23.1, Page 56 of 305\n Case 1:25-cv-09357-MKV Document 28-1 Filed 03/27/26 Page 12 of 38\n A-51\n Case 1:19-cr-00869-ER Document 1 Filed 12/04/19 Page 11 of 37\n\n\n\nIconix's $2 million_payment to Company-1 purportedly as\n\ncompensation for \"consulting\" work that Company-1 had performed.\n\nIn truth and in fact, and as COLE and a representative of\n\nCompany-1 had agreed, Iconix transferred $2 million to Company-1\n\nto reimburse Company-1 for its overpayment for its interest in\n\nSEA-1, not to compensate Company-1 for consulting work it had\n\nperformed.\n\n 19. NEIL COLE, the defendant, hid from Iconix's lawyers\n\nand the Audit Firm that COLE had arranged with Company-1 for\n\nCompany-1 to increase its buy-in purchase price for SEA-1 in\n\norder for COLE to inflate Iconix's revenue and that the\n\nConsultancy Agreeme~t was a pretextual means to reimburse\n\nCompany-1 for the overpayment.\n\n 20. Iconix's 10-K for year-end 2013, which NEIL COLE, the\n\ndefendant, signed, and which Iconix filed with the SEC on or\n\nabout February 27, 2014, disclosed that Iconix and Company-1 had\n\nentered into SEA-1 and that Company-1 \"had purchased a 50%\n\ninterest in [SEA-1] for $12 million.\" Iconix did not disclose\n\nthat the $12 million purchase price was inflated by $2 million\n\nand that Iconix agreed to pay a $2 million \"consultancy\" as a\n\ngive-back to Company-1.\n\n SEA-2\n\n 21. In or about 2014, NEIL COLE, the defendant, again\n\nsought out Company-1 as a partner in a JV that could help Iconix\n\n 11\n\f Case: 23-7566, 02/28/2024, DktEntry: 23.1, Page 57 of 305\n Case 1:25-cv-09357-MKV Document 28-1 Filed 03/27/26 Page 13 of 38\n A-52\n Case 1:19-cr-00869-ER Document 1 Filed 12/04/19 Page 12 of 37\n\n\n\nincrease its revenue and EPS, including through the fraudulently\n\ninflated buy-in purchase price for Company-l's interest in the\n\nJV. COLE and Seth Horowitz negotiated with representatives of\n\nCompany-1 an amendment to SEA-1, referred to herein as SEA-2,\n\nwhich involved the sale to Company-1 of an interest in certain\n\nIconix trademarks in Korea and various countries in Europe.\n\n 22. During the SEA-2 negotiations, NEIL COLE, the\n\ndefendant, reached a secret, undocumented agreement with\n\nrepresentatives of Company-1 that Company-1 would inflate the\n\nbuy-in purchase price to be paid to Iconix for Company-l's\n\ninterest in the JV by $5 million, from approximately $10.9\n\nmillion to approximately $15.9 million, in exchange for Iconix\n\nround-tripping approximately $5 million back to Company-1 in the\n\nform of payments purportedly for marketing. COLE, with the\n\nassistance of Seth Horowitz, structured the transaction in this\n\nfashion in order to falsely inflate the revenue that Iconix\n\nwould recognize from SEA-2 by approximately $5 million.\n\n 23. NEIL COLE,. the defendant, sought to close SEA-2 in the\n\nsecond quarter of 2014 so that Iconix could recognize revenue\n\nduring that quarter and meet analyst consensus for revenue and\n\nEPS. On or about June 30, 2014, the last day of the second\n\nquarter of 2014, Iconix and Company-1 entered into a purchase\n\nagreement, which was styled as an amendment to SEA-1 and was\n\nsigned by COLE (the \"SEA-2 Purchase Agreement\"). The SEA-2\n\n 12\n\f Case: 23-7566, 02/28/2024, DktEntry: 23.1, Page 58 of 305\n Case 1:25-cv-09357-MKV Document 28-1 Filed 03/27/26 Page 14 of 38\n A-53\n Case 1:19-cr-00869-ER Document 1 Filed 12/04/19 Page 13 of 37\n\n\n\nPurchase Agreement provided that Company-1 would pay a purchase\n\nprice to Iconix of approximately $15,917,500 for Company-l's\n\ninterest in the JV. The secret agreement between COLE and\n\nCompany-1 that Iconix would send back to Company-1 approximately\n\n$5 million, purportedly for marketing expenses, was\n\nundocumented.\n\n 24. In or about June 2014, Iconix recognized revenue from\n\nSEA-2 in the amount of approximately $13.6 million, reflecting\n\nthe purchase price of $15,917,500, less Iconix's cost basis in\n\nthe trademarks contributed to the JV. The undisclosed and\n\nundocumented commitment that NEIL COLE, the defendant, made for\n\nIconix to reimburse Company-1 for its $5 million overpayment,\n\npurportedly as compensation for marketing expenses incurred by\n\nCompany-1, was not accounted for in Iconix's books at the time\n\nSEA-2 was entered.\n\n 25. Nonetheless, consistent with his undisclosed side\n\nagreement with representatives of Company-1, in or about\n\nNovember and December 2014, NEIL COLE, the defendant, authorized\n\nwire transfers from Iconix to Company-1 totaling approximately\n\n$5 million. As COLE knew, these transfers from Iconix to\n\nCompany-1 were not consideration for marketing work Company-1\n\n\n\n\n 13\n\f Case: 23-7566, 02/28/2024, DktEntry: 23.1, Page 59 of 305\n Case 1:25-cv-09357-MKV Document 28-1 Filed 03/27/26 Page 15 of 38\n A-54\n Case 1:19-cr-00869-ER Document 1 Filed 12/04/19 Page 14 of 37\n\n\n\nhad performed, but instead constituted a reimbursement to\n\nCompany-1 for its $5 million overpayment.\n\n 26. NEIL COLE, the defendant, hid from Iconix's lawyers\n\nand the Audit Firm that COLE had reached an understanding with\n\nCompany-1 to increa~e the consideration Company-1 paid Iconix by\n\n$5 million in exchange for COLE's agreement for Iconix to round-\n\ntrip the $5 million back to Company-1.\n\n 27. Iconix's Form 10-Q for the second quarter of 2014,\n\nwhich NEIL COLE, the defendant, signed, and which Iconix filed\n\nwith the SEC on or about August 6, 2014, disclosed, with respect\n\nto SEA-2, that Company-1 \"agreed to pay [Iconix] $15.9 million\"\n\nand \"[a]s a result of this transaction [Iconix] recorded a gain\n\nof $13.6 million in the Current Quarter, which is included in\n\nlicensing and other revenue in the unaudited condensed\n\nconsolidated income statement.\" The Form 10-Q failed to\n\ndisclose that Iconi~'s revenue was inflated by approximately $5\n\nmillion based upon Company-l's overpayment and that Iconix had\n\nsecretly agreed to reimburse Company-1 for this overpayment.\n\nNor was Iconix's commitment to transfer $5 million to Company-1\n\nas purported consideration for marketing services disclosed or\n\naccounted for at the time SEA-2 was entered.\n\n SEA-3\n\n 28. In or about the late summer of 2014, NEIL COLE, the\n\ndefendant, and Seth Horowitz negotiated with representatives of\n\n 14\n\f Case: 23-7566, 02/28/2024, DktEntry: 23.1, Page 60 of 305\n Case 1:25-cv-09357-MKV Document 28-1 Filed 03/27/26 Page 16 of 38\n A-55\n Case 1:19-cr-00869-ER Document 1 Filed 12/04/19 Page 15 of 37\n\n\n\nCompany-1 a second amendment to SEA-1, referred to herein as\n\nSEA-3, which involved the sale to Company-1 of an interest in\n\ncertain Iconix brands in China, Hong Kong, Macau, and Taiwan.\n\nAs with SEA-2, COLE orchestrated SEA-3 as a fraudulent means of\n\ninflating Iconix's revenue and EPS.\n\n 29. During the SEA-3 negotiations, NEIL COLE, the\n\ndefendant, and Seth Horowitz reached a secret agreement with\n\nrepresentatives of Company-1 that Company-1 would artificially\n\ninflate the buy-in purchase price it paid to Iconix by $6\n\nmillion, from approximately $15.5 million to approximately $21.5\n\nmillion, in exchange for Iconix's commitment to reimburse\n\nCompany-1 the $6 million overpayment at a later time. COLE and\n\nHorowitz reached this understanding in order to falsely inflate\n\nthe revenue that Iconix would recognize from SEA-3 by\n\napproximately $6 million.\n\n 30. In or about the summer and fall of 2014, while Iconix\n\nand Company-1 were negotiating SEA-3, NEIL COLE, the defendant,\n\nSeth Horowitz, and representatives of Company-1 explored\n\npotential ways in which Iconix could round-trip back to Company-\n\n1 its $6 million purchase price overpayment. They discussed,\n\namong other things, that an affiliate of Company-1 (\"Affiliate-\n\n1\") owed Iconix money in connection with an unrelated licensing\n\nagreement for the children's line of a well-known clothing brand\n\n( \"Brand-1'') that Iconix owned and licensed to Affiliate-1 in\n\n 15\n\f Case: 23-7566, 02/28/2024, DktEntry: 23.1, Page 61 of 305\n Case 1:25-cv-09357-MKV Document 28-1 Filed 03/27/26 Page 17 of 38\n A-56\n Case 1:19-cr-00869-ER Document 1 Filed 12/04/19 Page 16 of 37\n\n\n\nexchange for guaranteed royalty payments. By in or about the\n\nsummer of 2014, Affiliate-1 was struggling to pay the guaranteed\n\nminimum royalties i~ owed to Iconix to license Brand-1, and\n\nAffiliate-1 wanted to be released from its payment obligations\n\nto Iconix.\n\n 31. On or about August 13 and 14, 2014, NEIL COLE, the\n\ndefendant, and Seth Horowitz exchanged emails about the\n\npossibility of terminating the Brand-1 license and releasing\n\nAffiliate-1 of its royalty obligations--which had nothing to do\n\nwith the SEA JVs--as a fraudulent means of giving back money to\n\nCompany-1 for its JV overpayments. In the email exchange,\n\nHorowitz told COLE, in relevant part: \"Spent a lot of time\n\non (the Brand-1] model today. Believe we should not go forward\n\nwith taking this back.\" COLE responded, in relevant part: \"lets\n\ndiscuss tomorrow. Will be tough to do China (SEA-3] without\n\n[Brand-1] . . . . \" For discussions with Iconix, representatives\n\nof Company-1 prepared an internal Company-1 document reflecting\n\nthe SEA-2 and SEA-3 \"Overpay(ments]\" and \"offset(s] ,\" including\n\nIconix's forgiving the Brand-1 royalty payments owed by\n\nAffiliate-1.\n\n 32. NEIL COLE, the defendant, and Seth Horowitz sought to\n\nclose SEA-3 during the third quarter of 2014 so that Iconix\n\ncould recognize revenue from the transaction during that quarter\n\nand meet analyst consensus for revenue and EPS. On or about\n\n 16\n\f Case: 23-7566, 02/28/2024, DktEntry: 23.1, Page 62 of 305\n Case 1:25-cv-09357-MKV Document 28-1 Filed 03/27/26 Page 18 of 38\n A-57\n Case 1:19-cr-00869-ER Document 1 Filed 12/04/19 Page 17 of 37\n\n\n\nSeptember 17, 2014, \u00b71conix and Company-1 entered into a purchase\n\nagreement, which was styled as the second amendment to SEA-1 and\n\nsigned by-COLE (the \"SEA-3 Purchase Agreement\"). The SEA-3\n\nPurchase Agreement provided, in relevant part, that Company-1\n\nwould pay a purchase price of approximately $21.5 million for\n\nits interest in the JV. The secret agreement between COLE and\n\nCompany-1 that Iconix would give back approximately $6 million\n\nto Company-1 was undocumented.\n\n 33. In or about September 2014, Iconix recognized revenue\n\nfrom SEA-3 in the amount of approximately $18.7 million,\n\nreflecting the purchase price of approximately $21.5 million,\n '\nless Iconix's cost basis in the brands contributed to the JV.\n\nIn truth and in fact, as NEIL COLE, the defendant, well knew,\n\nSEA-3 resulted in the false inflation of Iconix's revenue by\n\napproximately $6 million. The undisclosed and undocumented\n\ncommitment that NEIL COLE, the defendant, made for Iconix to\n\nreimburse Company-1 for its $6 million overpayment was not\n\naccounted for in Iconix's books at the time SEA-3 was entered.\n\n 34. NEIL COLE, the defendant, hid from Iconix's lawyers\n\nand the Audit Firm that COLE had reached an understanding with\n\nCompany-1 to increase the consideration Company-1 paid to Iconix\n\nby approximately $6 million in exchange for COLE'S agreement for\n\n\n\n\n 17\n\f Case: 23-7566, 02/28/2024, DktEntry: 23.1, Page 63 of 305\n Case 1:25-cv-09357-MKV Document 28-1 Filed 03/27/26 Page 19 of 38\n A-58\n Case 1:19-cr-00869-ER Document 1 Filed 12/04/19 Page 18 of 37\n\n\n\nIconix to round-triP, the $6 million back to Company-1 at a later\n\ntime.\n\n 35. Iconix's Form 10-Q for the third quarter of 2014,\n\nwhich NEIL COLE, the defendant, signed, and which Iconix filed\n\nwith the SEC on or about November 7, 2014, disclosed, with\n\nrespect to SEA-3, that Company-1 \"agreed to pay [Iconix] $21. 5\n\nmillion\" and \"[a]s a result of this transaction [Iconix]\nrecorded an $18.7 million gain, which is included in licensing\n\nand other revenue in the unaudited condensed consolidated income\n\nstatement for the Current Quarter.\" The Form 10-Q did not\n\ndisclose that the purchase prices for SEA-2 and SEA-3 had been\n\ninflated by $5 mill~on and $6 million, respectively, and that\n\nCOLE had agreed that Iconix would reimburse Company-1 for those\n\noverpayments.\n\n The Fraudulent SEA-2 Give-Back\n\n 36. With respect to SEA-2, NEIL COLE, the defendant,\n\nreached a secret understanding with Company-1 that Iconix would\n\npay invoices submitted by Company-1, which purported to be for\n\nmarketing services, as a pretextual means of giving back $5\n\nmillion to Company-1 to reimburse Company-1 for inflating its\n\nSEA-2 purchase price.\n\n 37. On or about September 26, 2014, a representative of\n\nCompany-1 submitted to Seth Horowitz, among others, three sham\n\ninvoices for purported \"marketing costs,\" with large, round-\n\n 18\n\f Case: 23-7566, 02/28/2024, DktEntry: 23.1, Page 64 of 305\n Case 1:25-cv-09357-MKV Document 28-1 Filed 03/27/26 Page 20 of 38\n A-59\n Case 1:19-cr-00869-ER Document 1 Filed 12/04/19 Page 19 of 37\n\n\n\ndollar figures totaling approximately $5 million, including for\n\nbrands that did not relate to SEA-2. Shortly thereafter, NEIL\n\nCOLE, the defendant, rejected the sham invoices, advising\n\nrepresentatives from Company-1, in substance, that Company-1\n\nneeded to send more realistic-looking invoices. In response,\n\nCompany-1 revised the sham invoices in various ways, including,\n\nfor example, by eliminating the large, round-dollar figures, to\n\nmake them look more credible and less obviously fraudulent, and\n\nthen re-submitted them to Iconix for payment. Thereafter, in or\n\nabout November and December 2014, COLE authorized payments to\n\nCompany-1 totaling approximately $5 million, purportedly as\n\npayment for the \"revised\" marketing invoices that Company-1 had\n\nsubmitted to Iconix. In truth and in fact, as COLE well knew,\n\nthe invoices were a sham, and the payments he authorized were\n\nnot in consideration for marketing services, but, in fact,\n\nconstituted the promised reimbursement to Company-1 for its\n\ninflated purchase price payment for SEA-2.\n\n\n Impact of the Fraudulent Round Trips\n\n 38. By virtue of the fraudulent scheme orchestrated by\n\nNEIL COLE, the defendant, along with Seth Horowitz, Iconix\n\nreported fraudulently inflated revenue and non-GAAP diluted EPS,\n\nas follows:\n\n\n\n\n 19\n\f Case: 23-7566, 02/28/2024, DktEntry: 23.1, Page 65 of 305\n Case 1:25-cv-09357-MKV Document 28-1 Filed 03/27/26 Page 21 of 38\n A-60\n Case 1:19-cr-00869-ER Document 1 Filed 12/04/19 Page 20 of 37\n\n\n\n \u2022:R~por.ti\u2022tJ.g,, .Re~ed \u2022 Actual i'iaudulent %A;~e:,ra:bion\n ~'P'erio~;\"; \u2022 ~~'7enue. .t~ ;':Repo~te4\n R~venue vs ..\n .l