xelb-20181231ex1011






                             EMPLOYMENT AGREEMENT              THIS EMPLOYMENT AGREEMENT (this “Agreement”) dated February 27, 2019 by   and between XCel Brands, Inc., a Delaware corporation (the “Company”) and Seth Burroughs (the   “Executive”),  each  a  “Party”  and  collectively  the  “Parties.”  This  Agreement  replaces  and   supersedes that certain employment agreement dated as of October 1, 2014, as amended by and   between the Company and the Executive (the “Prior Agreement”).   Unless otherwise indicated,   capitalized terms used herein are defined in Section 2.1 of this Agreement.              WHEREAS, the Company has determined that it is in the best interests of the Company   and its shareholders to enter into an employment agreement with the Executive and the Executive   is willing to serve as an employee of the Company.             NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth  herein, it is agreed by and between the Executive and the Company as follows:                                        ARTICLE I.                              EMPLOYMENT TERMS            1.1.  Employment.  The Company will employ the Executive, and the Executive accepts   employment with the Company, upon the terms and conditions set forth in this Agreement for the   period  beginning  on  the  Effective Date  and  ending  as  provided  in  Section  1.4(a)  hereof  (the   “Employment Period”).          1.2.  Position and Duties.                (a)   Generally.  The  Executive  shall  serve  as  the  Executive  Vice  President  –   Business Development and Treasury of the Company and, in such capacity shall be responsible   for the general management of the treasury affairs of the Company, shall perform such duties as   are customarily performed by an officer with similar title and responsibilities of a company of a   similar size and shall have such power and authority as shall reasonably be required to enable him   to perform his duties hereunder; provided, however, that in exercising such power and authority   and performing such duties, he shall at all times be subject to the authority, control and direction   of the Chief Executive Officer of the Company.                (b)   Duties  and  Responsibilities.  The  Executive  shall  report  to  the  Chief   Executive Officer of the Company and shall devote his full business time and attention to the   business and affairs of the Company and its Subsidiaries.  The Executive shall perform his duties   and responsibilities in a diligent, trustworthy, businesslike and efficient manner and shall use his   best efforts during the Employment Period to protect, encourage and promote the best interests of   the Company and its stockholders.  The Executive shall not engage in any other business activities   that  could  reasonably  be  expected  to  conflict  with  the  Executive’s  duties,  responsibilities  and   obligations hereunder.  During the Employment Period, the Executive shall promptly bring to the   Company or its Subsidiaries, as applicable, all investment or business opportunities relating to the   Business of which the Executive becomes aware.       135944.00100/115153368v.7  





 






                                                                                              (c)   The Executive shall not engage in any other business activities that could   reasonably be expected to conflict with the Executive’s duties, responsibilities and obligations   hereunder.                (d)   Principal Office.  The principal place of performance by the Executive of   his  duties  hereunder  shall  be  the  Company’s  principal  executive  offices  in  the  New  York   Metropolitan area, although the Executive may be required to travel outside of the area where the   Company’s  principal  executive  offices  are  located  in  connection  with  the  business  of  the   Company.          1.3.  Compensation.                (a)   Base Salary.  The Executive’s annual base salary during the Employment   Period shall be $340,500 (the “Base Salary”).  The Base Salary will be payable to the Executive   by  the  Company  in  regular  installments  in  accordance  with  the  Company’s  general  payroll   practices.  The Executive shall receive such increases (but not decreases) in his Base Salary as the   Board of Directors, or the compensation committee of the Board of Directors (the “Compensation   Committee”),  may  approve  in  its  sole  discretion  from  time  to  time.  Following  the  two-year  anniversary of the Effective Date, the Base Salary shall be reviewed at least annually.               (b)   Cash  Bonus. Executive shall  be  eligible  for  annual  cash  bonuses (“Cash  Bonus”) for each completed fiscal year (subject to Section 1.4 hereof) of the Company during the  Term in accordance with this Section 1.3(b).  The Cash Bonus for any fiscal year shall be an  amount equal to the IP Income Bonus plus the EBITDA Bonus.   The “IP Income Bonus” for any  fiscal year shall be an amount equal to 0.23% of all revenue generated from sales of the Company’s  products and by the trademarks and other intellectual property owned, operated or managed by the  Company  (“IP Income”)  in  excess  of  $12,000,000  earned  in  accordance  with  GAAP  by  the  Company in such fiscal year, provided however, that any IP Income generated through Net Sales,  shall be multiplied by (i) 7%, in the case of Net Sales from wholesale sales and private label sales  and (ii) 3%, in the case of Net Sales from e-commerce sales though the Company’s web sites.   The  “EBITDA  Bonus”  for  any  such  fiscal  year  shall  be  an  amount equal  to  0.375%  of  the  Company’s Adjusted EBITDA for such fiscal year.                The Cash Bonus shall be paid to the Executive on the date that is the earlier of (i) the 90th  day following the end of the fiscal year to which the Cash Bonus relates and (ii) the first business  day following the date the Company’s annual report on Form 10-K for the fiscal year to which the  Cash Bonus relates is filed with the Securities and Exchange Commission.   Notwithstanding the  foregoing, all payments of Cash Bonuses shall be made on a date that allows such payments to  comply with the requirements of Section 409A of the Code.  Executive shall be eligible to receive  a pro rata portion of the Cash Bonus if Executive’s employment is less than a full year or ceases  prior to the end of the calendar year for which a Cash Bonus has not yet been paid.                (c)   Withholding.  All  payments  made  under  this  Agreement  (including Base  Salary,  Cash  Bonus,  bonus  payments,  and  other  amounts)  shall  be  subject  to  withholding  for  income taxes, payroll taxes and other legally required deductions.                                          2      135944.00100/115153368v.7  





 






                                                                                              (d)   Expenses.  The Company will reimburse the Executive for all reasonable   expenses incurred by him in the course of performing his duties under this Agreement that are   consistent with the Company’s policies in effect at that time with respect to travel, entertainment   and other business expenses, subject to the Company’s requirements with respect to reporting and   documentation of such expenses. All expense reimbursement payments subject to this Section   1.3(d) shall be made within thirty (30) days after the date that the Executive notifies the Company   of such expense; provided, however, that the Executive shall notify the Company of such expenses   no later than six (6) months after the end of the calendar year in which such expenses were incurred.                 (e)   Vacation; Holiday Pay and Sick Leave.  The Executive shall be entitled to  four (4) weeks’ paid vacation in each calendar year, which if not taken during any year may be  carried forward to any subsequent year.  Executive shall receive holiday pay and paid sick leave  as provided to other executive employees of the Company.               (f)   Additional Benefits.  During the Employment Period, the Executive shall  be entitled to participate (for himself and, as applicable, his dependents) in the group medical, life,  401(k)  and  other  insurance  programs,  employee  benefit  plans  and  perquisites  which  may  be  adopted by the Board or the Compensation Committee, from time to time, for participation by the  Company’s  senior  management  or  executives,  as  well  as  dental,  life  and  disability  insurance  coverage, with payment of, or reimbursement for, such insurance premiums by the Company,  subject to, in all cases, the terms and conditions established by the Board with respect to such plans  (collectively, the “Benefits”); provided, however, that the Board, in its reasonable discretion, may  revise  the  terms  of  any  Benefits  so  long  as  such  revision  does not  have  a  disproportionately  negative impact on the Executive vis-à-vis other Company employees, to the extent applicable.               (g)   Indemnification.  The Executive shall be entitled to indemnification by the  Company in the same circumstances and to the same extent as the other executive officers and  directors  of  the  Company,  which  indemnification  shall  in  no  event  be  less  favorable  to  the  Executive than the fullest scope of indemnification permitted by applicable Delaware law (or any  such greater scope of indemnification provided by agreement or by the terms of the Company’s  Certificate of Incorporation or By-Laws to any executive officer or director of the Company).               (h)   Options.   Upon execution of this Agreement, the Company shall grant to  the Executive Options (the “Options”) to purchase up to Three Hundred Sixty Eight Thousand  Four Hundred Twenty One (368,421) shares of the Company’s common stock at an exercise price  equal to the last sale price of the common stock on the date of this Agreement.   The Options shall  be exercisable until the ten (10) year anniversary of the date of this Agreement and shall vest,  subject to the Executive remaining employed with the Company and based upon the Company’s  common stock achieving Target Prices as follows:                         Target Prices      Number of Option Shares                                                Vesting                          $3.00                 105,263                          $5.00                  89,474                          $7.00                  73,684                                         3      135944.00100/115153368v.7  





 






                                                                                                         $9.00                  57,895                         $11.00                  42,105                   (i).  In  the  event  that  the  Company  elects  from  time  to  time  during  the   Employment  Period  to  award  to  its  senior  management  or  executives,  generally,  options  to   purchase shares of the Company’s stock pursuant to any stock option plan or similar program, the   Executive shall be entitled to participate in any such stock option plan or similar program on a   basis consistent with the participation of other senior management or executives of the Company.          1.4.  Term and Termination.                (a)   Duration.  The Employment Period shall commence on the Effective Date   and shall terminate two (2) years from the Effective Date (the “Term”), unless earlier terminated  by  the  Company  or  the  Executive  as  set  forth  in  this  Section  1.4.  The  Term  shall  renew  automatically for one-year periods, unless either party gives the other party written notice of its  intention not to renew the Agreement no later than 30 days prior to the expiration of the then  current Term.  The Employment Period shall be terminated prior to the then-applicable expiration  of  the  Term  upon  the  first  to  occur  of  (i)  termination  of  the  Executive’s  employment  by  the  Company for Cause, (ii) termination of the Executive’s employment by the Company without  Cause, (iii) the Executive’s resignation with Good Reason, (iv) the Executive’s resignation other  than for Good Reason or (v) the Executive’s death or Disability.  The Executive shall not terminate  the Employment Period, with or without Good Reason, unless he gives the Company written notice  that  he  intends  to  terminate  the  Employment  Period  at  least  90 days  prior  to  the  Executive’s  proposed Termination Date.  As a condition to Executive receiving any payments or benefits under  Section 1.4(b), the Executive shall execute and deliver to the Company the General Release in the  form attached hereto as Exhibit A.               (b)   Severance  Upon  Termination  Without  Cause,  Upon  Resignation  by  the  Executive For Good Reason or Failure to Renew Term.  If the Employment Period is terminated  by the Company without Cause or if the Executive resigns for Good Reason, or if the Company  fails  to  renew  the  Term  (in  which  case  termination  of  the  Executive’s  employment  shall  be  effective at the expiration of the then-current Term), then the Executive will be entitled to receive  (1) any unpaid Base Salary through and including the Termination Date and any other amounts,  including  any  unpaid  Cash  Bonus  amounts,  or  other  entitlements then  due  and  owing  to  the  Executive as of the Termination Date; (2) an amount equal to the Executive’s Base Salary (at the  rate  in  effect  on  the  date  the  Executive’s  employment  is  terminated)  for  a  12  month  period  following the Executive’s termination of employment as described in this Section 1.4(b), payable   in  (A) substantially  equal  installments  over  the  lesser  of  (i) a  six-month  period  immediately   following such termination, or (ii) such shorter period that is the longest period permissible in   order  for  the  payments  not  to  be  considered  “nonqualified deferred compensation”   under   Section 409A  of  the  Code  or  any  regulations,  rulings  or  other  regulatory  guidance  issued   thereunder, or (B) if such payment terms would not satisfy the requirements of Section 409A of   the Code and the regulations, rulings and other regulatory guidance issued thereunder, a lump sum   on the date that is six months following the Executive’s  “separation from service”   (within the   meaning  of  Section 409A  of  the  Code)  occurring  in  connection  with such termination and (3)                                         4      135944.00100/115153368v.7  





 






                                                                                continue to participate in the Company’s group medical plan on the same basis as he previously  participated   or   receive payment of, or reimbursement for, COBRA premiums (or, if COBRA  coverage  is  not  available,  reimbursement  of  premiums  paid  for  other  medical  insurance  in  an  amount  not  to  exceed  the  COBRA  premium)  for  a  one-year  period  following  the  Executive’s  termination of employment;  provided   that if the Executive is provided with health insurance  coverage by a successor employer, any such coverage and reimbursement by the Company shall  cease (each of clauses (1), (2) and (3) referred to as the “Severance Payment”).  The Executive  also shall be entitled to receive payment for all reimbursable expenses or other entitlements then  due  and  owing  to  the  Executive  as  of  the  Termination  Date.  If the  Executive  breaches  his  obligations under Section 1.6, 1.7, 1.8 or 1.9 of this Agreement, the Company’s obligation to make  any  Severance  Payments  and  provide  any  Benefits  shall  cease  as of  the  date  of  such  breach;  provided, that if the Executive cures such breach within 10 days of receiving written notice from  the Company of such breach (which notice the Company shall provide promptly to the Executive  after learning of such breach), the Company shall promptly pay all Severance Payments not made  during such period of dispute and resume making Severance Payments and providing Benefits  promptly following such cure.               (c)   Severance upon a Change of Control.   Anything contained herein to the  contrary notwithstanding, in the event the Executive’s employment hereunder is terminated within  twelve  (12) months  following  a  Change  of  Control  by the  Company  without  Cause  or  by  the  Executive with Good Reason, the Executive shall be entitled to receive the Severance Payment as  described  in  sub-section  (b)(2) above;  provided,  however,  that if  such  lump  sum  Severance  Payment, either alone or together with other payments or benefits, either cash or non-cash, that the  Executive has the right to receive from the Company, including, but not limited to, accelerated  vesting or payment of any deferred compensation, options, stock appreciation rights or any benefits  payable to the Executive under any plan for the benefit of employees, would constitute an “excess  parachute payment” (as defined in Section 280G of the Code), then such lump sum severance  payment or other benefit shall be reduced to the largest amount that will not result in receipt by  the Executive of an “excess parachute payment.” The determination of the amount of the payment  described in this subsection shall be made by the Company’s independent auditors at the sole  expense of the Company.   For purposes of clarification the value of any options described above  will  be  determined  by  the  Company’s  independent  auditors  using a  Black-Scholes  valuation  methodology.   Upon  a  Change  of  Control,  notwithstanding  the  vesting  and  exercisability  schedule in any stock option or other grant agreement between the Company and the Executive,  all  unvested  stock  options,  shares  of  restricted  stock  and  other  equity  awards  granted  by  the  Company to the Executive pursuant to any such agreement shall immediately vest, and all such  stock options shall become exercisable and shall remain exercisable for the lesser of 180 days after  the date of the Change of Control or the remaining term of the applicable option.               (d)   Death  and  Disability.  In  the  event  of  the  death  or  Disability of  the  Executive, the Company shall pay the Executive his Base Salary through the Termination Date, at  the rate then in effect, and all expenses or accrued Benefits arising prior to such termination which  are payable to the Executive pursuant to this Agreement through the Termination Date.  Any other  rights and benefits the Executive may have under employee benefit plans and programs of the  Company generally in the event of the Executive’s Disability shall be determined in accordance  with  the  terms  of  such  plans  and  programs.  In  the event  of  Executive’s  death,  any  rights  and  benefits that the Executive’s estate or any other person may have under employee benefit plans                                        5    135944.00100/115153368v.7  





 






                                                                                  and programs of the Company generally in the event of the Executive’s death shall be determined   in accordance with the terms of such plans and programs.                (e)   Salary  and  Other  Payments  Through  Termination.  If  the  Executive’s   employment with the Company is terminated during the Term (i) by the Company for Cause or   (ii) by the Executive other than for Good Reason, the Executive will be entitled to receive his Base   Salary through the Termination Date, but will not be entitled to receive any Severance Payments   or Benefits after the Termination Date.  The Executive shall be entitled to receive payment for all  reimbursable  expenses  or  other  entitlements  then  due  and  owing to  the  Executive  as  of  the  Termination Date.               (f)   Other Rights.  Except as set forth in this Section 1.4 and Section 1.3, all of  the Executive’s rights to receive Base Salary, Benefits and Cash Bonuses hereunder (if any) which  accrue or become payable after the termination of the Employment Period shall cease upon such  termination.               (g)   Continuing Benefits. Notwithstanding Section 1.4(f), termination pursuant  to  this  Section  1.4  shall  not  modify  or  affect  in  any  way  whatsoever  any  vested  right  of  the  Executive to benefits payable under any retirement or pension plan or under any other employee  benefit plan of the Company, and all such benefits shall continue, in accordance with, and subject  to, the terms and conditions of such plans, to be payable in full to, or on account of, the Executive  after such termination.               (h)   No Duty of Mitigation.  The Executive shall not be required to mitigate the  amount of any payment provided for in this Article I by seeking other employment or otherwise.         1.5.  Confidential Information.               (a)   The Executive shall not disclose or, directly or indirectly, use at any time,  during the Employment Period or thereafter, any Confidential Information (as defined below) of  which the Executive is or becomes aware, whether or not such information is developed by him,  alone  or  with  others,  except  to  the  extent  that  (i)  such  disclosure  or  use  is  required  by  the  Executive’s performance of the duties assigned to the Executive by the Board of Directors, (ii) the  Executive  is  required  by  subpoena  or  similar  process  to  disclose  or  discuss  any  Confidential  Information, provided, that in such case, the Executive shall promptly inform the Company in  writing of such event, shall cooperate with the Company in attempting to obtain a protective order  or to otherwise limit or restrict such disclosure to the greatest extent possible, and shall disclose  only that portion of the Confidential Information as is strictly required, or (iii) such Confidential  Information is or becomes generally known to and available for use by the public, other than as a  result of any action or inaction directly or indirectly by the Executive.  At the Company’s expense,  the Executive shall take all appropriate steps to safeguard Confidential Information and to protect   it  against  disclosure,  misuse,  espionage,  loss  and  theft.  The Executive  acknowledges  that  the   Confidential Information obtained by him during the course of his employment with the Company   is the sole and exclusive property of the Company and its Subsidiaries, as applicable.                (b)   The  Executive  understands  that  the  Company  and  its  Subsidiaries  will   receive  from  third  parties  confidential  or  proprietary  information  (“Third Party Information”)                                         6      135944.00100/115153368v.7  





 






                                                                                  subject to a duty on the part of the Company and its Subsidiaries to maintain the confidentiality of   such information and to use it only for certain limited purposes.  During the Employment Period   and in the period specified in such confidentiality agreements, and without in any way limiting the   provisions of Section 1.5(a) above, the Executive will hold Third Party Information in confidence,   consistent with the obligations applicable to Confidential Information of the Company generally,  and will not disclose to anyone (other than personnel and agents of the Company or its Subsidiaries  who  need  to  know  such  information  in  connection  with  their  work  for  the  Company  or  its  Subsidiaries) or use, except in connection with his work for the Company or its Subsidiaries, Third  Party Information unless expressly authorized by the Board in writing.               (c)   As  used  in  this  Agreement,  the  term  “Confidential Information”  means  information that is not generally known to the public and that is related in any way to the actual or  anticipated  business  of  the  Company,  its  Subsidiaries,  its  Affiliates  or  any  of  their  respective  predecessors in interest, including but not limited to (i) business development, growth and other  strategic business plans, (ii) properties available for acquisition, financing development or sale,  (iii) accounting and business methods, (iv) services or products and the marketing of such services  and products, (v) fees, costs and pricing structures, (vi) designs, (vii) analysis, (viii) drawings,  photographs and reports, (ix) computer software, including operating systems, applications and  program listings, (x) flow charts, manuals and documentation, (xi) data bases, (xii) inventions,  devices,  new  developments,  methods  and  processes,  whether  patentable  or  unpatentable  and  whether  or  not  reduced  to  practice,  (xiii)  copyrightable  works,  (xiv)  all  technology  and  trade  secrets, (xv) confidential terms of material agreements and customer relationships, and (xvi) all  similar  and  related  information  in  whatever  form  or  medium.  Confidential  Information  also  expressly excludes Executive’s general know-how and business contacts to the extent that the use  of such information does not violate or breach the terms of Section 1.9.         1.6.  Inventions  and  Patents.  Executive  acknowledges  that  all  discoveries,  concepts,  ideas,  inventions,  innovations,  improvements,  developments,  products,  methods,  processes,  techniques, programs, designs, analyses, drawings, reports, patents, copyrightable works and mask  works (whether or not including any Confidential Information) and all issuances, registrations or  applications related thereto, all other proprietary information or intellectual property and all similar  or related information (whether or not patentable) conceived, developed, contributed to, made, or  reduced to practice by Executive (either alone or with others) while employed by Company or any  of its Subsidiaries or Affiliates or any of their respective predecessors in interest (including prior  to the date of this Agreement) or using the materials, facilities or resources of the Company or any  of its Subsidiaries or Affiliates or any of their respective predecessors in interest (collectively,  “Company Works”)  is  the  sole  and  exclusive  property  of  the  Company  and  its  Subsidiaries.  Executive hereby assigns all right, title and interest in and to all Company Works to the Company  and its Subsidiaries and waives any moral rights he may have therein, without further obligation  or consideration.  Any copyrightable work prepared in whole or in part by the Executive will be  deemed “a work made for hire” under Section 201(b) of the 1976 Copyright Act, and the Company   and its Subsidiaries shall own all of the rights comprised in the copyright therein.  The Executive   shall  promptly  and  fully  disclose  in  writing  all  Company  Works to  the  Company  and  shall   cooperate with the Company and its Subsidiaries to protect, maintain and enforce the Company’s   and its Subsidiaries’ interests in and rights to such Company Works (including, without limitation,   providing  reasonable  assistance  in  securing  patent  protection  and  copyright  registrations  and   executing  all  affidavits,  assignments,  powers-of-attorney  and  other  documents  as  reasonably                                         7      135944.00100/115153368v.7  





 






                                                                                  requested  by  the  Company,  whether  such  requests  occur  prior  to or  after  termination  of  the   Executive’s employment with the Company).          1.7.  Delivery  of  Materials  Upon  Termination  of  Employment.  As  requested  by  the  Company from time to time and in any event upon the termination of the Executive’s employment  with the Company , the Executive shall promptly deliver to the Company, or at the Company’s  election, destroy, all copies and embodiments, in whatever form or medium, of all Confidential  Information, Company Works and other property and assets of the Company and its Subsidiaries  in the Executive’s possession or within his control (including, but not limited to, office keys, access  cards, written records, notes, photographs, manuals, notebooks, documentation, program listings,  flow charts, magnetic media, disks, diskettes, tapes computers and handheld devices (including all  software,  files  and  documents  thereon) and any other materials containing  any  Confidential  Information  or  Company  Works)  irrespective  of  the  location  or  form  of  such  material  and,  if  requested by the Company, shall provide the Company with written confirmation that all such  materials have been delivered to the Company or destroyed, as applicable.         1.8.  Non-Compete and Non-Solicitation Covenants.               (a)   The Executive acknowledges and agrees that the Executive’s services to the  Company and its Subsidiaries are unique in nature and that the Company and its Subsidiaries  would be irreparably damaged if the Executive were to provide similar services to any Person  competing  with  the  Company  and  its  Subsidiaries  or  engaged  in  the  Business.  The  Executive  further acknowledges that, in the course of his employment with the Company, he will become  familiar  with  the  Company’s  and  its  Subsidiaries’  trade  secrets  and  with  other  Confidential  Information.  During  the  Noncompete  Period,  he  shall  not,  directly  or  indirectly,  whether  for  himself or for any other Person, permit his name to be used by or participate in any business or  enterprise (including, without limitation, any division, group or franchise of a larger organization)  that engages or proposes to engage in the Business in the Restricted Territories, other than the  Company and its Subsidiaries or except as otherwise directed or authorized by the Board.  For  purposes of this Agreement, the term “participate in” shall include, without limitation, having any  direct or indirect interest in any Person, whether as a sole proprietor, owner, stockholder, partner,  member,  joint  venturer,  creditor  or  otherwise,  or  rendering  any direct or indirect service or  assistance to any Person (whether as a director, officer, supervisor, employee, agent, consultant or  otherwise).  Nothing herein will prohibit the Executive from mere passive ownership of not more  than five percent (5%) of the outstanding stock of any class of a publicly held corporation whose  stock is traded on a national securities exchange or in the over-the-counter market.  As used herein,  the phrase “mere passive ownership” shall include voting or otherwise granting any consents or  approvals  required  to  be  obtained  from  such  Person  as  an  owner of  stock  or  other  ownership  interests in any entity pursuant to the charter or other organizational documents of such entity, but  shall not include, without limitation, any involvement in the day-to-day operations of such entity.               (b)   During  the  Nonsolicitation  Period,  the  Executive  will  not  directly,  or  indirectly  through  another  Person,  solicit,  induce  or  attempt  to  induce any  customer,  supplier,  licensee, or other business relation of the Company or any of its Subsidiaries, or solicit, induce or   attempt  to  induce  any  person  who  is,  or  was  during  the  then-most  recent  12-month  period,  a   corporate officer, general manager or other employee of the Company or any of its Subsidiaries to   terminate such employee’s employment with the Company or any of its Subsidiaries, or hire any                                         8      135944.00100/115153368v.7  





 






                                                                                such  person  unless  such  person’s employment  was  terminated  by  the  Company  or  any  of  its  Subsidiaries, or in any way interfere with the relationship between any such customer, supplier,  licensee, employee or business relation and the Company or any of its Subsidiaries.  The Executive  acknowledges and agrees that the Company and its Subsidiaries would be irreparably damaged if  the Executive were to breach any of the provisions contained in this Section 1.8(b).               (c)   Executive acknowledges that this Agreement, and specifically, this Section  1.8,  does  not  preclude  Executive  from  earning  a  livelihood,  nor  does  it  unreasonably  impose  limitations on Executive’s ability to earn a living.  In addition, Executive agrees and acknowledges  that the potential harm to the Company of its non-enforcement outweighs any harm to Executive  of its enforcement by injunction or otherwise.         1.9.  Enforcement.  If, at the time of enforcement of Section 1.5, 1.6, 1.7, 1.8, 1.9 or  1.10, a court holds that the restrictions stated herein are unreasonable under circumstances then  existing, the Parties agree that, to the extent permitted by applicable law, the maximum period,  scope  or  geographical  area  reasonable  under  such  circumstances will  be  substituted  for  the  Noncompete Period, scope or area.  Because the Executive’s services are unique and because the  Executive  has  access  to  Confidential  Information  and  Company  Works,  the  Parties  agree  that  money damages would be an inadequate remedy for any breach of Section 1.5, 1.6, 1.7, 1.8, 1.9  or 1.10.  Therefore, in the event of a breach or threatened breach of Section 1.5, 1.6, 1.7, 1.8, 1.9  or 1.10, the Company or any of its Subsidiaries or any of their respective successors or assigns  may,  in  addition  to  other  rights  and  remedies  existing  in  their  favor,  apply  to  any  court  of  competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce,  or prevent any violations of, the provisions hereof (without posting a bond or other security).  The  Parties  hereby  acknowledge  and  agree  that  (a)  performance  of  the  services  of  the  Executive  hereunder may occur in jurisdictions other than the jurisdiction whose law the Parties have agreed  shall govern the construction, validity and interpretation of this Agreement, (b) the law of the  State  of New York shall govern construction, validity and interpretation of this Agreement to the fullest  extent possible, and (c) Section 1.5, 1.6, 1.7, 1.8, 1.9 or 1.10 shall restrict the Executive only to  the extent permitted by applicable law.         1.10. Survival.  Sections 1.5, 1.6, 1.7, 1.8, 1.9 and 1.10 will survive and continue in full  force in accordance with their terms notwithstanding any termination of the Employment Period.                                                                             ARTICLE II.                                DEFINED TERMS         2.1.  Definitions.  For  purposes  of  this  Agreement,  the  following  terms  will  have  the  following meanings:               “Adjusted EBITDA”  shall  mean  for  any  period,  for  the  Company  and  its  subsidiaries on a consolidated basis (without duplication), an amount equal to (a) consolidated net  income (as determined in accordance with generally accepted accounting principles of the United  States of America as in effect from time to time) (“Consolidated Net Income”) for such period,  minus, (b) to the extent included in calculating Consolidated Net Income, the sum of, without  duplication, (i) income tax credits for such period, and (ii) gain from extraordinary or non-recurring  items  for  such  period  (including,  without  limitation,  non-cash items  related  to  purchase                                        9    135944.00100/115153368v.7  





 






                                                                                  accounting), plus (c) the following to the extent deducted in calculating such Consolidated Net   Income, (i) interest expense and other finance costs (whether cash or non-cash) for such period (ii)   the provision for federal, state, local and foreign income taxes for such period, (iii) the amount of   depreciation and amortization expense for such period, (iv) the transaction fees, costs and expenses   incurred  in  connection  with  any  subsequent  asset,  brand,  stock acquisition  or  joint  venture  or   similar transaction in such period, (v) all other extraordinary or non-recurring non-cash charges   (including, without limitation, non-cash items related to purchase accounting and non-cash items   related to earn-outs) and (vi) non-cash stock or equity compensation in such period.                   “Business”  means  the  business  of  acquiring  and  licensing  consumer  brands   worldwide.                    “Cause” means with respect to the Executive, the occurrence of one or more of   the following:  (i) conviction of a felony involving moral turpitude, misappropriation of Company  property,  embezzlement  of  Company  funds  or  violation  of  the  securities  laws  relating  to  the  Company,  (ii)  the  willful  and  continued  failure  by  the  Executive  to  attempt  in  good  faith  to  substantially perform his obligations under this Agreement (other than any such failure resulting   from the Executive’s incapacity due to a Disability); (iii) reporting to work under the influence of   alcohol or illegal drugs, or the use of illegal drugs (whether or not at the workplace), or (iv) any   willful breach of Sections 1.6, 1.7, 1.8 or 1.9 of this Agreement.  Notwithstanding the foregoing,   termination  by  the  Company  for  Cause  (other  than  pursuant  to  clause  (i)  above) shall  not  be   effective until and unless Executive fails to cure such alleged act or circumstance within 30 days   of receipt of notice thereof, to the satisfaction of the Chief Executive Officer in the exercise of his   reasonable judgment (or, if within such 30-day period the Executive commences and proceeds to   take all reasonable actions to effect such cure, within such reasonable additional time period (no   longer than 60 days) as may be necessary).                                  “Code” means the Internal Revenue Code of 1986 and the Treasury regulations   thereunder, each as amended from time to time.                    “Disability” shall have the meaning set forth in a policy or policies of long-term   disability insurance, if any, the Company obtains for the benefit of itself and/or its employees.  If   there is no definition of “disability” applicable under any such policy or policies, if any, then the   Executive shall be considered disabled due to mental or physical impairment or disability, despite   reasonable accommodations by the Company and its Subsidiaries, to perform his customary or   other comparable duties with the Company or its Subsidiaries immediately prior to such disability   for a period of at least 120 consecutive days or for at least 180 non-consecutive days in any 12-  month period.                    “Effective Date” means January 1, 2019.                    “Fiscal Year” means the fiscal year of the Company and its Subsidiaries.                                “GAAP” – Means in accordance with generally accepted account principles and   consistent with the Company’s revenue recognition policy.                                                10      135944.00100/115153368v.7  





 






                                                                                               “Good Reason” means the occurrence, without the Executive’s written consent,  of one or more of the following events:  (i) the Company reduces the amount of Executive’s Base  Salary or target or Maximum Cash Bonus, (ii) the Company requires that the Executive relocate  his principal place of employment to a site that is more than 50 miles from the Company’s offices  in the New York area  or if the Company changes the location of its headquarters without the  consent of Executive to a location that is more than 50 miles from such location, (iii) the Company  materially reduces the Executive’s responsibilities or removes the Executive from the position of  Executive  Vice  President  –  Business  Development  and  Treasury  other  than  pursuant  to  a  termination of his employment for Cause, or upon the Executive’s death or Disability, (iv) the  failure or unreasonable delay of the Company to provide to the Executive any of the payments or  benefits contemplated hereby or (v) the Company otherwise materially breaches the terms of this  Agreement; provided that no such event shall constitute Good Reason hereunder unless (a) the  Executive shall have given written notice to the Company of the Executive’s intent to resign for  Good Reason within 30 days after the Executive becomes aware of the occurrence of any such  event, which notice shall describe in reasonable detail the event or events constitute the basis for  the Executive’s intention to resign for Good Reason and (b) such event or occurrence, if a breach  susceptible to cure, shall not have been cured or otherwise shall not have been resolved to the  Executive’s reasonable satisfaction, in each case within 30 days of the Company’s receipt of such  notice.  In such case the Executive’s resignation shall become effective on the 31st day after the  Company’s receipt of the aforementioned notice.                   “Net Sales” means wholesale and retail sales of products directly by the Company  (including under its brands and private label) to its customers, including through direct-response  television (i.e., QVC, Inc. and The Home Shopping Network), less any returns, trade discounts,   charge-backs.                                 “Noncompete Period” means the Employment Period and 12 months thereafter.                   “Nonsolicitation Period”  means  the  Employment  Period  and  12  months  thereafter.                   “Person”  means  an  individual,  a  partnership,  a  corporation,  a  limited liability  company,  an  association,  a  joint stock  company,  a  trust,  a  joint  venture,  an  unincorporated   organization,  or  the  United  States  of  America  any  other  nation,  any  state  or  other  political   subdivision  thereof,  or  any  entity  exercising  executive,  legislative,  judicial,  regulatory  or   administrative functions of government.                    “Restricted Territories”  means  (i)  the  United  States  and  its  territories  and   possessions and (ii) any foreign country in which the Company engages  in  business  as  of  the   Termination Date.                    “Subsidiary” means, with respect to any Person, any corporation, limited liability   company, partnership, association, or business entity of which (i) if a corporation, a majority of   the  total  voting  power  of  shares  of  stock  entitled  (without  regard  to  the  occurrence  of  any   contingency) to vote in the election of directors, managers, or trustees thereof is at the time owned   or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that                                          11      135944.00100/115153368v.7  





 






                                                                                  Person or a combination thereof, or (ii) if a limited liability company, partnership, association, or   other  business  entity  (other  than  a  corporation),  a  majority  of  partnership  or  other  similar  ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person   or one or more Subsidiaries of that Person or a combination thereof.  For purposes hereof, a Person   or Persons shall be deemed to have a majority ownership interest in a limited liability company,   partnership,  association,  or  other  business  entity  (other  than a  corporation)  if  such  Person  or   Persons shall be allocated a majority of limited liability company, partnership, association, or other   business entity gains or losses or shall be or control any managing director or general partner or   manager or managing member of such limited liability company, partnership, association, or other   business entity.  For purposes hereof, references to a Subsidiary of any Person shall be given effect   only at such times that such Person has one or more Subsidiaries, and, unless otherwise indicated,   the term Subsidiary refers to a Subsidiary of the Company.                                “Target Price”  shall  mean  the  average  closing  sale  price  of  the  Company’s  common stock for any ten (10) consecutive trading days.                   “Termination Date” means the effective date of the Executive’s termination of  employment with the Company.         2.2.  Other Definitional Provisions.               (a)   Section references contained in this Agreement are references to sections in   this  Agreement,  unless  otherwise  specified.  Each  defined  term used in this Agreement has a   comparable meaning when used in its plural or singular form.  Each gender-specific term used in   this  Agreement  has  a  comparable  meaning  whether  used  in  a  masculine,  feminine  or  gender-  neutral form.                (b)   Whenever the term “including” (whether or not that term is followed by the   phrase  “but not limited to”  or  “without limitation”  or  words  of  similar  effect)  is  used  in  this   Agreement in connection with a listing of items within a particular classification, that listing will   be interpreted to be illustrative only and will not be interpreted as a limitation on, or an exclusive   listing of, the items within that classification.                                    ARTICLE III.                             MISCELLANEOUS TERMS              3.1.  Defense of Claims.   The Executive agrees that, during the Employment Period,   and for a period of six months after termination of the Executive’s employment, upon request by   the Company, the Executive shall reasonably cooperate with the Company in connection with any   matters  the  Executive  worked  on  during  his  employment  with  the Company  and  any  related   transitional  matters.  In  addition,  during  the  Employment  Period  and  thereafter,  the  Executive   agrees to reasonably cooperate with the Company in the defense of any claims or actions that may   be made by or against the Company that affect the Executive’s prior areas of responsibility or   involve matters about which the Executive has knowledge, except if the Executive’s reasonable   interests  are  adverse  to  the  Company  in  such  claim  or  action  and  provided  that  after  the   Employment Period such level of cooperation shall be reasonable and shall take due account of                                         12      135944.00100/115153368v.7  





 






                                                                                  the Executive’s work and personal commitments. The Company agrees to promptly reimburse the   Executive for all of the Executive’s reasonable travel and other direct expenses incurred, or to be   reasonably incurred, to comply with the Executive’s obligations under this Section 3.1.          3.2.  Nondisparagement.   The Executive agrees to refrain from (i) making, directly or  indirectly, any derogatory comments concerning the Company or its Subsidiaries or any current or  former officers, directors, employees or shareholders thereof or (ii) taking any other action with  respect to the Company or its Subsidiaries which is reasonably expected to result, or does result  in, damage to the business or reputation of the Company, its Subsidiaries or any of its current or  former officers, directors, employees or shareholders.  The Company agrees to refrain from (i)  making, directly or indirectly, any derogatory comments concerning the Executive or (ii) taking  any other action with respect to the Executive which is reasonably expected to result, or does result  in, damage to the reputation of the Executive.  Notwithstanding anything to the contrary contained  herein, nothing in this Agreement shall prohibit or restrict either party from, truthfully and in good  faith: (i) making any disclosure of information required by law; (ii) providing information to, or  testifying  or  otherwise  assisting  in  any  investigation  or  proceeding  brought  by,  any  federal  regulatory or law enforcement agency or legislative body, any self-regulatory organization, or the  Company’s or the Executive’s designated legal, compliance or human resources officers; or (iii)  filing,  testifying,  participating  in  or  otherwise  assisting  in a  proceeding  relating  to  an  alleged  violation of any federal, state or municipal law relating to fraud, or any rule or regulation of the  Securities and Exchange Commission or any self-regulatory organization.            3.3.  Source  of  Payments.   All  payments  provided  under  this  Agreement,  other  than  payments made pursuant to a plan which provides otherwise and except as otherwise provided  herein, shall be paid in cash from the general funds of the Company, and no special or separate  fund shall be established, and no other segregation of assets shall be made, to assure payment. The  Executive  shall  have  no  right,  title  or  interest  whatsoever  in or  to  any  investments  which  the  Company or its Subsidiaries may make to aid the Company in meeting its obligations hereunder.  To the extent that any person acquires a right to receive payments from the Company hereunder,  such right shall be no greater than the right of an unsecured creditor of the Company.         3.4.  Notices.   Any notice provided for in this Agreement must be in writing and must  be  either  personally  delivered,  mailed  by  first  class  mail  (postage  prepaid  and  return  receipt  requested), sent by reputable overnight courier service (charges prepaid) or sent by facsimile (with  receipt confirmed) to the recipient at the address or facsimile number indicated below:                  To the Company:                   XCel Brands, Inc.                1333 Broadway, 10th Floor               New York, New York 10018                    With a copy (which shall not constitute notice) to:                                                          13      135944.00100/115153368v.7  





 






                                                                                               Blank Rome LLP                The Chrysler Building               405 Lexington Avenue               New York, NY 10174-0208               Attn:  Robert Mittman, Esquire               Facsimile: (212) 885-5557                    To the Executive:                                 Seth Burroughs                c/o XCel Brands, Inc.               1333 Broadway, 10th Floor               New York, New York 10018    or such other address or to the attention of such other Person as the recipient Party will have   specified by prior written notice to the sending Party.  Any notice under this Agreement will be   deemed to have been given when so delivered or sent.              3.5.  Severability.  Subject to the express provisions of Section 1.10 relating to certain   specified changes, whenever possible, each provision of this Agreement will be interpreted in such   manner as to be effective and valid under applicable law, but if any provision of this Agreement   is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any   jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any   other jurisdiction, but this Agreement will be reformed, construed and enforced in such jurisdiction   as if such invalid, illegal or unenforceable provision had never been contained herein.          3.6.  Complete  Agreement.  This  Agreement  embodies  the  complete  agreement  and  understanding  among  the  Parties  with  regard  to  the  subject  matter  hereof  and  supersedes  and  preempts any prior understandings, agreements or representations by or among the Parties, written   or oral, which may have related to the subject matter hereof in any way.  To the extent that this   Agreement provides greater benefits to the Executive or fewer obligations of the Executive than   available or set forth under the Company’s employee handbook or other corporate policies, then   this Agreement shall prevail.          3.7.  Counterparts.  This Agreement may be executed in separate counterparts, each of   which is deemed to be an original and all of which taken together constitute one and the same   agreement.          3.8.  Assignment.  Without the Executive’s consent, the Company may not assign its   rights and obligations under this Agreement except (i) to a “Successor” (as defined below) or (ii)  to  an  entity  that  is  formed  and  controlled  by  the  Company  or  any  of  its  Subsidiaries.  This  Agreement is personal to the Executive, and the Executive shall not have the right to assign the  Executive’s interest in this Agreement, any rights under this Agreement or any duties imposed  under  this  Agreement,  nor  shall  the  Executive  have  the  right  to  pledge,  hypothecate,  transfer,  assign or otherwise encumber the Executive’s right to receive any form of compensation hereunder                                         14      135944.00100/115153368v.7  





 






                                                                                without the prior written consent of the Board.  As used in Sections 3.8 and 3.9, “Successor” shall  include  any  Person  that  at  any  time,  whether  by  purchase,  merger  or  otherwise,  directly  or  indirectly acquires all or substantially all of the assets of, or ownership interests in, the Company  and its Subsidiaries.         3.9.  Successors  and  Assigns.  This  Agreement  is  intended  to  bind  and  inure  to  the  benefit of and be enforceable by the Company, the Executive, and their respective heirs, successors  and permitted assigns.         3.10. Choice of Law.  This Agreement and the performance of the parties hereunder shall  be governed by the internal laws (and not the law of conflicts) of the State of New York. Any  claim or controversy arising out of or in connection with this Agreement, or the breach thereof,  shall be adjudicated exclusively by the Supreme Court, New York County, State of New York, or  by a federal court sitting in Manhattan in New York City, State of New York. The parties hereto  agree to the personal jurisdiction of such courts and agree to accept process by regular mail in  connection with any such dispute.         3.11. Waiver  of  Jury  Trial.  AS  A SPECIFICALLY  BARGAINED  FOR  INDUCEMENT  FOR  EACH  OF  THE  PARTIES  HERETO  TO  ENTER  INTO  THIS  AGREEMENT (AFTER HAVING THE OPPORTUNITY TO CONSULT WITH COUNSEL),  EACH PARTY HERETO EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY  LAWSUIT  OR  PROCEEDING  RELATING  TO  OR  ARISING  IN  ANY  WAY  FROM  THIS  AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.         3.12. Legal Fees and Court Costs.  In the event that any action, suit or other proceeding  in law or in equity is brought to enforce the provisions of this Agreement, and such action results  in the award of a judgment for money damages or in the granting of any injunction in favor of the  Company, all expenses (including reasonable attorneys’ fees) of the Company in such action, suit  or other proceeding shall be paid by the Executive. In the event that any action, suit or other  proceeding in law or in equity is brought to enforce the provisions of this Agreement, and such  action results in the award of a judgment for money damages or in the granting of any injunction  in favor of the Executive, all expenses (including reasonable attorneys’ fees and travel expenses)  of the Executive in such action, suit or other proceeding shall be paid by the Company.         3.13. Remedies.  Each Party will be entitled to enforce its rights under this Agreement  specifically, to recover damages and costs caused by any breach of any provision of this Agreement  and to exercise all other rights existing in its favor.  Subject to Section 3.12 , nothing herein shall  prohibit any arbitrator or judicial authority from awarding attorneys’ fees or costs to a prevailing  Party in any arbitration or other proceeding to the extent that such arbitrator or authority may  lawfully do so.         3.14. Amendment and Waiver.  The provisions of this Agreement may be amended or  waived only with the prior written consent of the Company and the Executive, and no course of  conduct or failure or delay in enforcing the provisions of this Agreement will affect the validity,  binding effect or enforceability of this Agreement.                                          15    135944.00100/115153368v.7  





 






                                                                                      3.15. Third Party Beneficiaries.  This Agreement will not confer any rights or remedies  upon any Person other than the Parties and their respective successors and permitted assigns and  other than, in the event of the Executive’s death, his estate, to which all of Executive’s rights and  remedies set forth herein shall accrue.         3.16. The Executive’s Representations.  The Executive hereby represents and warrants  to  the  Company  that  (a)  the  execution,  delivery  and  performance  of  this  Agreement  by  the  Executive do not and shall not conflict with, breach, violate or cause a default under any contract,  agreement, instrument, order, judgment or decree to which the Executive is a party or by which he  is bound, (b) the Executive is not a party to or bound by any employment agreement, noncompete  agreement or confidentiality agreement with any other Person (or other agreement with any other  person containing a restriction on the Executive’s right to do business or obligating him to do  business with any other Person on a priority or preferential basis), (c) upon the execution and  delivery  of  this  Agreement  by  the  Company,  this  Agreement  shall  be  the  valid  and  binding  obligation of the Executive, enforceable in accordance with its terms and (d) upon the execution  and delivery of this Agreement by the Company, Executive shall not be in violation of clause (i)  set forth in the definition of Cause and shall not be disabled.        3.17. Amendment to Comply with Section 409A of the Code.  To the extent that this  Agreement or any part thereof is deemed to be a nonqualified deferred compensation plan subject  to Section 409A of the Code and the Treasury Regulations (including proposed regulations) and  guidance promulgated thereunder, (a) the provisions of this Agreement shall be interpreted in a  manner to the maximum extent possible to comply in good faith with Code Section 409A and (b)  the parties hereto agree to amend this Agreement for purposes of complying with Code Section  409A promptly upon issuance of any Treasury regulations or guidance thereunder, provided, that  any such amendment shall not materially change the present value of the benefits payable to the  Executive hereunder or otherwise materially adversely affect the Executive, the Company, or any  affiliate of the Company, without the consent of such party.  With regard to any provision herein  that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by  Code  Section  409A,  (i)  the  right  to  reimbursement  or  in-kind  benefits  shall  not  be  subject  to  liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement,  or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for  reimbursement,  or  in-kind  benefits  to  be  provided,  in  any  other taxable year, and (iii) such  payments shall be made on or before the last day of the Executive’s taxable year following the  taxable year in which the expense was incurred.                                   [END OF PAGE]                          [SIGNATURE PAGE FOLLOWS]                                           16    135944.00100/115153368v.7  





 






                                                                                        IN WITNESS WHEREOF, the Parties have executed this Employment Agreement as of  the date first written above.                                                     XCEL BRANDS, INC.                                                     By:                                                      Name: Robert W. D’Loren                                                      Title: Chairman and CEO                                                                                                             Seth Burroughs                                                                                                                         17    135944.00100/115153368v.7  





 






                                                                                                                                                    EXHIBIT A                                  FORM OF RELEASE            I,  Seth  Burroughs,  on  behalf  of  myself  and  my  heirs,  successors  and  assigns,  in  consideration of the performance by XCel Brands, Inc., a Delaware corporation (together with its  Subsidiaries, the “Company”), of its material obligations under the Employment Agreement, dated  as of February 27, 2019 (the “Agreement”), do hereby release and forever discharge as of the date  hereof the Company, its Affiliates, each such Person’s respective successors and assigns and each  of the foregoing Persons’ respective present and former directors, officers, partners, stockholders,  members,  managers,  agents,  representatives,  employees  (and  each  such  Person’s  respective  successors and assigns) (collectively, the “Released Parties”) to the extent provided below.      1. I understand that any payments or benefits paid or granted to me under Section 1.4(b) of       the Agreement represent, in part, consideration for signing this General Release and are       not salary, wages or benefits to which I was already entitled.  I understand and agree that I       will not receive the payments and benefits specified in Section 1.4(b) of the Agreement       unless I execute this General Release and do not revoke this General Release within the       time period permitted hereafter or breach this General Release.        2. I  knowingly  and  voluntarily  release  and  forever  discharge  the  Company  and  the  other        Released Parties from any and all claims, controversies, actions, causes of action, cross-       claims,  counter-claims,  demands,  debts,  compensatory  damages,  liquidated  damages,        punitive or exemplary damages, other damages, claims for costs and attorneys’ fees, or        liabilities of any nature whatsoever in law and in equity, both past and present (through the        date  of  this  General  Release),  whether  under  the  laws  of  the  United  States  or  another        jurisdiction and whether known or unknown, suspected or claimed against the Company        or  any  of  the  Released  Parties  which  I,  my  spouse,  or  any  of  my  heirs,  executors,       administrators or assigns, have or may have, which arise out of or are connected with my       employment with, or my separation from, the Company (including, but not limited to, any        allegation, claim or violation, arising under:  Title VII of the Civil Rights Act of 1964, as        amended; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of        1967, as amended (including the Older Workers Benefit Protection Act); the Equal Pay        Act of 1963, as amended; the Americans with Disabilities Act of 1990; the Family and        Medical  Leave  Act  of  1993;  the  Civil  Rights  Act  of  1866,  as  amended;  the  Worker        Adjustment Retraining and Notification Act; the Employee Retirement Income Security        Act of 1974; any applicable Executive Order Programs; the Fair Labor Standards Act;        Occupational Safety and Health Act of 1970, as amended, under the Worker Adjustment        and Retraining Notification Act of 1988, as amended, under the Family and Medical Leave        Act of 1993, as amended, under the Fair Credit Reporting Act of 1970, as amended, and        under the Sarbanes-Oxley Act of 2002, under the Civil Rights Act of 1870, 42 U.S.C. §        1981, as amended, under the Civil Rights Act of 1871, as amended, under the Americans        With  Disabilities  Act  of  1990,  as  amended,  under  the  Americans with  Disabilities  Act        Amendments  of  2008,  under  the  Rehabilitation  Act  of  1973,  as  amended,  under  the        Immigration  Reform  and  Control  Act  of  1986,  as  amended,  under  the  Vietnam  Era                                         18    135944.00100/115153368v.7  





 






                                                                                      Veterans Readjustment Assistance Act of 1974, as amended, under the Uniformed Service        Employment and Reemployment Rights Act of 1994, as amended, under the Consolidated       Omnibus Budget Reconciliation Act of 1985 (“COBRA”), and any and all claims under the       New York State Human Rights Law, under the New York City Human Rights Law,  and       under the New York Labor Laws, and any and all claims under any other federal, state, or       local labor law, civil rights law, fair employment practices law, human rights law, family       and medical leave law, occupational safety and health law, whistleblower protection law,       and equal pay law; or any and all claims of slander, libel, defamation, invasion of privacy,        intentional  or  negligent  infliction  of  emotional  distress,  intentional  or  negligent        misrepresentation, fraud, prima facie torts or other tort; or any and all claims based on the        design or administration of any of the Company’s employee benefit plan or program, or        arising under any Company policy, practice, or procedure, or employee benefit plan; any        and  all  claims  for  wages,  commissions  bonuses,  vacation  pay  or other  paid  time  off,        employee benefits equity-based compensation, or other compensation or payments of any        kind or nature, or for continued employment with the Company in any position; or under        any other local, state, or federal law, regulation or ordinance; or under any public policy,        contract or tort, or under common law; or any claim for wrongful discharge, breach of        contract, or infliction of emotional distress; or any claim for costs, fees, or other expenses,        including  attorneys’  fees  incurred  in  these  matters)  (all  of  the  foregoing  collectively        referred to herein as the “Claims”);   provided , however, that nothing contained in this        General Release shall apply to, or release the Company from, (i) any obligation of the        Company contained in the Agreement to be performed after the date hereof or (ii) any        vested or accrued benefits pursuant to any employee benefit plan, program or policy of the        Company.             3. I represent that I have made no assignment or transfer of any right, claim, demand, cause        of action, or other matter covered by paragraph 2 above.        4. I agree that this General Release does not waive or release any rights or claims that I may        have under the Age Discrimination in Employment Act of 1967 which arise after the date        I  execute  this  General  Release.  I  acknowledge  and  agree  that  my  separation  from        employment with the Company in compliance with the terms of the Agreement shall not        serve as the basis for any claim or action (including, without limitation, any claim under        the Age Discrimination in Employment Act of 1967).        5. In signing this General Release, I acknowledge and intend that it shall be effective as a bar        to each and every one of the Claims hereinabove mentioned or implied. I expressly consent        that this General Release shall be given full force and effect according to each and all of        its express terms and provisions, including those relating to unknown  and  unsuspected        Claims (notwithstanding any state statute that expressly limits the effectiveness of a general        release  of  unknown,  unsuspected  and  unanticipated  Claims),  if  any,  as  well  as  those        relating to any other Claims hereinabove mentioned or implied. I acknowledge and agree        that this waiver is an essential and material term of this General Release and that without        such  waiver  the  Company  would  not  have  agreed  to  the  terms  of  the  Agreement.  I        covenant that I shall not directly or indirectly, commence, maintain or prosecute or sue any        of  the  Released  Persons  either  affirmatively  or  by  way  of  cross-complaint,  indemnity                                         19    135944.00100/115153368v.7  





 






                                                                                      claim, defense or counterclaim or in any other manner or at all on any Claim covered by        this  General  Release.  I  further  agree  that  in  the  event  I  should  bring  a  Claim  seeking        damages against the Company, or in the event I should seek to recover against the Company        in any Claim brought by a governmental agency on my behalf, this General Release shall        serve as a complete defense to such Claims. I further agree that I am not aware of any        pending charge or complaint of the type described in paragraph 2 as of the execution of        this General Release.       6. I agree that neither this General Release, nor the furnishing of the consideration for this        General  Release,  shall  be  deemed  or  construed  at  any  time  to  be  an  admission  by  the        Company, any Released Party or myself of any improper or unlawful conduct.        7. I agree that this General Release is confidential and agree not to disclose any information        regarding the terms of this General Release, except to my immediate family and any tax,        legal or other counsel I have consulted regarding the meaning or effect hereof or as required        by law, and I will instruct each of the foregoing not to disclose the same to anyone.        8. Any non-disclosure provision in this General Release does not prohibit or restrict me (or        my attorney) from responding to any inquiry about this General Release or its underlying        facts  and  circumstances  by  the  Securities  and  Exchange  Commission,  the  Financial        Industry Regulatory Authority or any other self-regulatory organization or governmental        entity.        9. Without limitation of any provision of the Agreement, I hereby expressly re-affirm my        obligations under Sections 1.5, 1.6, 1.7, 1.8, 1.9, 1.10 and 3.1.        10. Whenever possible, each provision of this General Release shall be interpreted in such        manner  as  to  be  effective  and  valid  under  applicable  law,  but  if  any  provision  of  this        General Release is held to be invalid, illegal or unenforceable in any respect under any        applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall        not affect any other provision or any other jurisdiction, but this General Release shall be        reformed,  construed  and  enforced  in  such  jurisdiction  as  if  such  invalid,  illegal  or        unenforceable provision had never been contained herein.     “Affiliate” means, with respect to any Person, any Person that controls, is controlled by or is under  common control with such Person or an Affiliate of such Person.     “Person”  means  an  individual,  a  partnership,  a  limited  liability  company,  a  corporation,  an  association,  a  joint  stock  company,  a  trust,  a  joint  venture,  an  unincorporated  organization,  investment fund, any other business entity and a governmental entity or any department, agency  or political subdivision thereof.     “Subsidiary”  means,  with  respect  to  any  Person,  any  corporation,  limited  liability  company,  partnership, association, or business entity of which (i) if a corporation, a majority of the total  voting power of shares of stock entitled (without regard to the occurrence of any contingency) to  vote in the election of directors, managers, or trustees thereof is at the time owned or controlled,                                         20    135944.00100/115153368v.7  





 






                                                                                directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a  combination  thereof,  or  (ii)  if  a  limited  liability  company,  partnership,  association,  or  other  business entity (other than a corporation), a majority of  partnership or other similar ownership  interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or  more  Subsidiaries  of  that  Person  or  a  combination  thereof.  For  purposes  hereof,  a  Person  or  Persons shall be deemed to have a majority ownership interest in a limited liability company,  partnership,  association,  or  other  business  entity  (other  than a  corporation)  if  such  Person  or  Persons shall be allocated a majority of limited liability company, partnership, association, or other  business entity gains or losses or shall be or control any managing director or general partner of  such limited liability company, partnership, association, or other business entity.            BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:              a. I HAVE READ IT CAREFULLY;              b. I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP              IMPORTANT  RIGHTS,  INCLUDING     BUT  NOT  LIMITED  TO,  RIGHTS              UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS              AMENDED,  TITLE  VII  OF  THE  CIVIL  RIGHTS  ACT  OF  1964,  AS              AMENDED;  THE  EQUAL  PAY  ACT  OF  1963,  THE  AMERICANS  WITH              DISABILITIES  ACT  OF  1990;  AND  THE  EMPLOYEE  RETIREMENT              INCOME SECURITY ACT OF 1974, AS AMENDED;              c. I VOLUNTARILY CONSENT TO EVERYTHING IN IT;              d. I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY (VIA THE              AGREEMENT AND THIS RELEASE) BEFORE EXECUTING IT AND I HAVE              DONE  SO  OR,  AFTER  CAREFUL  READING  AND  CONSIDERATION,  I              HAVE CHOSEN NOT TO DO SO OF MY OWN VOLITION;              e. I HAVE HAD AT LEAST 21 DAYS FROM THE DATE OF MY RECEIPT OF              THIS  RELEASE     SUBSTANTIALLY     IN   ITS  FINAL    FORM    ON              _______________ __, _____ TO CONSIDER IT AND THE CHANGES MADE              SINCE THE _______________ __, _____ VERSION OF THIS RELEASE ARE              NOT  MATERIAL  AND  WILL  NOT    RESTART  THE  REQUIRED  21-DAY              PERIOD;              f. THE CHANGES TO THE AGREEMENT SINCE _______________ ___, _____              EITHER ARE NOT MATERIAL OR WERE MADE AT MY REQUEST.              g. I UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF              THIS RELEASE TO REVOKE IT AND THAT THIS RELEASE SHALL NOT              BECOME  EFFECTIVE  OR  ENFORCEABLE  UNTIL  THE  EIGHTH  DAY              FOLLOWING EXECUTION OF THE AGREEMENT;                                            21    135944.00100/115153368v.7  





 






                                                                                           h. I  ACKNOWLEDGE  THAT  MY  acceptance  of  any  of  the  monies  paid  by  the               COMPANY as described in sections __ of the employment Agreement, at any time               more  than  seven  days  after  the  execution  of  this  Agreement  will  constitute  an               admission by ME that I did not revoke this Agreement during the revocation period               of seven days; and will further constitute an admission by ME that this Agreement              has become effective and enforceable.              i. I  HAVE  SIGNED  THIS  GENERAL  RELEASE  KNOWINGLY  AND              VOLUNTARILY AND WITH THE ADVICE OF ANY COUNSEL RETAINED              TO ADVISE ME WITH RESPECT TO IT; AND             j. I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT              BE  AMENDED,  WAIVED,  CHANGED  OR  MODIFIED  EXCEPT  BY  AN              INSTRUMENT      IN   WRITING    SIGNED    BY    AN    AUTHORIZED              REPRESENTATIVE OF THE COMPANY AND BY ME.     DATE: ___________ __, ______                                    ________________                                                                 ___                                                                                                                                    Seth Burroughs Acknowledged and agreed as of the date first written above:     XCEL BRANDS, INC.     By:            Name:  Robert W. D’Loren       Title:  Chairman and CEO                                                         22      135944.00100/115153368v.7