As filed with the Securities and Exchange Commission on May 28, 1997
Registration No. 33-______________
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
MOSSIMO, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 33-0684524
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
15320 BARRANCA PARKWAY
IRVINE, CALIFORNIA 92618
(Address of principal executive offices) (Zip Code)
(714) 453-1300
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
----------------------
ANTHONY C. CHERBAK
EXECUTIVE VICE PRESIDENT
AND
CHIEF FINANCIAL OFFICER
15320 BARRANCA PARKWAY, IRVINE, CA 92618
(Name and address of agent for service)
(714) 453-1300
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share(2) Price(2) Fee
- ---------- ------------- ------------ -------- ---
Common Stock 500,000 shares $7.4375 $3,718,750 $1,127
$0.001 par value
- --------------------------------------------------------------------------------
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Mossimo, Inc. Employee
Stock Purchase Plan, by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of
the outstanding shares of Common Stock of Mossimo, Inc.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the
high and low selling prices per share of Common Stock of Mossimo, Inc.
on May 23, 1997, as reported on the New York Stock Exchange.
Page 1 of 23
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item No. 3. Incorporation of Documents by Reference
---------------------------------------
Mossimo, Inc. (the "Registrant") hereby incorporates by reference into this
Registration Statement the following documents previously filed with the
Securities Exchange Commission ("SEC"):
a. The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996;
b. The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1997; and
c. The description of the Company's Common Stock included in its
Registration Statement on Form 8-A filed with the SEC on February 14,
1996, as amended.
All reports and definitive proxy or information statements filed pursuant to
Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed
document which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item No. 4. Description of Securities
-------------------------
Not Applicable.
Item No. 5. Interests of Named Experts and Counsel
--------------------------------------
Not Applicable.
II-1
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<PAGE>
Item No. 6. Indemnification of Directors and Officers
-----------------------------------------
As permitted by Section 145 of the Delaware General Corporation Law, the
Certificate of Incorporation and Bylaws of the Registrant provide that: (i) the
Registrant is required to indemnify its directors and officers and may indemnify
its other employees and agents, and persons serving in such capacities in other
business enterprises (including, for example, subsidiaries of the Registrant) at
the Registrant's request, to the fullest extent permitted by Delaware law,
including those circumstances in which indemnification would otherwise be
discretionary; (ii) the Registrant is required to advance expenses to such
directors and officers and may advance expenses to such other employees and
agents in connection with investigating, defending, settling and appealing a
proceeding (except that it is not required to advance expenses to a person
against whom the Registrant brings a claim for breach of the duty of loyalty,
failure to act in good faith, intentional misconduct, knowing violation of law
or deriving an improper personal benefit); (iii) the rights conferred in the
Bylaws are not exclusive and the Registrant is authorized to enter into
indemnification agreements with such directors, officers, employees and agents;
(iv) the Registrant may maintain director and officer liability insurance to the
extent reasonably available; and (v) the Registrant may not retroactively amend
the Certificate of Incorporation or Bylaw provisions in a way that is adverse to
such directors, officers, employees and agents. The Registrant has also entered
into agreements with its directors and certain of its officers indemnifying them
to the fullest extent permitted by the foregoing. These indemnification
provisions, and the Indemnification Agreements entered into between the
Registrant and its directors and certain of its officers, may be sufficiently
broad to permit indemnification of the Registrants' officers and directors for
liabilities arising under the Securities Act of 1933, as amended. The Company
has purchased and has currently in force a directors' and officers' liability
insurance policy in the face amount of $10,000,000, which covers certain
liabilities of directors and officers arising out of claims based on certain
acts and omissions by them in their capacity as directors and officers.
Item No. 7. Exemption from Registration Claimed
-----------------------------------
Not Applicable.
Item No. 8. Exhibits
--------
Exhibit Number Exhibit
- -------------- -------
4.1 Certificate of Incorporation of the Registrant (incorporated
by reference from Exhibit 3.1 of the Company's Registration
Statement on Form S-1 (33-80597)).
4.2 Bylaws of the Registrant (incorporated by reference from
Exhibit 3.2 of the Company's Registration Statement on
Form S-1 (33-80597)).
5.1 Opinion and consent of Sheppard, Mullin, Richter & Hampton LLP.
II-2
Page 3 of 23
<PAGE>
23.1 Consent of Deloitte & Touche LLP - Independent Auditors.
23.2 Consent of Sheppard, Mullin, Richter & Hampton LLP is
contained in Exhibit 5.1.
24.1 Power of Attorney (included in the Signature Page).
99.1 Employee Stock Purchase Plan
99.2 Form of Employee Stock Purchase Plan Stock Purchase Agreement
Item No. 9. Undertakings
------------
(1) The Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20% change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed
in the Registration Statement or any material
change to such information in the Registration
Statement;
II-3
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<PAGE>
Provided, however, that Paragraphs (1)(a)(i) and
(1)(a)(ii) do not apply if the Registration Statement is
on Form S-3 or Form S-8 and the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished
to the Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Registration
Statement.
(b) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(2) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by
the final adjudication of such issue.
II-4
Page 5 of 23
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in City of Irvine, State of California, on this 28th day of
May, 1997.
MOSSIMO, INC.
By: /s/Anthony C. Cherbak
-----------------------------
Anthony C. Cherbak
Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Mossimo, Inc., a Delaware
corporation, do hereby constitute and appoint Anthony C. Cherbak and Eric R.
Hohl, the lawful attorney in-fact and agent with full power and authority to do
any and all acts and things and to execute any and all instruments which said
attorney and agent, determine may be necessary or advisable or required to
enable said corporation to comply with the Securities Act of 1933, as amended,
and any rules or regulations or requirements of the Securities and Exchange
Commission in connection with this Registration Statement. Without limiting the
generality of the foregoing power and authority, the powers granted include the
power and authority to sign the names of the undersigned officers and directors
in the capacities indicated below to this Registration Statement, and to any and
all instruments or documents filed as part of or in conjunction with this
Registration Statement or amendments or supplements thereof, and each of the
undersigned hereby ratifies and confirms that said attorney and agent, shall do
or cause to be done by virtue thereof. This Power of Attorney may be signed in
several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney
as of the date indicated.
II-5
Page 6 of 23
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Mossimo G. Giannulli
- --------------------------- Chairman of the Board, May 28, 1997
Mossimo G. Giannulli Chief Executive Officer,
and President
/s/ Eric R. Hohl
- --------------------------- Executive Vice President, May 28, 1997
Eric R. Hohl Chief Operating Officer,
Secretary, and Director
/s/ Anthony C. Cherbak
- --------------------------- Executive Vice President May 28, 1997
Anthony C. Cherbak and Chief Financial Officer
/s/ Robert Martini
- --------------------------- Director May 28, 1997
Robert Martini
/s/ John H. Stanford
- --------------------------- Director May 28, 1997
John H. Stanford
/s/ Francesca Ruiz De Luzuriaga
- --------------------------- Director May 28, 1997
Francesca Ruiz De Luzuriaga
II-6
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EXHIBIT INDEX
-------------
Exhibit
Number Exhibit Page
- ------ ------- ----
4.1 Certificate of Incorporation of the Registrant
(incorporated by reference from Exhibit 3.1 of the
Company's Registration Statement on Form S-1
(33-80597)).
4.2 Bylaws of the Registrant (incorporated by reference
from Exhibit 3.2 of the Company's Registration
Statement on Form S-1 (33-80597)).
5.1 Opinion and consent of Sheppard, Mullin, Richter &
Hampton LLP. 9
23.1 Consent of Deloitte & Touche LLP - Independent
Auditors. 11
23.2 Consent of Sheppard, Mullin, Richter & Hampton is
contained in Exhibit 5.1.
24.1 Power of Attorney (included in the Signature Page).
99.1 Employee Stock Purchase Plan. 12
99.2 Form of Employee Stock Purchase Plan Stock Purchase
Agreement. 22
Page 8 of 23
<PAGE>
EXHIBIT 5.1
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
(a limited partnership including professional corporations)
Attorneys At Law
Forty-Eighth Floor
333 South Hope Street
Los Angeles, California 90071-1448
Telephone (213) 620-1780
---
Facsimile (213) 620-1398
May 28, 1997
Mossimo, Inc.
15320 Barranca Parkway
Irvine, CA 92618
Ladies and Gentlemen:
We have acted as counsel to Mossimo, Inc. (the "Company"). This opinion
is rendered in connection with the filing of a Registration Statement on Form
S-8 (the "Registration Statement") under the Securities Act of 1933, as amended,
relating to the offer of up to 500,000 shares of Common Stock of the Company, to
be issued pursuant to the Company's Employee Stock Purchase Plan (the "Plan").
In the preparation of this opinion, we have examined originals or copies
of such documents as we have deemed necessary or advisable in order to render
the opinion set forth below. In rendering the opinion set forth below, we have
assumed:
a. The genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as copies, and the authenticity of all such originals.
b. The due authorization, execution and delivery of the
Registration Statement and the documents and instruments referred to therein by
and on behalf of all parties thereto.
c. The issuance of Common Stock in accordance with the terms of the
Plan and agreements thereunder.
Page 9 of 23
<PAGE>
On the basis of the foregoing and subject to the qualifications and
limitations set forth below, it is our opinion that the Common Stock covered by
the Registration Statement to be issued by the Company, when issued and paid for
in accordance with the Plan, will be legally issued, fully paid and
nonassessable.
This opinion speaks only as of the date hereof and is based solely upon
the existing laws of the United States and the State of California, and the
General Corporation Law of the State of Delaware, and we express no opinion, and
none should be inferred, as to any other laws.
This opinion may not be relied upon by any other person or for any other
purpose, nor may it be quoted from or referred to, or copies delivered to any
other person, without our prior written consent. We hereby consent to the
inclusion of this opinion as an exhibit in the Registration Statement.
Respectfully submitted,
/s/Sheppard, Mullin, Richter & Hampton LLP
Page 10 of 23
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement of
Mossimo, Inc. on Form S-8 of our report, dated February 21, 1997, appearing in
the Annual Report on Form 10-K of Mossimo, Inc. for the year ended
December 31, 1996.
Costa Mesa, California /s/Deloitte & Touche LLP
May 23, 1997 ---------------------------------
Page 11 of 23
<PAGE>
EXHIBIT 99.1
MOSSIMO, INC.
EMPLOYEE STOCK PURCHASE PLAN
I. PURPOSE OF THE PLAN
This Employee Stock Purchase Plan is intended to promote the
interests of Mossimo, Inc. by providing eligible employees with the opportunity
to acquire a proprietary interest in the Corporation through participation in a
payroll-deduction based employee stock purchase plan designed to qualify under
Section 423 of the Code.
Capitalized terms herein shall have the meanings assigned to such
terms in the attached Appendix.
II. ADMINISTRATION OF THE PLAN
The Plan Administrator shall have full authority to interpret and
construe any provision of the Plan and to adopt such rules and regulations for
administering the Plan as it may deem necessary in order to comply with the
requirements of Code Section 423. Decisions of the Plan Administrator shall be
final and binding on all parties having an interest in the Plan.
III. STOCK SUBJECT TO PLAN
A. The stock purchasable under the Plan shall be shares of
authorized but unissued or reacquired Common Stock, including shares of Common
Stock purchased on the open market. The maximum number of shares of Common Stock
which may be issued over the term of the Plan shall not exceed 500,000 shares.
B. Should any change be made to the Common Stock by reason of any
stock split, stock dividend, recapitalization, combination of shares, exchange
of shares or other change affecting the outstanding Common Stock as a class
without the Corporation's receipt of consideration, appropriate adjustments
shall be made to (i) the maximum number and class of securities issuable under
the Plan, (ii) the maximum number and class of securities purchasable per
Participant on any one Purchase Date and (iii) the number and class of
securities and the price per share in effect under each outstanding purchase
right in order to prevent the dilution or enlargement of benefits thereunder.
-1-
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<PAGE>
IV. PURCHASE PERIODS
A. Shares of Common Stock shall be offered for purchase under the
Plan through a series of successive purchase periods until such time as (i) the
maximum number of shares of Common Stock available for issuance under the Plan
shall have been purchased or (ii) the Plan shall have been sooner terminated.
B. Each purchase period shall have a duration of six (6) months.
Purchase periods shall run from the first business day in July to the last
business day in December and from the first business day in January to the last
business day in June.
V. ELIGIBILITY
A. Each individual who (i) is an Eligible Employee on the start date
of any purchase period and (ii) has completed ninety (90) days of service with
the Corporation or any Corporate Affiliate prior to such start date shall be
eligible to participate in the Plan for that purchase period on such start date.
B. To participate in the Plan for a particular purchase period, the
Eligible Employee must complete the enrollment forms prescribed by the Plan
Administrator (including a stock purchase agreement and a payroll deduction
authorization form) and file such forms with the Plan Administrator (or its
designate) on or before the start date of the purchase period.
VI. PAYROLL DEDUCTIONS
A. The payroll deduction authorized by the Participant for purposes
of acquiring shares of Common Stock under the Plan may be any multiple of one
percent (1%) of the Base Salary paid to the Participant during each purchase
period, up to a maximum of twenty-five percent (25%). The deduction rate so
authorized shall continue in effect for the entire purchase period. However, the
Participant may, at any time during the purchase period, reduce his or her rate
of payroll deduction to become effective as soon as possible after filing the
appropriate form with the Plan Administrator. The Participant may not, however,
effect more than one (1) such reduction per purchase period.
B. Payroll deductions shall begin on the first pay day following the
start date of the purchase period and shall (unless sooner terminated by the
Participant) continue through the pay day ending with or immediately prior to
the last day of the purchase period. The amounts so collected shall be credited
to the Participant's book account under the Plan, but no interests shall be paid
on the balance from time to time outstanding in such account. The amounts
collected from the Participant shall not be held in any segregated account or
trust fund and may be commingled with the general assets of the Corporation as
used for general corporate purposes.
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<PAGE>
C. Payroll deductions shall automatically cease upon the
termination of the Participant's purchase right in accordance with the
provisions of the Plan.
VII. PURCHASE RIGHTS
A. GRANT OF PURCHASE RIGHT. A Participant shall be granted a
separate purchase right on the start date of each purchase period in which he or
she participates. The purchase right shall provide the Participant with the
right to purchase shares of Common Stock on the Purchase Date upon the terms set
forth below. The Participant shall execute a stock purchase agreement embodying
such terms and such other provisions (not inconsistent with the Plan) as the
Plan Administrator may deem advisable.
Under no circumstances shall purchase rights be granted under the
Plan to any Eligible Employee if such individual would, immediately after the
grant, own (within the meaning of Code Section 424(d) or hold outstanding
options or other rights to purchase, stock possessing five percent (5%) or more
of the total combined voting power or value of all classes of stock of the
Corporation or any Corporate Affiliate.
B. EXERCISE OF THE PURCHASE RIGHT. Each purchase right shall be
automatically exercised on the Purchase Date, and shares of Common Stock shall
accordingly be purchased on behalf of each Participant (other than any
Participant whose payroll deductions have previously been refunded in accordance
with the Termination of Purchase Right provisions below) on such date. The
purchase shall be effected by applying the Participant's payroll deductions for
the purchase period ending on such Purchase Date (together with any carryover
deductions from the preceding purchase period) to the purchase of shares of
Common Stock (subject to the limitation on the maximum number of shares
purchasable per Participant on any one Purchase Date) at the purchase price in
effect for that purchase period.
C. PURCHASE PRICE. The purchase price per share at which Common
Stock will be purchased on the Participant's behalf on each Purchase Date shall
be equal to eighty-five percent (85%) of the LOWER of (i) the Fair Market Value
per share of Common Stock on the start date of the purchase period or (ii) the
Fair Market Value per share of Common Stock on that Purchase Date.
D. NUMBER OF PURCHASABLE SHARES. The number of shares of Common
Stock purchasable by a Participant on each Purchase Date shall be the number of
shares obtained by dividing the amount collected from the Participant through
payroll deductions during the purchase period ending with that Purchase Date
(together with any carryover deductions from the preceding purchase period) by
the purchase price in effect for that Purchase Date. However, the maximum number
of shares of Common Stock purchasable per Participant on any one Purchase Date
shall not exceed 3,000 shares, subject to periodic adjustments in the event of
certain changes in the Corporation's capitalization.
E. EXCESS PAYROLL DEDUCTIONS. Any payroll deductions not applied
to the purchase of Common Stock by reason of the limitation on the maximum
number of shares purchasable by the Participant on the Purchase Date shall be
promptly refunded.
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<PAGE>
F. TERMINATION OF PURCHASE RIGHT. The following provisions shall
govern thetermination of outstanding purchase rights:
(i) A Participant may, at any time prior to the last day of
the purchase period, terminate his or her outstanding purchase right by
filing the appropriate form with the Plan Administrator (or its
designate), and no further payroll deductions shall be collected from the
Participant with respect to the terminated purchase right. Any payroll
deductions collected during the purchase period in which such termination
occurs shall, at the Participant's election, be immediately refunded or
held for the purchase of shares on the next Purchase Date. If no such
election is made at the time such purchase right is terminated, then the
payroll deductions collected with respect to the terminated right shall be
refunded as soon as possible.
(ii) The termination of such purchase right shall be
irrevocable, and the Participant may not subsequently rejoin the purchase
period for which the terminated purchase right was granted. In order to
resume participation in any subsequent purchase period, such individual
must re-enroll in the Plan (by making a timely filing of the prescribed
enrollment forms) on or before the start date of the new purchase period.
(iii) Should the Participant cease to remain an Eligible
Employee for any reason (including death, disability or change in status)
while his or her purchase right remains outstanding, then that purchase
right shall immediately terminate, and all of the Participant's payroll
deductions for the purchase period in which the purchase right so
terminates shall be immediately refunded. However, should the Participant
cease to remain in active service by reason of an approved unpaid leave of
absence, then the Participant shall have the election, exercisable up
until the last business day of the purchase period in which such leave
commences, to (a) withdraw all the funds in the Participant's payroll
account at the time of the commencement of such leave or (b) have such
funds held for the purchase of shares at the end of such purchase period.
In no event, however, shall any further payment deductions be added to the
Participant's account during such leave. Upon the Participant's return to
active service, his or her payroll deductions under the Plan shall
automatically resume at the rate in effect at the time the leave began,
provided the Participant returns to service prior to the expiration date
of the purchase period in which such leave began.
G. CORPORATE TRANSACTION. Each outstanding purchase right shall
automatically be exercised immediately prior to the effective date of any
Corporate Transaction by applying the payroll deductions of each Participant for
the purchase period in which such Corporate Transaction occurs to the purchase
of shares of Common Stock at a purchase price per share equal to eighty-five
percent (85%) of the LOWER of (i) the Fair Market Value per share of Common
Stock on the start date of the purchase period in which such Corporate
Transaction occurs or (ii) the Fair Market Value per share of Common Stock
immediately prior to the effective date of such Corporate Transaction. However,
the applicable share limitation on the number of shares of Common Stock
purchasable per Participant shall continue to apply to any such purchase.
The Corporation shall use its best efforts to provide at least ten
(10) days prior written notice of the occurrence of any Corporate Transaction,
-4-
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<PAGE>
and Participants shall, following the receipt of such notice, have the right to
terminate their outstanding purchase rights prior to the effective date of the
Corporate Transaction.
H. PRORATION OF PURCHASE RIGHTS. Should the total number of shares
of Common Stock which are to be purchased pursuant to outstanding purchase
rights on any particular date exceed the number of shares then available for
issuance under the Plan, the Plan Administrator shall make a pro-rata allocation
of the available shares on a uniform and nondiscriminatory basis, and the
payroll deductions of each Participant, to the extent in excess of the aggregate
purchase price payable for the Common Stock pro-rated to such individual, shall
be refunded.
I. ASSIGNABILITY. During the Participant's lifetime, the
purchase right shall be exercisable only by the Participant and shall not be
assignable or transferable by the Participant (other than by will or the laws of
descent).
J. STOCKHOLDER RIGHTS. A Participant shall have no stockholder
rights with respect to the shares subject to his or her outstanding purchase
right until the shares are purchased on the Participant's behalf in accordance
with the provisions of the Plan and the Participant has become a holder
of record of the purchased shares.
VIII. ACCRUAL LIMITATIONS
A. No participant shall be entitled to accrue rights to acquire
Common Stock pursuant to any purchase right outstanding under this Plan if and
to the extent such accrual, when aggregated with (i) rights to purchase Common
Stock accrued under any other purchase right granted under this Plan and (ii)
similar rights accrued under other employee stock purchase plans (within the
meaning of Code Section 423) of the Corporation or any Corporate Affiliate,
would otherwise permit such Participant to purchase more than Twenty-Five
Thousand Dollars ($25,000) worth of stock of the Corporation or any Corporate
Affiliate (determined on the basis of the Fair Market Value of such stock on the
date or dates such rights are granted) for each calendar year such rights are at
any time outstanding.
B. For purposes of applying such accrual limitations, the
following provisions shall be in effect:
(i) The right to acquire Common Stock under each outstanding
purchase right shall accrue on the Purchase Date in effect for the
purchase period for which such right is granted.
(ii) No right to acquire Common Stock under any outstanding
purchase right shall accrue to the extent the Participant has already
accrued in the same calendar year the right to acquire Common Stock under
one (1) or more other purchase rights at a rate equal to Twenty-Five
Thousand Dollars ($25,000) worth of Common Stock (determined on the basis
of the Fair Market Value of such stock on the date or dates of grant) for
each calendar year such rights were at any time outstanding.
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C. If by reason of such accrual limitations, any purchase right of a
Participant does not accrue for a particular purchase period, then the payroll
deductions which the Participant made during that purchase period with respect
to such purchase right shall be promptly refunded.
D. In the event there is any conflict between the provisions of this
Article and one or more provisions of the Plan or any instrument issued
thereunder, the provisions of this Article shall be controlling.
IX. EFFECTIVE DATE AND TERM OF THE PLAN
A. The Plan was adopted by the Board on February 21, 1997 and shall
become effective on the Effective Date, PROVIDED no purchase rights granted
under the Plan shall be exercised, and no shares of Common Stock shall be issued
hereunder, until (i) the Plan shall have been approved by the stockholders of
the Corporation and (ii) the Corporation shall have complied with all applicable
requirements of the 1933 Act (including the registration of the shares of Common
Stock issuable under the Plan on a Form S-8 registration statement filed with
the Securities and Exchange Commission), all applicable listing requirements of
any stock exchange on which the Common Stock is listed for trading and all other
applicable requirements established by law or regulation. In the event such
stockholder approval is not obtained, or such compliance is not effected, within
twelve (12) months after the date on which the Plan is adopted by the Board, the
Plan shall terminate and have no further force or effect and all sums collected
from Participants during the initial purchase period hereunder shall be
refunded.
B. Unless sooner terminated by the Board, the Plan shall terminate
upon the EARLIEST of (i) February 21, 2007, (ii) the date on which all shares
available for issuance under the Plan have been sold pursuant to purchase rights
exercised under the Plan or (iii) the date on which all purchase rights are
exercised in connection with a Corporate Transaction. No further purchase rights
shall be granted or exercised, and no further payroll deductions shall be
collected, under the Plan following its termination.
X. AMENDMENT OF THE PLAN
The Board may alter, amend, suspend or discontinue the Plan at any
time to become effective immediately following the close of any purchase period.
However, the Board may not, without the approval of the Corporation's
stockholders, (i) materially increase the number of shares of Common Stock
issuable under the Plan or the maximum number of shares purchasable per
Participant on any one Purchase Date, except for permissible adjustments in the
event of certain changes in the Corporation's capitalization, (ii) alter the
purchase price formula so as to reduce the purchase price payable for the shares
of Common Stock purchasable under the Plan, or (iii) materially increase the
benefits accruing to Participants under the Plan or materially modify the
requirements for eligibility to participate in the Plan.
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<PAGE>
XI. GENERAL PROVISIONS
A. All costs and expenses incurred in the administration of the
Plan shall be paid by the Corporation.
B. Nothing in the Plan shall confer upon the Participant any right
to continue in the employ of the Corporation or any Corporate Affiliate for any
period of specific duration or interfere with or otherwise restrict in any way
the rights of the Corporation (or any Corporate Affiliate employing such person)
or of the Participant, which rights are hereby expressly reserved by each, to
terminate such person's employment at any time for any reason, with or without
cause.
C. The provisions of the Plan shall be governed by the laws of
the State of Delaware, without resort to that State's conflict-of-laws rules.
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<PAGE>
APPENDIX
The following definitions shall be in effect under the Plan:
A. BASE SALARY shall mean the regular base salary paid to a
Participant by one or more Participating Companies during such individual's
period of participation in the Plan, plus any pre-tax contributions made by the
Participant to any Code Section 401(k) salary deferral plan or any Code Section
125 cafeteria benefit program now or hereafter established by the Corporation or
any Corporate Affiliate. The following items of compensation shall not be
included in Base Salary: (i) all overtime payments, bonuses, commissions (other
than those functioning as base salary equivalents), profit-sharing distributions
and other incentive-type payments and (ii) any and all contributions (other than
Code Section 401(k) or Code Section 125 contributions) made on the Participant's
behalf by the Corporation or any Corporate Affiliate under any employee benefit
or welfare plan now or hereafter established.
B. BOARD shall mean the Corporation's Board of Directors.
C. CODE shall mean the Internal Revenue Code of 1986, as amended.
D. COMMON STOCK shall mean the Corporation's common stock.
E. CORPORATE AFFILIATE shall mean any parent or subsidiary
corporation of the Corporation (as determined in accordance with Code Section
424, whether now existing or subsequently established).
F. CORPORATE TRANSACTION shall mean either of the following
stockholder-approved transactions to which the Corporation is a party:
(i) a merger or consolidation in which securities possessing
more than fifty percent (50%) of the total combined voting power of the
Corporation's outstanding securities are transferred to a person or
persons different from the persons holding those securities immediately
prior to such transaction, or
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Corporation in complete liquidation
or dissolution of the Corporation.
G. CORPORATION shall mean Mossimo, Inc., a Delaware corporation,
and any corporate successor to all or substantially all of the assets or voting
stock of Mossimo, Inc. which shall, by appropriate action, adopt the Plan.
H. EFFECTIVE DATE shall mean February 21, 1997. Any Corporate
Affiliate which becomes a Participating Corporation after such Effective Date
shall designate a subsequent Effective Date with respect to its
employee-Participants.
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<PAGE>
I. ELIGIBLE EMPLOYEE shall mean any person who is engaged, on a
regularly-scheduled basis of more than twenty (20) hours per week for more than
five (5) months per calendar year, in the rendition of personal services to any
Participating Corporation as an employee for earnings considered wages under
Code Section 3401(a).
J. FAIR MARKET VALUE per share of Common Stock on any relevant
date shall be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the Nasdaq
National Market, then the Fair Market Value shall be the closing selling
price per share of Common Stock on the date in question, as such price is
reported by the National Association of Securities Dealers on the Nasdaq
National Market or any successor system. If there is no closing selling
price for the Common Stock on the date in question, then the Fair Market
Value shall be the closing selling price on the last preceding date for
which such quotation exists.
(ii) If the Common Stock is at the time listed on any Stock
Exchange, then the Fair Market Value shall be the closing selling price
per share of Common Stock on the date in question on the Stock Exchange
determined by the Plan Administrator to be the primary market for the
Common Stock, as such price is officially quoted in the composite tape of
transactions on such exchange. If there is no closing selling price for
the Common Stock on the date in question, then the Fair Market Value shall
be the closing selling price on the last preceding date for which such
quotation exists.
K. 1933 ACT shall mean the Securities Act of 1933, as amended.
L. PARTICIPANT shall mean any Eligible Employee of a
Participating Corporation who is actively participating in the Plan.
M. PARTICIPATING CORPORATION shall mean the Corporation and such
Corporate Affiliate or Affiliates as may be authorized from time to time by the
Board to extend the benefits of the Plan to their Eligible Employees.
N. PLAN shall mean the Corporation's Employee Stock Purchase
Plan, as set forth in this document.
O. PLAN ADMINISTRATOR shall mean the committee of two (2) or more
Board members appointed by the Board to administer the Plan. Unless otherwise
designated by the Board, the Plan Administrator shall be the Compensation
Committee of the Board as constituted by the Board from time to time.
P. PURCHASE DATE shall mean the last business day of each
purchase period.
Q. STOCK EXCHANGE shall mean the New York Stock Exchange.
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<PAGE>
SCHEDULE A
----------
CORPORATIONS PARTICIPATING IN
EMPLOYEE STOCK PURCHASE PLAN
AS OF THE EFFECTIVE DATE
Mossimo, Inc.
Giannico, Inc.
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<PAGE>
EXHIBIT 99.2
Form of Employee Stock Purchase Plan
Stock Purchase Agreement
MOSSIMO, INC.
STOCK PURCHASE AGREEMENT
------------------------
I hereby elect to participate in the Employee Stock Purchase Plan (the
"ESPP") for the purchase period specified below, and I hereby subscribe to
purchase shares of Common Stock of Mossimo, Inc. (the "Corporation") in
accordance with the provisions of this Agreement and the ESPP. I hereby
authorize payroll deductions from each of my paychecks during the purchase
period in the 1% multiple of my earnings (not to exceed a maximum of 25%)
specified in my attached Enrollment Form.
I understand that my payroll deductions will be accumulated for the
purchase of shares of the Corporation's Common Stock on the last business day of
the purchase period. The purchase price per share will be 85% of the lower of
(i) the fair market value per share of Common Stock on the start date of the
purchase period or (ii) the fair market value per share on the purchase date.
I understand that I can withdraw from the ESPP at any time prior to the
last business day of this period and elect either to have the Corporation refund
all my payroll deductions for that period or to have such payroll deductions
applied to the purchase of Common Stock at the end of such period. However, I
may not rejoin that particular purchase period at any later date. Upon the
termination of my employment for any reason or my loss of eligible employee
status, my participation in the ESPP will immediately cease and all my payroll
deductions for the purchase period in which my employment terminated or my loss
of eligibility occurs will automatically be refunded. Should I die while an ESPP
participant, my payroll deductions will automatically cease and my estate will
receive a refund of my payroll deductions for the purchase period in which I
die. I further understand that I may reduce the rate of my payroll deductions on
one occasion per purchase period but that I may not increase the rate of my
payroll deductions once the purchase period has begun.
I understand that a stock certificate for the shares purchased on my
behalf at the end of each purchase period will be issued in the name or names I
have selected on the Enrollment Form accompanying this Agreement or will be
deposited directly in my designated brokerage account.
I understand that the Corporation has the right, exercisable in its sole
discretion, to amend or terminate the ESPP at any time, with such amendment or
termination to become effective immediately following the exercise of
outstanding purchase rights at the end of any current purchase period. Should
the Corporation elect to terminate the ESPP, I will have no further rights to
purchase shares of Common Stock pursuant to this Agreement.
I understand that the ESPP sets forth restrictions (i) limiting the
maximum number of shares which I may purchase during any purchase period and
(ii) prohibiting me from purchasing more than $25,000 worth of Common Stock for
each calendar year my purchase right remains outstanding.
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<PAGE>
I acknowledge that I have received a copy of the official Plan
Prospectus summarizing the major features of the ESPP and a copy of the ESPP
itself. I have read this Agreement, the Prospectus and the ESPP and hereby
agree to be bound by the terms of both this Agreement and the ESPP. The
effectiveness of this Agreement is dependent upon my eligibility to
participate in the ESPP.
Date:_____________, 199___ _________________________________
Signature of Employee
Printed Name:____________________
Start Date of my Purchase Period: ______________, 199__
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