STOCK OPTION TERMINATION AGREEMENT
THIS STOCK OPTION TERMINATION AGREEMENT (the "Agreement") is
effective as of this 28th day of March, 2000, by and among Mossimo, Inc., a
Delaware corporation (the "Company"), Xxxxxxx Xxxxxxxxx ("Giannulli") and Xxxxx
X. Xxxxx ("Xxxxx"). The Company, Giannulli and Xxxxx are referred to herein
individually, as a "Party" and collectively, as the "Parties".
WHEREAS, the Board of Directors of the Company (the "Board of
Directors") adopted the Mossimo, Inc. Stock Option Plan for Xxxxx Xxxxx (the
"Xxxxx Option Plan") (a copy of which is attached as Exhibit A hereto); and
WHEREAS, the Board of Directors granted to Xxxxx certain
options (the "Xxxxx Options") to purchase shares of the Company's common stock
("Common Stock") under the Xxxxx Option Plan and pursuant to the Incentive Stock
Option Agreement, the Nonqualified Stock Option Agreement, the Performance
Incentive Stock Option Agreement and the Nonqualified Performance Stock Option
Agreement, each by and between the Company and Xxxxx and dated as of November
30, 1998 (collectively, the "Xxxxx Option Agreements") (copies of which are
attached hereto as Exhibit B hereto); and
WHEREAS, Xxxxx' employment with the Company terminated
effective as of March 28, 2000; and
WHEREAS, concurrently with the execution of this Agreement,
the parties are entering into that certain Separation and Release Agreement
dated as of March 28, 2000; and
WHEREAS, the Board of Directors has resolved to terminate the
Xxxxx Option Plan, subject to the consent and agreement of Xxxxx; and
WHEREAS, the Board of Directors has further resolved to
terminate and cancel the Xxxxx Options, subject to the consent and agreement of
Xxxxx; and
WHEREAS, the Parties desire to terminate and cancel the Xxxxx
Option Plan and the Xxxxx Options under the terms and conditions set forth in
this Agreement.
NOW THEREFORE, in consideration of the foregoing recitals and
the mutual representations, warranties, covenants and agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties hereto, intending to be legally
bound, do hereby agree as follows:
1. TERMINATION OF THE XXXXX OPTION PLAN. Xxxxx hereby
consents and agrees to the termination of the Xxxxx Option Plan, and Xxxxx
hereby waives any and all rights, title and interest in or under the Xxxxx
Option Plan. The Xxxxx Option Plan, and any and all rights or obligations of the
Parties thereunder, are hereby terminated and the Xxxxx Option Plan shall be
null and void and of no further force or effect.
2. TERMINATION AND CANCELLATION OF THE XXXXX OPTIONS.
Xxxxx and the Company hereby mutually consent and agree to terminate and cancel
the Xxxxx Options, and Xxxxx hereby waives any and all rights, title and
interest in or to the Xxxxx Options or any Common Stock purportedly purchasable
upon exercise of the Xxxxx Options. The Xxxxx Options, and any and all rights or
obligations of the Parties thereunder, are hereby terminated and cancelled and
the Xxxxx Options and the Xxxxx Option Agreements shall be null and void and of
no further force of effect.
3. ADVICE OF COUNSEL. Each Party represents and warrants
that such Party has read this Agreement, has had adequate time to consider this
Agreement, and has consulted with an attorney prior to executing this Agreement.
Each Party acknowledges that such Party understands the meaning and effect of
this Agreement and has executed this Agreement knowingly, voluntarily and with
the intent of being bound by this Agreement.
4. SEVERABILITY. If any provision of this Agreement shall be
found invalid or unenforceable in whole or in part, then such provisions shall
be deemed to be modified or restricted to the extent and in the manner necessary
to render the same valid and enforceable or shall be deemed excised from this
Agreement as such circumstances may require, and this Agreement shall be
construed and enforced to the maximum extent permitted by law as if such
provision had been originally incorporated herein as so modified or restricted
or as if such provision had not been originally incorporated herein, as the case
may be.
5. AMENDMENT AND MODIFICATION. This Agreement may be
amended, modified, and supplemented only by a written document executed by the
Parties which specifically states that it is an amendment, modification or
supplement to this Agreement.
6. ARBITRATION AND WAIVER OF JURY TRIAL. Except for
claims for emergency equitable or injunctive relief which cannot be timely
addressed through arbitration, the Parties hereby agree to submit any claim or
dispute arising out of the terms of this Agreement, to private and confidential
arbitration by a single neutral arbitrator through JAMS/Endispute. Subject to
the terms of this Section 6, the arbitration proceedings shall be governed by
the then current JAMS/Endispute rules governing employment. The decision of the
arbitrator shall be final and binding on all Parties, and judgment thereon may
be entered in any court having jurisdiction. The Parties shall share equally the
arbitrator's fee and all costs of services provided by the arbitrator and
arbitration organization; however, all costs of the arbitration proceeding or
litigation to enforce this Agreement, including attorneys' fees and witness
expenses, shall be paid as the arbitrator or court awards in accordance with
applicable law. Except for claims for emergency equitable or injunctive relief
which cannot be timely addressed through arbitration, this arbitration procedure
is intended to be the exclusive method of resolving any claim relating to the
obligations set forth in this Agreement. The Parties, by entering into this
Agreement, waive their right, if any, to a jury trial with respect to any claim
subject to this Section 6.
7. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the Parties and
their respective successors and assigns.
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Notwithstanding the foregoing, neither this Agreement nor any rights hereunder
may be assigned by any Party without the prior written consent of the other
Parties.
8. ENTIRE AGREEMENT. Each Party represents and warrants
that no promise or inducement has been offered or made except as set forth
herein and the consideration stated herein is the sole consideration for this
Agreement and that this is the entire agreement of the Parties as to the subject
hereof, superseding all previous agreements between or among the Parties or any
of them; provided, however, that this Agreement shall not supersede: (i) the
Separation Agreement and Release among the Parties dated as of March 28, 2000 or
(ii) the Indemnification Agreement between the Company and Xxxxx dated as of
March 28, 2000.
9. GOVERNING LAW. The Parties agree that this Agreement
shall be construed and enforced in accordance with the laws of the State of
California.
10. CONSTRUCTION. This Agreement shall be construed
without regard to the Party or Parties responsible for its preparation, and it
shall be deemed to have been prepared jointly by the Parties. Any ambiguity or
uncertainty arising herein shall not be interpreted or construed against any
Party hereto.
11. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which together shall constitute one and the same document.
12. EFFECTIVENESS. This Agreement shall only become
effective upon the execution and delivery by each of the parties hereto of
that certain Separation and Release Agreement dated as of March 28, 2000.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
as of the date first written above.
XXXXX X. XXXXX
/s/ XXXXX X. XXXXX
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Date: April 14, 2000
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XXXXXXX XXXXXXXXX
/s/ XXXXXXX XXXXXXXXX
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Date: April 14, 2000
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MOSSIMO, INC.
/s/ XXXXX XXXXXXXXXX
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By: XXXXX XXXXXXXXXX
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Title: Sr. Vice President of Operations
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Date: April 14, 2000
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EXHIBIT A
The Mossimo, Inc. Stock Option Plan for Xxxxx Xxxxx was previously filed
as Exhibit 10.1 to Mossimo, Inc.'s Current Report on Form 8-K filed with the
Securities and Exchange Commission on December 8, 1998.
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EXHIBIT B
The Nonqualified Stock Option Agreement, the Incentive Stock Option
Agreement, the Nonqualified Performance Stock Option Agreement and the
Performance Incentive Stock Option Agreement were previously filed as
Exhibits 10.2, 10.3, 10.4 and 10.5, to Mossimo, Inc.'s Current Report on Form
8-K filed with the Securities and Exchange Commission on December 8, 1998.
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