CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT (this "Agreement"), dated as of
November 30, 1998, is made by and between Xxxxxxx Xxxxxxxxx ("Giannulli") and
Mossimo, Inc., a Delaware corporation (the "Company").
WHEREAS, the Company and Xxxxx X. Xxxxx ("Xxxxx") have
entered into the Incentive Stock Option Agreement, the Nonqualified Stock
Option Agreement, the Performance Incentive Stock Option Agreement and the
Nonqualified Performance Stock Option Agreement, each dated as of even date
herewith (the "Option Agreements"), pursuant to which the Company has granted
to Xxxxx options (the "Options") to purchase up to an aggregate of 6,186,111
shares of Common Stock subject to the terms and conditions set forth in the
Option Agreements;
WHEREAS, Giannulli and the Company desire that Giannulli
contribute to the Company, upon each exercise by Xxxxx of an Option, a number
of shares of Common Stock equal to the number of shares of Common Stock
issuable upon such exercise;
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements contained herein and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and intending to be legally bound hereby, the parties hereto hereby agree as
follows:
1. CONTRIBUTION. Upon each exercise of an Option in
accordance with the terms of the applicable Option Agreement (an "Exercise"),
Giannulli shall contribute to the Company (through a release of shares from
the escrow account established pursuant to Section 2) a number of shares of
Common Stock equal to the number of shares of Common Stock issuable by the
Company to Xxxxx upon such Exercise.
2. ESCROW. Concurrently with the execution of this
Agreement, Giannulli and the Company shall enter into an escrow agreement in
the form of Exhibit A hereto with ___________________ (the "Custodian") and
Giannulli shall deliver to the Custodian 6,186,111 shares of Common Stock.
3. MISCELLANEOUS.
(a) COUNTERPARTS. This Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same
instrument, and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other party. Copies
of executed counterparts transmitted by telecopy, telefax or other electronic
transmission service shall be considered original executed counterparts for
purposes of this Section, provided receipt of copies of such counterparts is
confirmed.
(b) GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of California without
reference to the choice of law principles thereof.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors. No party shall be permitted to assign any of its
rights hereunder to any third party.
(d) AMENDMENTS AND WAIVERS. This Agreement may not be
modified or amended except by an instrument or instruments in writing signed
by the party against whom enforcement of any such modification or amendment
is sought. Either party hereto may, only by an instrument in writing, waive
compliance by another party hereto with any term or provision hereof on the
part of such other party hereto to be performed or complied with. The waiver
by either party hereto of a breach of any term or provision hereof shall not
be construed as a waiver of any subsequent breach.
(e) SEVERABILITY. Any provision hereof which is invalid
or unenforceable shall be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions
hereof.
(f) FURTHER ASSURANCES. The parties agree that, from
time to time, each of them will execute and deliver such further instruments
and take such other action as may be necessary to carry out the purposes and
interests hereof.
(g) SPECIFIC PERFORMANCE. The parties acknowledge that,
in view of the uniqueness of arrangements contemplated by this Agreement,
they would not have an adequate remedy at law for money damages in the event
that this Agreement were not performed in accordance with its terms, and
therefore agree that each of them shall be entitled to specific enforcement
of the terms hereof in addition to any other remedy to which the parties
hereto may be entitled at law or in equity.
(h) THIRD PARTY BENEFICIARIES. Xxxxx shall be a third
party beneficiary to this Agreement and shall be entitled to enforce the
terms of this Agreement against the parties hereto.
2
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
MOSSIMO, INC., a Delaware corporation
/s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
By: CHAIRMAN
/s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
XXXXXXX XXXXXXXXX
3
