0001104659-05-051274.txt : 20051031 0001104659-05-051274.hdr.sgml : 20051031 20051031170509 ACCESSION NUMBER: 0001104659-05-051274 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20051031 DATE AS OF CHANGE: 20051031 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MOSSIMO INC CENTRAL INDEX KEY: 0001005181 STANDARD INDUSTRIAL CLASSIFICATION: MEN'S & BOYS' FURNISHINGS, WORK CLOTHING, AND ALLIED GARMENTS [2320] IRS NUMBER: 330684524 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-49745 FILM NUMBER: 051167041 BUSINESS ADDRESS: STREET 1: 2450 WHITE ROAD STREET 2: 2ND FLOOR CITY: IRVINE STATE: CA ZIP: 92614- BUSINESS PHONE: 9497970200 MAIL ADDRESS: STREET 1: 15320 BARRANCA PARKWAY CITY: IRVINE STATE: CA ZIP: 92718 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MOSSIMO GIANNULLI CENTRAL INDEX KEY: 0001033335 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: C/O MOSSIMO INC STREET 2: 15320 BARRANCA CITY: IRVINE STATE: CA ZIP: 92718 BUSINESS PHONE: 7144531300 MAIL ADDRESS: STREET 1: 15230 BARRANCA CITY: IRVINE STATE: CA ZIP: 92718 SC 13D/A 1 a05-19283_1sc13da.htm AMENDMENT

	UNITED STATES
	SECURITIES AND EXCHANGE COMMISSION
	Washington, D.C. 20549
	SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. 6)*

MOSSIMO, INC.

(Name of Issuer)

COMMON STOCK

(Title of Class of Securities)

619696 10 7

(CUSIP Number)

MOSSIMO GIANNULLI

C/O MOSSIMO, INC.

2016 BROADWAY

SANTA MONICA, CALIFORNIA 90404

TEL. NO.: (310) 460-0040

WITH A COPY TO:

PAUL TOSETTI, ESQ.

LATHAM & WATKINS LLP

633 WEST FIFTH STREET

SUITE 4000

LOS ANGELES, CALIFORNIA 90071-2007

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

October 31, 2005

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

^* The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No. 619696 10 7

	1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) Mossimo Giannulli

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			o
		(b)			o

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) BK, SC, PF

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6.	Citizenship or Place of Organization U.S.A.

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 10,272,822

			8.	Shared Voting Power -0-

			9.	Sole Dispositive Power 10,272,822

			10.	Shared Dispositive Power -0-

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 10,272,822

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 65.23%(1)

	14.	Type of Reporting Person (See Instructions) IN

________________________________________

(1) THIS PERCENTAGE IS CALCULATED USING THE TOTAL NUMBER OF SHARES OF THIS CLASS OF SECURITIES OUTSTANDING AS OF OCTOBER 31, 2005 (15,748,442). THIS PERCENTAGE DOES NOT TAKE INTO ACCOUNT SHARES OF THE COMPANY’S COMMON STOCK THAT MAY BECOME ISSUABLE PURSUANT TO THE STOCK OPTION AGREEMENT DESCRIBED MORE FULLY IN ITEM 4 BELOW.

Item 1.	Security and Issuer
This statement relates to the Common Stock (the “Common Stock”) of Mossimo, Inc., a Delaware corporation (the “Company”) having its principal executive offices at 2016 Broadway, Santa Monica, CA 90404.

Item 2.	Identity and Background
	(a) This Schedule 13D Amendment No. 6 is filed on behalf of Mossimo Giannulli (“Giannulli”).
	(b) The business address of Giannulli is c/o Mossimo, Inc., 2016 Broadway, Santa Monica, CA 90404.
	(c) The present principal occupation of Giannulli is Chairman and Co-Chief Executive Officer of the Company.
	(d) During the last five years, Giannulli has not been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
	(e) During the last five years, Giannulli has not been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which Giannulli was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws, or finding any violation with respect to such laws.
	(f) Giannulli is a citizen of the United States of America.

Item 3.	Source and Amount of Funds or Other Consideration
As previously reported, in connection with the Offer (as defined in Item 4) and the Merger (as defined in Item 4) described in Item 4, Giannulli estimates that the total amount of funds required to purchase all of the Common Stock not currently owned by Giannulli in the Offer and the Merger, settle outstanding options with an exercise price less than the Offer Price (as defined in Item 4) and pay estimated fees and expenses will be approximately $32 million.
On May 18, 2005, Giannulli received a commitment letter (the “May 18 Financing Letter”) from CIT Group/Commercial Services, Inc. to provide funding for the Offer and the Merger (the “Financing”). A summary of the May 18 Financing Letter was included in Item 3 of, and a copy of the May 18 Financing Letter was filed as Exhibit 7.03 with, the Schedule 13D Amendment No. 3 filed with the SEC on May 23, 2005. On September 21, 2005, Giannulli entered into a new commitment letter (the “September 21 Financing Letter “) with substantially similar terms as the May 18 Financing Letter. The September 21 Financing Letter provides for the terms of the Offer and Merger as set forth in the Merger Agreement (as defined in Item 4). A summary of the September 21 Financing Letter was included in Item 3 of, and a copy of the September 21 Financing Letter was filed as Exhibit 7.01 with, the Schedule 13D Amendment No. 5 filed with the SEC on September 22, 2005 and is incorporated herein by reference.
Giannulli expects that the Financing, together with other funds available to Giannulli and available funds of the Company, will be sufficient to consummate the Offer and the Merger. To the extent any amounts are due or may be paid by Giannulli or the Purchaser (as defined in Item 4) or the surviving corporation in connection with the Financing following the consummation of the Offer and the Merger (for example, funds necessary to consummate the Offer and the Merger and certain transaction fees and expenses), such funds may be paid from generally available working capital of the surviving corporation.
Giannulli or the Purchaser intends to repay any amounts borrowed pursuant to the Financing through the generally available corporate funds of the surviving corporation after the consummation of the Merger.

Item 4.	Purpose of Transaction
As previously reported, on April 11, 2005, Giannulli submitted a non-binding proposal (the “Proposal”) for a going-private transaction to the Company's Board of Directors (the “Board of Directors”). A copy of the Proposal Letter was filed as Exhibit 7.01 to the Schedule 13D Amendment No. 2 filed with the SEC on April 12, 2005 and is incorporated herein by reference. The Board of Directors formed a special committee of independent directors (the “Special Committee”) to consider the terms and conditions of the Proposal and to recommend to the Board of Directors whether to approve the Proposal.
On August 16, 2005, Giannulli announced his decision to withdraw the Proposal and indicated that while he remained interested in acquiring the publicly held minority interest in the Company, he did not intend to make a new bid at the Company’s then current stock trading levels.
On September 21, 2005 Giannulli submitted a revised non-binding proposal (the “New Proposal”) for a going-private transaction to the Special Committee. A copy of the New Proposal Letter was filed as Exhibit 7.02 to the Schedule 13D Amendment No. 5 filed with the SEC on September 22, 2005 and is incorporated herein by reference. On September 21, 2005 the Special Committee considered the terms of the New Proposal and recommended to the Board of Directors that they approve the New Proposal. On September 21, 2005 the Board of Directors resolved to approve the New Proposal.
On September 21, 2005, Giannulli, Mossimo Holding Corp. (“Parent”) (a newly-formed corporation wholly-owned by Giannulli), Mossimo Acquisition Corp. (the “Purchaser”) (a newly-formed, wholly-owned subsidiary of Parent) and the Company entered into an Agreement and Plan of Merger (the “Merger Agreement”) that, as an initial step, contemplates a tender offer by the Purchaser (the “Offer”) to purchase all of the outstanding shares of the Common Stock not owned by Giannulli (the “Shares”) at a purchase price of $5.00 per share. The Offer will be subject to, among other things, a non-waivable condition (the “Minimum Condition”) that, pursuant to the Offer, there shall have been validly tendered and not withdrawn before the Offer expires the number of Shares, other than Shares tendered by any officer or director of the Company, which constitutes at least a majority of the outstanding Shares not beneficially owned by Giannulli, Parent or the Purchaser.
Following the completion of the Offer, assuming all conditions to the Offer and the Merger, including the receipt of the Financing described in Item 3, are satisfied or, if applicable, waived, the Purchaser would be merged (the “Merger”) with and into the Company in accordance with the terms of the Merger Agreement and Delaware law, and the Company would then exist as a wholly-owned subsidiary of Parent.
On October 31, 2005, the Special Committee and Giannulli agreed to amend the Merger Agreement to extend the deadline for commencing the Offer from October 31, 2005 to November 14, 2005, and to extend the deadline for completion of the Offer from January 31, 2006 to February 14, 2006.
The amendment to the Merger Agreement (the “Amendment”) was made to give Giannulli additional time to commence the Offer. Commencement of the tender offer was deferred by Giannulli to allow Giannulli and the Special Committee to consider an unsolicited proposal received from a third party indicating an interest in pursuing a business combination with the Company which may have resulted in the Company’s stockholders, including Giannulli, receiving consideration representing a premium to the cash consideration contemplated by the existing Merger Agreement. However, after reviewing the third party proposal, Giannulli concluded that it was unlikely to lead to a transaction that he would be willing to accept and that he believed the Special Committee would be willing to endorse, due in part to uncertainties regarding the economic and other terms of the proposal and the availability of required third-party consents. A copy of the Amendment is attached hereto as Exhibit 7.01 and is incorporated herein by reference.
Other than the above-described Offer and Merger, Giannulli does not have any plans or proposals that relate to or would result in any of the events set forth in Items 4(a) through (j).

Item 5.	Interest in Securities of the Issuer
	(a) Giannulli beneficially owns 10,272,822 shares of Common Stock, which represents 65.23% of the outstanding shares of Common Stock, which number excludes shares of Common Stock that may become issuable pursuant to the Stock Option Agreement described more fully in Item 4 above.
	(b) Giannulli has the sole power to vote and dispose of 10,272,822 shares of Common Stock.
	(c) Except as provided in Item 3 and Item 4 above, Giannulli has not effected any transactions in any shares of Common Stock of the Company during the past 60 days.
	(d) Other than Giannulli, no person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of Common Stock beneficially owned by Giannulli.
	(e) Not applicable.

Item 6.	Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
Other than as set forth above, to the best knowledge of Giannulli, there are no contracts, arrangements, understandings or relationships (legal or otherwise) between himself and any other person with respect to any securities of the Company, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, divisions of profits or loss, or the giving or withholding of proxies, or a pledge or contingency, the occurrence of which would give another person voting power over the securities of the Company.

Item 7.	Material to Be Filed as Exhibits
7.01 First Amendment to Agreement and Plan of Merger, dated as of October 31, 2005
7.02 Press Release, dated as of October 31, 2005

Signature

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

	October 31, 2005
	Date
	/s/ Mossimo Giannulli
	Signature
	Mossimo Giannulli
	Name/Title

EX-7.01 2 a05-19283_1ex7d01.htm CORRESPONDENCE FROM AN INDEPENDENT ACCOUNTANT

Exhibit 7.01

FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER

AMENDMENT dated as of October 31, 2005 (this “Amendment”) by and among Mossimo Holding Corp., a Delaware corporation (“Parent”), Mossimo Acquisition Corp., a Delaware corporation and wholly owned subsidiary of Parent (the “Purchaser”), Mossimo Giannulli, an individual (“Giannulli”), and Mossimo, Inc., a Delaware corporation (the “Company”), to the Agreement (as defined below).

RECITALS

WHEREAS, on September 21, 2005, entered into an Agreement and Plan of Merger (the “Agreement”) by and among Parent, the Purchaser, Giannulli (for purposes of Section 5.10 thereof only) and the Company;

WHEREAS, the parties hereto desire to amend the Agreement to extend the deadline for commencing the tender offer contemplated by the Agreement and to extend the deadline for completion of the tender offer; and

WHEREAS, capitalized terms used herein and not defined shall have the meanings assigned thereto in the Agreement.

NOW, THEREFORE, in consideration of the agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be bound hereby, the parties hereby agree as follows:

1. Section 7.1.2 of the Agreement is hereby amended to read in its entirety as follows:

“Section 7.1.2 By the Company if (A) the Purchaser fails to commence the Offer as provided in Section 1.1 hereof by November 14, 2005 or (B) the Purchaser shall not have accepted for payment and paid for Shares pursuant to the Offer in accordance with the terms hereof and thereof on or before February 14, 2006; provided, however, that the Company may not terminate this Agreement pursuant to this Section 7.1.2 if the Company shall have (1) failed to fulfill any obligation under this Agreement, which failure has been the cause of, or resulted in, the failure of any condition to the Offer to have been satisfied on or before such date, or (2) otherwise materially breached this Agreement;”

2. On and after the date hereof, each reference in the Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, shall mean and be a reference to the Agreement as amended by this Amendment.

3. Except as specifically amended herein, the Agreement shall remain in full force and effect and is hereby ratified and confirmed.

4. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same agreement, it being understood that all of the parties need not sign the same counterpart.

5.. This Amendment, the legal relations between the parties and the adjudication and the enforcement thereof, shall be governed by and interpreted and construed in accordance with the substantive laws of the State of Delaware, without regard to applicable choice of law provisions thereof.

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first above written.

MOSSIMO HOLDING CORP.


By:	/s/ Mossimo Giannulli
	Mossimo Giannulli
	President and Chief Executive Officer


MOSSIMO ACQUISITION CORP.


By:	/s/ Mossimo Giannulli
	Mossimo Giannulli
	President and Chief Executive Officer


MOSSIMO, INC.


By:	/s/ Robert Martini
Name:			Robert Martini
Title:		Director


MOSSIMO GIANNULLI


/s/ Mossimo Giannulli

EX-7.02 3 a05-19283_1ex7d02.htm CORRESPONDENCE FROM AN INDEPENDENT ACCOUNTANT

Exhibit 7.02

MOSSIMO, INC. AND MOSSIMO GIANNULLI ANNOUNCE AMENDMENT OF MERGER AGREEMENT

SANTA MONICA, CA (October 31, 2005) - Mossimo, Inc. (NASDAQ: MOSS) (the “Company”) and Mossimo Giannulli (“Giannulli”) announced today that the Special Committee of the Company’s Board of Directors and Giannulli have agreed to amend the Agreement and Plan of Merger (the “Merger Agreement”) entered into by the Company, Giannulli, Mossimo Acquisition Corp. (MAC), a wholly-owned subsidiary of Mossimo Holding Corp. (MHC), itself a corporation wholly-owned by Giannulli, and MHC, on September 21, 2005, to extend the deadline for commencing the tender offer contemplated by the Merger Agreement from October 31, 2005 to November 14, 2005, and to extend the deadline for completion of the tender offer from January 31, 2006 to February 14, 2006.

The amendment to the Merger Agreement was made to give Giannulli and MAC additional time to commence the tender offer. Commencement of the tender offer was deferred by Giannulli and MAC to allow Giannulli and the Special Committee to consider an unsolicited proposal received from a third party indicating an interest in pursuing a business combination with the Company which may have resulted in the Company’s stockholders, including Giannulli, receiving consideration representing a premium to the cash consideration contemplated by the existing Merger Agreement. However, after reviewing the third party proposal, Giannulli concluded that it was unlikely to lead to a transaction that he would be willing to accept and that he believed the Special Committee would be prepared to endorse, due in part to uncertainties regarding the economic and other terms of the proposal and the availability of required third party consents.

Giannulli and MAC expect to commence the tender offer before November 14, 2005, with the goal of completing the transaction before the end of the year. The tender offer will be subject to the condition that the majority of the publicly held minority shares are validly tendered and not withdrawn before the expiration of the tender offer, as well as other customary conditions, including the receipt of financing sufficient to complete the tender offer and the merger.

Founded in 1987, Mossimo, Inc. is a designer, licensor and distributor of men’s, women’s, boy’s and girl’s apparel, footwear, and other fashion accessories such as jewelry, watches, handbags, and belts.

This press release is intended for informational purposes only and is not an offer to buy, a solicitation of an offer to sell or a recommendation to sell any shares of Mossimo, Inc. common stock. The solicitation of offers to sell Mossimo, Inc. shares will only be made pursuant to a tender offer statement on Schedule TO and an offer to purchase and related materials. Mossimo, Inc. stockholders and other interested parties are urged to read the ten der offer statement on Schedule TO, the offer to purchase and Mossimo, Inc.’s solicitation/recommendation statement on Schedule 14D-9 and other relevant documents filed with the SEC by Giannulli, MHC, MAC and Mossimo, Inc. when they become available because they will contain important information. Mossimo, Inc. stockholders will be able to obtain such documents free of charge at the SEC’s web site: www.sec.gov or by directing a request to Mossimo, Inc. at 2014 Broadway, Santa Monica, CA 90404, Attention: Chief Financial Officer.

CAUTIONARY STATEMENT: Statements in this release represent the current intentions, plans, expectations and beliefs of Giannulli and Mossimo, Inc. and involve risks and uncertainties that could cause actual events to differ materially from the events described in this release, including risks or uncertainties related to whether the conditions to the tender offer will be satisfied, and if not, whether the tender offer and merger will be completed, as well as changes in general economic conditions, stock market trading conditions, tax law requirements or government regulation, and changes in the apparel industry or the business or prospects of Mossimo, Inc. Giannulli and Mossimo, Inc. wish to caution the reader that these factors, as well as other factors described or to be described in Giannulli’s or Mossimo, Inc.’s SEC filings with respect to the transaction, are among the fac tors that could cause actual events or results to differ materially from Giannulli’s or Mossimo, Inc.’s current expectations described herein.

CONTACT:

Mossimo, Inc.

Edwin Lewis

President & Co-CEO

310-460-0245

Investor Relations:

Integrated Corporate Relations

Chad A. Jacobs

Brendon Frey

203-682-8200

Under the Securities Exchange Act of 1934 (Amendment No. 6)*

Signature

Under the Securities Exchange Act of 1934
(Amendment No. 6)*