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UNITED STATES |
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SECURITIES AND EXCHANGE |
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Washington, D.C. 20549 |
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SCHEDULE 13D |
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MOSSIMO, INC.
(Name of Issuer)
COMMON STOCK
(Title of Class of Securities)
619696 10 7
(CUSIP Number)
MOSSIMO GIANNULLI
C/O MOSSIMO, INC.
SANTA MONICA, CALIFORNIA 90404
TEL. NO.: (310) 460-0040
(Name, Address and
Telephone Number of Person
Authorized to Receive Notices and Communications)
WITH A COPY TO:
PAUL TOSETTI, ESQ.
LATHAM & WATKINS LLP
633 WEST FIFTH STREET
SUITE 4000
LOS ANGELES, CALIFORNIA 90071-2007
April 11, 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).
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CUSIP No. 619696 10 7 |
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1. |
Names of Reporting Persons. I.R.S. Identification Nos.
of above persons (entities only) |
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2. |
Check the Appropriate Box if a Member of a Group (See Instructions) |
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(a) |
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(b) |
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3. |
SEC Use Only |
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4. |
Source of Funds (See
Instructions) |
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5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o |
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6. |
Citizenship or Place of Organization |
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Number of |
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Sole Voting Power |
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8. |
Shared Voting Power |
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9. |
Sole Dispositive Power |
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10. |
Shared Dispositive Power |
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11. |
Aggregate Amount
Beneficially Owned by Each Reporting Person |
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12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o |
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13. |
Percent of Class
Represented by Amount in Row (11) |
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14. |
Type of Reporting Person
(See Instructions) |
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(1) THIS PERCENTAGE IS CALCULATED USING THE TOTAL NUMBER OF SHARES OF THIS CLASS OF SECURITIES OUTSTANDING AS OF FEBRUARY 28, 2005 (15,738,442), AS STATED ON THE COMPANY’S FORM 10-K FILED FOR THE YEAR ENDED DECEMBER 31, 2004
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Item 1. |
Security and Issuer |
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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. |
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Item 2. |
Identity and Background |
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(a) This Schedule 13D Amendment No. 2 is filed on behalf of Mossimo Giannulli (“Giannulli”). A change in circumstances, which is described in Item 3 and Item 4 below, has resulted in a change to the investment intent of Giannulli with respect to his ownership of the Company’s Common Stock.
(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. |
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Item 3. |
Source and Amount of Funds or Other Consideration |
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It is anticipated that funding for the proposed transaction described in Item 4 will be obtained through third party debt financing currently being negotiated by Giannulli that, together with other funds available to him and, potentially, available funds of the Company, will be sufficient to consummate any such transaction. To the extent any amounts are due or may be paid by Giannulli or the Acquisition Company (as defined in Item 4 below) or the surviving corporation in connection with any such financing following the consummation of the Acquisition (as that term is defined in Item 4 below) described in Item 4 below (for example, funds necessary to consummate the Acquisition and certain transaction fees and expenses), such funds may be paid from generally available working capital of the surviving corporation. Giannulli is in discussions regarding financing for the Acquisition, however Giannulli has not obtained any financing commitment or agreed to any financing terms. Giannulli or the Acquisition Company intends to repay any amounts borrowed in connection with the Acquisition through the generally available corporate funds of the surviving corporation after the consummation of the Acquisition. Financing for the Acquisition remains subject to further negotiation, and Giannulli has no assurances that he will be able to negotiate definitive agreements or obtain financing on terms acceptable to him. |
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Item 4. |
Purpose of Transaction |
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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 is being filed herewith as Exhibit 7.01. Giannulli expects that the Board of Directors will form 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. As described in the Proposal Letter, the Proposal contemplates the possible formation of a new entity designed for the purpose of effecting the transactions contemplated by the Proposal (the “Acquisition Company”). Under the Proposal, Giannulli or the Acquisition Company proposes to acquire all of the outstanding shares of the Company’s Common Stock not currently owned by Giannulli for a price per share of $4.00 payable in cash (the “Acquisition”). No proposal has been made regarding the structure of the Acquisition. If the proposed Acquisition is completed, the Common Stock would be eligible for termination of registration pursuant to Section 12(g) of the Securities Act and the Common Stock would be delisted from the NASDAQ Stock Market. The Proposal is subject to negotiation of structure and definitive documentation and the approval of the Special Committee and the Board of Directors, and the Proposal shall not create any agreement, arrangement or understanding between Giannulli or other parties with respect to the Company or the Common Stock for purposes of any law, rule, regulation, agreement or otherwise, until such time as definitive documentation and any agreement, arrangement or understanding has been approved by the Special Committee and the Board of Directors and thereafter executed and delivered by the Company and all other appropriate parties. In connection with the Proposal, Giannulli intends to request that the Special Committee authorize Mr. Edwin H. Lewis, the current Co-Chief Executive Officer of the Company and a member of its Board of Directors (“Lewis”), to assist Giannulli in his pursuit of the Acquisition. There is, however, currently no agreement, arrangement or understanding between Giannulli and Lewis with respect to such participation by Lewis, and if the Special Committee does not consent to such involvement, Giannulli will pursue the Acquisition without the assistance of Lewis. The foregoing is a summary of Giannulli’s current proposal and should not be construed as an offer to purchase shares of the Company’s Common Stock. Neither the Company nor Giannulli is obligated to pursue or to complete the Acquisition. Giannulli reserves the right to modify his proposal in any way as a result of negotiations or to withdraw the Proposal at any time. Giannulli beneficially owns approximately 65.27% of the total outstanding votes of the Common Stock entitled to vote on the Proposal as a single class and intends to vote for the Proposal in the event that the Proposal is submitted to the stockholders for their approval and will not agree to any other transaction involving his stake in the Company. Other than as set forth in the Proposal Letter, Giannulli has no plans or proposals that relate to or would result in any of the events set forth in Items 4(a) through (j) of Schedule 13D. However, if the Proposal is not consummated for any reason, Giannulli intends to review continuously the Company’s business affairs, capital needs and general industry and economic conditions, and, based on such review, Giannulli may, from time to time, determine to increase his ownership of Common Stock, approve an extraordinary corporate transaction with regard to the Company or engage in any of the events set forth in Items 4(a) through (j) of Schedule 13D, except that Giannulli currently has no intention of selling any shares of Common Stock. The information set forth in response to this Item 4 is qualified in its entirety by reference to the Proposal Letter, which is incorporated herein by reference. |
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Item 5. |
Interest in Securities of the Issuer |
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(a) Giannulli beneficially owns 10,272,822 shares of Common Stock, which represents 65.27% of the outstanding shares of Common Stock.
(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. |
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Item 6. |
Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer |
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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. |
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Item 7. |
Material to Be Filed as Exhibits |
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Exhibit 7.01 Proposal Letter dated April 11, 2005 Exhibit 7.02 Press Release dated April 12, 2005 |
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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.
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April 12, 2005 |
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Date |
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Signature |
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Name/Title |
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Exhibit 7.01
MOSSIMO GIANNULLI
2314 La
Mesa
Santa Monica, CA 90402
April 11, 2005
Board of Directors
Mossimo, Inc.
2016 Broadway
Santa Monica, California 90404
Gentlemen:
I am pleased to present a proposal to acquire, directly or through an entity created for that purpose, all of the outstanding shares of the common stock of Mossimo, Inc. (the “Company”) in a going private transaction for $4.00 per share in cash. This represents a 20% premium to the closing price of the Company’s common stock on April 11, 2005.
I believe that this proposal presents an excellent opportunity for shareholders of the Company to achieve liquidity for their shares at a significant premium to current market value. I am confident that you will conclude that the proposal is fair and in the best interests of the public shareholders. I have commenced discussions regarding potential financing for this transaction, and I am very confident that I will have ample resources available to complete this transaction. I am prepared, at the earliest possible time, to enter into a binding agreement which would contain standard terms and conditions for transactions of this nature. In considering this proposal I want to make you aware that I will not agree to any other transaction involving my stake in the Company.
To assist me in this transaction, I have retained Latham & Watkins LLP as my legal advisor and Piper Jaffray & Co. as my financial advisor. This indication of interest is non-binding and no agreement, arrangement or understanding between the parties shall be created until such time as definitive documentation has been executed and delivered by the Company and all other appropriate parties, and the agreement, arrangement or understanding has been approved by the Company’s Board of Directors and likely a special committee of the Board. Depending on structure, the transaction may also have to be approved by the Company’s shareholders. I do not expect that any regulatory approvals will be required for the transaction.
I expect that the Company’s Board of Directors will form a special committee of independent directors to consider my proposal on behalf of the Company’s public shareholders and to recommend to the Board of Directors whether to approve this proposal. I also encourage the special committee to retain its own legal and financial advisors to assist in its review. I would welcome the opportunity to present this proposal to the special committee as soon as possible. I look forward to working with the special committee and its legal and financial advisors to complete a mutually acceptable transaction and look forward to your response at your earliest convenience.
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Very truly yours, |
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Mossimo Giannulli |
Exhibit 7.02
For Immediate Release
MOSSIMO,
INC. CONTROLLING STOCKHOLDER PROPOSES TO
ACQUIRE COMPANY’S OUTSTANDING PUBLIC SHARES
Los Angeles, CA, April 12, 2005 — Mossimo, Inc.’s (NASDAQ: MOSS) (the “Company”) founder Mossimo Giannulli today announced that he is proposing to acquire the outstanding publicly held shares of the Company for $4.00 per share in cash. This represents a 20% premium to the closing price of the Company’s common stock on April 11, 2005.
Following today’s announcement, Mr. Giannulli expects the Board of Directors of the Company to form a special committee of independent directors to consider the proposal with the assistance of outside financial and legal advisors. Mr. Giannulli expects that the precise structure of the transaction, as well as the conditions to its consummation, will be determined through negotiations with the special committee. Mr. Giannulli also anticipates that any ensuing transaction will be consummated pursuant to the terms of an acquisition agreement mutually acceptable to Mr. Giannulli and such committee.
Mr. Giannulli owns approximately 65% of the outstanding shares of the Company’s common stock. He advised the Company’s Board that he will not consider any other transaction involving his interest in the Company.
Piper Jaffray & Co. is serving as Mr. Giannulli’s financial advisors in the transaction and Latham & Watkins LLP is providing legal counsel.
The Company’s stockholders and other interested parties should read the Company’s relevant documents filed with the Securities and Exchange Commission when they become available because they will contain important information. The Company’s stockholders will be able to obtain such documents free of charge at the SEC’s web site (www.sec.gov) or from the Company at 2016 Broadway, Santa Monica, CA 90404.
About Mossimo,
Inc.
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.
Statements in this release represent the parties’ current intentions, plans, expectations and beliefs 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 the success of the negotiations with the special committee and whether the 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 the Company. The reader is cautioned that these factors, as well as other factors described or to be described in SEC filings with respect to the transaction, are among the factors that could cause actual events or results to differ materially from the current expectations described herein. No agreement, arrangement or understanding shall be created between the parties with respect to the Company or the stock of the Company for purposes of any law, rule, regulation, or otherwise, until such time as definitive documentation and any agreement, arrangement, or understanding has been approved by the special committee and the Board of Directors of the Company and thereafter executed and delivered by the Company and all other relevant persons.