RESPECTS AS OF THE DATE OF THE
CLOSING.
6.
NET REVENUES.
IN THE EVENT THAT THE CLOSING UNDER THE MERGER
AGREEMENT OCCURS, ICONIX SHALL CAUSE MAC TO PROMPTLY PAY CHEROKEE ALL EARNED BUT
UNPAID FINDER'S FEES (AS SUCH TERM IS DEFINED IN THE FINDERS AGREEMENT) THROUGH
AND INCLUDING THE CLOSING DATE OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT NET
REVENUES (AS THAT TERM IS DEFINED IN THE FINDERS AGREEMENT) SHALL NOT BE REDUCED
BY THE PAYMENT TO TARGET REFERENCED IN THE CURRENT REPORT ON FORM 8-K FILED BY
MOSSIMO ON MARCH 31, 2006 AND DUE ON OR BEFORE JUNE 30, 2006.PAYMENT OF SUCH
FINDER'S FEES SHALL BE ACCOMPANIED BY A WRITTEN REPORT SETTING FORTH THE NET
REVENUES ACTUALLY RECEIVED BY MOSSIMO (BROKEN DOWN BY DATE AND AMOUNT RECEIVED)
SINCE THE DATE OF THE LAST REPORT DELIVERED TO CHEROKEE BY MOSSIMO AND SUCH
OTHER INFORMATION AS IS NECESSARY TO ENABLE CHEROKEE TO VERIFY THE NET REVENUES
REPORTED BY ICONIX AND/OR MOSSIMO.
FINDER'S FEES SHALL BE PAYABLE IN UNITED
STATES DOLLARS.
INTEREST AT THE MAXIMUM LEGAL RATE SHALL BE PAID ON ANY
FINDER'S FEES NOT PAID WHEN DUE.
7.
LIQUIDATED DAMAGES; TERMINATION.
7.1
IN THE EVENT THAT THE MERGER AGREEMENT IS TERMINATED PURSUANT TO
SECTION 7.1(A), 7.1(D) OR 7.1(G), ICONIX SHALL PAY TO CHEROKEE THE SUM OF ONE
MILLION DOLLARS ($1,000,000) AS LIQUIDATED DAMAGES WITHIN TWO BUSINESS DAYS OF
SUCH TERMINATION. UPON RECEIPT BY CHEROKEE OF THE PAYMENT REQUIRED BY SECTION 7
SUBSEQUENT TO THE
2
TERMINATION OF THE MERGER AGREEMENT, THE OBLIGATIONS OF THE PARTIES HERETO SHALL
EXPIRE AND BE OF NO FURTHER FORCE OR EFFECT, EXCEPT FOR THE PROVISIONS OF
SECTIONS 7, 8 AND 9 HEREOF, WHICH SHALL SURVIVE.
7.2
IN THE EVENT THAT THE MERGER AGREEMENT IS TERMINATED FOR ANY
REASON OTHER THAN AS SPECIFIED IN SECTION 7.1, THEN THE OBLIGATIONS OF THE
PARTIES HERETO SHALL EXPIRE AND BE OF NO FURTHER FORCE OR EFFECT, EXCEPT FOR THE
PROVISIONS OF SECTIONS 7, 8 AND 9 HEREOF, WHICH SHALL SURVIVE.
8.
RELEASES.
8.1
RELEASES BY CHEROKEE.
EFFECTIVE AS OF THE CLOSING DATE, CHEROKEE
FOR ITSELF AND FOR EACH OF ITS RESPECTIVE PAST AND PRESENT AGENTS, OFFICERS,
DIRECTORS, EMPLOYEES, ATTORNEYS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AND EACH
OF THEIR AFFILIATED LEGAL OR BUSINESS ENTITIES, INSURERS, SUCCESSORS AND
ASSIGNS, BOTH INDIVIDUALLY AND IN THEIR REPRESENTATIVE CAPACITIES (JOINTLY AND
SEVERALLY THE "CHEROKEE RELEASING PARTIES") HEREBY JOINTLY AND SEVERALLY,
RELEASE AND DISCHARGE ICONIX, MOSSIMO AND EACH OF THEIR AFFILIATES, PARENTS,
SUBSIDIARIES, OFFICERS, DIRECTORS, STOCKHOLDERS, EMPLOYEES, AGENTS, ATTORNEYS,
ACCOUNTANTS AND OTHER ADVISORS, AND THE HEIRS, EXECUTORS AND ADMINISTRATORS, IF
APPLICABLE, AND THE PREDECESSORS, SUCCESSORS OR ASSIGNS OF EACH OF THE FOREGOING
(COLLECTIVELY THE "CHEROKEE RELEASED PARTIES") FROM ALL ACTIONS, CAUSES OF
ACTION, SUITS, DEBTS, DUES, SUMS OF MONEY, ACCOUNTS, RECKONINGS, BONDS, BILLS,
SPECIALTIES, COVENANTS, CONTRACTS, CONTROVERSIES, AGREEMENTS, PROMISES,
VARIANCES, TRESPASSES, DAMAGES, JUDGMENTS, EXTENTS, EXECUTIONS, CLAIMS, AND
DEMANDS WHATSOEVER ("CLAIMS"), IN LAW OR EQUITY, WHICH AGAINST ANY OR ALL OF THE
CHEROKEE RELEASED PARTIES, ANY OR ALL OF THE CHEROKEE RELEASING PARTIES EVER
HAD, NOW HAVE OR HEREAFTER