As filed with the Securities and Exchange Commission on March 9, 2006
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CROCS, INC.
(Exact name of registrant as specified in its charter)
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Delaware |
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20-2164234 |
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(State or other jurisdiction of |
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incorporation or organization) |
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(I.R.S. Employer Identification No.) |
6273 Monarch Park Place
Niwot, Colorado 80503
(303) 468-4260
(Address, including zip code, and telephone number, including area code,
of registrant’s principal executive offices)
Crocs, Inc. 2005 Equity Incentive Plan, as amended
Nonstatutory Stock Option Agreement between the Registrant and Raymond D. Croghan
dated September 1, 2004
Nonstatutory Stock Option Agreement between the Registrant and Michael E. Marks
dated September 1, 2004
Nonstatutory Stock Option Agreement between the Registrant and Mark A. Retzloff
dated September 1, 2004
Nonstatutory Stock Option Agreement between the Registrant and Ronald R. Snyder
dated September 1, 2004
Nonstatutory Stock Option Agreement between the Registrant and Brad L. Stoffer
dated September 1, 2004
Nonstatutory Stock Option Agreement between the Registrant and George B. Boedecker, Jr.
dated January 4, 2005
Nonstatutory Stock Option Agreement between the Registrant and Lyndon V. Hanson, III
dated January 4, 2005
Nonstatutory Stock Option Agreement between the Registrant and Erik Rebich
dated January 4, 2005
Nonstatutory Stock Option Agreement between the Registrant and Scott Seamans
dated January 4, 2005
Nonstatutory Stock Option Agreement between the Registrant and Andy Reddyhoff
dated January 4, 2005
(Full title of the Plans)
Ronald R. Snyder
President and Chief Executive Officer
Crocs, Inc.
6273 Monarch Park Place
Niwot, Colorado 80503
(303) 468-4260
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Calculation of Registration Fee
(1) This Registration Statement will also cover any additional shares of Common Stock that become issuable under the Crocs, Inc. 2005 Equity Incentive Plan or issuable under the Nonstatutory Stock Options Agreements by reason of any stock dividend, stock split, reorganization or other similar transaction effected without the Registrant’s receipt of consideration that results in an increase in the number of outstanding shares of the Registrant’s Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Computed in accordance with Rule 457(h) under the Securities Act of 1933, based on the weighted average per share exercise price of outstanding options granted under the plan.
(4) Computed in accordance with Rule 457(h) and 457(c) of the Securities Act of 1933. Such computation is based on the average of the high and low prices as reported on the Nasdaq National Market on March 7, 2006.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information. *
Item 2. Registrant Information and Employee Plan Annual Information. *
* Information required by Part I to be contained in the Section 10(a) prospectus is omitted from the Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended, and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Crocs, Inc. (the “Registrant”) incorporates by reference the following documents filed with the Securities and Exchange Commission (the “Commission”):
(1) The final prospectus relating to our initial public offering filed with the Commission on February 8, 2006 in connection with in the Registrant’s Registration Statement on Form S-1 (No. 333-127526), pursuant to Rule 424(b)(4) of the Securities Act of 1933, as amended;
(2) The description of the Common Stock, par value $0.001 per share, contained in the Registration Statement on Form 8-A (No. 000-51754) filed with the Commission on January 24, 2006 pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as the same may be amended from time to time; and
(3) All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since the filing of the prospectus pursuant to Rule 424(b) referred to in (1) above.
In addition, all other reports and documents filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all the securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated herein by reference and to be a part hereof from the date of the filing of such documents with the Commission.
Any statement contained in a document incorporated, or deemed to be incorporated, by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement or incorporated by reference or in any other subsequently filed document that also is or is deemed to be incorporated by reference modifies or supersedes the statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
You may request a copy of these filings (other than an exhibit to a filing unless that exhibit is specifically incorporated by reference into that filing) at no cost, by writing to or telephoning us at the following address:
Corporate Secretary
Crocs, Inc.
6273 Monarch Park Place
Niwot, Colorado 80503
(303) 468-4260
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the “DGCL”) provides, in effect, that any person made a party to any action by reason of the fact that he is or was a director, officer, employee or agent of us may and, in some cases, must be indemnified by us against, in the case of a non-derivative action, judgments, fines, amounts paid in settlement and reasonable expenses (including attorneys’ fees) incurred by him as a result of such action and in the case of a derivative action, against expenses (including attorneys’ fees), if in either type of action he acted in good faith and in a manner he reasonably believed to be in or not opposed to our best interests. This indemnification does not apply, in a derivative action, to matters as to which it is adjudged that the director, officer, employee or agent is liable to us, unless upon court order it is determined that, despite such adjudication of liability, but in view of all the circumstances of the case, he is fairly and reasonably entitled to indemnity for expenses and, in a non-derivative action, to any criminal proceeding in which such person had no reasonable cause to believe his conduct was unlawful.
The Registrant’s certificate of incorporation provides that no director shall be liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by the DGCL. The Registrant’s bylaws require it to indemnify its directors and officers to the fullest extent permitted by Delaware law. The Registrant has entered into indemnification agreements with all of its directors and executive officers and has purchased directors’ and officers’ liability insurance.
The Underwriting Agreement filed as Exhibit 1.1 to our Registration Statement on Form S-1 (No. 333-127526), provides for indemnification by the underwriters of us and our officers and directors for certain liabilities arising under the Securities Act of 1933, or otherwise.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a list of all exhibits filed as part of this Registration Statement or, as noted, incorporated by reference into this Registration Statement:
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Exhibit No. |
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Description |
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4.1 |
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Restated Certificate of
Incorporation of the Registrant.
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4.2 |
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Amended and Restated Bylaws of
the Registrant.
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4.3* |
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Specimen of common stock
certificate.
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5.1 |
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Opinion of Faegre &
Benson, LLP, counsel to Crocs, Inc., as to legality of securities being
registered.
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23.1 |
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Consent of Deloitte & Touche LLP.
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23.2 |
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Consent of Samson Belair Deloitte & Touche
s.e.n.c.r.l.
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23.3 |
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Consent of Faegre &
Benson, LLP (included in Exhibit 5.1).
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24.1 |
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Powers of Attorney (included with signatures to this Registration Statement). |
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99.1* |
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Crocs, Inc. 2005 Equity
Incentive Plan (the “2005 Plan”).
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99.2* |
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Amendment No. 1 to the
2005 Plan.
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99.3* |
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Form of Notice of Grant
of Stock Option under the 2005 Plan.
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99.4* |
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Form of Notice of Grant
of Stock Option for Non-Exempt Employees under the 2005 Plan.
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99.5* |
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Form of Stock Purchase
Agreement under the 2005 Plan.
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99.6* |
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Form of Stock Option Agreement
under the 2005 Plan.
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99.7* |
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Form of Restricted Stock Award
Grant Notice under the 2005 Plan.
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99.8* |
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Form of Restricted Stock Award
Agreement under the 2005 Plan.
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99.9 |
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Nonstatutory Stock Option Agreement between the
Registrant and Raymond D. Croghan
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99.10 |
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Nonstatutory Stock Option Agreement between the
Registrant and Michael E. Marks
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99.11 |
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Nonstatutory Stock Option Agreement between the
Registrant and Mark A. Retzloff
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99.12 |
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Nonstatutory Stock Option Agreement between the
Registrant and Ronald R. Snyder
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99.13 |
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Nonstatutory Stock Option Agreement between the
Registrant and Brad L. Stoffer
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99.14 |
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Nonstatutory Stock Option Agreement between the
Registrant and George B. Boedecker, Jr.
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99.15 |
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Nonstatutory Stock Option Agreement between the
Registrant and Lyndon V. Hanson, III
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99.16 |
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Nonstatutory Stock Option Agreement between the
Registrant and Erik Rebich
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99.17 |
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Nonstatutory Stock Option Agreement between the
Registrant and Scott Seamans
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99.18 |
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Nonstatutory Stock Option Agreement between the
Registrant and Andy Reddyhoff
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* Incorporated by reference to Registration Statement on Form S-1 filed by the Registrant, File No. 333-127526, as declared effective by the Commission on February 7, 2006.
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Item 9. Undertakings.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
provided, however , that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Niwot, Colorado, on March 9, 2006.
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CROCS, INC. |
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By |
/s/ Ronald R. Snyder |
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Ronald R. Snyder
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POWER OF ATTORNEY
We, the undersigned officers and directors of Crocs, Inc., hereby severally constitute Ronald R. Snyder and Caryn D. Ellison, and each of them singly, as true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names, in the capacities indicated below the registration statement filed herewith and any amendments to said registration statement, and generally to do all such things in our name and behalf in our capacities as officers and directors to enable Crocs, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Exchange Act of 1933, this Registration Statement has been signed below on March 9, 2006 by the following persons on behalf of the Registrant in the capacities indicated:
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Signature |
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Title |
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/s/ Ronald R. Snyder |
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President and Chief Executive Officer and Director |
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Ronald R. Snyder
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/s/ Caryn D. Ellison |
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Vice President-Finance and Chief Financial Officer |
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Caryn D. Ellison
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Director |
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George B. Boedecker, Jr. |
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/s/ Raymond D. Croghan |
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Director |
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Raymond D. Croghan |
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/s/ Michael E. Marks |
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Director |
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Michael E. Marks |
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/s/ Mark A. Retzloff |
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Director |
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Mark A. Retzloff |
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/s/ Richard L. Sharp |
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Chairman of the Board of Directors |
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Richard L. Sharp |
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/s/ Thomas J. Smach |
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Director |
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Thomas J. Smach |
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/s/ Brad L. Stoffer |
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Director |
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Brad L. Stoffer |
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Index of Exhibits
Exhibits (including those incorporated by reference):
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Exhibit No. |
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Description |
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Restated Certificate of
Incorporation of the Registrant.
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4.2 |
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Amended and Restated Bylaws of
the Registrant.
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4.3* |
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Specimen of common stock
certificate.
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5.1 |
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Opinion of Faegre &
Benson, LLP, counsel to Crocs, Inc., as to legality of securities being
registered.
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23.1 |
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Consent of Deloitte & Touche LLP.
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23.2 |
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Consent of Samson Belair Deloitte & Touche
s.e.n.c.r.l.
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23.3 |
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Consent of Faegre &
Benson, LLP (included in Exhibit 5.1).
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24.1 |
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Powers of Attorney (included
with signatures to this Registration Statement).
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99.1* |
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Crocs, Inc. 2005 Equity Incentive
Plan (the “2005 Plan”).
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99.2* |
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Amendment No. 1 to the
2005 Plan.
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99.3* |
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Form of Notice of Grant
of Stock Option under the 2005 Plan.
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99.4* |
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Form of Notice of Grant
of Stock Option for Non-Exempt Employees under the 2005 Plan.
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99.5* |
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Form of Stock Purchase
Agreement under the 2005 Plan.
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99.6* |
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Form of Stock Option Agreement
under the 2005 Plan.
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99.7* |
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Form of Restricted Stock Award
Grant Notice under the 2005 Plan.
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99.8* |
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Form of Restricted Stock Award
Agreement under the 2005 Plan.
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99.9 |
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Nonstatutory
Stock Option Agreement between the Registrant and Raymond D. Croghan
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99.10 |
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Nonstatutory
Stock Option Agreement between the Registrant and Michael E. Marks
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99.11 |
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Nonstatutory
Stock Option Agreement between the Registrant and Mark A. Retzloff
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99.12 |
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Nonstatutory
Stock Option Agreement between the Registrant and Ronald R. Snyder
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99.13 |
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Nonstatutory
Stock Option Agreement between the Registrant and Brad L. Stoffer
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99.14 |
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Nonstatutory
Stock Option Agreement between the Registrant and George B. Boedecker, Jr.
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99.15 |
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Nonstatutory
Stock Option Agreement between the Registrant and Lyndon V. Hanson, III
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99.16 |
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Nonstatutory
Stock Option Agreement between the Registrant and Erik Rebich
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99.17 |
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Nonstatutory
Stock Option Agreement between the Registrant and Scott Seamans
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99.18 |
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Nonstatutory
Stock Option Agreement between the Registrant and Andy Reddyhoff
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* Incorporated by reference to Registration Statement on Form S-1 filed by Crocs, Inc., File No. 333-127526, as declared effective by the Securities and Exchange Commission on February 7, 2006.
Exhibit 4.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
CROCS, INC.
Crocs, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), does hereby certify as follows:
FIRST: The name of the Corporation is “Crocs, Inc.”
SECOND: The original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on April 15, 2005.
THIRD: This Restated Certificate of Incorporation (“Certificate of Incorporation”) was duly adopted in accordance with Section 245 of the General Corporation Law of the State of Delaware. Pursuant to Sections 242 and 228 of the General Corporation Law of the State of Delaware, the amendments and restatement herein set forth have been duly adopted by the Board of Directors and a majority of the stockholders of the Corporation.
FOURTH: Pursuant to Section 245 of the General Corporation Law of the State of Delaware, this Certificate of Incorporation restates and integrates and amends the provisions of the Certificate of Incorporation of this Corporation.
FIFTH: The text of the Certificate of Incorporation is hereby restated and amended to read in its entirety as follows:
ARTICLE
I
NAME
The name of the corporation (which is hereinafter referred to as the “Corporation”) is:
Crocs, Inc.
ARTICLE
II
REGISTERED OFFICE
The registered office of the Corporation in the State of Delaware shall be in the City of Wilmington, County of New Castle, and the name and address of the Registered Agent in charge thereof shall be The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.
ARTICLE
III
PURPOSE
The purpose of the Corporation shall be to engage in any lawful act or activity for which corporations may be organized and incorporated under the General Corporation Law of the State of Delaware (the “DGCL”).
ARTICLE
IV
STOCK
Section 1. Authorization . The Corporation shall be authorized to issue 130,000,000 shares of capital stock, of which 125,000,000 shares shall be shares of Common Stock, par value $0.001 per share (“Common Stock”), and 5,000,000 shares shall be shares of Preferred Stock, par value $0.001 per share (“Preferred Stock”).
Section 2. Preferred Stock Rights . Shares of Preferred Stock may be issued from time to time in one or more series. The Board of Directors of the Corporation (the “Board of Directors”) is hereby
authorized by resolution or resolutions to fix the voting rights, if any, designations, powers, preferences and the relative, participation, optional or other rights, if any, and the qualifications, limitations or restrictions thereof, of any unissued series of Preferred Stock; and to fix the number of shares constituting such series, and to increase or decrease the number of shares of any such series (but not below the number of shares thereof then outstanding).
Section 3. Common Stock Rights . Except as otherwise provided by law or by the resolution or resolutions adopted by the Board of Directors designating the rights, powers and preferences of any series of Preferred Stock, the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes. Each share of Common Stock shall have one vote on each matter properly submitted to the stockholders of the Corporation for their vote, and the holders of the Common Stock shall vote together as a single class.
ARTICLE
V
BOARD OF DIRECTORS
Section 1. Number of Directors . Except as otherwise provided by the resolution or resolutions adopted by the Board of Directors designating the rights, powers and preferences of any series of Preferred Stock, the number of directors of the Corporation shall be fixed, and may be increased or decreased from time to time, exclusively by resolution of the Board of Directors.
Section 2. Classes . The directors, other than those who may be elected by the holders of any outstanding series of Preferred Stock as set forth in this Certificate of Incorporation, shall be divided into three classes, as nearly equal in number as possible and designated Class I, Class II and Class III. Class I shall be initially elected for a term expiring at the annual meeting of stockholders to be held in 2006, Class II shall be initially elected for a term expiring at the annual meeting of stockholders to be held in 2007, and Class III shall be initially elected for a term expiring at the annual meeting of stockholders to be held in 2008. Members of each class shall hold office until their successors are elected and qualified. At each succeeding annual meeting of the stockholders of the Corporation, the successors of the class of directors whose term expires at that meeting shall be elected for a term expiring at the annual meeting of stockholders held in the third year following the year of their election. In case of any increase or decrease, from time to time, in the number of directors, other than those who may be elected by the holders of any series of Preferred Stock as set forth in this Certificate of Incorporation, the number of directors in each class shall be apportioned as nearly equal as possible.
Section 3. Written Ballot . Unless and except to the extent that the Bylaws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.
Section 4. Removal . Except as otherwise provided by the resolution or resolutions adopted by the Board of Directors designating the rights, powers and preferences of any series of Preferred Stock, any director or the entire Board of Directors may be removed from office only for cause by the holders of a majority of the voting power of the outstanding shares of the Corporation entitled to vote at an election of directors.
Section 5. Vacancies . Except as otherwise provided by the resolution or resolutions adopted by the Board of Directors designating the rights, powers and preferences of any series of Preferred Stock or unless the Board of Directors determines by resolution that any vacancy or newly created directorship shall be filled by the stockholders, newly created directorships resulting from any increase in the authorized number of directors or any vacancies in the Board of Directors resulting from death, resignation, retirement, disqualification, removal from office or other cause shall be filled solely by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors, or by the sole remaining director. Any director so chosen shall hold office until such director’s successor shall be elected and qualified and until the next election of the class for
2
which such director shall have been chosen. No decrease in the number of directors shall shorten the term of any incumbent director.
ARTICLE
VI
AMENDING THE BYLAWS
In furtherance and not in limitation of the powers conferred by law, the Board of Directors is expressly authorized and empowered to adopt, amend and repeal the Bylaws of the Corporation at any regular or special meeting of the Board of Directors or by written consent, subject to the power of the stockholders of the Corporation to adopt, amend or repeal any Bylaws. The foregoing notwithstanding, the stockholders of the Corporation shall have no power to adopt, amend or repeal any Bylaws unless such adoption, amendment or repeal is approved by the affirmative vote of the holders of not less than sixty-six and two-thirds percent (66 2 / 3 %) of the voting power of all of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, considered for purposes of this Article VI as a single class.
ARTICLE
VII
AMENDING THE CERTIFICATE OF INCORPORATION
Subject to the provisions of Article X hereof, the Corporation reserves the right at any time from time to time to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and any other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law. All rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the right reserved in this Article.
ARTICLE
VIII
DIRECTOR LIABILITY; INDEMNIFICATION AND
INSURANCE
Section 1. Elimination of Certain Liability of Directors . The personal liability of the directors of the Corporation shall be eliminated to the fullest extent permitted by law. No amendment, modification or repeal of this Article, adoption of any provision in this Certificate of Incorporation, or change in the law or interpretation of the law shall adversely affect any right or protection of a director or officer of the Corporation under this Article VIII with respect to any act or omission that occurred prior to the time of such amendment, modification, repeal, adoption or change.
Section 2. Indemnification and Insurance . To the fullest extent permitted by applicable law, the Corporation is authorized to provide indemnification of (and advancement of expenses to) directors, officers and agents of the Corporation (and any other persons to which the DGCL permits the Corporation to provide indemnification) through Bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the DGCL. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL. Any amendment, repeal or modification of the foregoing provisions of this Section shall not adversely affect any right or protection of any director, officer or other agent of the Corporation existing at the time of, or increase the liability of any director of the Corporation with respect to any acts or omissions of such director, officer or other agent occurring prior to, such amendment, repeal or modification.
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ARTICLE
IX
STOCKHOLDER MEETINGS
Section 1. Written Action . Any action required or permitted to be taken by stockholders may be effected only at a duly called annual or special meeting of stockholders and may not be effected by a written consent or consents by stockholders in lieu of such a meeting.
Section 2. Special Meetings . Except as otherwise required by law or provided by the resolution or resolutions adopted by the Board of Directors designating the rights, powers and preferences of any series of Preferred Stock, special meetings of stockholders of the Corporation may be called only by (a) the Board of Directors pursuant to a resolution approved by a majority of the entire Board of Directors or (b) the Chairman of the Board of Directors, and any power of stockholders to call a special meeting is specifically denied.
Section 3. Advance Notice . Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws.
ARTICLE
X
SUPERMAJORITY AMENDMENT
Notwithstanding any other provisions of this Certificate of Incorporation or the Bylaws (and notwithstanding that a lesser percentage may be specified by law), the provisions of Article V, Article VI, Article VIII, Article IX and this Article X hereof may not be altered, amended or repealed unless such alteration, amendment or repeal is approved by the affirmative vote of the holders of not less than sixty-six and two-thirds percent (66 2 / 3 %) of the voting power of all of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, considered for purposes of this Article X as a single class.
ARTICLE
XI
DELAYED EFFECTIVENESS
This Certificate of Incorporation shall be effective as of 9:00 am Eastern Standard Time on February 13, 2006.
* * * *
4
IN WITNESS WHEREOF, Crocs, Inc. has caused this Restated Certificate of Incorporation to be executed by Ronald R. Snyder, its Chief Executive Officer, this 10th day of February, 2006.
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CROCS, INC. |
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By: |
/s/ RONALD R. SNYDER |
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Ronald R. Snyder, President and CEO |
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Exhibit 4.2
AMENDED AND RESTATED
BYLAWS
OF
CROCS, INC.
Incorporated under the Laws of the State of Delaware
As of February 13, 2006
ARTICLE
I
OFFICES
SECTION 1.1 Principal Delaware Office . The registered office of the Corporation in the State of Delaware shall be in the City of Wilmington, County of New Castle.
SECTION 1.2 Other Offices . The Corporation may also have offices in such other places, either within or without the State of Delaware, as the Board of Directors from time to time may designate or the business of the Corporation may from time to time require.
ARTICLE
II
STOCKHOLDERS
SECTION 2.1 Meetings of Stockholders .
(a) Annual Meetings . The annual meeting of the stockholders of the Corporation shall be held on such date and at such time as may be fixed by resolution of the Board of Directors. At the annual meeting stockholders shall elect directors and transact such other business as properly may be brought before the meeting.
(b) Special Meetings . Special meetings of the stockholders may be called only by the Chairman of the Board or the Board of Directors pursuant to a resolution approved by a majority of the total number of directors which the Corporation would have if there were no vacancies (the “Whole Board”).
(c) Place of Meetings . Meetings of the stockholders shall be held at such place, either within or without the State of Delaware, as the Board of Directors shall determine. The Board of Directors may, at its sole discretion, determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication as provided under the Delaware General Corporation Law (the “DGCL”).
(d) Notice of Meeting . Written notice, stating the place, day and hour of the meeting shall be delivered by the Corporation not less than ten (10) days nor more than sixty (60) days before the date of the meeting to each stockholder of record entitled to vote at such meeting. Notice of a special meeting shall also state the purpose or purposes for which the meeting has been called. Without limiting the manner by which notice may otherwise be given, notice may be given by a form of electronic transmission that satisfies the requirements of the DGCL and has been consented to by the stockholder to whom notice is given. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail with postage thereon prepaid, addressed to the stockholder at his or her address as it appears in the Corporation’s records. Meetings may be held without notice if all stockholders entitled to vote are present, or if notice is waived by those not present in accordance with Article VIII of these Bylaws. Any previously scheduled meeting of the stockholders may be postponed, and any special meeting of the stockholders may be cancelled, by resolution of the Board of Directors upon public notice given prior to the date previously scheduled for such meeting of stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting (or any supplement thereto).
(e) Chairman of Stockholder’s Meeting . The Chairman of the Board, or in the Chairman’s absence, a Vice Chairman, or in the absence of any Vice Chairman, the Chief Executive Officer, or in the absence of the Chief Executive Officer, the Executive Vice President, or in the absence of the Executive Vice President, a chairman chosen by a majority of the directors present, shall act as chairman of the meetings of the stockholders.
SECTION 2.2 Quorum of Stockholders; Adjournment; Required Vote .
(a) Quorum of Stockholders; Adjournment . Except as otherwise provided by law, by the Restated Certificate of Incorporation (the “Certificate of Incorporation”) or by these Bylaws, the holders of a majority of the voting power of the outstanding shares of the Corporation entitled to vote generally in the election of directors (the “Voting Stock”), present in person or represented by proxy, shall
constitute a quorum at a meeting of the stockholders, except that when specified business is to be voted on by a class or series of stock voting as a class, the holders of a majority of the shares of such class or series shall constitute a quorum of such class or series for the transaction of such business. The chairman of the meeting or a majority of the shares so represented may adjourn the meeting from time to time, whether or not there is such a quorum. No notice of the time and place of adjourned meetings need be given, except that notice of the adjourned meeting shall be required if the adjournment is for more than thirty (30) days or if after the adjournment a new record date is fixed for the adjourned meeting. The stockholders present at a duly called meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
(b) Required Vote . The affirmative vote of a majority of the voting power of the shares present in person or represented by proxy at the meeting and entitled to vote on the matter shall be the act of the stockholders, except as otherwise provided by express provision of law, the Certificate of Incorporation or these Bylaws requiring a larger or different vote, in which case such express provision shall govern and control the decision of such matter.
SECTION 2.3 Voting by Stockholders; Procedures for Election of Directors .
(a) Voting by Stockholders . Each stockholder of record entitled to vote at any meeting may do so in person or by proxy appointed by instrument in writing or in such other manner prescribed by the DGCL, subscribed by such stockholder or his or her duly authorized attorney in fact.
(b) Procedure for Election of Directors . Election of directors at all meetings of the stockholders at which directors are to be elected shall be by ballot, and, subject to the rights of the holders of any series of Preferred Stock to elect directors under specified circumstances, a plurality of the votes cast thereat shall elect directors.
SECTION 2.4 Notice of Stockholder Business and Nominations .
(a) Annual Meetings of Stockholders . (1) Nominations of persons for election to the Board of Directors of the Corporation and the proposal of business to be considered by the stockholders may be made at an annual meeting of stockholders (A) pursuant to the Corporation’s notice of meeting, (B) by or at the direction of the Board of Directors, or (C) by any stockholder of the Corporation who was a stockholder of record at the time of giving of notice provided for in this Bylaw, who is entitled to vote at the meeting and who complies with the notice procedures set forth in this Bylaw.
(2) For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (C) of paragraph (a)(1) of this Bylaw, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation and such other business must otherwise be a proper matter for stockholder action. To be timely, a stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the 90th day nor earlier than the close of business on the 120th day prior to the first anniversary of the preceding year’s annual meeting; provided , however , that in the event that the date of the annual meeting is more than thirty (30) days before or more than sixty (60) days after such anniversary date, notice by the stockholder to be timely must be so delivered not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or the 10th day following the day on which public announcement of the date of such meeting is first made by the Corporation. In no event shall the public announcement of an adjournment of an annual meeting commence a new time period for the giving of a stockholder’s notice as described above. Such stockholder’s notice shall set forth (A) as to each person whom the stockholder proposes to nominate for election or reelection as a director all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to
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Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Rule 14a-11 thereunder (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected); (B) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (i) the name and address of such stockholder, as they appear on the Corporation’s books, and of such beneficial owner and (ii) the class and number of shares of the Corporation which are owned beneficially and of record by such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (a)(2) of this Bylaw to the contrary, in the event that the number of directors to be elected to the Board of Directors of the Corporation is increased and there is no public announcement by the Corporation naming all of the nominees for director or specifying the size of the increased Board of Directors at least one hundred (100) days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this Bylaw shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the 10th day following the day on which such public announcement is first made by the Corporation.
(b) Special Meetings of Stockholders . The business to be transacted at any special meeting shall be limited to the purposes stated in the notice of such meetings. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting (1) by or at the direction of the Board of Directors or (2) provided that the Board of Directors has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who is a stockholder of record at the time of giving of notice provided for in this Bylaw, who shall be entitled to vote at the meeting and who complies with the notice procedures set forth in this Bylaw. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board of Directors, any such stockholder may nominate a person or persons (as the case may be), for election to such position(s) as specified in the Corporation’s notice of meeting, if the stockholder’s notice required by paragraph (a)(2) of this Bylaw shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the 120th day prior to such special meeting and not later than the close of business on the later of the 90th day prior to such special meeting or the 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall the public announcement of an adjournment of a special meeting commence a new time period for the giving of a stockholder’s notice as described above.
(c) General . (1) Only such persons who are nominated in accordance with the procedures set forth in this Bylaw shall be eligible to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Bylaw. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Bylaw and, if any proposed nomination or business is not in compliance with this Bylaw, to declare that such defective proposal or nomination shall be disregarded.
(2) For purposes of this Bylaw, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a
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document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Bylaw, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Bylaw. Nothing in this Bylaw shall be deemed to affect any rights (A) of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or (B) of the holders of any series of Preferred Stock to elect directors under specified circumstances.
SECTION 2.5 Inspectors of Elections; Opening and Closing the Polls . The Board of Directors by resolution shall appoint one or more inspectors, which inspector or inspectors may include individuals who serve the Corporation in other capacities, including, without limitation, as officers, employees, agents or representatives, to act at the meetings of stockholders and make a written report thereof. One or more persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate has been appointed to act or is able to act at a meeting of stockholders, the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall have the duties prescribed by law.
The chairman of the meeting shall fix and announce at the meeting the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting.
SECTION 2.6 No Stockholder Action by Written Consent . Any action required or permitted to be taken by stockholders may be effected only at a duly called annual or special meeting of stockholders and may not be effected by a written consent or consents by stockholders in lieu of such a meeting of stockholders.
ARTICLE
III
BOARD OF DIRECTORS
SECTION 3.1 General Powers . The business and affairs of the Corporation shall be managed under the direction of the Board of Directors. In addition to the powers and authorities by these Bylaws expressly conferred upon them, the Board of Directors may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these Bylaws required to be exercised or done by the stockholders.
SECTION 3.2 Number, Tenure and Qualifications . Subject to the rights of the holders of any series of Preferred Stock to elect directors under specified circumstances, the number of directors of the Corporation shall be fixed, and may be increased or decreased from time to time, exclusively by resolution approved by the affirmative vote of a majority of the Whole Board. The directors, other than those who may be elected by the holders of any outstanding series of Preferred Stock as set forth in the Certificate of Incorporation, shall be divided into three classes, as nearly equal in number as possible and designated Class I, Class II and Class III. Class I shall be initially elected for a term expiring at the annual meeting of stockholders to be held in 2006, Class II shall be initially elected for a term expiring at the annual meeting of stockholders to be held in 2007, and Class III shall be initially elected for a term expiring at the annual meeting of stockholders to be held in 2008. Members of each class shall hold office until their successors are elected and qualified. At each succeeding annual meeting of the stockholders of the Corporation, the successors of the class of directors whose term expires at that meeting shall be elected for a term expiring at the annual meeting of stockholders held in the third year following the year of their election. In case of any increase or decrease, from time to time, in the number of directors, other than those who may be elected by the holders of any
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outstanding series of Preferred Stock as set forth in the Certificate of Incorporation, the number of directors in each class shall be apportioned as nearly equal as possible.
SECTION 3.3 Regular Meetings . A regular meeting of the Board of Directors may be held without other notice than this Bylaw immediately after, and at the same place as, the Annual Meeting of Stockholders. The Board of Directors may, by resolution, provide the time and place for the holding of additional regular meetings without other notice than such resolution.
SECTION 3.4 Special Meetings . Special meetings of the Board of Directors may be called at the request of the Chairman of the Board, the Chief Executive Officer or a majority of the Board of Directors then in office. The person or persons authorized to call special meetings of the Board of Directors may fix the place and time of the meetings. Notice of any special meeting shall be given to each director and shall state the time and place for the special meeting.
SECTION 3.5 Notice . If notice of a Board of Directors’ meeting is required to be given, notice of shall be given to each director at his or her business or residence in writing by hand delivery, first-class or overnight mail or courier service, electronic transmission (including, without limitation, via facsimile transmission or electronic mail), or orally by telephone. If mailed by first-class mail, such notice shall be deemed adequately delivered when deposited in the United States mails so addressed, with postage thereon prepaid, no later than the third business day preceding the date of such meeting. If by overnight mail or courier service, such notice shall be deemed adequately delivered when the notice is delivered to the overnight mail or courier service company at least twenty-four (24) hours before such meeting. If by electronic transmission, such notice shall be deemed adequately delivered when the notice is transmitted at least twelve (12) hours before such meeting. If by telephone or by hand delivery, the notice shall be given at least twelve (12) hours prior to the time set for the meeting. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice of such meeting, except for amendments to these Bylaws, as provided under Article IX of these Bylaws. A meeting may be held at any time without notice if all the directors are present or if those not present waive notice of the meeting in accordance with Article VIII of these Bylaws.
SECTION 3.6 Quorum . Subject to Section 3.10 of these Bylaws, a whole number of directors equal to at least a majority of the Whole Board shall constitute a quorum for the transaction of business, but if at any meeting of the Board of Directors there shall be less than a quorum present, a majority of the directors present may adjourn the meeting from time to time without further notice. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. The directors present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough directors to leave less than a quorum.
SECTION 3.7 Use of Communications Equipment . Directors may participate in a meeting of the Board of Directors or any committee thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
SECTION 3.8 Action by Consent of Board of Directors . Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board or committee.
SECTION 3.9 Removal . Subject to the rights of the holders of any series of Preferred Stock with respect to such series of Preferred Stock, any director, or the entire Board of Directors, may be removed from office at any time, but only for cause and only by the affirmative vote of the holders of a
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majority of the voting power of all of the then-outstanding shares of Voting Stock, voting together as a single class.
SECTION 3.10 Vacancies . Subject to applicable law and the rights of the holders of any series of Preferred Stock with respect to such series of Preferred Stock, and unless the Board of Directors otherwise determines, vacancies resulting from death, resignation, retirement, disqualification, removal from office or other cause, and newly created directorships resulting from any increase in the authorized number of directors, may be filled only by the affirmative vote of a majority of the remaining directors, though less than a quorum of the Board of Directors, or by the sole remaining director, and directors so chosen shall hold office for a term expiring at the annual meeting of stockholders at which the term of office of the class to which they have been elected expires and until such director’s successor shall have been duly elected and qualified. No decrease in the number of authorized directors constituting the Whole Board shall shorten the term of any incumbent director.
SECTION 3.11 Committees . The Board of Directors may, by resolution adopted by a majority of the Whole Board, designate one or more committees, each of which shall consist of one or more directors. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not constituting a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.
Any committee shall, to the extent provided in a resolution of the Board of Directors and subject to the limitations contained in the DGCL, have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Each committee shall keep such records and report to the Board of Directors in such manner as the Board of Directors may from time to time determine. Except as the Board of Directors may otherwise determine, any committee may make rules for the conduct of its business. Unless otherwise provided in a resolution of the Board of Directors or in rules adopted by the committee, each committee shall conduct its business as nearly as possible in the same manner as provided in these Bylaws for the Board of Directors.
The Board of Directors shall have power at any time to fill vacancies in, to change the membership of, or to dissolve any such committee. The term of office of the members of each committee shall be as fixed from time to time by the Board of Directors; provided , however , that any committee member who ceases to be a member of the Board of Directors shall automatically cease to be a committee member.
Nothing herein shall be deemed to prevent the Board of Directors from appointing one or more committees consisting in whole or in part of persons who are not directors of the Corporation; provided , however , that no such committee shall have or may exercise any authority of the Board of Directors.
ARTICLE
IV
BOOKS AND RECORDS
The Board of Directors shall cause to be kept a record containing the minutes of the proceedings of the meetings of the Board of Directors and of the stockholders, appropriate stock books and registers and such books of records and accounts as may be necessary for the proper conduct of the business of the Corporation. Unless otherwise required by the laws of Delaware, the books and records of the Corporation may be kept at the principal office of the Corporation, or at any other place or places inside or outside the State of Delaware, as the Board of Directors from time to time may designate.
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ARTICLE
V
OFFICERS
SECTION 5.1 Officers; Election or Appointment . The Board of Directors shall take such action as may be necessary from time to time to ensure that the Corporation has such officers as are necessary, under Section 6.1 of these Bylaws and the DGCL as currently in effect or as the same may hereafter be amended, to enable it to sign stock certificates. In addition, the Board of Directors at any time and from time to time may elect (a) one or more Chairmen of the Board and/or one or more Vice Chairmen of the Board from among its members, (b) one or more Chief Executive Officers, one or more Presidents and/or one or more Chief Operating Officers, (c) one or more Vice Presidents or Executive Vice Presidents, one or more Treasurers and/or one or more Secretaries and/or (d) one or more other officers, in each case if and to the extent the Board of Directors deems desirable. The Board of Directors may give any officer such further designations or alternate titles as it considers desirable. In addition, the Board of Directors at any time and from time to time may authorize the Chairman of the Board or the Chief Executive Officer of the Corporation to appoint one or more officers of the kind described in clauses (c) and (d) above. Any number of offices may be held by the same person and directors may hold any office unless the Certificate of Incorporation or these Bylaws otherwise provide.
SECTION 5.2 Term of Office; Resignation; Removal; Vacancies . Unless otherwise provided in the resolution of the Board of Directors electing or authorizing the appointment of any officer, each officer shall hold office until his or her successor is elected or appointed and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the Board of Directors or to such person or persons as the Board of Directors may designate. Such resignation shall take effect at the time specified therein, and unless otherwise specified therein no acceptance of such resignation shall be necessary to make it effective. The Board of Directors may remove any officer with or without cause at any time. The Chairman of the Board or the Chief Executive Officer authorized by the Board of Directors to appoint a person to hold an office of the Corporation may also remove such person from such office with or without cause at any time, unless otherwise provided in the resolution of the Board providing such authorization. Any such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation, but the election or appointment of an officer shall not of itself create contractual rights. Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise may be filled by the Board of Directors at any regular or special meeting or by the Chairman of the Board or the Chief Executive Officer authorized by the Board of Directors to appoint a person to hold such office.
SECTION 5.3 Powers and Duties . The officers of the Corporation shall have such powers and duties in the management of the Corporation as shall be stated in these Bylaws or in a resolution of the Board of Directors which is not inconsistent with these Bylaws and, to the extent not so stated, as generally pertain to their respective offices, subject to the control of the Board of Directors. A Secretary or such other officer appointed to do so by the Board of Directors shall have the duty to record the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book to be kept for that purpose.
ARTICLE
VI
STOCK CERTIFICATES
SECTION 6.1 Stock Certificates . The Board of Directors may authorize the issuance of stock either in certificated or in uncertificated form. If shares are issued in uncertificated form, each stockholder shall be entitled upon written request to a stock certificate or certificates duly numbered, certifying the number and class of shares in the Corporation owned by him and otherwise as specified in this Section 6.1. Each certificate for shares of stock shall be in such form as may be prescribed by the Board of Directors and shall be signed in the name of the Corporation by (a) the Chairman of the
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Board, the Chief Executive Officer or a Vice President, and (b) by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on a certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue. Each certificate will include any legends required by law or deemed necessary or advisable by the Board.
SECTION 6.2 Lost Certificates . No certificate for shares of stock in the Corporation shall be issued in place of any certificate alleged to have been lost, destroyed or stolen, except on production of such evidence of such loss, destruction or theft and on delivery to the Corporation of a bond of indemnity in such amount, upon such terms and secured by such surety, as the Board of Directors or any financial officer of the Corporation may in its or his or her discretion require.
SECTION 6.3 Transfers of Stock . The shares of the stock of the Corporation shall be transferable on the books of the Corporation by the holder thereof in a person or by his or her attorney upon surrender for cancellation of a certificate or certificates for at least the same number of shares, or other evidence of ownership if no certificates shall have been issued, with an assignment and power of transfer endorsed thereon or attached thereto, duly executed, and with such proof of the validity and authenticity of the signature as the Corporation or its agents may reasonably require.
ARTICLE
VII
DEPOSITARIES AND CHECKS
Depositaries of the funds of the Corporation shall be designated by the Board of Directors; and all checks on such funds shall be signed by such officers or other employees of the Corporation as the Board of Directors from time to time may designate.
ARTICLE
VIII
WAIVER OF NOTICE
Any notice of a meeting required to be given by law, by the Certificate of Incorporation, or by these Bylaws may be waived by the person entitled thereto, either before or after the time of such meeting stated in such notice. Neither the business to be transacted at, nor the purpose of, any annual or special meeting of the stockholders or the Board of Directors or committee thereof need be specified in any waiver of notice of such meeting.
ARTICLE
IX
AMENDMENT
These Bylaws may be altered, amended, or repealed at any meeting of the Board of Directors or of the stockholders, provided notice of the proposed change was given in the notice of the meeting; provided , however , that, in the case of any alteration, amendment or repeal by the Board of Directors, the affirmative vote of a majority of the Whole Board shall be required to alter, amend or repeal any provision of these Bylaws; and provided further , that, in addition to any vote of the holders of any class or series of stock of the Corporation required by law or by the Certificate of Incorporation, in the case of any alteration, amendment or repeal by the stockholders of any of the provisions of these Bylaws, the affirmative vote of the holders of not less than 66 2 / 3 % of the voting power of all of the then-outstanding shares of Voting Stock, considered for purposes of this Article IX as a single class, shall be required to alter, amend or repeal any such provision.
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ARTICLE
X
INDEMNIFICATION AND INSURANCE
SECTION 10.1 Right to Indemnification . Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit, claim or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she or a person of whom he or she is the legal representative is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans maintained or sponsored by the Corporation, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, Employee Retirement Income Security Act of 1974 excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided , however , that except as provided in Section 10.4 of this Article X, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors.
SECTION 10.2 Advancement of Expenses . The right to indemnification conferred in this Article X shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition, such advances to be paid by the Corporation within twenty (20) days after receipt by the Corporation of a written statement or statements from the claimant requesting such advance or advances; provided , however , that if the DGCL requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Article X or otherwise.
SECTION 10.3 Obtaining Indemnification . To obtain indemnification under this Article X, a claimant shall submit to the Corporation a written request, including therein or therewith such documentation and information as is reasonably available to the claimant and is reasonably necessary to determine whether and to what extent the claimant is entitled to indemnification. Upon written request by a claimant for indemnification pursuant to the first sentence of this Section 10.3, a determination, if required by applicable law, with respect to the claimant’s entitlement thereto shall be made as follows: (1) if requested by the claimant, by Independent Counsel (as hereinafter defined), or (2) if no request is made by the claimant for a determination by Independent Counsel, (i) by the Board of Directors by a majority vote of a quorum consisting of Disinterested Directors (as hereinafter defined), or (ii) if a quorum of the Board of Directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to the claimant, or (iii) if a quorum of Disinterested Directors so directs, by the stockholders of the Corporation. In the event the determination of entitlement to indemnification is to be made by Independent Counsel at the request
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of the claimant, the Independent Counsel shall be selected by the Board of Directors unless there shall have occurred within two years prior to the date of the commencement of the action, suit or proceeding for which indemnification is claimed a Change in Control (as defined below), in which case the Independent Counsel shall be selected by the claimant unless the claimant shall request that such selection be made by the Board of Directors. If it is so determined that the claimant is entitled to indemnification, payment to the claimant shall be made within thirty (30) days after such determination. If a claimant is successful, in whole or in part, in any suit brought against the Corporation to recover the unpaid amount of any written claim to indemnification, the claimant shall be entitled to be paid also the expense of prosecuting such claim.
SECTION 10.4 Right of Claimant to Bring Suit . If a claim under Section 10.1 of this Article X is not paid in full by the Corporation within thirty (30) days after a written claim pursuant to Section 10.3 of this Article X has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standard of conduct which makes it permissible under the DGCL for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, Independent Counsel or stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including its Board of Directors, Independent Counsel or stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
SECTION 10.5 Corporation’s Obligation to Indemnify . If a determination shall have been made pursuant to Section 10.3 of this Article X that the claimant is entitled to indemnification, the Corporation shall be bound by such determination in any judicial proceeding commenced pursuant to Section 10.4 of this Article X.
SECTION 10.6 Preclusion from Challenging Article X . The Corporation shall be precluded from asserting in any judicial proceeding commenced pursuant to Section 10.4 of this Article X that the procedures and presumptions of this Article X are not valid, binding and enforceable and shall stipulate in such proceeding that the Corporation is bound by all the provisions of this Article X.
For purposes of this Article X:
(a) “Change in Control” shall be deemed to occur only if a majority of the members of the Board of Directors shall not be (i) individuals elected as directors of the Corporation for whose election proxies shall have been solicited by the Board of Directors of the Corporation or (ii) individuals elected or appointed by the Board of Directors of the Corporation to fill vacancies on the Board of Directors caused by death or resignation (but not by removal) or to fill newly created directorships.
(b) “Disinterested Director” means a director of the Corporation who is not and was not a party to the matter in respect of which indemnification is sought by the claimant.
(c) “Independent Counsel” means a law firm, a member of a law firm, or an independent practitioner, that is experienced in matters of corporation law and shall include any person who, under the applicable standards of professional conduct then prevailing, would not have a conflict of interest in representing either the Corporation or the claimant in an action to determine the claimant’s rights under this Article X.
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SECTION 10.7 Non-exclusivity of Rights . The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article X shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, Bylaws, agreement, vote of stockholders or otherwise. No repeal or modification of this Article X shall in any way diminish or adversely affect the rights of any director, officer, employee or agent of the Corporation hereunder in respect of any occurrence or matter arising prior to any such repeal or modification.
SECTION 10.8 Insurance . The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL. To the extent that the Corporation maintains any policy or policies providing such insurance, each such director or officer, and each such agent or employee to which rights to indemnification have been granted as provided in Section 10.9 of this Article X, shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage thereunder for any such director, officer, employee or agent.
SECTION 10.9 Other Employees and Agents . The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification, and rights to be paid by the Corporation the expenses incurred in defending any proceeding in advance of its final disposition, to any employee or agent or class of employees or agents of the Corporation (including the heirs, executors, administrators or estate of each such person) to the fullest extent of the provisions of this Article X with respect to the indemnification and advancement of expenses of directors and officers of the Corporation.
SECTION 10.10 Validity of Article X . If any provision or provisions of this Article X shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Article X (including, without limitation, each portion of any paragraph of this Article X containing any such provision held to be invalid, illegal or unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Article X (including, without limitation, each such portion of any paragraph of this Article X containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
ARTICLE
XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 Fiscal Year . The fiscal year of the Corporation shall begin on the first (1 st ) day of January and end on the thirty-first (31 st ) day of December of each year.
SECTION 11.2 Dividends . The Board of Directors may from time to time declare, and the Corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law and the Certificate of Incorporation.
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Exhibit 5.1
[Letterhead of Faegre & Benson LLP]
March 9, 2006
Crocs, Inc.
6273 Monarch Park Place
Niwot, CO 80503
Re: Crocs, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Crocs, Inc. (the “Company”), in connection with the proposed sale of up to 7,638,867 shares of the Company’s Common Stock (the “Shares”) pursuant to the Company’s 2005 Equity Incentive Plan (the “Plan”) and certain non-plan options granted by the Company pursuant to Nonstatutory Stock Option Agreements (the “Non-Plan Options”), and the associated Registration Statement on Form S-8 (the “Registration Statement”) filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Act”).
This opinion is being furnished in accordance with the requirements of Item 8(a) of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
We have reviewed the Company’s charter documents, the Plan, the Non-Plan Options and the corporate proceedings taken by the Company in connection with the authorization of the Plan and the Non-Plan Options. Based on such review, we are of the opinion that the Shares have been duly authorized, and if, as and when issued in accordance with the Plan, will upon such issuance and sale be legally issued, fully paid and nonassessable.
We consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. However, this consent should not be construed as an indication that we are within the category of persons whose consent is required under Section 7 of the Act, the rules and regulations of the Securities and Exchange Commission promulgated thereunder, or Item 509 of Regulation S-K.
This opinion letter is rendered as of the date first written above and we disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein. Our opinion is expressly limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company or the Shares.
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FAEGRE & BENSON LLP |
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/s/ Jeffrey A. Sherman |
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Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated August 14, 2005 (January 30, 2006 as to the first paragraph of Note 20), relating to the consolidated financial statements of Crocs, Inc. appearing in the Prospectus, which is part of the Registration Statement on From S-1 (No. 333-127526).
/s/ Deloitte & Touche LLP
Denver, Colorado
March 6, 2006
Exhibit 23.2
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Samson Bélair/Deloitte & |
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Touche s.e.n.c.rl. |
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925, Grande Allée Ouest |
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Suite 400 |
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Québec QC G1S 4Z4 |
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Canada |
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Tel: (418) 624-3333 |
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Fax: (418) 624-0414 |
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www.deloitte.ca |
CONSENT OF INDEPENDENT REGISTERED PUBLIC CHARTERED ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated August 11, 2005 relating to the financial statements of Finproject N.A. Inc. appearing in the Prospectus, which is part of the Registration Statement on Form S-1 (No. 333-127526).
/s/ Samson, Bélair Deloitte & Touche s.e.n.c.rl.
Independent Registered Chartered Accountants
Québec, Canada
March 6, 2006
Exhibit 99.9
CROCS, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
This Non-Statutory Stock Option Agreement (this “Agreement”) is made as of September 1, 2004 (the “Effective Date”), between Crocs, Inc. (the “Company”), and Raymond D. Croghan (“Optionee”). Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in Section II(15) of this Agreement.
RECITALS
A. On the Effective Date, the Board of Directors of the Company (the “Board”) granted Optionee an option to purchase shares of the Company’s Common Stock conditioned upon the Optionee’s provision of Services to the Company.
B. Optionee was notified of the option granted by the Board and the Company’s internal records have reflected the option grant to Optionee.
C. The Company and Optionee did not enter into a written agreement evidencing the issuance of the option and are entering into this Agreement for the purpose of memorializing the understanding of the parties as of the Effective Date.
D. The Company and Optionee have agreed to the terms and conditions of, and desire to document the prior grant pursuant to, this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual agreements hereinafter contained, and for other good and valuable consideration, the parties agree as follows:
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September 1, 2004 |
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Vesting Commencement Date: |
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September 1, 2004 |
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Exercise Price: |
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$ 237.78 per share |
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Total Number of Shares Granted |
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500 |
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(the “Option Shares”) |
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Type of Option: |
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Nonstatutory Stock Option |
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(i) 125 Option Shares shall vest upon Optionee’s completion of one (1) year of Service on the Company’s Board of Directors measured from the Vesting Commencement Date and (ii) 125 Option Shares shall vest upon each additional year of Service on the Company’s Board of Directors over the twelve (12)-month period measured from the first anniversary of the Vesting Commencement Date. In no event shall any additional Option Shares vest after Optionee’s cessation of Service on the Company’s Board of Directors.
II. TERMS AND CONDITIONS OF OPTION
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2. Cessation of Service . The Option shall terminate (and cease to be outstanding) prior to the Expiration Date should any of the following provisions become applicable:
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15. Additional Definitions . Definitions for this Agreement are as follows:
(a) “Agreement” has the meaning set forth in the preface above.
(b) “Applicable Law” means the requirements relating the issuance and exercise of stock options under federal and state corporate laws, federal and state securities laws, the Internal
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Revenue Code of 1986, as amended, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any other country or jurisdiction where the Optionee resides at the time of exercise.
(c) “Common Stock” means the Company’s Common Stock, $.001 par value, and in the case of an option granted prior to January 3, 2005, the Class B Membership Units of the Company’s predecessor that have been converted into the Company’s Common Stock.
(d) “Company” has the meaning set forth in the preface above.
(e) “Change of Control” has the meaning set forth in Section II(14) above.
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IN WITNESS WHEREOF , the parties have executed this Agreement this ___ day of August, 2005, to be effective as of the Effective Date.
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CROCS, INC. |
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/s/ Raymond D. Croghan |
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/s/ Caryn D. Ellison |
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By: Raymond D. Croghan |
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Caryn D. Ellison |
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1600 Hover rd. C3 PMB#198 |
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Longmont, CO 80501 |
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EXHIBIT A
NONSTATUTORY STOCK OPTION AGREEMENT
EXERCISE NOTICE
Crocs, Inc.
6273 Monarch Park Place
Niwot, Colorado 80503
Attention: Secretary
1. Exercise of Option . Effective as of today, , , the undersigned (the “Optionee”) hereby elects to exercise the Optionee’s option to purchase shares of the Common Stock (the “Shares”) of Crocs, Inc. (the “Company”) under and pursuant to the Nonstatutory Stock Option Agreement dated (the “Agreement”).
2. Delivery of Payment . The Optionee herewith delivers to the Company the full purchase price of the Shares, as set forth in the Agreement, and any and all withholding taxes due in connection with the exercise of the Option (as defined in the Agreement).
3. Representations of Optionee . The Optionee acknowledges that the Optionee has received, read and understood the Agreement and agrees to abide by and be bound by its terms and conditions.
4. Rights as Stockholder . Until the issuance of the Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to shares not yet exercised. The Shares shall be issued to the Optionee as soon as practicable after the Option is exercised in accordance with the Agreement.
5. Tax Consultation . The Optionee understands that the Optionee may suffer adverse tax consequences as a result of the Optionee’s purchase or disposition of the Shares. The Optionee represents that the Optionee has consulted with any tax consultants the Optionee deems advisable in connection with the purchase or disposition of the Shares and that the Optionee is not relying on the Company for any tax advice.
6. Restrictive Legends and Stop-Transfer Orders .
(a) Legends . The Optionee understands and agrees that the Company shall cause the legends set forth below or legends substantially equivalent thereto, to be placed upon any certificate(s) evidencing ownership of the Shares together with any other legends that may be required by the Company or by state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”)
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF COMPANY COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
(b) Stop-Transfer Notices . The Optionee agrees that, in order to ensure compliance with the restrictions referred to herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.
(c) Refusal to Transfer . The Company shall not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Exercise Notice or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been so transferred.
7. Successors and Assigns . The Company may assign any of its rights under this Exercise Notice to single or multiple assignees, and this Exercise Notice shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this Exercise Notice shall be binding upon the Optionee and his or her heirs, executors, administrators, successors and assigns.
8. Governing Law; Severability . This Exercise Notice is governed by and construed in accordance with the laws of the State of Colorado without resort to that State’s conflict-of-laws rules.
9. Entire Agreement . The Agreement is incorporated herein by reference. This Exercise Notice, the Agreement and the Investment Representation Statement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Optionee with respect to the subject matter hereof, and may not be modified adversely to the Optionee’s interest except by means of a writing signed by the Company and the Optionee.
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Submitted by: |
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Accepted by: |
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OPTIONEE |
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CROCS, INC. |
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Signature |
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Raymond D. Croghan |
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Address : |
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Date Received |
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EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE: Raymond D. Croghan
COMPANY: CROCS, INC.
SECURITIES: COMMON STOCK
AMOUNT:
DATE:
In connection with the purchase of the above-listed Securities, the undersigned Optionee represents to the Company the following:
(a) The Optionee is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Securities. The Optionee is acquiring these Securities for investment for the Optionee’s own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the “ Securities Act ”).
(b) The Optionee acknowledges and understands that the Securities constitute “restricted securities” under the Securities Act and have not been registered under the Securities Act in reliance upon a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of the Optionee’s investment intent as expressed herein. In this connection, the Optionee understands that, in the view of the Securities and Exchange Commission, the statutory basis for such exemption may be unavailable if the Optionee’s representation was predicated solely upon a present intention to hold these Securities for the minimum capital gains period specified under tax statutes, for a deferred sale, for or until an increase or decrease in the market price of the Securities, or for a period of one year or any other fixed period in the future. The Optionee further understands that the Securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Optionee further acknowledges and understands that the Company is under no obligation to register the Securities. The Optionee understands that the certificate evidencing the Securities will be imprinted with any legend required under applicable state securities laws.
(c) The Optionee is familiar with the provisions of Rule 701 and Rule 144, each promulgated under the Securities Act, which, in substance, permit limited public resale of “restricted securities” acquired, directly or indirectly, from the issuer thereof, in a non-public offering subject to the satisfaction of certain conditions. Rule 701 provides that if the issuer qualifies under Rule 701 at the time of the grant of the Option to the Optionee, the exercise will be exempt from registration under the Securities Act. In the event the Company becomes subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, ninety (90) days thereafter (or such longer period as any market stand-off agreement may require) the Securities exempt under Rule 701 may be resold, subject to the satisfaction of certain of the conditions specified by Rule 144, including: (1) the resale being made through a broker in an unsolicited “broker’s transaction” or in transactions directly with a market maker (as said term is defined under the Securities Exchange Act of 1934); and, in the case of an affiliate, (2) the availability of certain public information about the Company, (3) the amount of Securities being sold during any three month period not exceeding the limitations specified in Rule 144(e), and (4) the timely filing of a Form 144, if applicable.
In the event that the Company does not qualify under Rule 701 at the time of grant of the Option, then the Securities may be resold in certain limited circumstances subject to the provisions of Rule 144, which requires the resale to occur not less than one year after the later of the date the Securities were sold by the Company or the date the Securities were sold by an affiliate of the Company, within the meaning of Rule 144; and, in the case of acquisition of the Securities by an affiliate, or by a non-affiliate who subsequently holds the Securities less than two years, the satisfaction of the conditions set forth in sections (1), (2), (3) and (4) of the paragraph immediately above.
(d) The Optionee further understands that in the event all of the applicable requirements of Rule 701 or 144 are not satisfied, registration under the Securities Act, compliance with Regulation A, or some other registration exemption will be required; and that, notwithstanding the fact that Rules 144 and 701 are not exclusive, the Staff of the Securities and Exchange Commission has expressed its opinion that persons proposing to sell private placement securities other than in a registered offering and otherwise than pursuant to Rules 144 or 701 will have a substantial burden of proof in establishing that an exemption from registration is available for such offers or sales, and that such persons and their respective brokers who participate in such transactions do so at their own risk. The Optionee understands that no assurances can be given that any such other registration exemption will be available in such event.
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B-2
Exhibit 99.10
CROCS, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
This Non-Statutory Stock Option Agreement (this “Agreement”) is made as of September 1, 2004 (the “Effective Date”), between Crocs, Inc. (the “Company”), and Michael E. Marks (“Optionee”). Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in Section II(15) of this Agreement.
RECITALS
A. On the Effective Date, the Board of Directors of the Company (the “Board”) granted Optionee an option to purchase shares of the Company’s Common Stock conditioned upon the Optionee’s provision of Services to the Company.
B. Optionee was notified of the option granted by the Board and the Company’s internal records have reflected the option grant to Optionee.
C. The Company and Optionee did not enter into a written agreement evidencing the issuance of the option and are entering into this Agreement for the purpose of memorializing the understanding of the parties as of the Effective Date.
D. The Company and Optionee have agreed to the terms and conditions of, and desire to document the prior grant pursuant to, this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual agreements hereinafter contained, and for other good and valuable consideration, the parties agree as follows:
1. Grant of Option . The Company hereby acknowledges and confirms that, as of the Effective Date, Optionee was granted an option (the “Option”) to purchase the number of shares set forth below, at the exercise price per share set forth below (the “Exercise Price”), which exercise price was the fair market value of the Common Stock as of the Effective Date, and subject to the terms and conditions of this Agreement.
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Date of Grant: |
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September 1, 2004 |
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Vesting Commencement Date: |
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September 1, 2004 |
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Exercise Price: |
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$ 237.78 per share |
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Total Number of Shares Granted |
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500 |
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(the “Option Shares”) |
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Type of Option: |
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Nonstatutory Stock Option |
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Expiration Date: |
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2. Vesting Schedule . This Option Shares were initially unvested and became or shall become vested and exercisable, in whole or in part, according to the following vesting schedule:
(i) 125 Option Shares shall vest upon Optionee’s completion of one (1) year of Service on the Company’s Board of Directors measured from the Vesting Commencement Date and (ii) 125 Option Shares shall vest upon each additional year of Service on the Company’s Board of Directors over the twelve (12)-month period measured from the first anniversary of the Vesting Commencement Date. In no event shall any additional Option Shares vest after Optionee’s cessation of Service on the Company’s Board of Directors.
II. TERMS AND CONDITIONS OF OPTION
1. Exercise of Option .
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2. Cessation of Service . The Option shall terminate (and cease to be outstanding) prior to the Expiration Date should any of the following provisions become applicable:
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3. Limited Transferability of Options . This Option shall neither be transferable nor assignable by Optionee other than by will or the laws of inheritance following Optionee’s death and may be exercised, during Optionee’s lifetime, only by Optionee. However, Optionee may designate one or more persons as the beneficiary or beneficiaries of this Option, and this Option shall, in accordance with such designation, automatically be transferred to such beneficiary or beneficiaries upon the Optionee’s death while holding this Option. Such beneficiary or beneficiaries shall take the transferred Option subject to all the terms and conditions of this Agreement, including (without limitation) the limited time period during which this Option may, pursuant to Section II(2), be exercised following Optionee’s death.
4. Accelerated Vesting .
5. Tax Obligations: Withholding Taxes . The Optionee agrees to make appropriate arrangements with the Company for the satisfaction of all Federal, state, local and foreign income and employment tax withholding requirements applicable to the Option exercise. The Optionee
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6. Lock-Up Period . The Optionee hereby agrees that the Optionee shall not offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Common Stock (or other securities) of the Company (other than those included in or acquired after such registration) or enter into any swap, hedging or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Common Stock (or other securities) of the Company held by the Optionee (other than those included in the registration) for a period specified by the representative of the underwriters of Common Stock (or other securities) of the Company not to exceed one hundred eighty (180) days following the effective date of any registration statement of the Company filed under the Securities Act (or such longer period, not to exceed eighteen (18) days after expiration of the one hundred eighty (180) day period, as the Company or the underwriters shall request in order to facilitate compliance with NASD Rule 2711).
The Optionee agrees to execute and deliver such other agreements as may be reasonably requested by the Company or the underwriter which are consistent with the foregoing or which are necessary to give further effect thereto. In addition, if requested by the Company or the representative of the underwriters of Common Stock (or other securities) of the Company, the Optionee shall provide, within ten (10) days of such request, such information as may be required by the Company or such representative in connection with the completion of any public offering of the Company’s securities pursuant to a registration statement filed under the Securities Act. The obligations described in this Section shall not apply to a registration relating solely to employee benefit plans on Form S-1 or Form S-8 or similar forms that may be promulgated in the future, or a registration relating solely to a Commission Rule 145 transaction on Form S-4 or similar forms that may be promulgated in the future. The Company may impose stop-transfer instructions with respect to the shares of Common Stock (or other securities) subject to the foregoing restriction until the end of such lock-up period. The Optionee agrees that any transferee of the Option or shares acquired pursuant to the Option shall be bound by this Section.
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13. Governing Law . The interpretation, performance and enforcement of this Agreement shall be governed by the laws of the State of Colorado without resort to that State’s conflict-of-laws rules.
14. Definition of Change in Control . For purposes of this Agreement, a “Change in Control” shall mean the happening of any of the following events:
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15. Additional Definitions . Definitions for this Agreement are as follows:
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Revenue Code of 1986, as amended, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any other country or jurisdiction where the Optionee resides at the time of exercise.
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IN WITNESS WHEREOF , the parties have executed this Agreement this ___ day of August, 2005, to be effective as of the Effective Date.
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CROCS, INC. |
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/s/ Michael E. Marks |
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/s/ Caryn D. Ellison |
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By: Michael E. Marks |
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Caryn D. Ellison |
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CFO |
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35 McCormick Lane |
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Atherton, CA 94027 |
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10
EXHIBIT A
NONSTATUTORY STOCK OPTION AGREEMENT
EXERCISE NOTICE
Crocs, Inc.
6273 Monarch Park Place
Niwot, Colorado 80503
Attention: Secretary
1. Exercise of Option . Effective as of today, , , the undersigned (the “Optionee”) hereby elects to exercise the Optionee’s option to purchase shares of the Common Stock (the “Shares”) of Crocs, Inc. (the “Company”) under and pursuant to the Nonstatutory Stock Option Agreement dated (the “Agreement”).
2. Delivery of Payment . The Optionee herewith delivers to the Company the full purchase price of the Shares, as set forth in the Agreement, and any and all withholding taxes due in connection with the exercise of the Option (as defined in the Agreement).
3. Representations of Optionee . The Optionee acknowledges that the Optionee has received, read and understood the Agreement and agrees to abide by and be bound by its terms and conditions.
4. Rights as Stockholder . Until the issuance of the Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to shares not yet exercised. The Shares shall be issued to the Optionee as soon as practicable after the Option is exercised in accordance with the Agreement.
5. Tax Consultation . The Optionee understands that the Optionee may suffer adverse tax consequences as a result of the Optionee’s purchase or disposition of the Shares. The Optionee represents that the Optionee has consulted with any tax consultants the Optionee deems advisable in connection with the purchase or disposition of the Shares and that the Optionee is not relying on the Company for any tax advice.
6. Restrictive Legends and Stop-Transfer Orders .
(a) Legends . The Optionee understands and agrees that the Company shall cause the legends set forth below or legends substantially equivalent thereto, to be placed upon any certificate(s) evidencing ownership of the Shares together with any other legends that may be required by the Company or by state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”)
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF COMPANY COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
(b) Stop-Transfer Notices . The Optionee agrees that, in order to ensure compliance with the restrictions referred to herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.
(c) Refusal to Transfer . The Company shall not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Exercise Notice or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been so transferred.
7. Successors and Assigns . The Company may assign any of its rights under this Exercise Notice to single or multiple assignees, and this Exercise Notice shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this Exercise Notice shall be binding upon the Optionee and his or her heirs, executors, administrators, successors and assigns.
8. Governing Law; Severability . This Exercise Notice is governed by and construed in accordance with the laws of the State of Colorado without resort to that State’s conflict-of-laws rules.
9. Entire Agreement . The Agreement is incorporated herein by reference. This Exercise Notice, the Agreement and the Investment Representation Statement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Optionee with respect to the subject matter hereof, and may not be modified adversely to the Optionee’s interest except by means of a writing signed by the Company and the Optionee.
A-2
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Submitted by: |
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Accepted by: |
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OPTIONEE |
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CROCS, INC. |
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Signature |
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Michael E. Marks |
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Address : |
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Date Received |
A-3
EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE: Michael E. Marks
COMPANY: CROCS, INC.
SECURITIES: COMMON STOCK
AMOUNT:
DATE:
In connection with the purchase of the above-listed Securities, the undersigned Optionee represents to the Company the following:
(a) The Optionee is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Securities. The Optionee is acquiring these Securities for investment for the Optionee’s own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the “ Securities Act ”).
(b) The Optionee acknowledges and understands that the Securities constitute “restricted securities” under the Securities Act and have not been registered under the Securities Act in reliance upon a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of the Optionee’s investment intent as expressed herein. In this connection, the Optionee understands that, in the view of the Securities and Exchange Commission, the statutory basis for such exemption may be unavailable if the Optionee’s representation was predicated solely upon a present intention to hold these Securities for the minimum capital gains period specified under tax statutes, for a deferred sale, for or until an increase or decrease in the market price of the Securities, or for a period of one year or any other fixed period in the future. The Optionee further understands that the Securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Optionee further acknowledges and understands that the Company is under no obligation to register the Securities. The Optionee understands that the certificate evidencing the Securities will be imprinted with any legend required under applicable state securities laws.
(c) The Optionee is familiar with the provisions of Rule 701 and Rule 144, each promulgated under the Securities Act, which, in substance, permit limited public resale of “restricted securities” acquired, directly or indirectly, from the issuer thereof, in a non-public offering subject to the satisfaction of certain conditions. Rule 701 provides that if the issuer qualifies under Rule 701 at the time of the grant of the Option to the Optionee, the exercise will be exempt from registration under the Securities Act. In the event the Company becomes subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, ninety (90) days thereafter (or such longer period as any market stand-off agreement may require) the Securities exempt under Rule 701 may be resold, subject to the satisfaction of certain of the conditions specified by Rule 144, including: (1) the resale being made through a broker in an unsolicited “broker’s transaction” or in transactions directly with a market maker (as said term is defined under the Securities Exchange Act of 1934); and, in the case of an affiliate, (2) the availability of certain public information about the Company, (3) the amount of Securities being sold during any three month period not exceeding the limitations specified in Rule 144(e), and (4) the timely filing of a Form 144, if applicable.
In the event that the Company does not qualify under Rule 701 at the time of grant of the Option, then the Securities may be resold in certain limited circumstances subject to the provisions of Rule 144, which requires the resale to occur not less than one year after the later of the date the Securities were sold by the Company or the date the Securities were sold by an affiliate of the Company, within the meaning of Rule 144; and, in the case of acquisition of the Securities by an affiliate, or by a non-affiliate who subsequently holds the Securities less than two years, the satisfaction of the conditions set forth in sections (1), (2), (3) and (4) of the paragraph immediately above.
(d) The Optionee further understands that in the event all of the applicable requirements of Rule 701 or 144 are not satisfied, registration under the Securities Act, compliance with Regulation A, or some other registration exemption will be required; and that, notwithstanding the fact that Rules 144 and 701 are not exclusive, the Staff of the Securities and Exchange Commission has expressed its opinion that persons proposing to sell private placement securities other than in a registered offering and otherwise than pursuant to Rules 144 or 701 will have a substantial burden of proof in establishing that an exemption from registration is available for such offers or sales, and that such persons and their respective brokers who participate in such transactions do so at their own risk. The Optionee understands that no assurances can be given that any such other registration exemption will be available in such event.
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B-2
Exhibit 99.11
CROCS, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
This Non-Statutory Stock Option Agreement (this “Agreement”) is made as of September 1, 2004 (the “Effective Date”), between Crocs, Inc. (the “Company”), and Mark A. Retzloff (“Optionee”). Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in Section II(15) of this Agreement.
RECITALS
A. On the Effective Date, the Board of Directors of the Company (the “Board”) granted Optionee an option to purchase shares of the Company’s Common Stock conditioned upon the Optionee’s provision of Services to the Company.
B. Optionee was notified of the option granted by the Board and the Company’s internal records have reflected the option grant to Optionee.
C. The Company and Optionee did not enter into a written agreement evidencing the issuance of the option and are entering into this Agreement for the purpose of memorializing the understanding of the parties as of the Effective Date.
D. The Company and Optionee have agreed to the terms and conditions of, and desire to document the prior grant pursuant to, this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual agreements hereinafter contained, and for other good and valuable consideration, the parties agree as follows:
1. Grant of Option . The Company hereby acknowledges and confirms that, as of the Effective Date, Optionee was granted an option (the “Option”) to purchase the number of shares set forth below, at the exercise price per share set forth below (the “Exercise Price”), which exercise price was the fair market value of the Common Stock as of the Effective Date, and subject to the terms and conditions of this Agreement.
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Date of Grant: |
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September 1, 2004 |
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Vesting Commencement Date: |
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September 1, 2004 |
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Exercise Price: |
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$ 237.78 per share |
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Total Number of Shares Granted |
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500 |
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(the “Option Shares”) |
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1
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Type of Option: |
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Nonstatutory Stock Option |
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Expiration Date: |
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September 1, 2011 |
2. Vesting Schedule . This Option Shares were initially unvested and became or shall become vested and exercisable, in whole or in part, according to the following vesting schedule:
(i) 125 Option Shares shall vest upon Optionee’s completion of one (1) year of Service on the Company’s Board of Directors measured from the Vesting Commencement Date and (ii) 125 Option Shares shall vest upon each additional year of Service on the Company’s Board of Directors over the twelve (12)-month period measured from the first anniversary of the Vesting Commencement Date. In no event shall any additional Option Shares vest after Optionee’s cessation of Service on the Company’s Board of Directors.
II. TERMS AND CONDITIONS OF OPTION
1. Exercise of Option .
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2. Cessation of Service . The Option shall terminate (and cease to be outstanding) prior to the Expiration Date should any of the following provisions become applicable:
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3. Limited Transferability of Options . This Option shall neither be transferable nor assignable by Optionee other than by will or the laws of inheritance following Optionee’s death and may be exercised, during Optionee’s lifetime, only by Optionee. However, Optionee may designate one or more persons as the beneficiary or beneficiaries of this Option, and this Option shall, in accordance with such designation, automatically be transferred to such beneficiary or beneficiaries upon the Optionee’s death while holding this Option. Such beneficiary or beneficiaries shall take the transferred Option subject to all the terms and conditions of this Agreement, including (without limitation) the limited time period during which this Option may, pursuant to Section II(2), be exercised following Optionee’s death.
4. Accelerated Vesting .
4
5. Tax Obligations: Withholding Taxes . The Optionee agrees to make appropriate arrangements with the Company for the satisfaction of all Federal, state, local and foreign income and employment tax withholding requirements applicable to the Option exercise. The Optionee acknowledges and agrees that the Company may refuse to honor the exercise and refuse to deliver shares if such withholding amounts are not delivered at the time of exercise.
The Optionee agrees to execute and deliver such other agreements as may be reasonably requested by the Company or the underwriter which are consistent with the foregoing or which are necessary to give further effect thereto. In addition, if requested by the Company or the representative of the underwriters of Common Stock (or other securities) of the Company, the Optionee shall provide, within ten (10) days of such request, such information as may be required by the Company or such representative in connection with the completion of any public offering of the Company’s securities pursuant to a registration statement filed under the Securities Act. The obligations described in this Section shall not apply to a registration relating solely to employee benefit plans on Form S-1 or Form S-8 or similar forms that may be promulgated in the future, or a registration relating solely to a Commission Rule 145 transaction on Form S-4 or similar forms that may be promulgated in the future. The Company may impose stop-transfer instructions with respect to the shares of Common Stock (or other securities) subject to the foregoing restriction until the end of such lock-up period. The Optionee agrees that any transferee of the Option or shares acquired pursuant to the Option shall be bound by this Section.
5
13. Governing Law . The interpretation, performance and enforcement of this Agreement shall be governed by the laws of the State of Colorado without resort to that State’s conflict-of-laws rules.
14. Definition of Change in Control . For purposes of this Agreement, a “Change in Control” shall mean the happening of any of the following events:
6
15. Additional Definitions . Definitions for this Agreement are as follows:
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IN WITNESS WHEREOF , the parties have executed this Agreement this day of August, 2005, to be effective as of the Effective Date.
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OPTIONEE |
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CROCS, INC. |
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/s/ Mark A. Retzloff |
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/s/ Caryn D. Ellison |
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By: Mark A. Retzloff |
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By: |
Caryn D. Ellison |
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Its: |
CFO |
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5517 St. Vrain Rd. |
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Longmont, CO 80503 |
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Residence Address |
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10
EXHIBIT A
NONSTATUTORY STOCK OPTION AGREEMENT
EXERCISE NOTICE
Crocs, Inc.
6273 Monarch Park Place
Niwot, Colorado 80503
Attention: Secretary
1. Exercise of Option . Effective as of today, , , the undersigned (the “Optionee”) hereby elects to exercise the Optionee’s option to purchase shares of the Common Stock (the “Shares”) of Crocs, Inc. (the “Company”) under and pursuant to the Nonstatutory Stock Option Agreement dated (the “Agreement”).
2. Delivery of Payment . The Optionee herewith delivers to the Company the full purchase price of the Shares, as set forth in the Agreement, and any and all withholding taxes due in connection with the exercise of the Option (as defined in the Agreement).
3. Representations of Optionee . The Optionee acknowledges that the Optionee has received, read and understood the Agreement and agrees to abide by and be bound by its terms and conditions.
4. Rights as Stockholder . Until the issuance of the Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to shares not yet exercised. The Shares shall be issued to the Optionee as soon as practicable after the Option is exercised in accordance with the Agreement.
5. Tax Consultation . The Optionee understands that the Optionee may suffer adverse tax consequences as a result of the Optionee’s purchase or disposition of the Shares. The Optionee represents that the Optionee has consulted with any tax consultants the Optionee deems advisable in connection with the purchase or disposition of the Shares and that the Optionee is not relying on the Company for any tax advice.
6. Restrictive Legends and Stop-Transfer Orders .
(a) Legends . The Optionee understands and agrees that the Company shall cause the legends set forth below or legends substantially equivalent thereto, to be placed upon any certificate(s) evidencing ownership of the Shares together with any other legends that may be required by the Company or by state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”)
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF COMPANY COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
(b) Stop-Transfer Notices . The Optionee agrees that, in order to ensure compliance with the restrictions referred to herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.
(c) Refusal to Transfer . The Company shall not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Exercise Notice or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been so transferred.
7. Successors and Assigns . The Company may assign any of its rights under this Exercise Notice to single or multiple assignees, and this Exercise Notice shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this Exercise Notice shall be binding upon the Optionee and his or her heirs, executors, administrators, successors and assigns.
8. Governing Law; Severability . This Exercise Notice is governed by and construed in accordance with the laws of the State of Colorado without resort to that State’s conflict-of-laws rules.
9. Entire Agreement . The Agreement is incorporated herein by reference. This Exercise Notice, the Agreement and the Investment Representation Statement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Optionee with respect to the subject matter hereof, and may not be modified adversely to the Optionee’s interest except by means of a writing signed by the Company and the Optionee.
A-2
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Submitted by: |
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Accepted by: |
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OPTIONEE |
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CROCS, INC. |
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Signature |
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By |
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Mark A. Retzloff |
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Print Name |
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Title |
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Address : |
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Date Received |
A-3
EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE: Mark A. Retzloff
COMPANY: CROCS, INC.
SECURITIES: COMMON STOCK
AMOUNT:
DATE:
In connection with the purchase of the above-listed Securities, the undersigned Optionee represents to the Company the following:
(a) The Optionee is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Securities. The Optionee is acquiring these Securities for investment for the Optionee’s own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the “ Securities Act ”).
(b) The Optionee acknowledges and understands that the Securities constitute “restricted securities” under the Securities Act and have not been registered under the Securities Act in reliance upon a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of the Optionee’s investment intent as expressed herein. In this connection, the Optionee understands that, in the view of the Securities and Exchange Commission, the statutory basis for such exemption may be unavailable if the Optionee’s representation was predicated solely upon a present intention to hold these Securities for the minimum capital gains period specified under tax statutes, for a deferred sale, for or until an increase or decrease in the market price of the Securities, or for a period of one year or any other fixed period in the future. The Optionee further understands that the Securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Optionee further acknowledges and understands that the Company is under no obligation to register the Securities. The Optionee understands that the certificate evidencing the Securities will be imprinted with any legend required under applicable state securities laws.
(c) The Optionee is familiar with the provisions of Rule 701 and Rule 144, each promulgated under the Securities Act, which, in substance, permit limited public resale of “restricted securities” acquired, directly or indirectly, from the issuer thereof, in a non-public offering subject to the satisfaction of certain conditions. Rule 701 provides that if the issuer qualifies under Rule 701 at the time of the grant of the Option to the Optionee, the exercise will be exempt from registration under the Securities Act. In the event the Company becomes subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, ninety (90) days thereafter (or such longer period as any market stand-off agreement may require) the Securities exempt under Rule 701 may be resold, subject to the satisfaction of certain of the conditions specified by Rule 144, including: (1) the resale being made through a broker in an unsolicited “broker’s transaction” or in transactions directly with a market maker (as said term is defined under the Securities Exchange Act of 1934); and, in the case of an affiliate, (2) the availability of certain public information about the Company, (3) the amount of Securities being sold during any three month period not exceeding the limitations specified in Rule 144(e), and (4) the timely filing of a Form 144, if applicable.
In the event that the Company does not qualify under Rule 701 at the time of grant of the Option, then the Securities may be resold in certain limited circumstances subject to the provisions of Rule 144, which requires the resale to occur not less than one year after the later of the date the Securities were sold by the Company or the date the Securities were sold by an affiliate of the Company, within the meaning of Rule 144; and, in the case of acquisition of the Securities by an affiliate, or by a non-affiliate who subsequently holds the Securities less than two years, the satisfaction of the conditions set forth in sections (1), (2), (3) and (4) of the paragraph immediately above.
(d) The Optionee further understands that in the event all of the applicable requirements of Rule 701 or 144 are not satisfied, registration under the Securities Act, compliance with Regulation A, or some other registration exemption will be required; and that, notwithstanding the fact that Rules 144 and 701 are not exclusive, the Staff of the Securities and Exchange Commission has expressed its opinion that persons proposing to sell private placement securities other than in a registered offering and otherwise than pursuant to Rules 144 or 701 will have a substantial burden of proof in establishing that an exemption from registration is available for such offers or sales, and that such persons and their respective brokers who participate in such transactions do so at their own risk. The Optionee understands that no assurances can be given that any such other registration exemption will be available in such event.
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Signature of Optionee: |
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Date: |
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B-2
Exhibit 99.12
CROCS, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
This Non-Statutory Stock Option Agreement (this “Agreement”) is made as of September 1, 2004 (the “Effective Date”), between Crocs, Inc. (the “Company”), and Ronald R. Snyder (“Optionee”). Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in Section II(15) of this Agreement.
RECITALS
A. On the Effective Date, the Board of Directors of the Company (the “Board”) granted Optionee an option to purchase shares of the Company’s Common Stock conditioned upon the Optionee’s provision of Services to the Company.
B. Optionee was notified of the option granted by the Board and the Company’s internal records have reflected the option grant to Optionee.
C. The Company and Optionee did not enter into a written agreement evidencing the issuance of the option and are entering into this Agreement for the purpose of memorializing the understanding of the parties as of the Effective Date.
D. The Company and Optionee have agreed to the terms and conditions of, and desire to document the prior grant pursuant to, this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual agreements hereinafter contained, and for other good and valuable consideration, the parties agree as follows:
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Date of Grant: |
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September 1, 2004 |
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Vesting Commencement Date: |
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September 1, 2004 |
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Exercise Price: |
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$ 237.78 per share |
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Total Number of Shares Granted |
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2,000 |
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(the “Option Shares”) |
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1
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Type of Option: |
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Nonstatutory Stock Option |
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Expiration Date: |
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September 1, 2011 |
II. TERMS AND CONDITIONS OF OPTION
2
(e) Exercise as to Vested Shares . The Option may be exercised as to vested Option Shares only.
2. Cessation of Service . The Option shall terminate (and cease to be outstanding) prior to the Expiration Date should any of the following provisions become applicable:
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15. Additional Definitions . Definitions for this Agreement are as follows:
(a) “Agreement” has the meaning set forth in the preface above.
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(b) “Applicable Law” means the requirements relating the issuance and exercise of stock options under federal and state corporate laws, federal and state securities laws, the Internal Revenue Code of 1986, as amended, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any other country or jurisdiction where the Optionee resides at the time of exercise.
(c) “Common Stock” means the Company’s Common Stock, $.001 par value, and in the case of an option granted prior to January 3, 2005, the Class B Membership Units of the Company’s predecessor that have been converted into the Company’s Common Stock.
(d) “Company” has the meaning set forth in the preface above.
(e) “Change of Control” has the meaning set forth in Section II(14) above.
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(r) “Outstanding Company Voting Securities” has the meaning set forth in Section II(14)(a) above.
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IN WITNESS WHEREOF , the parties have executed this Agreement this day of August, 2005, to be effective as of the Effective Date.
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OPTIONEE |
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CROCS, INC. |
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/s/ Ronald R. Snyder |
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/s/ Caryn D. Ellison |
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By: Ronald R. Snyder |
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By: |
Caryn D. Ellison |
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Its: |
CFO |
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10
EXHIBIT A
NONSTATUTORY STOCK OPTION AGREEMENT
EXERCISE NOTICE
Crocs, Inc.
6273 Monarch Park Place
Niwot, Colorado 80503
Attention: Secretary
1. Exercise of Option . Effective as of today, , , the undersigned (the “Optionee”) hereby elects to exercise the Optionee’s option to purchase shares of the Common Stock (the “Shares”) of Crocs, Inc. (the “Company”) under and pursuant to the Nonstatutory Stock Option Agreement dated (the “Agreement”).
2. Delivery of Payment . The Optionee herewith delivers to the Company the full purchase price of the Shares, as set forth in the Agreement, and any and all withholding taxes due in connection with the exercise of the Option (as defined in the Agreement).
3. Representations of Optionee . The Optionee acknowledges that the Optionee has received, read and understood the Agreement and agrees to abide by and be bound by its terms and conditions.
4. Rights as Stockholder . Until the issuance of the Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to shares not yet exercised. The Shares shall be issued to the Optionee as soon as practicable after the Option is exercised in accordance with the Agreement.
5. Tax Consultation . The Optionee understands that the Optionee may suffer adverse tax consequences as a result of the Optionee’s purchase or disposition of the Shares. The Optionee represents that the Optionee has consulted with any tax consultants the Optionee deems advisable in connection with the purchase or disposition of the Shares and that the Optionee is not relying on the Company for any tax advice.
6. Restrictive Legends and Stop-Transfer Orders .
(a) Legends . The Optionee understands and agrees that the Company shall cause the legends set forth below or legends substantially equivalent thereto, to be placed upon any certificate(s) evidencing ownership of the Shares together with any other legends that may be required by the Company or by state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”)
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF COMPANY COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
(b) Stop-Transfer Notices . The Optionee agrees that, in order to ensure compliance with the restrictions referred to herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.
(c) Refusal to Transfer . The Company shall not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Exercise Notice or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been so transferred.
7. Successors and Assigns . The Company may assign any of its rights under this Exercise Notice to single or multiple assignees, and this Exercise Notice shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this Exercise Notice shall be binding upon the Optionee and his or her heirs, executors, administrators, successors and assigns.
8. Governing Law; Severability . This Exercise Notice is governed by and construed in accordance with the laws of the State of Colorado without resort to that State’s conflict-of-laws rules.
9. Entire Agreement . The Agreement is incorporated herein by reference. This Exercise Notice, the Agreement and the Investment Representation Statement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Optionee with respect to the subject matter hereof, and may not be modified adversely to the Optionee’s interest except by means of a writing signed by the Company and the Optionee.
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OPTIONEE |
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CROCS, INC. |
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Ronald R. Snyder |
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Date Received |
A-3
EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE: Ronald R. Snyder
COMPANY: CROCS, INC.
SECURITIES: COMMON STOCK
AMOUNT:
DATE:
In connection with the purchase of the above-listed Securities, the undersigned Optionee represents to the Company the following:
(a) The Optionee is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Securities. The Optionee is acquiring these Securities for investment for the Optionee’s own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the “ Securities Act ”).
(b) The Optionee acknowledges and understands that the Securities constitute “restricted securities” under the Securities Act and have not been registered under the Securities Act in reliance upon a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of the Optionee’s investment intent as expressed herein. In this connection, the Optionee understands that, in the view of the Securities and Exchange Commission, the statutory basis for such exemption may be unavailable if the Optionee’s representation was predicated solely upon a present intention to hold these Securities for the minimum capital gains period specified under tax statutes, for a deferred sale, for or until an increase or decrease in the market price of the Securities, or for a period of one year or any other fixed period in the future. The Optionee further understands that the Securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Optionee further acknowledges and understands that the Company is under no obligation to register the Securities. The Optionee understands that the certificate evidencing the Securities will be imprinted with any legend required under applicable state securities laws.
(c) The Optionee is familiar with the provisions of Rule 701 and Rule 144, each promulgated under the Securities Act, which, in substance, permit limited public resale of “restricted securities” acquired, directly or indirectly, from the issuer thereof, in a non-public offering subject to the satisfaction of certain conditions. Rule 701 provides that if the issuer qualifies under Rule 701 at the time of the grant of the Option to the Optionee, the exercise will be exempt from registration under the Securities Act. In the event the Company becomes subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, ninety (90) days thereafter (or such longer period as any market stand-off agreement may require) the Securities exempt under Rule 701 may be resold, subject to the satisfaction of certain of the conditions specified by Rule 144, including: (1) the resale being made through a broker in an unsolicited “broker’s transaction” or in transactions directly with a market maker (as said term is defined under the Securities Exchange Act of 1934); and, in the case of an affiliate, (2) the availability of certain public information about the Company, (3) the amount of Securities being sold during any three month period not exceeding the limitations specified in Rule 144(e), and (4) the timely filing of a Form 144, if applicable.
In the event that the Company does not qualify under Rule 701 at the time of grant of the Option, then the Securities may be resold in certain limited circumstances subject to the provisions of Rule 144, which requires the resale to occur not less than one year after the later of the date the Securities were sold by the Company or the date the Securities were sold by an affiliate of the Company, within the meaning of Rule 144; and, in the case of acquisition of the Securities by an affiliate, or by a non-affiliate who subsequently holds the Securities less than two years, the satisfaction of the conditions set forth in sections (1), (2), (3) and (4) of the paragraph immediately above.
(d) The Optionee further understands that in the event all of the applicable requirements of Rule 701 or 144 are not satisfied, registration under the Securities Act, compliance with Regulation A, or some other registration exemption will be required; and that, notwithstanding the fact that Rules 144 and 701 are not exclusive, the Staff of the Securities and Exchange Commission has expressed its opinion that persons proposing to sell private placement securities other than in a registered offering and otherwise than pursuant to Rules 144 or 701 will have a substantial burden of proof in establishing that an exemption from registration is available for such offers or sales, and that such persons and their respective brokers who participate in such transactions do so at their own risk. The Optionee understands that no assurances can be given that any such other registration exemption will be available in such event.
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B-2
Exhibit 99.13
CROCS, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
This Non-Statutory Stock Option Agreement (this “Agreement”) is made as of September 1, 2004 (the “Effective Date”), between Crocs, Inc. (the “Company”), and Brad L. Stoffer (“Optionee”). Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in Section II(15) of this Agreement.
RECITALS
A. On the Effective Date, the Board of Directors of the Company (the “Board”) granted Optionee an option to purchase shares of the Company’s Common Stock conditioned upon the Optionee’s provision of Services to the Company.
B. Optionee was notified of the option granted by the Board and the Company’s internal records have reflected the option grant to Optionee.
C. The Company and Optionee did not enter into a written agreement evidencing the issuance of the option and are entering into this Agreement for the purpose of memorializing the understanding of the parties as of the Effective Date.
D. The Company and Optionee have agreed to the terms and conditions of, and desire to document the prior grant pursuant to, this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual agreements hereinafter contained, and for other good and valuable consideration, the parties agree as follows:
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Date of Grant: |
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September 1, 2004 |
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Vesting Commencement Date: |
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September 1, 2004 |
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Exercise Price: |
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$ 237.78 per share |
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Total Number of Shares Granted |
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500 |
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(the “Option Shares”) |
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Type of Option: |
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Nonstatutory Stock Option |
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September 1, 2011 |
(i) 125 Option Shares shall vest upon Optionee’s completion of one (1) year of Service on the Company’s Board of Directors measured from the Vesting Commencement Date and (ii) 125 Option Shares shall vest upon each additional year of Service on the Company’s Board of Directors over the twelve (12)-month period measured from the first anniversary of the Vesting Commencement Date. In no event shall any additional Option Shares vest after Optionee’s cessation of Service on the Company’s Board of Directors.
II. TERMS AND CONDITIONS OF OPTION
(b) Conditions for Exercise; Rights as a Stockholder . The Option may not be exercised for a fraction of a share of the Company’s Common Stock. Until the shares underlying the Option are purchased by Optionee and issued by the Company (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to the Option Shares. Should any change be made to the Common Stock of the Company by reason of any stock split, stock dividend, recapitalization, combination of stock, exchange of stock or other change affecting the Company’s Common Stock without the Company’s receipt of consideration, appropriate adjustments shall be made to (i) the total number and/or class of securities subject to this Option, and (ii) the Exercise Price in order to reflect such change and thereby preclude a dilution or enlargement of benefits hereunder.
(c) Method of Exercise . In order to exercise this Option with respect to all or any part of the Option Shares for which this Option is at the time exercisable, Optionee must take the following actions:
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provides irrevocable instructions (y) to a Company-designated brokerage firm to effect the immediate sale of the purchased shares and remit to the Company, out of the sale proceeds available on the settlement date, sufficient funds to cover the aggregate Exercise Price payable for the purchased shares plus all applicable income and employment taxes required to be withheld by the Company by reason of such exercise and (z) to the Company to deliver the certificates for the purchased shares directly to such brokerage firm in order to complete the sale.
(d) Certificates . As soon as practical after the Company receives the Exercise Notice, the Company shall issue to or on behalf of Optionee (or any other person exercising this Option) a certificate for the requisite number of shares of Common Stock, with the appropriate legends affixed thereto.
(e) Exercise as to Vested Shares . The Option may be exercised as to vested Option Shares only.
2. Cessation of Service . The Option shall terminate (and cease to be outstanding) prior to the Expiration Date should any of the following provisions become applicable:
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(c) Should Optionee cease Service by reason of Disability while this Option is outstanding, then Optionee (or any person or persons to whom this Option is transferred pursuant to a permitted transfer under Section II(3)) shall have a period of twelve (12) months (commencing with the date of such cessation of Service) during which to exercise this Option. In no event shall this Option be exercisable at any time after the Expiration Date.
5. Tax Obligations: Withholding Taxes . The Optionee agrees to make appropriate arrangements with the Company for the satisfaction of all Federal, state, local and foreign income and employment tax withholding requirements applicable to the Option exercise. The Optionee
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acknowledges and agrees that the Company may refuse to honor the exercise and refuse to deliver shares if such withholding amounts are not delivered at the time of exercise.
6. Lock-Up Period . The Optionee hereby agrees that the Optionee shall not offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Common Stock (or other securities) of the Company (other than those included in or acquired after such registration) or enter into any swap, hedging or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Common Stock (or other securities) of the Company held by the Optionee (other than those included in the registration) for a period specified by the representative of the underwriters of Common Stock (or other securities) of the Company not to exceed one hundred eighty (180) days following the effective date of any registration statement of the Company filed under the Securities Act (or such longer period, not to exceed eighteen (18) days after expiration of the one hundred eighty (180) day period, as the Company or the underwriters shall request in order to facilitate compliance with NASD Rule 2711).
The Optionee agrees to execute and deliver such other agreements as may be reasonably requested by the Company or the underwriter which are consistent with the foregoing or which are necessary to give further effect thereto. In addition, if requested by the Company or the representative of the underwriters of Common Stock (or other securities) of the Company, the Optionee shall provide, within ten (10) days of such request, such information as may be required by the Company or such representative in connection with the completion of any public offering of the Company’s securities pursuant to a registration statement filed under the Securities Act. The obligations described in this Section shall not apply to a registration relating solely to employee benefit plans on Form S-1 or Form S-8 or similar forms that may be promulgated in the future, or a registration relating solely to a Commission Rule 145 transaction on Form S-4 or similar forms that may be promulgated in the future. The Company may impose stop-transfer instructions with respect to the shares of Common Stock (or other securities) subject to the foregoing restriction until the end of such lock-up period. The Optionee agrees that any transferee of the Option or shares acquired pursuant to the Option shall be bound by this Section.
8. Restrictions on Exercise . This Option may not be exercised if the issuance of shares upon exercise or the method of payment of consideration for such shares would constitute a violation of any Applicable Law. The inability of the Company to obtain approval from any regulatory body having authority deemed by the Company to be necessary to the lawful issuance and sale of any Common Stock pursuant to this Option shall relieve the Company of any liability with respect to the non-issuance or sale of the Common Stock as to which such approval has not been obtained. The Company, however, shall use its best efforts to obtain all such approvals.
9. Term of Option . If not earlier terminated pursuant to other provision of this Agreement, the Option will terminate on the Expiration Date and may not be exercised thereafter.
10. At-Will Employment . Nothing in this Agreement shall confer upon Optionee any right to continue in Service for any period of specific duration or interfere with or otherwise restrict
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in any way the rights of the Company or of Optionee, which rights are hereby expressly reserved by each, to terminate Optionee’s Service at any time for any reason, with or without cause.
11. Successors and Assigns . The provisions of this Agreement shall inure to the benefit of, and be binding upon, the Company and its successors and assigns and Optionee, Optionee’s assigns and the legal representatives, heirs and legatees of Optionee’s estate.
12. Notices . Any notice required to be given or delivered to the Company under the terms of this Agreement shall be in writing and addressed to the Company at its principal corporate offices. Any notice required to be given or delivered to Optionee shall be in writing and addressed to Optionee at the address indicated below Optionee’s signature line hereto. All notices shall be deemed effective upon personal delivery or upon deposit in the U.S. mail, postage prepaid and properly addressed to the party to be notified.
13. Governing Law . The interpretation, performance and enforcement of this Agreement shall be governed by the laws of the State of Colorado without resort to that State’s conflict-of-laws rules.
14. Definition of Change in Control . For purposes of this Agreement, a “Change in Control” shall mean the happening of any of the following events:
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the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, for purposes of this Section II(14)(b) that any individual who becomes a member of the Board subsequent to the date of this Agreement, whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of those individuals who are members of the Board and who were also members of the Incumbent Board (or deemed to be such pursuant to this proviso) shall be considered as though such individual were a member of the Incumbent Board; but, provided, further, that any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board shall not be so considered as a member of the Incumbent Board; or
15. Additional Definitions . Definitions for this Agreement are as follows:
(a) “Agreement” has the meaning set forth in the preface above.
(b) “Applicable Law” means the requirements relating the issuance and exercise of stock options under federal and state corporate laws, federal and state securities laws, the Internal
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Revenue Code of 1986, as amended, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any other country or jurisdiction where the Optionee resides at the time of exercise.
(c) “Common Stock” means the Company’s Common Stock, $.001 par value, and in the case of an option granted prior to January 3, 2005, the Class B Membership Units of the Company’s predecessor that have been converted into the Company’s Common Stock.
(d) “Company” has the meaning set forth in the preface above.
(e) “Change of Control” has the meaning set forth in Section II(14) above.
(f) “Corporate Transaction” has the meaning set forth in Section II(14)(c) above.
(g) “Disability” shall mean that the Optionee has been unable to perform his or her Company duties as the result of his or her incapacity due to physical or mental illness, and such inability, at least twenty-six (26) weeks after its commencement, is determined to be total and permanent by a physician selected by the Company or its insurers and acceptable to the Optionee or the Optionee’s legal representative (such agreements to acceptability not to be unreasonably withheld).
(h) “Employee” means an individual who is in the employ of the Company, subject to the control and direction of the employer entity as to both the work to be performed and the manner and method of performance.
(i) “Exercise Notice” has the meaning set forth in Section II(1)(c)(i) above.
(j) “Exercise Price” has the meaning set forth in Section I(1) above.
(k) “Expiration Date” has the meaning set forth in Section I(1) above.
(l) “Incumbent Board” has the meaning set forth in Section II(14)(b) above.
(m) “Misconduct” shall mean (i) the commission of any act of fraud, embezzlement or dishonesty by Optionee, (ii) any unauthorized use or disclosure by Optionee of confidential information or trade secrets of the Company, (iii) conviction of the Optionee for committing a felony under federal law or the law of the state in which such action occurred, (iv) illegal drug use or alcohol abuse on Company premises or at a Company sponsored event, (v) intentional, material violation by the Optionee of any contract between the employee and the Company or of any statutory duty of the Optionee to the Company, or (vi) any other intentional misconduct by Optionee adversely affecting the business or affairs of the Company in a material manner. The foregoing definition shall not be deemed to be inclusive of all the acts or omissions which the Company may consider as grounds for the dismissal or discharge of Optionee or any other individual in the Service of the Company.
(n) “Option” has the meaning set forth in Section I(1) above.
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(o) “Optionee” has the meaning set forth in the preface above.
(p) “Option Shares” or means the Shares subject to the Option.
(q) “Outstanding Company Common Stock” has the meaning set forth in Section II(14)(a) above.
(r) “Outstanding Company Voting Securities” has the meaning set forth in Section II(14)(a) above.
(s) “Person” has the meaning set forth in Section II(14)(a) above.
(t) “Service” or “Services” means the Optionee’s performance of services for the Company in the capacity of an Employee, a non-employee member of the Board of Directors or a consultant or independent advisor.
(u) “Subject Person” has the meaning set forth in Section II(14)(a) above.
(v) “Vesting Commencement Date” has the meaning set forth in Section I(1) above.
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IN WITNESS WHEREOF , the parties have executed this Agreement this day of August, 2005, to be effective as of the Effective Date.
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OPTIONEE |
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CROCS, INC. |
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/s/ Brad L. Stoffer |
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/s/ Caryn D. Ellison |
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By: Brad L. Stoffer |
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By: |
Caryn D. Ellison |
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Its: |
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01510 SW Radcliffe Ct. |
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Portland, Oregon 97219 |
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EXHIBIT A
NONSTATUTORY STOCK OPTION AGREEMENT
EXERCISE NOTICE
Crocs, Inc.
6273 Monarch Park Place
Niwot, Colorado 80503
Attention: Secretary
1. Exercise of Option . Effective as of today, , , the undersigned (the “Optionee”) hereby elects to exercise the Optionee’s option to purchase shares of the Common Stock (the “Shares”) of Crocs, Inc. (the “Company”) under and pursuant to the Nonstatutory Stock Option Agreement dated (the “Agreement”).
2. Delivery of Payment . The Optionee herewith delivers to the Company the full purchase price of the Shares, as set forth in the Agreement, and any and all withholding taxes due in connection with the exercise of the Option (as defined in the Agreement).
3. Representations of Optionee . The Optionee acknowledges that the Optionee has received, read and understood the Agreement and agrees to abide by and be bound by its terms and conditions.
4. Rights as Stockholder . Until the issuance of the Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to shares not yet exercised. The Shares shall be issued to the Optionee as soon as practicable after the Option is exercised in accordance with the Agreement.
5. Tax Consultation . The Optionee understands that the Optionee may suffer adverse tax consequences as a result of the Optionee’s purchase or disposition of the Shares. The Optionee represents that the Optionee has consulted with any tax consultants the Optionee deems advisable in connection with the purchase or disposition of the Shares and that the Optionee is not relying on the Company for any tax advice.
6. Restrictive Legends and Stop-Transfer Orders .
(a) Legends . The Optionee understands and agrees that the Company shall cause the legends set forth below or legends substantially equivalent thereto, to be placed upon any certificate(s) evidencing ownership of the Shares together with any other legends that may be required by the Company or by state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”)
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF COMPANY COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
(b) Stop-Transfer Notices . The Optionee agrees that, in order to ensure compliance with the restrictions referred to herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.
(c) Refusal to Transfer . The Company shall not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Exercise Notice or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been so transferred.
7. Successors and Assigns . The Company may assign any of its rights under this Exercise Notice to single or multiple assignees, and this Exercise Notice shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this Exercise Notice shall be binding upon the Optionee and his or her heirs, executors, administrators, successors and assigns.
8. Governing Law; Severability . This Exercise Notice is governed by and construed in accordance with the laws of the State of Colorado without resort to that State’s conflict-of-laws rules.
9. Entire Agreement . The Agreement is incorporated herein by reference. This Exercise Notice, the Agreement and the Investment Representation Statement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Optionee with respect to the subject matter hereof, and may not be modified adversely to the Optionee’s interest except by means of a writing signed by the Company and the Optionee.
A-2
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CROCS, INC. |
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A-3
EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE: Brad L. Stoffer
COMPANY: CROCS, INC.
SECURITIES: COMMON STOCK
AMOUNT:
DATE:
In connection with the purchase of the above-listed Securities, the undersigned Optionee represents to the Company the following:
(a) The Optionee is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Securities. The Optionee is acquiring these Securities for investment for the Optionee’s own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the “ Securities Act ”).
(b) The Optionee acknowledges and understands that the Securities constitute “restricted securities” under the Securities Act and have not been registered under the Securities Act in reliance upon a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of the Optionee’s investment intent as expressed herein. In this connection, the Optionee understands that, in the view of the Securities and Exchange Commission, the statutory basis for such exemption may be unavailable if the Optionee’s representation was predicated solely upon a present intention to hold these Securities for the minimum capital gains period specified under tax statutes, for a deferred sale, for or until an increase or decrease in the market price of the Securities, or for a period of one year or any other fixed period in the future. The Optionee further understands that the Securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Optionee further acknowledges and understands that the Company is under no obligation to register the Securities. The Optionee understands that the certificate evidencing the Securities will be imprinted with any legend required under applicable state securities laws.
(c) The Optionee is familiar with the provisions of Rule 701 and Rule 144, each promulgated under the Securities Act, which, in substance, permit limited public resale of “restricted securities” acquired, directly or indirectly, from the issuer thereof, in a non-public offering subject to the satisfaction of certain conditions. Rule 701 provides that if the issuer qualifies under Rule 701 at the time of the grant of the Option to the Optionee, the exercise will be exempt from registration under the Securities Act. In the event the Company becomes subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, ninety (90) days thereafter (or such longer period as any market stand-off agreement may require) the Securities exempt under Rule 701 may be resold, subject to the satisfaction of certain of the conditions specified by Rule 144, including: (1) the resale being made through a broker in an unsolicited “broker’s transaction” or in transactions directly with a market maker (as said term is defined under the Securities Exchange Act of 1934); and, in the case of an affiliate, (2) the availability of certain public information about the Company, (3) the amount of Securities being sold during any three month period not exceeding the limitations specified in Rule 144(e), and (4) the timely filing of a Form 144, if applicable.
In the event that the Company does not qualify under Rule 701 at the time of grant of the Option, then the Securities may be resold in certain limited circumstances subject to the provisions of Rule 144, which requires the resale to occur not less than one year after the later of the date the Securities were sold by the Company or the date the Securities were sold by an affiliate of the Company, within the meaning of Rule 144; and, in the case of acquisition of the Securities by an affiliate, or by a non-affiliate who subsequently holds the Securities less than two years, the satisfaction of the conditions set forth in sections (1), (2), (3) and (4) of the paragraph immediately above.
(d) The Optionee further understands that in the event all of the applicable requirements of Rule 701 or 144 are not satisfied, registration under the Securities Act, compliance with Regulation A, or some other registration exemption will be required; and that, notwithstanding the fact that Rules 144 and 701 are not exclusive, the Staff of the Securities and Exchange Commission has expressed its opinion that persons proposing to sell private placement securities other than in a registered offering and otherwise than pursuant to Rules 144 or 701 will have a substantial burden of proof in establishing that an exemption from registration is available for such offers or sales, and that such persons and their respective brokers who participate in such transactions do so at their own risk. The Optionee understands that no assurances can be given that any such other registration exemption will be available in such event.
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B-2
Exhibit 99.14
CROCS, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
This Non-Statutory Stock Option Agreement (this “Agreement”) is made as of January 4, 2005 (the “Effective Date”), between Crocs, Inc. (the “Company”), and George B. Boedecker, Jr. (“Optionee”). Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in Section II(15) of this Agreement.
RECITALS
A. On the Effective Date, the Board of Directors of the Company (the “Board”) granted Optionee an option to purchase shares of the Company’s Common Stock conditioned upon the Optionee’s provision of Services to the Company.
B. Optionee was notified of the option granted by the Board and the Company’s internal records have reflected the option grant to Optionee.
C. The Company and Optionee did not enter into a written agreement evidencing the issuance of the option and are entering into this Agreement for the purpose of memorializing the understanding of the parties as of the Effective Date.
D. The Company and Optionee have agreed to the terms and conditions of, and desire to document the prior grant pursuant to, this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual agreements hereinafter contained, and for other good and valuable consideration, the parties agree as follows:
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January 4, 2005 |
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Vesting Commencement Date: |
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January 1, 2005 |
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Exercise Price: |
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$ 398.00 per share |
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Total Number of Shares Granted |
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500 |
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(the “Option Shares”) |
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1
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Type of Option: |
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Nonstatutory Stock Option |
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Expiration Date: |
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January 1, 2012 |
(i) ) 125 Option Shares shall vest upon Optionee’s completion of one (1) year of Service on the Company’s board of Directors measured from the Vesting Commencement Date and (ii) 125 Option Shares shall vest upon each additional year of Service on the Company’s Board of Directors over the twelve (12)-month period measured from the first anniversary of the Vesting Commencement Date. In no event shall any additional Option Shares vest after Optionee’s cessation of Service on the Company’s Board of Directors.
II. TERMS AND CONDITIONS OF OPTION
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(e) Exercise as to Vested Shares . The Option may be exercised as to vested Option Shares only.
2. Cessation of Service . The Option shall terminate (and cease to be outstanding) prior to the Expiration Date should any of the following provisions become applicable:
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The Optionee agrees to execute and deliver such other agreements as may be reasonably requested by the Company or the underwriter which are consistent with the foregoing or which are necessary to give further effect thereto. In addition, if requested by the Company or the representative of the underwriters of Common Stock (or other securities) of the Company, the Optionee shall provide, within ten (10) days of such request, such information as may be required by the Company or such representative in connection with the completion of any public offering of the Company’s securities pursuant to a registration statement filed under the Securities Act. The obligations described in this Section shall not apply to a registration relating solely to employee benefit plans on Form S-1 or Form S-8 or similar forms that may be promulgated in the future, or a registration relating solely to a Commission Rule 145 transaction on Form S-4 or similar forms that may be promulgated in the future. The Company may impose stop-transfer instructions with respect to the shares of Common Stock (or other securities) subject to the foregoing restriction until the end of such lock-up period. The Optionee agrees that any transferee of the Option or shares acquired pursuant to the Option shall be bound by this Section.
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15. Additional Definitions . Definitions for this Agreement are as follows:
(a) “Agreement” has the meaning set forth in the preface above.
(b) “Applicable Law” means the requirements relating the issuance and exercise of stock options under federal and state corporate laws, federal and state securities laws, the Internal
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Revenue Code of 1986, as amended, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any other country or jurisdiction where the Optionee resides at the time of exercise.
(c) “Common Stock” means the Company’s Common Stock, $.001 par value, and in the case of an option granted prior to January 3, 2005, the Class B Membership Units of the Company’s predecessor that have been converted into the Company’s Common Stock.
(d) “Company” has the meaning set forth in the preface above.
(e) “Change of Control” has the meaning set forth in Section II(14) above.
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IN WITNESS WHEREOF , the parties have executed this Agreement this ___ day of August, 2005, to be effective as of the Effective Date.
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OPTIONEE |
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CROCS, INC. |
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/s/ George B. Boedecker, Jr. |
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/s/ Caryn D. Ellison |
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By: George B. Boedecker, Jr. |
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Caryn D. Ellison |
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Its: |
CFO |
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4450 Arapahoe #100 |
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Boulder, CO 80303 |
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Residence Address |
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EXHIBIT A
NONSTATUTORY STOCK OPTION AGREEMENT
EXERCISE NOTICE
Crocs, Inc.
6273 Monarch Park Place
Niwot, Colorado 80503
Attention: Secretary
1. Exercise of Option . Effective as of today, , , the undersigned (the “Optionee”) hereby elects to exercise the Optionee’s option to purchase shares of the Common Stock (the “Shares”) of Crocs, Inc. (the “Company”) under and pursuant to the Nonstatutory Stock Option Agreement dated (the “Agreement”).
2. Delivery of Payment . The Optionee herewith delivers to the Company the full purchase price of the Shares, as set forth in the Agreement, and any and all withholding taxes due in connection with the exercise of the Option (as defined in the Agreement).
3. Representations of Optionee . The Optionee acknowledges that the Optionee has received, read and understood the Agreement and agrees to abide by and be bound by its terms and conditions.
4. Rights as Stockholder . Until the issuance of the Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to shares not yet exercised. The Shares shall be issued to the Optionee as soon as practicable after the Option is exercised in accordance with the Agreement.
5. Tax Consultation . The Optionee understands that the Optionee may suffer adverse tax consequences as a result of the Optionee’s purchase or disposition of the Shares. The Optionee represents that the Optionee has consulted with any tax consultants the Optionee deems advisable in connection with the purchase or disposition of the Shares and that the Optionee is not relying on the Company for any tax advice.
6. Restrictive Legends and Stop-Transfer Orders .
(a) Legends . The Optionee understands and agrees that the Company shall cause the legends set forth below or legends substantially equivalent thereto, to be placed upon any certificate(s) evidencing ownership of the Shares together with any other legends that may be required by the Company or by state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”)
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF COMPANY COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
(b) Stop-Transfer Notices . The Optionee agrees that, in order to ensure compliance with the restrictions referred to herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.
(c) Refusal to Transfer . The Company shall not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Exercise Notice or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been so transferred.
7. Successors and Assigns . The Company may assign any of its rights under this Exercise Notice to single or multiple assignees, and this Exercise Notice shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this Exercise Notice shall be binding upon the Optionee and his or her heirs, executors, administrators, successors and assigns.
8. Governing Law; Severability . This Exercise Notice is governed by and construed in accordance with the laws of the State of Colorado without resort to that State’s conflict-of-laws rules.
9. Entire Agreement . The Agreement is incorporated herein by reference. This Exercise Notice, the Agreement and the Investment Representation Statement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Optionee with respect to the subject matter hereof, and may not be modified adversely to the Optionee’s interest except by means of a writing signed by the Company and the Optionee.
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Submitted by: |
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Accepted by: |
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OPTIONEE |
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CROCS, INC. |
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Signature |
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George G. Boedecker, Jr. |
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Address : |
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Date Received |
A-3
EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE: George B. Boedecker, Jr.
COMPANY: CROCS, INC.
SECURITIES: COMMON STOCK
AMOUNT:
DATE:
In connection with the purchase of the above-listed Securities, the undersigned Optionee represents to the Company the following:
(a) The Optionee is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Securities. The Optionee is acquiring these Securities for investment for the Optionee’s own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the “ Securities Act ”).
(b) The Optionee acknowledges and understands that the Securities constitute “restricted securities” under the Securities Act and have not been registered under the Securities Act in reliance upon a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of the Optionee’s investment intent as expressed herein. In this connection, the Optionee understands that, in the view of the Securities and Exchange Commission, the statutory basis for such exemption may be unavailable if the Optionee’s representation was predicated solely upon a present intention to hold these Securities for the minimum capital gains period specified under tax statutes, for a deferred sale, for or until an increase or decrease in the market price of the Securities, or for a period of one year or any other fixed period in the future. The Optionee further understands that the Securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Optionee further acknowledges and understands that the Company is under no obligation to register the Securities. The Optionee understands that the certificate evidencing the Securities will be imprinted with any legend required under applicable state securities laws.
(c) The Optionee is familiar with the provisions of Rule 701 and Rule 144, each promulgated under the Securities Act, which, in substance, permit limited public resale of “restricted securities” acquired, directly or indirectly, from the issuer thereof, in a non-public offering subject to the satisfaction of certain conditions. Rule 701 provides that if the issuer qualifies under Rule 701 at the time of the grant of the Option to the Optionee, the exercise will be exempt from registration under the Securities Act. In the event the Company becomes subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, ninety (90) days thereafter (or such longer period as any market stand-off agreement may require) the Securities exempt under Rule 701 may be resold, subject to the satisfaction of certain of the conditions specified by Rule 144, including: (1) the resale being made through a broker in an unsolicited “broker’s transaction” or in transactions directly with a market maker (as said term is defined under the Securities Exchange Act of 1934); and, in the case of an affiliate, (2) the availability of certain public information about the Company, (3) the amount of Securities being sold during any three month period not exceeding the limitations specified in Rule 144(e), and (4) the timely filing of a Form 144, if applicable.
In the event that the Company does not qualify under Rule 701 at the time of grant of the Option, then the Securities may be resold in certain limited circumstances subject to the provisions of Rule 144, which requires the resale to occur not less than one year after the later of the date the Securities were sold by the Company or the date the Securities were sold by an affiliate of the Company, within the meaning of Rule 144; and, in the case of acquisition of the Securities by an affiliate, or by a non-affiliate who subsequently holds the Securities less than two years, the satisfaction of the conditions set forth in sections (1), (2), (3) and (4) of the paragraph immediately above.
(d) The Optionee further understands that in the event all of the applicable requirements of Rule 701 or 144 are not satisfied, registration under the Securities Act, compliance with Regulation A, or some other registration exemption will be required; and that, notwithstanding the fact that Rules 144 and 701 are not exclusive, the Staff of the Securities and Exchange Commission has expressed its opinion that persons proposing to sell private placement securities other than in a registered offering and otherwise than pursuant to Rules 144 or 701 will have a substantial burden of proof in establishing that an exemption from registration is available for such offers or sales, and that such persons and their respective brokers who participate in such transactions do so at their own risk. The Optionee understands that no assurances can be given that any such other registration exemption will be available in such event.
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Signature of Optionee: |
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B-2
Exhibit 99.15
CROCS, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
This Non-Statutory Stock Option Agreement (this “Agreement”) is made as of January 4, 2005 (the “Effective Date”), between Crocs, Inc. (the “Company”), and Lyndon V. Hanson, III (“Optionee”). Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in Section II(15) of this Agreement.
RECITALS
A. On the Effective Date, the Board of Directors of the Company (the “Board”) granted Optionee an option to purchase shares of the Company’s Common Stock conditioned upon the Optionee’s provision of Services to the Company.
B. Optionee was notified of the option granted by the Board and the Company’s internal records have reflected the option grant to Optionee.
C. The Company and Optionee did not enter into a written agreement evidencing the issuance of the option and are entering into this Agreement for the purpose of memorializing the understanding of the parties as of the Effective Date.
D. The Company and Optionee have agreed to the terms and conditions of, and desire to document the prior grant pursuant to, this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual agreements hereinafter contained, and for other good and valuable consideration, the parties agree as follows:
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Date of Grant: |
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January 4, 2005 |
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Vesting Commencement Date: |
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January 1, 2005 |
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Exercise Price: |
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$ 398.00 per share |
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Total Number of Shares Granted |
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250 |
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(the “Option Shares”) |
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Type of Option: |
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Nonstatutory Stock Option |
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Expiration Date: |
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January 1, 2015 |
(i) 62 Option Shares shall vest upon Optionee’s completion of one (1) year of Service measured from the Vesting Commencement Date and (ii) the balance of the Option Shares shall vest in a series of thirty-six (36) successive equal monthly installments upon Optionee’s completion of each additional month of Service over the thirty-six (36)-month period measured from the first anniversary of the Vesting Commencement Date. In no event shall any additional Option Shares vest after Optionee’s cessation of Service.
II. TERMS AND CONDITIONS OF OPTION
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(e) Exercise as to Vested Shares . The Option may be exercised as to vested Option Shares only.
2. Cessation of Service . The Option shall terminate (and cease to be outstanding) prior to the Expiration Date should any of the following provisions become applicable:
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The Optionee agrees to execute and deliver such other agreements as may be reasonably requested by the Company or the underwriter which are consistent with the foregoing or which are necessary to give further effect thereto. In addition, if requested by the Company or the representative of the underwriters of Common Stock (or other securities) of the Company, the Optionee shall provide, within ten (10) days of such request, such information as may be required by the Company or such representative in connection with the completion of any public offering of the Company’s securities pursuant to a registration statement filed under the Securities Act. The obligations described in this Section shall not apply to a registration relating solely to employee benefit plans on Form S-1 or Form S-8 or similar forms that may be promulgated in the future, or a registration relating solely to a Commission Rule 145 transaction on Form S-4 or similar forms that may be promulgated in the future. The Company may impose stop-transfer instructions with respect to the shares of Common Stock (or other securities) subject to the foregoing restriction until the end of such lock-up period. The Optionee agrees that any transferee of the Option or shares acquired pursuant to the Option shall be bound by this Section.
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Revenue Code of 1986, as amended, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any other country or jurisdiction where the Optionee resides at the time of exercise.
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IN WITNESS WHEREOF , the parties have executed this Agreement this ___ day of August, 2005, to be effective as of the Effective Date.
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OPTIONEE |
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CROCS, INC. |
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/s/ Lyndon V. Hanson, III |
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/s/ Caryn D. Ellison |
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By: Lyndon V. Hanson, III |
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By: |
Caryn D. Ellison |
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Its: |
CFO |
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758 Club Circle |
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Louisville, CO 80027 |
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EXHIBIT A
NONSTATUTORY STOCK OPTION AGREEMENT
EXERCISE NOTICE
Crocs, Inc.
6273 Monarch Park Place
Niwot, Colorado 80503
Attention: Secretary
1. Exercise of Option . Effective as of today, , , the undersigned (the “Optionee”) hereby elects to exercise the Optionee’s option to purchase shares of the Common Stock (the “Shares”) of Crocs, Inc. (the “Company”) under and pursuant to the Nonstatutory Stock Option Agreement dated (the “Agreement”).
2. Delivery of Payment . The Optionee herewith delivers to the Company the full purchase price of the Shares, as set forth in the Agreement, and any and all withholding taxes due in connection with the exercise of the Option (as defined in the Agreement).
3. Representations of Optionee . The Optionee acknowledges that the Optionee has received, read and understood the Agreement and agrees to abide by and be bound by its terms and conditions.
4. Rights as Stockholder . Until the issuance of the Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to shares not yet exercised. The Shares shall be issued to the Optionee as soon as practicable after the Option is exercised in accordance with the Agreement.
5. Tax Consultation . The Optionee understands that the Optionee may suffer adverse tax consequences as a result of the Optionee’s purchase or disposition of the Shares. The Optionee represents that the Optionee has consulted with any tax consultants the Optionee deems advisable in connection with the purchase or disposition of the Shares and that the Optionee is not relying on the Company for any tax advice.
6. Restrictive Legends and Stop-Transfer Orders .
(a) Legends . The Optionee understands and agrees that the Company shall cause the legends set forth below or legends substantially equivalent thereto, to be placed upon any certificate(s) evidencing ownership of the Shares together with any other legends that may be required by the Company or by state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”)
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF COMPANY COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
(b) Stop-Transfer Notices . The Optionee agrees that, in order to ensure compliance with the restrictions referred to herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.
(c) Refusal to Transfer . The Company shall not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Exercise Notice or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been so transferred.
7. Successors and Assigns . The Company may assign any of its rights under this Exercise Notice to single or multiple assignees, and this Exercise Notice shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this Exercise Notice shall be binding upon the Optionee and his or her heirs, executors, administrators, successors and assigns.
8. Governing Law; Severability . This Exercise Notice is governed by and construed in accordance with the laws of the State of Colorado without resort to that State’s conflict-of-laws rules.
9. Entire Agreement . The Agreement is incorporated herein by reference. This Exercise Notice, the Agreement and the Investment Representation Statement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Optionee with respect to the subject matter hereof, and may not be modified adversely to the Optionee’s interest except by means of a writing signed by the Company and the Optionee.
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Submitted by: |
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Accepted by: |
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OPTIONEE |
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CROCS, INC. |
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Signature |
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Lyndon V. Hanson, III |
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Address : |
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Date Received |
A-3
EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE: Lyndon V. Hanson, III
COMPANY: CROCS, INC.
SECURITIES: COMMON STOCK
AMOUNT:
DATE:
In connection with the purchase of the above-listed Securities, the undersigned Optionee represents to the Company the following:
(a) The Optionee is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Securities. The Optionee is acquiring these Securities for investment for the Optionee’s own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the “ Securities Act ”).
(b) The Optionee acknowledges and understands that the Securities constitute “restricted securities” under the Securities Act and have not been registered under the Securities Act in reliance upon a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of the Optionee’s investment intent as expressed herein. In this connection, the Optionee understands that, in the view of the Securities and Exchange Commission, the statutory basis for such exemption may be unavailable if the Optionee’s representation was predicated solely upon a present intention to hold these Securities for the minimum capital gains period specified under tax statutes, for a deferred sale, for or until an increase or decrease in the market price of the Securities, or for a period of one year or any other fixed period in the future. The Optionee further understands that the Securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Optionee further acknowledges and understands that the Company is under no obligation to register the Securities. The Optionee understands that the certificate evidencing the Securities will be imprinted with any legend required under applicable state securities laws.
(c) The Optionee is familiar with the provisions of Rule 701 and Rule 144, each promulgated under the Securities Act, which, in substance, permit limited public resale of “restricted securities” acquired, directly or indirectly, from the issuer thereof, in a non-public offering subject to the satisfaction of certain conditions. Rule 701 provides that if the issuer qualifies under Rule 701 at the time of the grant of the Option to the Optionee, the exercise will be exempt from registration under the Securities Act. In the event the Company becomes subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, ninety (90) days thereafter (or such longer period as any market stand-off agreement may require) the Securities exempt under Rule 701 may be resold, subject to the satisfaction of certain of the conditions specified by Rule 144, including: (1) the resale being made through a broker in an unsolicited “broker’s transaction” or in transactions directly with a market maker (as said term is defined under the Securities Exchange Act of 1934); and, in the case of an affiliate, (2) the availability of certain public information about the Company, (3) the amount of Securities being sold during any three month period not exceeding the limitations specified in Rule 144(e), and (4) the timely filing of a Form 144, if applicable.
In the event that the Company does not qualify under Rule 701 at the time of grant of the Option, then the Securities may be resold in certain limited circumstances subject to the provisions of Rule 144, which requires the resale to occur not less than one year after the later of the date the Securities were sold by the Company or the date the Securities were sold by an affiliate of the Company, within the meaning of Rule 144; and, in the case of acquisition of the Securities by an affiliate, or by a non-affiliate who subsequently holds the Securities less than two years, the satisfaction of the conditions set forth in sections (1), (2), (3) and (4) of the paragraph immediately above.
(d) The Optionee further understands that in the event all of the applicable requirements of Rule 701 or 144 are not satisfied, registration under the Securities Act, compliance with Regulation A, or some other registration exemption will be required; and that, notwithstanding the fact that Rules 144 and 701 are not exclusive, the Staff of the Securities and Exchange Commission has expressed its opinion that persons proposing to sell private placement securities other than in a registered offering and otherwise than pursuant to Rules 144 or 701 will have a substantial burden of proof in establishing that an exemption from registration is available for such offers or sales, and that such persons and their respective brokers who participate in such transactions do so at their own risk. The Optionee understands that no assurances can be given that any such other registration exemption will be available in such event.
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Signature of Optionee: |
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B-2
Exhibit 99.16
CROCS, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
This Non-Statutory Stock Option Agreement (this “Agreement”) is made as of January 4, 2005 (the “Effective Date”), between Crocs, Inc. (the “Company”), and Erik Rebich (“Optionee”). Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in Section II(15) of this Agreement.
RECITALS
A. On the Effective Date, the Board of Directors of the Company (the “Board”) granted Optionee an option to purchase shares of the Company’s Common Stock conditioned upon the Optionee’s provision of Services to the Company.
B. Optionee was notified of the option granted by the Board and the Company’s internal records have reflected the option grant to Optionee.
C. The Company and Optionee did not enter into a written agreement evidencing the issuance of the option and are entering into this Agreement for the purpose of memorializing the understanding of the parties as of the Effective Date.
D. The Company and Optionee have agreed to the terms and conditions of, and desire to document the prior grant pursuant to, this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual agreements hereinafter contained, and for other good and valuable consideration, the parties agree as follows:
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Date of Grant: |
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January 4, 2005 |
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Vesting Commencement Date: |
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January 1, 2005 |
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Exercise Price: |
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$ 398.00 per share |
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Total Number of Shares Granted |
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250 |
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(the “Option Shares”) |
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1
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Type of Option: |
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Nonstatutory Stock Option |
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Expiration Date: |
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January 1, 2015 |
(i) 62 Option Shares shall vest upon Optionee’s completion of one (1) year of Service measured from the Vesting Commencement Date and (ii) the balance of the Option Shares shall vest in a series of thirty-six (36) successive equal monthly installments upon Optionee’s completion of each additional month of Service over the thirty-six (36)-month period measured from the first anniversary of the Vesting Commencement Date. In no event shall any additional Option Shares vest after Optionee’s cessation of Service.
II. TERMS AND CONDITIONS OF OPTION
(b) Conditions for Exercise; Rights as a Stockholder . The Option may not be exercised for a fraction of a share of the Company’s Common Stock. Until the shares underlying the Option are purchased by Optionee and issued by the Company (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to the Option Shares. Should any change be made to the Common Stock of the Company by reason of any stock split, stock dividend, recapitalization, combination of stock, exchange of stock or other change affecting the Company’s Common Stock without the Company’s receipt of consideration, appropriate adjustments shall be made to (i) the total number and/or class of securities subject to this Option, and (ii) the Exercise Price in order to reflect such change and thereby preclude a dilution or enlargement of benefits hereunder.
(c) Method of Exercise . In order to exercise this Option with respect to all or any part of the Option Shares for which this Option is at the time exercisable, Optionee must take the following actions:
2
(d) Certificates . As soon as practical after the Company receives the Exercise Notice, the Company shall issue to or on behalf of Optionee (or any other person exercising this Option) a certificate for the requisite number of shares of Common Stock, with the appropriate legends affixed thereto.
(e) Exercise as to Vested Shares . The Option may be exercised as to vested Option Shares only.
2. Cessation of Service . The Option shall terminate (and cease to be outstanding) prior to the Expiration Date should any of the following provisions become applicable:
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4
The Optionee agrees to execute and deliver such other agreements as may be reasonably requested by the Company or the underwriter which are consistent with the foregoing or which are necessary to give further effect thereto. In addition, if requested by the Company or the representative of the underwriters of Common Stock (or other securities) of the Company, the Optionee shall provide, within ten (10) days of such request, such information as may be required by the Company or such representative in connection with the completion of any public offering of the Company’s securities pursuant to a registration statement filed under the Securities Act. The obligations described in this Section shall not apply to a registration relating solely to employee benefit plans on Form S-1 or Form S-8 or similar forms that may be promulgated in the future, or a registration relating solely to a Commission Rule 145 transaction on Form S-4 or similar forms that may be promulgated in the future. The Company may impose stop-transfer instructions with respect to the shares of Common Stock (or other securities) subject to the foregoing restriction until the end of such lock-up period. The Optionee agrees that any transferee of the Option or shares acquired pursuant to the Option shall be bound by this Section.
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15. Additional Definitions . Definitions for this Agreement are as follows:
(a) “Agreement” has the meaning set forth in the preface above.
(b) “Applicable Law” means the requirements relating the issuance and exercise of stock options under federal and state corporate laws, federal and state securities laws, the Internal
7
Revenue Code of 1986, as amended, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any other country or jurisdiction where the Optionee resides at the time of exercise.
(c) “Common Stock” means the Company’s Common Stock, $.001 par value, and in the case of an option granted prior to January 3, 2005, the Class B Membership Units of the Company’s predecessor that have been converted into the Company’s Common Stock.
(d) “Company” has the meaning set forth in the preface above.
(e) “Change of Control” has the meaning set forth in Section II(14) above.
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IN WITNESS WHEREOF , the parties have executed this Agreement this day of August, 2005, to be effective as of the Effective Date.
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OPTIONEE |
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CROCS, INC. |
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/s/ Erik Rebich |
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/s/ Caryn D. Ellison |
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By: Erik Rebich |
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Caryn D. Ellison |
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CFO |
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1720 Wynkoop St. #409 |
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Denver, CO 80202 |
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10
EXHIBIT A
NONSTATUTORY STOCK OPTION AGREEMENT
EXERCISE NOTICE
Crocs, Inc.
6273 Monarch Park Place
Niwot, Colorado 80503
Attention: Secretary
1. Exercise of Option . Effective as of today, , , the undersigned (the “Optionee”) hereby elects to exercise the Optionee’s option to purchase shares of the Common Stock (the “Shares”) of Crocs, Inc. (the “Company”) under and pursuant to the Nonstatutory Stock Option Agreement dated (the “Agreement”).
2. Delivery of Payment . The Optionee herewith delivers to the Company the full purchase price of the Shares, as set forth in the Agreement, and any and all withholding taxes due in connection with the exercise of the Option (as defined in the Agreement).
3. Representations of Optionee . The Optionee acknowledges that the Optionee has received, read and understood the Agreement and agrees to abide by and be bound by its terms and conditions.
4. Rights as Stockholder . Until the issuance of the Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to shares not yet exercised. The Shares shall be issued to the Optionee as soon as practicable after the Option is exercised in accordance with the Agreement.
5. Tax Consultation . The Optionee understands that the Optionee may suffer adverse tax consequences as a result of the Optionee’s purchase or disposition of the Shares. The Optionee represents that the Optionee has consulted with any tax consultants the Optionee deems advisable in connection with the purchase or disposition of the Shares and that the Optionee is not relying on the Company for any tax advice.
6. Restrictive Legends and Stop-Transfer Orders .
(a) Legends . The Optionee understands and agrees that the Company shall cause the legends set forth below or legends substantially equivalent thereto, to be placed upon any certificate(s) evidencing ownership of the Shares together with any other legends that may be required by the Company or by state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”)
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF COMPANY COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
(b) Stop-Transfer Notices . The Optionee agrees that, in order to ensure compliance with the restrictions referred to herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.
(c) Refusal to Transfer . The Company shall not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Exercise Notice or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been so transferred.
7. Successors and Assigns . The Company may assign any of its rights under this Exercise Notice to single or multiple assignees, and this Exercise Notice shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this Exercise Notice shall be binding upon the Optionee and his or her heirs, executors, administrators, successors and assigns.
8. Governing Law; Severability . This Exercise Notice is governed by and construed in accordance with the laws of the State of Colorado without resort to that State’s conflict-of-laws rules.
9. Entire Agreement . The Agreement is incorporated herein by reference. This Exercise Notice, the Agreement and the Investment Representation Statement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Optionee with respect to the subject matter hereof, and may not be modified adversely to the Optionee’s interest except by means of a writing signed by the Company and the Optionee.
A-2
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Submitted by: |
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Accepted by: |
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OPTIONEE |
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CROCS, INC. |
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Signature |
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By |
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Erik Rebich |
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Print Name |
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Address : |
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Date Received |
A-3
EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE: Erik Rebich
COMPANY: CROCS, INC.
SECURITIES: COMMON STOCK
AMOUNT:
DATE:
In connection with the purchase of the above-listed Securities, the undersigned Optionee represents to the Company the following:
(a) The Optionee is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Securities. The Optionee is acquiring these Securities for investment for the Optionee’s own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the “ Securities Act ”).
(b) The Optionee acknowledges and understands that the Securities constitute “restricted securities” under the Securities Act and have not been registered under the Securities Act in reliance upon a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of the Optionee’s investment intent as expressed herein. In this connection, the Optionee understands that, in the view of the Securities and Exchange Commission, the statutory basis for such exemption may be unavailable if the Optionee’s representation was predicated solely upon a present intention to hold these Securities for the minimum capital gains period specified under tax statutes, for a deferred sale, for or until an increase or decrease in the market price of the Securities, or for a period of one year or any other fixed period in the future. The Optionee further understands that the Securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Optionee further acknowledges and understands that the Company is under no obligation to register the Securities. The Optionee understands that the certificate evidencing the Securities will be imprinted with any legend required under applicable state securities laws.
(c) The Optionee is familiar with the provisions of Rule 701 and Rule 144, each promulgated under the Securities Act, which, in substance, permit limited public resale of “restricted securities” acquired, directly or indirectly, from the issuer thereof, in a non-public offering subject to the satisfaction of certain conditions. Rule 701 provides that if the issuer qualifies under Rule 701 at the time of the grant of the Option to the Optionee, the exercise will be exempt from registration under the Securities Act. In the event the Company becomes subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, ninety (90) days thereafter (or such longer period as any market stand-off agreement may require) the Securities exempt under Rule 701 may be resold, subject to the satisfaction of certain of the conditions specified by Rule 144, including: (1) the resale being made through a broker in an unsolicited “broker’s transaction” or in transactions directly with a market maker (as said term is defined under the Securities Exchange Act of 1934); and, in the case of an affiliate, (2) the availability of certain public information about the Company, (3) the amount of Securities being sold during any three month period not exceeding the limitations specified in Rule 144(e), and (4) the timely filing of a Form 144, if applicable.
In the event that the Company does not qualify under Rule 701 at the time of grant of the Option, then the Securities may be resold in certain limited circumstances subject to the provisions of Rule 144, which requires the resale to occur not less than one year after the later of the date the Securities were sold by the Company or the date the Securities were sold by an affiliate of the Company, within the meaning of Rule 144; and, in the case of acquisition of the Securities by an affiliate, or by a non-affiliate who subsequently holds the Securities less than two years, the satisfaction of the conditions set forth in sections (1), (2), (3) and (4) of the paragraph immediately above.
(d) The Optionee further understands that in the event all of the applicable requirements of Rule 701 or 144 are not satisfied, registration under the Securities Act, compliance with Regulation A, or some other registration exemption will be required; and that, notwithstanding the fact that Rules 144 and 701 are not exclusive, the Staff of the Securities and Exchange Commission has expressed its opinion that persons proposing to sell private placement securities other than in a registered offering and otherwise than pursuant to Rules 144 or 701 will have a substantial burden of proof in establishing that an exemption from registration is available for such offers or sales, and that such persons and their respective brokers who participate in such transactions do so at their own risk. The Optionee understands that no assurances can be given that any such other registration exemption will be available in such event.
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B-2
Exhibit 99.17
CROCS, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
This Non-Statutory Stock Option Agreement (this “Agreement”) is made as of January 4, 2005 (the “Effective Date”), between Crocs, Inc. (the “Company”), and Scott Seamans (“Optionee”). Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in Section II(15) of this Agreement.
RECITALS
A. On the Effective Date, the Board of Directors of the Company (the “Board”) granted Optionee an option to purchase shares of the Company’s Common Stock conditioned upon the Optionee’s provision of Services to the Company.
B. Optionee was notified of the option granted by the Board and the Company’s internal records have reflected the option grant to Optionee.
C. The Company and Optionee did not enter into a written agreement evidencing the issuance of the option and are entering into this Agreement for the purpose of memorializing the understanding of the parties as of the Effective Date.
D. The Company and Optionee have agreed to the terms and conditions of, and desire to document the prior grant pursuant to, this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual agreements hereinafter contained, and for other good and valuable consideration, the parties agree as follows:
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Date of Grant: |
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January 4, 2005 |
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Vesting Commencement Date: |
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January 1, 2005 |
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Exercise Price: |
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$ 398.00 per share |
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Total Number of Shares Granted |
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250 |
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(the “Option Shares”) |
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1
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Type of Option: |
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Nonstatutory Stock Option |
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Expiration Date: |
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January 1, 2015 |
II. TERMS AND CONDITIONS OF OPTION
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(e) Exercise as to Vested Shares . The Option may be exercised as to vested Option Shares only.
2. Cessation of Service . The Option shall terminate (and cease to be outstanding) prior to the Expiration Date should any of the following provisions become applicable:
3
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15. Additional Definitions . Definitions for this Agreement are as follows:
(a) “Agreement” has the meaning set forth in the preface above.
(b) “Applicable Law” means the requirements relating the issuance and exercise of stock options under federal and state corporate laws, federal and state securities laws, the Internal
7
Revenue Code of 1986, as amended, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any other country or jurisdiction where the Optionee resides at the time of exercise.
(c) “Common Stock” means the Company’s Common Stock, $.001 par value, and in the case of an option granted prior to January 3, 2005, the Class B Membership Units of the Company’s predecessor that have been converted into the Company’s Common Stock.
(d) “Company” has the meaning set forth in the preface above.
(e) “Change of Control” has the meaning set forth in Section II(14) above.
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(r) “Outstanding Company Voting Securities” has the meaning set forth in Section II(14)(a) above.
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IN WITNESS WHEREOF , the parties have executed this Agreement this day of August, 2005, to be effective as of the Effective Date.
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OPTIONEE |
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CROCS, INC. |
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/s/ Scott Seamans |
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/s/ Caryn D. Ellison |
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By: Scott Seamans |
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By: |
Caryn D. Ellison |
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Its: |
CFO |
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7430 Clubhouse Rd. |
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Boulder, CO 80302 |
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Residence Address |
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10
EXHIBIT A
NONSTATUTORY STOCK OPTION AGREEMENT
EXERCISE NOTICE
Crocs, Inc.
6273 Monarch Park Place
Niwot, Colorado 80503
Attention: Secretary
1. Exercise of Option . Effective as of today, , , the undersigned (the “Optionee”) hereby elects to exercise the Optionee’s option to purchase shares of the Common Stock (the “Shares”) of Crocs, Inc. (the “Company”) under and pursuant to the Nonstatutory Stock Option Agreement dated (the “Agreement”).
2. Delivery of Payment . The Optionee herewith delivers to the Company the full purchase price of the Shares, as set forth in the Agreement, and any and all withholding taxes due in connection with the exercise of the Option (as defined in the Agreement).
3. Representations of Optionee . The Optionee acknowledges that the Optionee has received, read and understood the Agreement and agrees to abide by and be bound by its terms and conditions.
4. Rights as Stockholder . Until the issuance of the Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to shares not yet exercised. The Shares shall be issued to the Optionee as soon as practicable after the Option is exercised in accordance with the Agreement.
5. Tax Consultation . The Optionee understands that the Optionee may suffer adverse tax consequences as a result of the Optionee’s purchase or disposition of the Shares. The Optionee represents that the Optionee has consulted with any tax consultants the Optionee deems advisable in connection with the purchase or disposition of the Shares and that the Optionee is not relying on the Company for any tax advice.
6. Restrictive Legends and Stop-Transfer Orders .
(a) Legends . The Optionee understands and agrees that the Company shall cause the legends set forth below or legends substantially equivalent thereto, to be placed upon any certificate(s) evidencing ownership of the Shares together with any other legends that may be required by the Company or by state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”)
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF COMPANY COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
(b) Stop-Transfer Notices . The Optionee agrees that, in order to ensure compliance with the restrictions referred to herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.
(c) Refusal to Transfer . The Company shall not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Exercise Notice or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been so transferred.
7. Successors and Assigns . The Company may assign any of its rights under this Exercise Notice to single or multiple assignees, and this Exercise Notice shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this Exercise Notice shall be binding upon the Optionee and his or her heirs, executors, administrators, successors and assigns.
8. Governing Law; Severability . This Exercise Notice is governed by and construed in accordance with the laws of the State of Colorado without resort to that State’s conflict-of-laws rules.
9. Entire Agreement . The Agreement is incorporated herein by reference. This Exercise Notice, the Agreement and the Investment Representation Statement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Optionee with respect to the subject matter hereof, and may not be modified adversely to the Optionee’s interest except by means of a writing signed by the Company and the Optionee.
A-2
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Submitted by: |
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Accepted by: |
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OPTIONEE |
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CROCS, INC. |
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Signature |
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By |
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Scott Seamans |
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Print Name |
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Title |
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Address : |
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Date Received |
A-3
EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE: Scott Seamans
COMPANY: CROCS, INC.
SECURITIES: COMMON STOCK
AMOUNT:
DATE:
In connection with the purchase of the above-listed Securities, the undersigned Optionee represents to the Company the following:
(a) The Optionee is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Securities. The Optionee is acquiring these Securities for investment for the Optionee’s own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the “ Securities Act ”).
(b) The Optionee acknowledges and understands that the Securities constitute “restricted securities” under the Securities Act and have not been registered under the Securities Act in reliance upon a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of the Optionee’s investment intent as expressed herein. In this connection, the Optionee understands that, in the view of the Securities and Exchange Commission, the statutory basis for such exemption may be unavailable if the Optionee’s representation was predicated solely upon a present intention to hold these Securities for the minimum capital gains period specified under tax statutes, for a deferred sale, for or until an increase or decrease in the market price of the Securities, or for a period of one year or any other fixed period in the future. The Optionee further understands that the Securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Optionee further acknowledges and understands that the Company is under no obligation to register the Securities. The Optionee understands that the certificate evidencing the Securities will be imprinted with any legend required under applicable state securities laws.
(c) The Optionee is familiar with the provisions of Rule 701 and Rule 144, each promulgated under the Securities Act, which, in substance, permit limited public resale of “restricted securities” acquired, directly or indirectly, from the issuer thereof, in a non-public offering subject to the satisfaction of certain conditions. Rule 701 provides that if the issuer qualifies under Rule 701 at the time of the grant of the Option to the Optionee, the exercise will be exempt from registration under the Securities Act. In the event the Company becomes subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, ninety (90) days thereafter (or such longer period as any market stand-off agreement may require) the Securities exempt under Rule 701 may be resold, subject to the satisfaction of certain of the conditions specified by Rule 144, including: (1) the resale being made through a broker in an unsolicited “broker’s transaction” or in transactions directly with a market maker (as said term is defined under the Securities Exchange Act of 1934); and, in the case of an affiliate, (2) the availability of certain public information about the Company, (3) the amount of Securities being sold during any three month period not exceeding the limitations specified in Rule 144(e), and (4) the timely filing of a Form 144, if applicable.
In the event that the Company does not qualify under Rule 701 at the time of grant of the Option, then the Securities may be resold in certain limited circumstances subject to the provisions of Rule 144, which requires the resale to occur not less than one year after the later of the date the Securities were sold by the Company or the date the Securities were sold by an affiliate of the Company, within the meaning of Rule 144; and, in the case of acquisition of the Securities by an affiliate, or by a non-affiliate who subsequently holds the Securities less than two years, the satisfaction of the conditions set forth in sections (1), (2), (3) and (4) of the paragraph immediately above.
(d) The Optionee further understands that in the event all of the applicable requirements of Rule 701 or 144 are not satisfied, registration under the Securities Act, compliance with Regulation A, or some other registration exemption will be required; and that, notwithstanding the fact that Rules 144 and 701 are not exclusive, the Staff of the Securities and Exchange Commission has expressed its opinion that persons proposing to sell private placement securities other than in a registered offering and otherwise than pursuant to Rules 144 or 701 will have a substantial burden of proof in establishing that an exemption from registration is available for such offers or sales, and that such persons and their respective brokers who participate in such transactions do so at their own risk. The Optionee understands that no assurances can be given that any such other registration exemption will be available in such event.
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Signature of Optionee: |
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B-2
Exhibit 99.18
CROCS, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
This Non-Statutory Stock Option Agreement (this “Agreement”) is made as of January 4, 2005 (the “Effective Date”), between Crocs, Inc. (the “Company”), and Andy Reddyhoff (“Optionee”). Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in Section II(15) of this Agreement.
RECITALS
A. On the Effective Date, the Board of Directors of the Company (the “Board”) granted Optionee an option to purchase shares of the Company’s Common Stock conditioned upon the Optionee’s provision of Services to the Company.
B. Optionee was notified of the option granted by the Board and the Company’s internal records have reflected the option grant to Optionee.
C. The Company and Optionee did not enter into a written agreement evidencing the issuance of the option and are entering into this Agreement for the purpose of memorializing the understanding of the parties as of the Effective Date.
D. The Company and Optionee have agreed to the terms and conditions of, and desire to document the prior grant pursuant to, this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual agreements hereinafter contained, and for other good and valuable consideration, the parties agree as follows:
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Date of Grant: |
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January 4, 2005 |
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Vesting Commencement Date: |
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January 1, 2005 |
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Exercise Price: |
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$ 398.00 per share |
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Total Number of Shares Granted |
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250 |
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(the “Option Shares”) |
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1
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Type of Option: |
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Nonstatutory Stock Option |
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Expiration Date: |
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January 1, 2015 |
(i) 62 Option Shares shall vest upon Optionee’s completion of one (1) year of Service measured from the Vesting Commencement Date and (ii) the balance of the Option Shares shall vest in a series of thirty-six (36) successive equal monthly installments upon Optionee’s completion of each additional month of Service over the thirty-six (36)-month period measured from the first anniversary of the Vesting Commencement Date. In no event shall any additional Option Shares vest after Optionee’s cessation of Service.
II. TERMS AND CONDITIONS OF OPTION
(b) Conditions for Exercise; Rights as a Stockholder . The Option may not be exercised for a fraction of a share of the Company’s Common Stock. Until the shares underlying the Option are purchased by Optionee and issued by the Company (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to the Option Shares. Should any change be made to the Common Stock of the Company by reason of any stock split, stock dividend, recapitalization, combination of stock, exchange of stock or other change affecting the Company’s Common Stock without the Company’s receipt of consideration, appropriate adjustments shall be made to (i) the total number and/or class of securities subject to this Option, and (ii) the Exercise Price in order to reflect such change and thereby preclude a dilution or enlargement of benefits hereunder.
(c) Method of Exercise . In order to exercise this Option with respect to all or any part of the Option Shares for which this Option is at the time exercisable, Optionee must take the following actions:
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(d) Certificates . As soon as practical after the Company receives the Exercise Notice, the Company shall issue to or on behalf of Optionee (or any other person exercising this Option) a certificate for the requisite number of shares of Common Stock, with the appropriate legends affixed thereto.
(e) Exercise as to Vested Shares . The Option may be exercised as to vested Option Shares only.
2. Cessation of Service . The Option shall terminate (and cease to be outstanding) prior to the Expiration Date should any of the following provisions become applicable:
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(c) Should Optionee cease Service by reason of Disability while this Option is outstanding, then Optionee (or any person or persons to whom this Option is transferred pursuant to a permitted transfer under Section II(3)) shall have a period of twelve (12) months (commencing with the date of such cessation of Service) during which to exercise this Option. In no event shall this Option be exercisable at any time after the Expiration Date.
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acknowledges and agrees that the Company may refuse to honor the exercise and refuse to deliver shares if such withholding amounts are not delivered at the time of exercise.
The Optionee agrees to execute and deliver such other agreements as may be reasonably requested by the Company or the underwriter which are consistent with the foregoing or which are necessary to give further effect thereto. In addition, if requested by the Company or the representative of the underwriters of Common Stock (or other securities) of the Company, the Optionee shall provide, within ten (10) days of such request, such information as may be required by the Company or such representative in connection with the completion of any public offering of the Company’s securities pursuant to a registration statement filed under the Securities Act. The obligations described in this Section shall not apply to a registration relating solely to employee benefit plans on Form S-1 or Form S-8 or similar forms that may be promulgated in the future, or a registration relating solely to a Commission Rule 145 transaction on Form S-4 or similar forms that may be promulgated in the future. The Company may impose stop-transfer instructions with respect to the shares of Common Stock (or other securities) subject to the foregoing restriction until the end of such lock-up period. The Optionee agrees that any transferee of the Option or shares acquired pursuant to the Option shall be bound by this Section.
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in any way the rights of the Company or of Optionee, which rights are hereby expressly reserved by each, to terminate Optionee’s Service at any time for any reason, with or without cause.
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the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, for purposes of this Section II(14)(b) that any individual who becomes a member of the Board subsequent to the date of this Agreement, whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of those individuals who are members of the Board and who were also members of the Incumbent Board (or deemed to be such pursuant to this proviso) shall be considered as though such individual were a member of the Incumbent Board; but, provided, further, that any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board shall not be so considered as a member of the Incumbent Board; or
15. Additional Definitions . Definitions for this Agreement are as follows:
(a) “Agreement” has the meaning set forth in the preface above.
(b) “Applicable Law” means the requirements relating the issuance and exercise of stock options under federal and state corporate laws, federal and state securities laws, the Internal
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Revenue Code of 1986, as amended, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any other country or jurisdiction where the Optionee resides at the time of exercise.
(c) “Common Stock” means the Company’s Common Stock, $.001 par value, and in the case of an option granted prior to January 3, 2005, the Class B Membership Units of the Company’s predecessor that have been converted into the Company’s Common Stock.
(d) “Company” has the meaning set forth in the preface above.
(e) “Change of Control” has the meaning set forth in Section II(14) above.
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(o) “Optionee” has the meaning set forth in the preface above.
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IN WITNESS WHEREOF , the parties have executed this Agreement this day of August, 2005, to be effective as of the Effective Date.
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CROCS, INC. |
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/s/ Andy Reddyhoff |
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/s/ Caryn D. Ellison |
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By: Andy Reddyhoff |
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EXHIBIT A
NONSTATUTORY STOCK OPTION AGREEMENT
EXERCISE NOTICE
Crocs, Inc.
6273 Monarch Park Place
Niwot, Colorado 80503
Attention: Secretary
1. Exercise of Option . Effective as of today, , , the undersigned (the “Optionee”) hereby elects to exercise the Optionee’s option to purchase shares of the Common Stock (the “Shares”) of Crocs, Inc. (the “Company”) under and pursuant to the Nonstatutory Stock Option Agreement dated (the “Agreement”).
2. Delivery of Payment . The Optionee herewith delivers to the Company the full purchase price of the Shares, as set forth in the Agreement, and any and all withholding taxes due in connection with the exercise of the Option (as defined in the Agreement).
3. Representations of Optionee . The Optionee acknowledges that the Optionee has received, read and understood the Agreement and agrees to abide by and be bound by its terms and conditions.
4. Rights as Stockholder . Until the issuance of the Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to shares not yet exercised. The Shares shall be issued to the Optionee as soon as practicable after the Option is exercised in accordance with the Agreement.
5. Tax Consultation . The Optionee understands that the Optionee may suffer adverse tax consequences as a result of the Optionee’s purchase or disposition of the Shares. The Optionee represents that the Optionee has consulted with any tax consultants the Optionee deems advisable in connection with the purchase or disposition of the Shares and that the Optionee is not relying on the Company for any tax advice.
6. Restrictive Legends and Stop-Transfer Orders .
(a) Legends . The Optionee understands and agrees that the Company shall cause the legends set forth below or legends substantially equivalent thereto, to be placed upon any certificate(s) evidencing ownership of the Shares together with any other legends that may be required by the Company or by state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”)
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF COMPANY COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
(b) Stop-Transfer Notices . The Optionee agrees that, in order to ensure compliance with the restrictions referred to herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.
(c) Refusal to Transfer . The Company shall not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Exercise Notice or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been so transferred.
7. Successors and Assigns . The Company may assign any of its rights under this Exercise Notice to single or multiple assignees, and this Exercise Notice shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this Exercise Notice shall be binding upon the Optionee and his or her heirs, executors, administrators, successors and assigns.
8. Governing Law; Severability . This Exercise Notice is governed by and construed in accordance with the laws of the State of Colorado without resort to that State’s conflict-of-laws rules.
9. Entire Agreement . The Agreement is incorporated herein by reference. This Exercise Notice, the Agreement and the Investment Representation Statement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Optionee with respect to the subject matter hereof, and may not be modified adversely to the Optionee’s interest except by means of a writing signed by the Company and the Optionee.
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CROCS, INC. |
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EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE: Andy Reddyhoff
COMPANY: CROCS, INC.
SECURITIES: COMMON STOCK
AMOUNT:
DATE:
In connection with the purchase of the above-listed Securities, the undersigned Optionee represents to the Company the following:
(a) The Optionee is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Securities. The Optionee is acquiring these Securities for investment for the Optionee’s own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the “ Securities Act ”).
(b) The Optionee acknowledges and understands that the Securities constitute “restricted securities” under the Securities Act and have not been registered under the Securities Act in reliance upon a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of the Optionee’s investment intent as expressed herein. In this connection, the Optionee understands that, in the view of the Securities and Exchange Commission, the statutory basis for such exemption may be unavailable if the Optionee’s representation was predicated solely upon a present intention to hold these Securities for the minimum capital gains period specified under tax statutes, for a deferred sale, for or until an increase or decrease in the market price of the Securities, or for a period of one year or any other fixed period in the future. The Optionee further understands that the Securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Optionee further acknowledges and understands that the Company is under no obligation to register the Securities. The Optionee understands that the certificate evidencing the Securities will be imprinted with any legend required under applicable state securities laws.
(c) The Optionee is familiar with the provisions of Rule 701 and Rule 144, each promulgated under the Securities Act, which, in substance, permit limited public resale of “restricted securities” acquired, directly or indirectly, from the issuer thereof, in a non-public offering subject to the satisfaction of certain conditions. Rule 701 provides that if the issuer qualifies under Rule 701 at the time of the grant of the Option to the Optionee, the exercise will be exempt from registration under the Securities Act. In the event the Company becomes subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, ninety (90) days thereafter (or such longer period as any market stand-off agreement may require) the Securities exempt under Rule 701 may be resold, subject to the satisfaction of certain of the conditions specified by Rule 144, including: (1) the resale being made through a broker in an unsolicited “broker’s transaction” or in transactions directly with a market maker (as said term is defined under the Securities Exchange Act of 1934); and, in the case of an affiliate, (2) the availability of certain public information about the Company, (3) the amount of Securities being sold during any three month period not exceeding the limitations specified in Rule 144(e), and (4) the timely filing of a Form 144, if applicable.
In the event that the Company does not qualify under Rule 701 at the time of grant of the Option, then the Securities may be resold in certain limited circumstances subject to the provisions of Rule 144, which requires the resale to occur not less than one year after the later of the date the Securities were sold by the Company or the date the Securities were sold by an affiliate of the Company, within the meaning of Rule 144; and, in the case of acquisition of the Securities by an affiliate, or by a non-affiliate who subsequently holds the Securities less than two years, the satisfaction of the conditions set forth in sections (1), (2), (3) and (4) of the paragraph immediately above.
(d) The Optionee further understands that in the event all of the applicable requirements of Rule 701 or 144 are not satisfied, registration under the Securities Act, compliance with Regulation A, or some other registration exemption will be required; and that, notwithstanding the fact that Rules 144 and 701 are not exclusive, the Staff of the Securities and Exchange Commission has expressed its opinion that persons proposing to sell private placement securities other than in a registered offering and otherwise than pursuant to Rules 144 or 701 will have a substantial burden of proof in establishing that an exemption from registration is available for such offers or sales, and that such persons and their respective brokers who participate in such transactions do so at their own risk. The Optionee understands that no assurances can be given that any such other registration exemption will be available in such event.
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