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Exhibit
10.1
INDEMNIFICATION
AGREEMENT
AGREEMENT dated
effective as
of ,
2005, between CROCS, Inc., a Delaware corporation (the
"Company"),
and (the
"Indemnitee").
WHEREAS, it is
essential to the Company to retain and attract as directors and
officers the most capable persons available; and
WHEREAS,
Indemnitee is or wishes to serve as a director and/or officer of
the Company; and
WHEREAS, the
Company's charter requires the Company to indemnify and advance
expenses to its directors and officers to the full extent
authorized and permitted by applicable law, and allows for the
provision of additional indemnification rights to directors or
officers by separate agreement; and
WHEREAS,
Indemnitee has been serving and continues to serve, or will serve,
as a director and/or officer of the Company in part in reliance on
such provisions of the Company's charter; and
WHEREAS, in
recognition of Indemnitee's need for substantial protection against
personal liability in order to encourage Indemnitee's service to
the Company in an effective manner, the Company wishes to provide
in this Agreement for the indemnification of, and the advancing of
expenses to, Indemnitee to the fullest extent (whether partial or
complete) authorized and permitted by law and the Company's
Certificate of Incorporation, and to such extent as may be provided
for in this Agreement; and
WHEREAS, to the
extent insurance is maintained the Company wishes to provide in
this Agreement for the continued coverage of Indemnitee under the
Company's directors' and officers' liability insurance
policies.
NOW, THEREFORE,
in consideration of the premises and of Indemnitee's service or
continued service to the Company directly or, at its request, to
any other Enterprise, and intending to be legally bound hereby, the
parties hereto agree as follows:
1.
CERTAIN DEFINITIONS .
Capitalized words not otherwise defined herein shall have the
following meanings:
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(iii) the
stockholders of the Company approve, and the Company consummates, a
definitive agreement or plan to (A) merge or consolidate the
Company with or into another corporation (other than (1) a
merger or consolidation with a subsidiary of the Company,
(2) a merger in which the Company is the surviving corporation
and no outstanding Voting Securities of the Company (other than
fractional shares) held by stockholders immediately prior to the
merger are converted into cash, securities or other property, or
(3) a merger effectuated with the purpose of changing the
jurisdiction of incorporation of the Company), (B) exchange,
pursuant to a statutory exchange of shares of voting stock of the
Company held by stockholders of the Company immediately prior to
the exchange, shares of one or more classes or series of voting
stock of the Company for shares of another corporation,
(C) sell or otherwise dispose of all or substantially all of
the assets of the Company (in one transaction or a series of
transactions), or (D) liquidate or dissolve the Company,
unless a majority of the Voting Securities of the surviving
corporation or of any corporation (or other entity) acquiring all
or substantially all of the assets of the Company (in the case of a
merger, consolidation or disposition of assets) or the Company (in
the case of a statutory share exchange) is, immediately following
the merger, consolidation, statutory share exchange or disposition
of assets, beneficially owned by the person seeking indemnification
or by a group of persons, including the person seeking
indemnification, acting in concert; or
(iv) the
Company enters into an agreement in principle or a definitive
agreement relating to an event described in clause (i),
(ii) or (iii) above which ultimately results in an event
described therein, or a tender or exchange offer or proxy contest
is commenced which ultimately results in an event described
therein.
b. "
Claim " shall mean any
threatened, pending or completed action, suit or proceeding, or
alternative dispute resolution mechanism, or any inquiry or
investigation, whether instituted by the Company or any other party
(including, without limitation, in the right of the
Company).
c. "
Enterprise " shall mean
any enterprise other than the Company, including any corporation,
partnership, joint venture, limited liability company, trust,
employee benefit plan or other entity or enterprise.
d. "
Expenses " shall mean
(i) all costs, expenses and obligations (including attorneys'
fees and costs, the fees and costs of consultants and experts, and
reasonable out-of-pocket travel costs incurred by any of such
persons or by Indemnitee), incurred in connection with
investigating, defending, being a witness in, being interviewed in
connection with, or participating in (including on appeal), or
preparing to defend, to be a witness in, to be interviewed by, or
to participate in, any Claim relating to any Indemnifiable Event,
(ii) any judgment, fine, penalty or amount to be paid in
settlement of any Claim relating to an Indemnifiable Event,
(iii) any federal, state, local or foreign taxes imposed on
the Indemnitee as a result of the actual or deemed receipt of any
payments under this Agreement, and (iv) all interest,
assessments and other charges paid or payable in connection with or
in respect of any of the foregoing.
e. "
Indemnifiable Event "
shall mean any circumstance, event or occurrence related to the
fact that Indemnitee is or was a director or officer of the
Company, or is or was serving at the request of the Company as a
director, officer, employee, trustee, agent or fiduciary of any
other Enterprise, or by reason of anything done or not done, or
alleged to have been done or not done, by Indemnitee in any such
capacity.
f. "
Independent Legal Counsel " shall mean an attorney or firm of attorneys, selected in
accordance with the provisions of Section 3, who shall not
have been retained by or otherwise performed services for the
Company or Indemnitee within the previous three years (other than
with respect to matters concerning the rights of Indemnitee under
this Agreement, or of other indemnitees under similar
indemnification agreements).
2
g. "
Reviewing Party " shall
mean, as to any situation in which Indemnitee is an officer or
director at the time of the determination, (i) directors of
the Company who are not parties to the Claim or a committee of such
directors designated by majority vote of such directors (each of
which shall make decisions by majority vote), (ii) if there
are no such directors, or if such directors so direct, by
Independent Legal Counsel, or (iii) such other person(s) who
may be designated as provided by applicable law. "
Reviewing Party " shall
mean, as to any situation in which Indemnitee is not an officer or
a director at the time of the determination, Independent Legal
Counsel.
h. "
Voting Securities "
shall mean any securities of the Company which vote generally in
the election of directors of the Company.
2.
BASIC INDEMNIFICATION ARRANGEMENT
.
-
a.
General Rules . Subject
to the provisions of Section 8 hereof, in the event Indemnitee
was, is or becomes a party to or witness or other participant in,
or is interviewed in connection with, or is threatened to be made a
party to or witness or other participant in, a Claim by reason of
(or arising in part out of) an Indemnifiable Event, the Company
shall indemnify Indemnitee to the fullest extent authorized and
permitted by applicable law, the Company's Certificate of
Incorporation or any subsequent charter document, any bylaws duly
adopted by the Company and the terms of this Agreement, as soon as
practicable but in any event no later than thirty (30) days
after written demand is presented to the Company, against any and
all Expenses associated with such Indemnifiable Event.
Notwithstanding
the foregoing sentence, in no event shall Indemnitee be entitled to
indemnification pursuant to this Agreement for any liability
finally adjudged by a court of competent jurisdiction (and after
the exhaustion or lapse of all rights of appeal) to have arisen in
connection with (i) remuneration paid to or for the benefit of
Indemnitee in violation of law; or (ii) any accounting of
profits made from the purchase or sale by Indemnitee or any related
person of the Company's securities within the meaning of
Section 16(b) of the Securities Exchange Act of 1934 and
amendments or similar provisions of any federal, state or local
statutory law; or (iii) actions brought about or contributed
to by the dishonesty of Indemnitee, if such adjudication
establishes that acts of active and deliberate dishonesty were
committed or attempted by Indemnitee with actual dishonest purpose
and intent and were material to the adjudication; or
(iv) actions based on or attributable to Indemnitee having
gained any personal profit or advantage to which he was not
entitled; or (v) any matter in respect of which such court
determines that indemnification is unlawful; provided, however , to the extent
any of the circumstances stated in (i) through (v) is
raised as a defense to indemnification of Indemnitee, such defense
shall be permitted only as to Claims specifically and solely
involving the foregoing, and to the extent the indemnification
request also involves Claims or portions of Claims not involving
the foregoing or as to which the foregoing are only a part, the
extent of Indemnitee's indemnification shall be governed by the
provisions of Section 5 hereof. In addition, except as
provided in Section 4, Indemnitee shall not be entitled to
indemnification pursuant to this Agreement in connection with any
proceeding initiated by Indemnitee against the Company or any
director or officer of the Company unless (i) the Company has
joined in or the Company's Board of Directors has consented to the
initiation of such Proceeding; or (ii) the proceeding is
instituted after a Change in Control (other than a Change in
Control approved by a majority of the directors on the Board who
were directors immediately prior to such Change in Control) and
Independent Legal Counsel has approved its initiation.
3
In connection
with the Company's obligation to indemnify Indemnitee pursuant to
this Section 2(a), the Company shall advance all actual
Expenses incurred by Indemnitee as soon as practicable but in any
event no later than five business days after the Company is
presented with a written demand by Indemnitee for payment of such
Expenses (an "Expense Advance"), subject only to the reimbursement
obligation of Indemnitee as provided in
Section 2(b)(ii) and the provisions of
Section 8(b)(i). Expenses incurred in defending any proceeding
shall be advanced by the Company prior to the final disposition of
the proceeding. In submitting any invoice for such Expenses,
Indemnitee shall not be required to submit any information which
Indemnitee has been advised by Indemnitee's counsel could
reasonably be expected to result in the waiver of the
attorney-client privilege or would constitute attorney work
product.
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b.
Conditions . Indemnitee
hereby agrees to furnish to the Company or the Company's Board of
Directors any affirmations, undertakings, or similar assurances
required by applicable law as a condition to indemnifying or making
Expense Advances hereunder, and receipt of any such affirmations,
undertakings, or similar assurances is an express condition to the
Company's obligations pursuant to Section 2(a) hereof. In
addition, notwithstanding the provisions of
Section 2(a):
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