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:
I.
STOCK OPTION GRANT
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
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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 .
(a)
Right to Exercise . This Option shall be exercisable
during its term in accordance with the Vesting Schedule set out in
Section I and with the applicable provisions of this
Agreement.
(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:
(i)
Execute and deliver to the Company the exercise notice (the
“Exercise Notice”) attached hereto as
Exhibit A .
(ii)
Pay the aggregate Exercise Price for the purchased shares in one of
the following forms: (A) by cash or check made payable to the
Company, or (B) should the Common Stock be registered under Section
12 of the Securities Exchange Act of 1934 at the time the option
is
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exercised, then
the Exercise Price may also be paid through a special sale and
remittance procedure pursuant to which Optionee (or any other
person or persons exercising the option) concurrently 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.
(iii) Furnish
to the Company appropriate documentation that the person or persons
exercising the Option (if other than Optionee) have the right to
exercise this Option.
(iv) If
requested by the Company, execute and deliver to the Company
the Investment Representation Statement attached hereto as
Exhibit B .
(v)
Make appropriate arrangements with the Company for the satisfaction
of all applicable income and employment tax withholding
requirements applicable to the exercise of the Option.
(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:
(a)
Should Optionee cease to remain in Service for any reason (other
than death, Disability or Misconduct) 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 three (3) months
(commencing with the date of such cessation of Service) during
which to exercise this Option, but in no event shall this Option be
exercisable at any time after the Expiration Date.
(b)
Should Optionee die while this Option is outstanding, then the
personal representative of Optionee’s estate or the person or
persons to whom the Option is transferred pursuant to
Optionee’s will or the laws of inheritance following
Optionee’s death or to whom the Option is transferred during
Optionee’s lifetime pursuant to a permitted transfer under
Section II(3) shall have the right to exercise this
Option. However, if Optionee dies while holding this Option
and if Optionee has an effective beneficiary designation in effect
for this Option at the time of his or her death, then the
designated beneficiary or beneficiaries shall have the exclusive
right to exercise this Option following Optionee’s
death. Any such right to exercise this Option shall lapse,
and this
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Option shall
cease to be outstanding, upon the earlier of (i) the
expiration of the twelve (12)-month period measured from the date
of Optionee’s death or (ii) the Expiration Date.
(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.
(d)
During the limited period of post-Service exercisability, this
Option may not be exercised in the aggregate for more than the
number of Option Shares in which Optionee is, at the time of
Optionee’s cessation of Service, vested pursuant to the
Vesting Schedule or the special vesting acceleration provisions of
Section II(4). Upon the expiration of such limited
exercise period or (if earlier) upon the Expiration Date, this
Option shall terminate and cease to be outstanding for any vested
Option Shares for which the Option has not been exercised. To
the extent Optionee is not vested in one or more Option Shares at
the time of Optionee’s cessation of Service, this Option
shall immediately terminate and cease to be outstanding with
respect to such Option Shares.
(e)
Should Optionee’s Service be terminated for Misconduct or
should Optionee otherwise engage in Misconduct while this Option is
outstanding, then this Option shall terminate immediately and cease
to remain outstanding and Optionee shall have no right to exercise
vested or unvested Option Shares.
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 .
(a) In
the event of any Change in Control, the Option Shares at the time
subject to this Option but not otherwise vested shall automatically
vest in full so that this Option shall, immediately prior to the
effective date of the Change in Control, become exercisable for all
of the Option Shares as fully vested shares and may be exercised
for any or all of those Option Shares as vested shares.
(b)
This Agreement shall not in any way affect the right of the Company
to adjust, reclassify, reorganize or otherwise change its capital
or business structure or to merge, consolidate, dissolve, liquidate
or sell or transfer all or any part of its business or
assets.
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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.
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, howev
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