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:
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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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
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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) 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
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
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
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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.
(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 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.
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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.
(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.
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
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