Crocs, Inc. Change in Control Agreement (As Amended and Restated)

This Separation Agreement and General Release (“Agreement”) is by and between ______________ (“Employee”) and CROCS, INC., a Delaware corporation, and its subsidiaries, affiliates and related entities (collectively, “Company”). Employee and Company are individually referred to herein as a “Party” and collectively as the “Parties.”

In consideration of the mutual promises, and the covenants, understandings, and agreements contained herein, the Parties hereto agree as follows:

1.    Separation Date. Employee’s last day of active employment and Employee’s termination date is _______________ 201__ (the “Separation Date). Employee will receive Employee’s regular wages, at the current rate, no later than the next regular pay period following the Separation Date.

2.     Separation Payments; Benefits. If Employee enters into, does not revoke, and fully complies with the terms of this Agreement, Employee shall be entitled to the following:

[Consideration provided or in the Company’s Change in Control Plan and related Participation Agreement]

3.    Return of Company Property; Payment of Expenses; Social Media. (A) Any Company property, including all equipment, computers, laptops, Company-provided mobile devices, software, keys, I.D. card, discount card, and any confidential Company documents, plans, reports, and other business information must be (or have been) returned to Company. By signing below, Employee represents and warrants that Employee will not retain any copies of confidential Company property, whether in paper or electronic form, and that after returning all Company property Employee will delete and finally purge any duplicate files containing confidential Company property from any personal computer and/or mobile device. Employee also affirms that Employee has not divulged any proprietary or confidential information of Company and will continue to maintain the confidentiality of such information consistent with Company’s policies and Employee’s agreement(s) with Company and/or common law.

(B)    Employee agrees to submit appropriate receipts for business expenses incurred through the Separation Date, and authorizes Company to deduct any outstanding monies owed Company for damaged or lost property from the payments set forth in Section 2 of this Agreement, as permitted by law.

(C)    Employee agrees to update all of Employee’s social media profiles on the Separation Date to reflect that Employee is no longer an employee of Company.

4.    Review by Counsel. Employee is advised to consult with an attorney prior to signing this Agreement.

5.    Confidentiality. (A) Employee agrees to treat the facts and circumstances relating to Employee’s separation from employment, and the terms of this Agreement, in a confidential manner and will not disclose such facts and circumstances, or the terms herein, to any person, except: (i) as required by law; (ii) in Employee’s income tax returns; (iii) to any tax or financial advisor; (iv) to an attorney representing Employee concerning this Agreement; or (v) as may be required to enforce this Agreement. Employee agrees that and breach of this Section 5(A) shall constitute a material breach pursuant to Section 19 of this Agreement.

(B)    Company agrees it will respond to inquiries concerning Employee’s former employment only by confirming employment status, period of employment, and job titles. Employee agrees to direct all inquiries concerning employment with Company to its independent third party vendor, [name and contact info for vendor].

(C)    Employee agrees not to discuss any matter concerning Company with anyone adverse or potentially adverse to Company without the consent of Company’s Chief Legal & Risk Officer, except as provided in Section 13 of this Agreement. Further, if a government agency contacts Employee regarding Company, or if Employee receives a subpoena or other court or legal process relating in any way to Company, any present or former customer, vendor or team member, Employee will, except as required by law or direction of such government agency, immediately notify Company’s Chief Legal & Risk Officer and shall be available to be interviewed concerning the subject of such contact.

6.    Non-disparagement. Employee agrees neither Employee nor anyone acting on Employee’s behalf will make any derogatory or disparaging statement about Company and/or its employees, with orally, in writing, via the Internet or news media, or directly or indirectly take any action which is intended to embarrass any of the foregoing, and acknowledges that the failure to

do so shall constitute a material breach pursuant to Section 19 of this Agreement. For purposes of this Section 6, a derogatory or disparaging statement is any communication, oral or written, which would cause to tend to cause the recipient of the communication to question the business condition, integrity, competence, fairness or good character of the person to whom or entity to which the communication relates.

7.     Noncompetition and Nonsolicitation. (A)  For a period of one year following your termination from employment with the Company for any reason, Employee will not, without the prior written consent of the Company, directly or indirectly, engage in, whether as an owner, consultant, employee, or otherwise, (i) activities competitive with the business activities of the Company in any state, province or like geography where the Company conducted business during Employee’s employment with the Company (the “Territory”) or (ii) form or assist others in forming, be employed by, perform services for, become an officer, director, member or partner of, or participant in, or serve as a consultant or independent contractor to, invest in or own any interest in (whether through equity or debt securities), assist (financially or otherwise) or provide counsel or assistance to any person or entity engaged in business that competes with the Company in the Territory.  Notwithstanding anything in this offer letter to the contrary, Employee may hold, purchase or otherwise acquire up to three percent (3%) in any class of securities of a company if such securities are traded on a national securities exchange or in the over-the-counter market so long as Employee holds such securities as a passive investment and does not take an active part in the management or direction of such company.

 

(B)      For a period of one year following Employee’s termination from employment with the Company for any reason, Employee will not without the prior written consent of the Company, directly or indirectly, solicit to hire or hire or attempt to solicit to hire or hire, or take any other steps to cause to be offered employment or other positions or roles, either on a full time, part-time or consulting basis, any person who worked as an employee, consultant or contractor of the Company or its affiliates at any time in the six months preceding the date Employee’s employment terminated and with whom Employee had regular contact during the one-year period preceding the termination of your employment with the Company. The restrictions set forth in this paragraph shall not prohibit any form of general advertising or solicitation that is not directed at a specific person or entity.

 

(C)      For a period of one year following Employee’s termination from employment with the Company for any reason, Employee will not, without the prior written consent of the Company, directly or indirectly, (i) solicit, induce, divert, appropriate or accept business of the type in which the Company engaged during Employee’s employment on behalf of any other person or entity or (ii) attempt to solicit, induce, divert, appropriate or accept, on behalf of any person or entity, any customer or actively sought prospective customer of the Company with whom Employee has had contact, whose dealings with the Company have been supervised by Employee or about whom Employee has acquired confidential information, in the course of Employee’s employment.

 

(D)      Employee agrees that the foregoing restrictions are reasonable, will not preclude Employee finding gainful employment, and are necessary to protect the goodwill, confidential information, and other protectable business interests of the Company. Employee further agrees that the Company would suffer irreparable harm and has no adequate remedy of law should Employee violate these restrictions and agrees that injunctive relief, in addition to any other damages or relief available to the Company, is appropriate and necessary to protect the Company’s interests.

 

(E)  Employee acknowledges that the covenants set forth in Sections 7 impose a reasonable restraint on Employee in light of the business and activities of the Company. Employee acknowledges that Employee’s expertise is of a special and unique character which gives this expertise a particular value, and that a breach of this Section 7 by Employee will cause serious and potentially irreparable harm to the Company. Employee therefore acknowledges that a breach of any of the provisions in this Section 7 by Employee cannot be adequately compensated in an action for damages at law, and equitable relief would be necessary to protect the Company from a violation of this Agreement and from the harm which this Agreement is intended to prevent. By reason thereof, Employee acknowledges that the Company is entitled, in addition to any other remedies it may have under this Agreement or otherwise, to seek preliminary and permanent injunctive and other equitable relief to prevent or curtail any breach of Section 7 hereof. Employee acknowledges, however, that no specification in this Agreement of a specific legal or equitable remedy may be construed as a waiver of or prohibition against pursuing other legal or equitable remedies in the event of a breach of this offer letter by Employee. In the event of a breach or violation by Employee of any of the provisions of Section 7, the running of the term shall be tolled with respect to Employee during the continuance of any actual breach or violation.

 

(F)  In the event that any provision or term of Section 7, or any word, phrase, clause, sentence or other portion thereof (including, without limitation, the geographic and temporal restrictions and provisions contained in this Section 7 is held to be unenforceable or invalid for any reason, such provision or portion thereof will be modified or deleted in such a manner as to be effective for the maximum period of time for which it/they may be enforceable and over the maximum geographical area as to which it/they may be enforceable and to the maximum extent in all other respects as to which it/they may be enforceable. Such modified restriction(s) shall be enforced by the court or adjudicator. In the event that modification is not possible, because each of Employee’s obligations in this Section 7 is a separate and independent covenant, any unenforceable obligation shall be severed and all remaining obligations shall be enforced.

8.    Employee Cooperation. (A) Employee will close out Employee’s business relationship in a professional manner and acknowledges that the failure to do so shall constitute a material breach pursuant to Section 19 of this Agreement. Employee also has a duty to cooperate by providing truthful information and any documents in connection with any legal proceeding in which Company is involved and regarding which Employee has knowledge, information or expertise, or where Company believes Employee’s attendance and participation could be beneficial to Company. Employee will be reimbursed by Company for any reasonable out-of-pocket expenses resulting from said assistance or participation.

(B)    You will be removed as a director/legal representative from all Crocs-related companies, which includes removal from all corporate records as well as from all corresponding official/government registries. You agree to cooperate with Crocs, as needed, to ensure that such activities occur in a timely manner.

9.    Twenty-One Day Consideration Period. Employee has been afforded twenty-one (21) days to consider the meaning and effect of this Agreement, and has chosen to execute it on the Execution Date.

10.    Release of All Claims. Employee hereby releases and forever discharges Company, and all of its past or present parent, subsidiaries, affiliates, successors and assigns, and it or their respective officers, directors, shareholders, team members, agents, insurers, benefit plans, representatives and otherwise related parties (collectively the “Released Parties”), from any and all claims, complaints, charges, causes of action, demands, liabilities, or obligations (including attorney fees), in law or equity, in contract or tort, known or unknown, that as of the execution of this Agreement, Employee ever had, now claims to have had, or ever claimed to have had against any of the Released Parties. This total and unlimited release includes, but is not limited to, any claims of discrimination, for interference or retaliation, wrongful discharge, for wages and benefits, breach of contract, negligence, emotional distress, tort, and any other claims arising under federal, state, or local law; provided, however, Employee does not waive any vested rights Employee may have, if any, under any Company-sponsored group insurance (including any right or claim for COBRA benefits following the Separation Date), welfare benefit, 401(k), stock option plan, or pursuant to the Employee Retirement Income Security Act, nor does Employee waive any claims that cannot be waived as a matter of law, including any claim for workers’ compensation or unemployment insurance benefits. Employee agrees that and breach of this Section 9 shall constitute a material breach pursuant to Section 19 of this Agreement.

11.    Waiver of Certain Rights and Claims. Employee specifically waives any claims which Employee has or may have under the Age Discrimination in Employment Act of 1967, as amended by the Older Workers’ Benefit Protection Act of 1990 (“ADEA”). Employee does not waive any rights or claims that arise after the Effective Date.

12.    Agreement Not to File Suit or Other Claims. Employee agrees not to file suit or submit any charge, claim, complaint, or cause of action to any governmental or administrative agency or court against the Released Parties arising out of Employee’s employment with Company and the separation thereof, which has arisen before the execution of this Agreement. Employee represents and warrants that Employee has not filed or participated in any complaints or charges against the Released Parties with any governmental or administrative agency or court, that Employee shall not do so at any time hereafter, and that if such agency or court assumes jurisdiction of any such complaint or charge against Company or the Released Parties on behalf of Employee, Employee shall immediately request such agency or court to withdraw from the matter and shall provide Company with proof of such request. This covenant not to sue or file a claim includes, but is not limited to, any breach of an actual or implied contract of employment, any claim for wages or benefits, wrongful discharge, any common law claim (including, but not limited to, fraud, negligence, intentional or negligent infliction of emotional distress, negligent hire/retention/supervision, or defamation), or any claims arising under the Civil Rights Act of 1866, Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, the ADEA, the Employee Retirement Income Security Act of 1974, the Fair Labor Standards Act of 1938, the Americans with Disabilities Act of 1990, the Family and Medical Leave Act of 1993, the National Labor Relations Act of 1935, the Occupational Health and Safety Act of 1970, the Immigration Reform and Control Act of 1986, the Sarbanes Oxley Act of 2002, the Genetic Information Nondiscrimination Act of 2008, the Colorado Constitution, the Colorado Anti-Discrimination Act, the Colorado Minimum Wages of Workers Act, the Colorado Wage Payment Act, and any and all state or local civil/human rights laws and any other similar federal, state, or local laws governing employment. Employee also waives any right to participate in any settlement, verdict or judgment in any pending or threatened class action against the Released Parties arising from conduct occurring before the execution of this Agreement, and waives any right to accept anything of value or any injunctive relief associated with any pending class action against the Released Parties. Employee agrees that and breach of this Section 12 shall constitute a material breach pursuant to Section 19 of this Agreement.

13.    Challenge to Validity, Truthful Testimony Under Oath and Cooperation with Government Agency. Nothing in this Agreement, including but not limited to the confidentiality provision in Section 5, the non-disparagement provision in Section 6, and the covenant-not-to-sue provision in Section 12: (a) limits Employee’s ability to challenge the validity of this Agreement; (b)

interferes with Employee’s right and responsibility to give truthful testimony under oath in connection with a government investigation or in response to a subpoena or other valid legal process; (c) prohibits Employee from reporting possible violations of federal law or regulation to any governmental agency or entity including but not limited to the Department of Justice, the Securities and Exchange Commission, the U.S. Congress, and any Inspector General, from otherwise participating in any investigation or proceeding that may be conducted, or from making other disclosures that are protected under the whistleblower protections of federal law or regulation (without seeking authorization or providing notice to the Chief Legal & Risk Officer); (d) precludes Employee from filing a charge with, participating in an investigation or proceeding, or cooperating with or providing information to the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, or comparable state or local regulatory agency charged with enforcing the law. This Agreement also does not limit Employee’s right to receive any award for information provided to any governmental agency. Nevertheless, Employee agrees that the consideration provided in this Agreement shall be the sole relief provided to Employee for all claims or suits released by Employee and that Employee shall not be entitled to accept or recover, and agrees to waive any right to accept or recover, monetary damages or other individual relief against the Released Parties in connection with any such charge or suit against Released Parties related to any pending or future released claims or suits.

14.    No Admission. The payments and agreements set forth herein in no way constitute an admission of any liability by Company.

15.    Employee Representations and Warranties. Employee represents and warrants that Employee has no knowledge of any work-related injury or illness incurred while working for Company. Employee also affirms that Employee has been paid and/or has received all compensation, wages, bonuses, commissions, and/or benefits to which Employee may be entitled, and has been granted any leave to which Employee was entitled under the Family and Medical Leave Act or related state or local leave or disability accommodation laws.

16.    Entire Agreement. This Agreement, the Company’s Change in Control Plan and the Employee Confidentiality, Invention Assignment, and Non-Solicitation and Non-Competition Agreement dated _________, ____, sets forth the entire agreement between Company and Employee concerning Employee’s employment and the separation thereof, and supersedes all prior oral or written commitments concerning the subject matter herein. This Agreement may not be amended, except in writing signed by both parties.

17.    Severability. If any provision of this Agreement shall be determined by a court of competent jurisdiction to be invalid or unenforceable, the Court will amend the provision to the minimum extent necessary to make it enforceable, and the validity of the remaining terms or provisions shall not be affected thereby.

18.    Successors; Assigns. This Agreement shall be binding upon Employee and upon Company and its successors and assigns. Employee cannot assign any of Employee’s rights or obligations under this Agreement to anyone else.

19.    Remedies. If Employee violates this Agreement, Company shall have no further obligations hereunder, including but not limited to, providing the consideration set forth in Section 2 of this Agreement. In addition to all other legal and equitable remedies, including the right to injunctive relief, and without limiting Company’s right to seek any and all damages, Company shall have the right to recover the consideration paid to Employee along with reasonable expenses and attorney fees incurred to protect or enforce its rights under this Agreement, and any other damages allowed by law or equity.

20.    Choice of Law; Venue. This Agreement shall be interpreted in accordance with the plain meaning of its terms and not strictly for or against either party. Colorado law shall govern its validity, effect, and interpretation. Any litigation arising out of or related to this Agreement shall be brought and pursued exclusively in any state or federal court located in the City of Denver, Colorado, or in Boulder County, Colorado.

21.    Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be taken to be an original, but all of which together shall constitute one and the same document. PDF and facsimile signatures shall have the same legal effect as originals.

22.    Revocation by Employee. Employee may revoke this Agreement for a period of seven (7) days after Employee signs it (“Revocation Period”). Any revocation must be submitted, in writing, and mailed or (e-mailed) to [___]., Attn: Legal Department, 7477 East Dry Creek Parkway, Niwot, Colorado, 80503, or [____], on or before the expiration of the Revocation Period. Receipt of proper and timely notice of revocation by Company as provided herein cancels and voids this Agreement. If Employee does not revoke this Agreement during the Revocation Period, it shall become fully effective on the next business day after the expiration date of the Revocation Period (the “Effective Date”).

IN WITNESS WHEREOF, Employee and Company have executed this Agreement on the date set forth below.

________________________________________

________________________________________

By: _____________________________________

Its: _____________________________________

Date: ____________________________________