Exhibit
10.1


 


SEPARATION AGREEMENT


 


This
Separation Agreement (this “Agreement”), dated March 31, 2010, is entered
into between John Duerden (hereinafter “Duerden”) and Crocs, Inc.
(together with its successors and assigns, the “Company”), hereinafter collectively
referred to as the “Parties.”  As used in
this Agreement, the “Company” shall include Crocs, Inc. and any of its
affiliates, subsidiaries, or divisions.


 


RECITALS


 


A.                                   Duerden and
Crocs, Inc. are parties to an Employment Agreement dated February 24,
2009 (the “Employment Agreement”);


 


B.                                     Duerden’s
employment with the Company as President and Chief Executive Officer and his
service as a member of the board of directors of the Company terminated
effective March 1, 2010 (the “Separation Date”); and


 


C.                                     The Company
agrees to make certain payments to Duerden and accelerate the vesting of
certain equity awards held by Duerden, as set forth in Section 1 below, in
consideration for Duerden entering into this Agreement, including Duerden’s
agreement to release the Company from any all claims relating to his service to
the Company.


 


AGREEMENT


 


In consideration of all mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, it is agreed by and between Duerden and the
Company as follows:


 


1.                                   Consideration.  Effective upon the expiration of the
revocation period provided in Section 8 hereof and subject to the
condition that this Agreement is not revoked by Duerden pursuant to such Section 8
prior to the expiration of such revocation period (such expiration date, the “Effective
Date”) and provided that Duerden does not breach his obligations under Sections
4, 5, 6, 7 and 14 of the Employment Agreement or Section 10 below (such
sections collectively, and together with Section 15 and Sections 16(a) through
(e) of the Employment Agreement, the “Surviving Terms”), the Company
agrees to:


 


(a)                                 pay to Duerden
a lump sum amount equal to $70,833;


 


(b)                                pay to Duerden
a lump sum amount equal to $850,000, which amount equals one year of Duerden’s
base salary in effect as of the Separation Date;


 


(c)                                  pay to Duerden
a lump sum amount equal to $850,000, which amount equals Duerden’s annual
incentive compensation equal to 100% of Duerden’s base salary as of the
Separation Date;


 


(d)                                 accelerate the
vesting and exercisability, to the Effective Date, of the unvested options to
purchase Company common stock and the unvested restricted stock awards listed
on Exhibit A hereto, which would have vested and become exercisable
had Duerden


 

















 


remained
employed for 12 months after the Separation Date.  Except as provided in this Section 1(d),
all stock options and restricted stock awards that are unvested as of the
Separation Date shall be terminated and cancelled as of the Separation Date,
and Duerden shall have no further rights with respect to such awards; and


 


(e)                                  pay the
employer portion of premiums for group health insurance coverage until the
earlier of (i) February 28, 2011 or (ii) the date that Duerden and
his dependents are no longer eligible for COBRA continuation coverage, provided, that Duerden (and/or Duerden’s covered dependents)
is eligible for and properly elects to continue group health insurance
coverage, as in place immediately prior to the Separation Date, and Duerden
continues to pay the employee portion of such health coverage.


 


The
amounts (if any) payable pursuant to Sections 1(a), (b) and (c) above
shall be paid to Duerden in full on the first regular payroll date of Crocs, Inc.
to occur after September 1, 2010. 
Duerden acknowledges that he will not be entitled to any annual
incentive compensation for fiscal year 2010. 
Pursuant to the terms of the applicable stock option agreements between
the Company and Duerden, all vested and exercisable stock options held by
Duerden as of the Separation Date and any stock options that vest pursuant to Section 1(d) above
may be exercised by Duerden at any time within three months after the
Separation Date in accordance with the terms and conditions set forth in the
stock option agreements.  Duerden
acknowledges that the aggregate fair market value of the shares of common stock
(determined as of the respective date or dates of grant) for which one or more
stock options granted to him may for the first time become exercisable as “incentive
stock options,” within the meaning of Section 422 of the Internal Revenue
Code, during any one calendar year shall not exceed the sum of $100,000, and
that any options (or portion thereof) that exceed such limit shall be treated
as options that are not incentive stock options but only to the extent of such
excess.  For purposes of this Section 1,
the parties confirm that the Separation Date is the date of Duerden’s
separation from service with the Company within the meaning of Section 409A(a)(2)(A)(i) of
the Code.  Notwithstanding anything in
this Agreement or elsewhere to the contrary, Duerden shall have no duties or
responsibilities after the Separation Date that are inconsistent with his
having a “separation from service” on the Separation Date.


 


2.                                          Amounts Owed.  The Company and Duerden represent and warrant
to each other that, other than Duerden’s annual incentive compensation for
fiscal year 2009 in the amount of $336,000 (the “2009 Bonus”) (provided that
the 2009 Bonus has not been paid prior to the execution of this Agreement), no
amount is obligated to be paid to or from the Company except pursuant to this
Agreement.  Duerden acknowledges that
Duerden has received all wages or other compensation owed to Duerden for
Duerden’s services to the Company through the Separation Date (subject only to
payment of the 2009 Bonus, if applicable).


 


3.                                          General Release.  For and in consideration of this Agreement,
Duerden, for himself and his respective heirs, successors and assigns, hereby
releases and discharges the Company, its successors, assigns, agents,
representatives, attorneys, principals, insurers, its past and present
directors, officers, shareholders and employees, and any and all other persons,
firms or corporations who are or might be liable through the Company, from any
right Duerden has as of the date hereof to any relief of any kind arising from
any and all claims, actions, causes of action, damages, taxes,


 


2

















 


demands,
costs, debts, accounts, covenants, contracts, agreements, judgments, charges,
loss of service, expenses, wages, or compensation of any kind (hereinafter “Claims”)
against the Company, whether such Claims are known or unknown, arising from the
beginning of time to the date of this Agreement.  The Claims released by Duerden under this
Agreement include, but are not limited to, any and all Claims arising out of or
relating to the statements, actions or omissions of the Company; all Claims for
any alleged unlawful discrimination, harassment, retaliation or reprisal, or
other alleged unlawful practices arising under the laws of the United States or
any other country or of any state, province, municipality, or other unit of
government, including, without limitation, Claims under Title VII of the
Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination
in Employment Act, the Americans With Disabilities Act, 42 U.S.C. § 1981,
the Employee Retirement Income Security Act, the Equal Pay Act, the Fair Credit
Reporting Act, the Fair Labor Standards Act, the Occupational Safety and Health
Act, the Worker Adjustment and Retraining Notification Act, the Sarbanes-Oxley
Act, the Colorado Wage Act, the Colorado Anti-Discrimination Act, the Family
and Medical Leave Act, the Lilly Ledbetter Fair Pay Act of 2009, or any similar
state laws or statutes; all Claims for alleged wrongful discharge, breach of
contract, breach of implied contract, failure to keep any promise, breach of a
covenant of good faith and fair dealing, breach of fiduciary duty, estoppel,
Duerden’s activities, if any, as a “whistleblower,” defamation, infliction of
emotional distress, fraud, misrepresentation, negligence, harassment,
retaliation or reprisal, constructive discharge, assault, battery, false
imprisonment, invasion of privacy, interference with contractual or business
relationships, any other wrongful employment practices, and violation of any
other principle of common law; all Claims for compensation of any kind,
including, without limitation, salary, bonuses, commissions, wages, stock-based
compensation or stock options, vacation pay and 401(k) contributions; all
Claims for payments or benefits pursuant to the terms of the Employment
Agreement; all Claims for back pay, front pay, reinstatement, other equitable
relief, compensatory damages, damages for alleged personal injury, liquidated
damages and punitive damages; all Claims relating to taxes imposed under Section 409A
of the Internal Revenue Code of 1986, as amended, and rules and regulations
promulgated thereunder; all Claims for attorneys’ fees, costs and interest; and
all Claims relating to Duerden’s relationship with the Company (whether that
relationship was as a member of the board of directors or as an employee)
and/or Duerden’s separation from the Company. 
Notwithstanding the foregoing, nothing in this Section 3 (i) precludes
any action to enforce any of the terms of this Agreement, (ii) releases
any rights arising under, or preserved by, this Agreement, (iii) releases
any Claims that may arise subsequent to the execution of this Agreement, or (iv) precludes
Duerden’s ability to assert his rights for indemnification and advancement of
expenses from the Company pursuant to Section 15 of the Employment
Agreement, the Company’s certificate of incorporation or bylaws, or any
indemnification agreement or arrangement between the Company and Duerden.


 


4.                                       Assignment of
Claims.  Duerden has not assigned any
claims or rights released in this Agreement.


 


5.                                       Unlawful
Conduct.  By entering into this
Agreement, neither Party admits that it engaged in any unlawful or improper
conduct, or that it is legally obligated to the other Party in any way except
as is specifically addressed herein.


 


6.                                       Consideration;
Negotiation.  The
consideration stated herein is contractual and not merely a recital.  The Parties execute and deliver this
Agreement after being fully informed of its


 


3

















 


terms,
contents and effects.  The Parties
acknowledge that this Agreement is a negotiated agreement that both Parties
have reviewed with their attorneys, that both Parties have had a full
opportunity to revise the language of the Agreement, and that, in the event of
a dispute, the Agreement should not be construed in any way either for or
against a Party based on whether a particular Party was or was not the primary
drafter of this Agreement.


 


7.                                       Binding Effect.  This Agreement shall be effective, binding on
the Parties, and in full force and effect immediately following the execution
of the Agreement by both Parties, except for Duerden’s release of ADEA claims
(if any), which shall be binding and effective as of the expiration of the
revocation period addressed below.


 


8.                                       ADEA.  Duerden acknowledges that:


 


(a)                               By executing
this Agreement, Duerden waives all rights or claims, if any, that Duerden may
have against the Company under the Age Discrimination in Employment Act of
1967, 29 U.S.C. § 626, et  seq. (“ADEA”);


 


(b)                              That this
Agreement has been written in a manner calculated to be understood by Duerden,
and is in fact understood by Duerden;


 


(c)                               That the
aforementioned waiver reflects specifically, but is not limited to, all rights
or claims, if any, that Duerden may have against the Company arising under the
ADEA;


 


(d)                              That Duerden is
not waiving rights and claims that Duerden may have under the ADEA against the
Company that may arise after the date on which this Agreement is executed;


 


(e)                               That Duerden is
waiving rights and claims that Duerden may have under the ADEA, if any, only in
exchange for consideration in addition to anything of value to which Duerden is
already entitled;


 


(f)                                 That Duerden is
advised and has had the opportunity to consult with an attorney of Duerden’s
choice prior to executing this Agreement;


 


(g)                                That Duerden
has been given a period of 21 days
from the date on which Duerden receives this Agreement, not counting the day
upon which Duerden receives the Agreement, within which to consider whether to
sign this Agreement;


 


(h)                                That if Duerden
wishes to execute this Agreement prior to the expiration of the 21-day period
set forth above, Duerden may do so;


 


(i)                                  That Duerden
has been given a period of 7 days
following Duerden’s execution of this Agreement to revoke Duerden’s waiver of
all claims, if any, under the ADEA, and Duerden’s release of any claims under
the ADEA shall not become effective or enforceable until the revocation period
has expired without Duerden revoking Duerden’s waiver of all claims under the
ADEA; and


 


4

















 


(j)                                  To revoke
Duerden’s waiver of all claims under the ADEA, Duerden understands that Duerden
must deliver a written, signed statement that Duerden revokes Duerden’s waiver
of all claims under the ADEA to the Company by hand or by mail within the 7 day revocation period.  The revocation must be postmarked within the
period stated above and properly addressed to the Company at the following
address:


 


Crocs, Inc.


6328 Monarch Park Place


Niwot, Colorado 80503


ATTN: General Counsel


 


9.                                       Remedies.  Each 
Party acknowledges that it would be difficult to fully compensate the
other Party for monetary damages resulting from any breach by the other Party
of the provisions hereof.  Accordingly,
in the event of any actual or threatened breach of any such provision, the
Company or Duerden, as applicable, shall, in addition to any other remedies it
or he may have, be entitled to seek injunctive and other equitable relief to
enforce such provision, such relief may be granted without the necessity of
proving actual monetary damages.  Each
Party agrees that in the event the other Party is found to have breached (or
threatened to breach) any such provision, the breaching Party will be liable to
the other Party for reasonable attorneys’ fees and costs incurred in enforcing
such provision.


 


10.                                 Miscellaneous.  The provisions of Sections 16(a) through
16(e) of the Employment Agreement (relating, respectively, to tax
withholding, Section 409A, governing law, jurisdiction and venue, and
arbitration of disputes) shall be deemed incorporated into this Agreement as if
fully set forth herein.


 


11.                                 Entire
Agreement.  This
Agreement contains the entire agreement of the Parties relating to the subject
matter addressed herein and supersedes all prior agreements and understandings
with respect to such subject matter, including the provisions of the Employment
Agreement other than the Surviving Terms, except any written agreements related
to Duerden’s common stock and restricted stock awards, and the Parties have
made no other agreements, representations or warranties relating to the subject
matter of this Agreement.


 


12.                                 Amendments;
Waiver.  This Agreement may not be
altered, amended, or otherwise modified except by subsequent written agreement
executed by both Parties.  No term or condition
of this Agreement shall be deemed to have been waived, except by a statement in
writing signed by the Party against whom enforcement of the waiver is
sought.  Any written waiver shall not be
deemed a continuing waiver unless specifically stated, shall operate only as to
the specific term or condition waived and shall not constitute a waiver of such
term or condition for the future or as to any act other than that specifically
waived.  Failure of the Company to
require strict compliance with this Agreement or to enforce or seek to enforce
this Agreement in response to a breach by  Duerden does not constitute a waiver of the
Company’s right subsequently to seek enforcement as to that breach or any other
breach of this Agreement.


 


13.                                 Severability.  To the extent a court of competent
jurisdiction deems that any portion of any provision of this Agreement is
invalid or unenforceable, the Parties agree that such portion(s)


 


5

















 


shall
be considered deleted herefrom and the remainder of such provision and of this
Agreement shall be unaffected and continue in full force and effect.


 


14.                                 Counterparts. This
Agreement may be executed in counterparts and shall be fully enforceable in all
regards if executed in such manner as if it had been executed as a single
document.  Signatures obtained by
facsimile or by other electronic means shall constitute effective execution of
this Agreement.


 


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left blank.]


 


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IN WITNESS WHEREOF, the Parties have signed
this Agreement to be effective as of the date first written above.


 


 


	
  DUERDEN:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ John Duerden

  	
   

  
	
  John Duerden

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  COMPANY:

  	
   

  
	
   

  	
   

  
	
  Crocs, Inc.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Daniel P. Hart

  	
   

  
	
  Name:

  	
  Daniel P. Hart

  	
   

  
	
  Its:

  	
  Executive Vice President, Chief Legal 

  	
   

  
	
   

  	
  and Administrative Officer

  	
   

  



 

















 


Exhibit A


 


Accelerated Stock Options and Restricted Stock Awards


 


	
   

  	
   

  	
   

  	
   

  	
  Original

  Scheduled

  	
   

  	
   

  	
   

  	
  ISO

  	
   

  	
  NQ

  	
   

  	
  TOTAL

  	
   

  
	
  Award

  	
   

  	
   

  	
   

  	
  Release/Vest

  	
   

  	
  RSA

  	
   

  	
  Option

  	
   

  	
  Option

  	
   

  	
  Option

  	
   

  
	
  Date

  	
   

  	
  Plan

  	
   

  	
  Date

  	
   

  	
  Shares

  	
   

  	
  Shares

  	
   

  	
  Shares

  	
   

  	
  Shares

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2/24/2009

  	
   

  	
  2007

  	
   

  	
  3/24/2010

  	
   

  	
  8,333

  	
   

  	
  3,318

  	
   

  	
  5,016

  	
   

  	
  8,334

  	
   

  
	
  2/24/2009

  	
   

  	
  2007

  	
   

  	
  4/24/2010

  	
   

  	
  8,334

  	
   

  	
  3,318

  	
   

  	
  5,015

  	
   

  	
  8,333

  	
   

  
	
  2/24/2009

  	
   

  	
  2007

  	
   

  	
  5/24/2010

  	
   

  	
  8,333

  	
   

  	
  3,317

  	
   

  	
  5,016

  	
   

  	
  8,333

  	
   

  
	
  2/24/2009

  	
   

  	
  2007

  	
   

  	
  6/24/2010

  	
   

  	
  8,333

  	
   

  	
  3,318

  	
   

  	
  5,015

  	
   

  	
  8,333

  	
   

  
	
  2/24/2009

  	
   

  	
  2007

  	
   

  	
  7/24/2010

  	
   

  	
  8,334

  	
   

  	
  3,318

  	
   

  	
  5,016

  	
   

  	
  8,334

  	
   

  
	
  2/24/2009

  	
   

  	
  2007

  	
   

  	
  8/24/2010

  	
   

  	
  8,333

  	
   

  	
  3,318

  	
   

  	
  5,015

  	
   

  	
  8,333

  	
   

  
	
  2/24/2009

  	
   

  	
  2007

  	
   

  	
  9/24/2010

  	
   

  	
  8,333

  	
   

  	
  3,318

  	
   

  	
  5,016

  	
   

  	
  8,334

  	
   

  
	
  2/24/2009

  	
   

  	
  2007

  	
   

  	
  10/24/2010

  	
   

  	
  8,334

  	
   

  	
  3,317

  	
   

  	
  5,015

  	
   

  	
  8,332

  	
   

  
	
  2/24/2009

  	
   

  	
  2007

  	
   

  	
  11/24/2010

  	
   

  	
  8,333

  	
   

  	
  3,318

  	
   

  	
  5,016

  	
   

  	
  8,334

  	
   

  
	
  2/24/2009

  	
   

  	
  2007

  	
   

  	
  12/24/2010

  	
   

  	
  8,333

  	
   

  	
  3,318

  	
   

  	
  5,015

  	
   

  	
  8,333

  	
   

  
	
  2/24/2009

  	
   

  	
  2007

  	
   

  	
  1/24/2011

  	
   

  	
  8,334

  	
   

  	
  6,083

  	
   

  	
  2,251

  	
   

  	
  8,334

  	
   

  
	
  2/24/2009

  	
   

  	
  2007

  	
   

  	
  2/24/2011

  	
   

  	
  8,333

  	
   

  	
  6,082

  	
   

  	
  2,251

  	
   

  	
  8,333

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  100,000

  	
   

  	
  45,343

  	
   

  	
  54,657

  	
   

  	
  100,000