Table of Contents
As filed
with the United States Securities and Exchange Commission on May 22, 2009
Registration
No. 333-
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Crocs, Inc.
(Exact name of registrant as specified in its
charter)
Delaware
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20-2164234
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(State or other jurisdiction of incorporation or
organization)
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(I.R.S. Employer Identification Number)
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6328
Monarch Park Place
Niwot,
Colorado 80503
(303) 848-7000
(Address, including zip code, and telephone number,
including area code, of registrants principal executive offices)
Erik
Rebich
General Counsel and Secretary
Crocs, Inc.
6328 Monarch Park Place
Niwot, Colorado 80503
(303) 848-7000
(Name,
address, including zip code and telephone number, including area code, of agent
for service)
With a copy to:
Nathaniel
G. Ford, Esq.
Jason
Day, Esq.
Faegre &
Benson LLP
3200 Wells Fargo Center
1700 Lincoln Street
Denver, Colorado 80203
(303) 607-3500
Approximate date of commencement of
proposed sale to the public:
From time to time after the effective date of this
Registration Statement, as determined by market conditions.
If the only securities being registered on this form
are being offered pursuant to dividend or interest reinvestment plans, please
check the following box:
o
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, please check the following
box:
x
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the
Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.
o
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
o
If this Form is a registration statement pursuant
to General Instruction I.D. or a post effective amendment thereto that shall
become effective upon filing with the Commission pursuant to Rule 462(e) under
the Securities Act, check the following box.
o
If this form is a post-effective amendment to a
registration statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of securities pursuant to Rule 413(b) under
the Securities Act, check the following box.
o
Indicate by check mark whether the registrant is a
large accelerated filer, an accelerated filer, a non-accelerated filer, or a
smaller reporting company. See the definitions of large accelerated filer, accelerated
filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
(Check one):
Large accelerated filer
x
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Accelerated filer
o
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Non-accelerated filer
o
(Do not check if a smaller reporting company)
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Smaller reporting
company
o
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CALCULATION
OF REGISTRATION FEE
Title of Each Class of
Securities to be
Registered
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Amount to be
Registered(1)
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Proposed
Maximum
Offering
Price
per Unit(2)
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Proposed Maximum
Aggregate
Offering Price(3)
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Amount of
Registration
Fee(4)
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Common Stock(5),
Preferred Stock(5), Debt Securities(5), Stock Purchase Contracts(5), Warrants(5)
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$
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75,000,000
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N/A
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$
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75,000,000
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$
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4,185
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(1)
There are being registered under this
registration statement such indeterminate number of shares of common stock and
preferred stock and such indeterminate number of debt securities, stock purchase
contracts, and warrants of the registrant, all at indeterminate prices, as
shall have an aggregate initial offering price not to exceed $75,000,000. Any securities registered under this
registration statement may be sold separately or as units with other securities
registered hereunder.
(2)
The proposed maximum offering price per unit
is not specified as to each class of securities to be registered, pursuant to
General Instruction II.D of Form S-3 under the Securities Act. The
proposed maximum offering price per unit will be determined from time to time
by the registrant in connection with, and at the time of, the issuance of the
securities registered hereunder.
(3)
Estimated solely for the purpose of
calculating the registration fee in accordance with Rule 457 under the
Securities Act.
(4)
Calculated pursuant to Rule 457(o) under
the Securities Act.
(5)
Pursuant to Rule 457(i) under the
Securities Act, the securities registered hereunder also include such
indeterminate number of shares of common stock, preferred stock, debt
securities, stock purchase contracts, and warrants as may be issued upon
exercise, settlement, exchange or conversion of securities as may be offered
pursuant to any prospectus or prospectus supplement filed with this
registration statement. In addition, pursuant to Rule 416 under the
Securities Act, the securities registered hereunder include such indeterminate
number of securities as may be issuable with respect to the securities being
registered hereunder as a result of stock splits, stock dividends or similar
transactions.
T
he Registrant hereby
amends this Registration Statement on such date or dates as may be necessary to
delay its effective date until the Registrant shall file a further amendment
which specifically states that this Registration Statement shall thereafter
become effective in accordance with Section 8(a) of the Securities
Act of 1933, as amended, or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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The
information in this prospectus is not complete and may be changed. We may not
sell these securities until the registration statement filed with the
Securities and Exchange Commission becomes effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MAY 22, 2009
PROSPECTUS
$75,000,000
Debt Securities
Preferred Stock
Common Stock
Stock Purchase Contracts
Securities Warrants
By this prospectus, we may from time
to time offer debt securities, preferred stock, common stock, stock purchase
contracts and/or securities warrants in one or more offerings and in amounts,
at prices and on terms that we will determine at the time of such offerings. We
will provide specific terms of the securities offered and the terms and
conditions of the transactions in supplements to this prospectus. You should
read this prospectus, each applicable prospectus supplement, and the
information incorporated by reference in this prospectus and each applicable
prospectus supplement carefully before you invest.
Our common stock, par value $0.001
per share, trades on the Nasdaq Global Select Market under the symbol CROX.
You should rely only on the
information contained or incorporated by reference in this prospectus or any
prospectus supplement. We have not authorized anyone else to provide you with
different information or to make additional representations. We are not making
or soliciting an offer of any securities other than the securities described in
this prospectus and any prospectus supplement. We are not making or soliciting an
offer of these securities in any state or jurisdiction where the offer is not
permitted or in any circumstances in which such offer or solicitation is
unlawful. You should not assume that the information contained or incorporated
by reference in this prospectus or any prospectus supplement is accurate as of
any date other than the date on the front of those documents.
Investing in these
securities involves a high degree of risk. See Risk Factors on page 1 of
this prospectus and in the prospectus supplement we will deliver with this
prospectus.
The securities may be sold by us to
or through underwriters or dealers, directly to purchasers or through agents
designated from time to time, or through a combination of these methods. For
additional information on the methods of sale, you should refer to the section
entitled Plan of Distribution in this prospectus. If any underwriters
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are involved in the sale of any
securities with respect to which this prospectus is being delivered, the names
of such underwriters and any applicable discounts or commissions and
over-allotment options will be set forth in a prospectus supplement. The price
to the public of such securities and the net proceeds we expect to receive from
such sale will also be set forth in a prospectus supplement. This prospectus
may not be used to sell any securities unless accompanied by a prospectus
supplement.
The aggregate market value of our
outstanding common equity held by non-affiliates as of May 11, 2009 was
approximately $227.9 million. We have not issued any securities under Form S-3
during the last 12 months.
Neither the Securities and
Exchange Commission nor any state securities commission has approved or
disapproved of these securities, or passed upon the adequacy or accuracy of
this prospectus. Any representation to the contrary is a criminal offense.
This prospectus is dated , 2009
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on
Form S-3 that we filed with the Securities and Exchange Commission, or the
SEC, using the shelf registration process. Under this shelf registration
process, we may sell debt securities, preferred stock, common stock, stock
purchase contracts, or warrants described in this prospectus in one or more
offerings up to an aggregate initial dollar amount of $75,000,000. This
prospectus provides you with a general description of the securities we may
offer. Each time we offer securities, we will provide a prospectus supplement
that will describe the specific amounts, prices and terms of the offered
securities. The prospectus supplement may also add, update or change
information contained in this prospectus. You should carefully read both this prospectus
and any prospectus supplement together with additional information described
below under Information Incorporated By Reference.
You should rely only on the information contained in
or incorporated by reference into this prospectus or any accompanying
prospectus supplement. We have not authorized anyone to provide you with
different information. This document may only be used where it is legal to sell
these securities. You should not assume that the information contained in this
prospectus, or in any prospectus supplement, is accurate as of any date other
than its date regardless of the time of delivery of the prospectus or
prospectus supplement or any sale of the securities.
This prospectus does not contain all the information
provided in the registration statement we filed with the SEC. We urge you to
read carefully both this prospectus and the prospectus supplement accompanying
this prospectus, together with the information incorporated herein by reference
and as described under the heading Where You Can Find More Information,
before deciding whether to invest in any of the securities being offered.
This prospectus and the related prospectus supplements
may include trademarks, service marks and trade names owned by us or other
companies. All trademarks, service marks and trade names included in this
prospectus are the property of their respective owners.
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WHERE
YOU CAN FIND MORE INFORMATION; INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We file annual, quarterly and current reports, proxy
statements and other information with the SEC. Our SEC filings are available
over the Internet at the SECs web site at www.sec.gov. You may also read and
copy any document we file with the SEC at their Public Reference Room located
at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on
the operation of the Public Reference Room by calling the SEC at
1-800-SEC-0330 for more information. We maintain a web site at www.crocs.com.
The information on our web site is not incorporated by reference in this
prospectus or any prospectus supplement and you should not consider it a part
of this prospectus or any accompanying prospectus supplement.
The SEC allows us to incorporate by reference the
information we file with them, which means that we can disclose important
information to you by referring you to separate documents. The information
incorporated by reference is considered to be part of this prospectus and any
accompanying prospectus supplement and later information filed with the SEC
will update and supersede this information. We incorporate by reference the
documents listed below that we have previously filed with the SEC (other than
information deemed furnished and not filed in accordance with SEC rules,
including Items 2.02 and 7.01 of Form 8-K):
·
Annual Report on
Form 10-K for the year ended December 31, 2008;
·
Quarterly Report
on Form 10-Q for the quarter ended March 31, 2009;
·
Current Reports
on Form 8-K filed on February 13, 2009, February 17, 2009, February 19,
2009, March 2, 2009, March 20, 2009 and March 31, 2009; and
·
The description
of our common stock, par value $0.001 per share, contained in the Registration
Statement on Form 8-A filed with the Commission on January 24, 2006,
as the same may be amended from time to time.
You may request a copy of these filings (other than an
exhibit to a filing unless that exhibit is specifically incorporated by
reference into that filing) at no cost, by writing to or telephoning us at the
following address:
Corporate Secretary
Crocs, Inc.
6328 Monarch Park Place
Niwot, Colorado 80503
(303) 848-7000
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SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement delivered
with this prospectus, and the documents we incorporate by reference may contain
statements that constitute forward-looking statements within the meaning of Section 27A
of the Securities Act of 1933, and Section 21E of the Securities Exchange
Act of 1934. Forward-looking statements include statements as to industry
trends and our future expectations and other matters that do not relate
strictly to historical facts and are based on certain assumptions of our management. These statements are often identified by the
use of words such as may, will, expect, believe, anticipate, intend,
could, estimate, or continue, and similar expressions or variations.
These statements are based on the beliefs and assumptions of our management
based on information currently available to us.
Such forward-looking statements are subject to risks, uncertainties, and
other factors that could cause actual results to differ materially from future
results expressed or implied by such forward-looking statements. Important
factors that could cause actual results to differ materially from the
forward-looking statements include, among others, the risks described in the
section entitled Risk Factors under Item 1A in our Annual Report on Form 10-K
for the year ended December 31, 2008 and other filings we have made with
the SEC. These factors include, without limitation:
·
macroeconomic
issues, including, but not limited to, the current global financial crisis;
·
our ability
to obtain adequate financing;
·
our ability
to effectively manage our future growth or declines in revenue;
·
changing
fashion trends;
·
our defense
and the ultimate outcome of a pending class action lawsuit;
·
our ability to accurately anticipate and
respond to seasonal or quarterly fluctuations in demand for our products;
·
our
management and information systems infrastructure;
·
our ability
to obtain and protect intellectual property rights;
·
our reliance on third party
manufacturing and logistics providers for the production and distribution of
products;
·
our reliance
on a single source supply for certain raw materials;
·
inherent
risks associated with the manufacture, distribution and sale of our products
overseas;
·
our ability
to develop and sell new products;
·
our limited
operating history;
·
our ability
to accurately forecast consumer demand for our products;
·
our ability
to maintain effective internal controls;
·
our ability
to attract, assimilate and retain management talent;
·
our ability
to respond to further adverse changes in the retail environment;
·
our ability
to effectively market and maintain a positive brand image;
·
the effect
of competition in our industry; and
·
the effect
of potential adverse currency exchange rate fluctuations.
We caution the reader to carefully consider such
factors. Furthermore, such forward-looking statements speak only as of the date
they were made. We undertake no obligation to update any forward-looking
statements to reflect events or circumstances after the date of such
statements.
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THE COMPANY
We are a designer, manufacturer, distributor,
worldwide marketer, and brand manager of footwear for men, women and children.
We aspire to be the global leader in molded footwear design and
development. Crocs shoes combine fun
colors and innovative design and we manufacture a product offering that
provides new and exciting molded footwear products that feature fun, comfort
and functionality. We design and sell a broad offering of footwear, apparel,
gear and accessories that utilize our proprietary closed cell-resin, called
Croslite. Croslite is a unique material
that enables us to produce an innovative, soft, lightweight, non-marking, slip
and odor-resistant shoe. Shoes made with Croslite have been certified by US
Ergonomics to reduce peak pressure on the foot, reduce muscular fatigue while
standing and walking and to relieve the musculoskeletal system.
Our principal executive offices are located at 6328 Monarch Park Place, Niwot, Colorado
80503, and our telephone number is (303) 848-7000 Our Internet
address is http://www.crocs.com. We are
not including the information contained on our website as a part of, or
incorporating it by reference into, this prospectus.
RISK FACTORS
Prior to making an investment decision with respect to
the securities that we may offer, prospective investors should carefully
consider the specific factors set forth under the caption Risk Factors in the
applicable prospectus supplement, together with all of the other information
appearing in this prospectus or incorporated by reference into this prospectus
and the applicable prospectus supplement, in light of their particular
investment objectives and financial circumstances.
USE OF
PROCEEDS
Unless otherwise
specified in a prospectus supplement accompanying this prospectus, the net
proceeds from the sale of the securities to which this prospectus relates will
be used for general corporate purposes. General corporate purposes may include
repayment of debt, acquisitions, investments, additions to working capital, capital
expenditures and advances to or investments in our subsidiaries. Net proceeds
may be temporarily invested prior to use. We will have significant discretion
in the use of any net proceeds.
RATIO
OF EARNINGS TO FIXED CHARGES
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Fiscal Year Ended December 31,
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Three Months
Ended March 31,
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2004
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2005
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2006
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2007
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2008
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2009
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Ratio of Earnings to Fixed Charges
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22.2
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31.5
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26.7
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For the three months ended March 31, 2009 and for the years ended December 31,
2008 and 2004, our earnings were insufficient to cover fixed charges by $17,355,000,
$170,520,000 and $1,521,000, respectively.
Fixed charges consist of interest on all indebtedness and one-third of
rentals, which we believe is a reasonable approximation of the interest factor
of such rentals. For the periods
indicated above, we had no outstanding shares of preferred stock. Therefore, the combined ratios of earnings to
fixed charges and preferred stock dividends are identical to the ratios
presented above for all such periods.
DIVIDEND
POLICY
We have never declared or paid cash dividends on our
common stock. We currently intend to
retain all available funds and any future earnings for use in the operation of
our business and do not anticipate paying any cash dividends in the foreseeable
future. Any future determination to
declare cash dividends will be made at the discretion of our board of
directors, subject to compliance with covenants under any existing financing
agreements, which may restrict or limit our ability to declare or pay
dividends, and will depend on our financial condition, results
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of operations, capital requirements, general business
conditions, and other factors that our board of directors may deem relevant. We
issued a stock dividend in connection with our 2-for-1 stock split, which was
effected in the form of a 100% common stock dividend distributed on June 14,
2007.
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DESCRIPTION
OF DEBT SECURITIES
This section describes the general terms and
provisions of our debt securities. When
we offer to sell a particular series of debt securities we will provide the
specific terms of the series in a prospectus supplement. Accordingly, for a description of the terms
of any series of debt securities, you must refer to both the prospectus
supplement relating to that series and the description of the debt securities
in this prospectus. To the extent the
information contained in the prospectus supplement differs from this summary
description, you should rely on the information in the prospectus supplement.
The debt securities will be issued under an indenture
between us and Wells Fargo Bank, N.A., as trustee, unless otherwise indicated
in the applicable prospectus supplement.
As used in this prospectus,
debt securities
means the
debentures, notes, bonds and other evidences of indebtedness that we issue and
the trustee authenticates and delivers under the indenture.
We have summarized the material terms and provisions
of the indenture in this section. We have also filed the form of the indenture
as an exhibit to the registration statement of which this prospectus forms a
part. The indenture and the debt securities will be construed in accordance
with and governed by the laws of the State of New York. You should read the
form of indenture for additional information before you buy any debt
securities. The summary that follows includes references to section numbers of
the indenture so that you can more easily locate these provisions.
General
The debt securities will be our direct obligations,
which may be secured or unsecured, senior or subordinated and convertible into
shares of our common stock or preferred stock.
The indenture does not limit the amount of debt securities that we may
issue and permits us to issue debt securities from time to time. Debt
securities issued under the indenture will be issued as part of a series that
has been established by us under the indenture.
The terms of each series of debt securities will be established by or
pursuant to a resolution of our board of directors and set forth in an officers
certificate or in one or more supplemental indentures.
A prospectus supplement relating to a series of debt
securities being offered will include specific terms relating to the
offering. These terms will include some
or all of the following:
·
the title and type of the debt securities;
·
any limit on the total principal amount of
the debt securities;
·
the price at which the debt securities
will be issued;
·
the date or dates on which the principal
of and premium, if any, on the debt securities will be payable;
·
the maturity date of the debt securities;
·
if the debt securities will bear interest:
·
the interest
rate on the debt securities, and whether the interest rate will be fixed or
variable, or the method used to determine the rate at which the debt securities
will bear interest;
·
the date from
which interest will accrue;
·
the record and
interest payment dates for the debt securities;
·
the first
interest payment date; and
·
any
circumstances under which we may defer interest payments;
·
any optional redemption provisions that
would permit us or the holders of debt securities to elect redemption of the
debt securities prior to their final maturity;
·
any mandatory redemption or sinking fund
provisions that would obligate us to redeem the debt securities prior to their
final maturity;
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·
whether the debt securities will be
secured or unsecured;
·
any subordination provisions;
·
the terms applicable to any debt
securities issued at a discount or premium from their stated principal amount;
·
the securities exchanges(s) on which
the debt securities will be listed, if any;
·
whether any underwriter(s) will act
as market maker(s) for the debt securities;
·
the extent to which a secondary market for
the securities is expected to develop;
·
if the debt securities will be convertible
into or exchangeable for our common stock, preferred stock, or other debt
securities at our option or the option of the holders, the provisions relating
to such conversion or exchange;
·
the currency or currencies in which the
debt securities will be denominated and payable, if other than U.S. dollars;
·
any provisions that would permit us or the
holders of the debt securities to elect the currency or currencies in which the
debt securities are paid;
·
any events of default or covenants;
·
any provisions regarding modification or
waiver of terms of the indenture or debt securities;
·
any requirements or procedures upon a
consolidation, merger or sale of the company;
·
any provisions relating to the
satisfaction and discharge of the indenture;
·
whether we will issue the debt securities
in whole or in part in the form of global securities and, if so, the depositary
for those global securities;
·
any special tax implications of the debt
securities;
·
any provisions relating to covenant
defeasance and legal defeasance;
·
any provisions relating to any security provided
for the debt securities; and
·
any other terms of the debt securities.
Denominations
Unless the prospectus
supplement states otherwise, the debt securities will be issued only in
registered form, without coupons, in denominations of $1,000 each or multiples
of $1,000. If we ever issue bearer securities, we will summarize provisions of
the indenture that relate to bearer securities in the applicable prospectus
supplement.
Payment; Transfer
Unless the prospectus
supplement states otherwise, we will designate a place of payment where you can
receive payment of the principal of and any premium and interest on the debt
securities or transfer the debt securities. Even though we will designate a
place of payment, we may elect to pay any interest on the debt securities by
mailing a check to the person listed as the owner of the debt securities in the
security register or by wire transfer to an account designated by that person
in writing not less than ten days before the date of the interest payment. There will be no service charge for any
registration of transfer or exchange of the debt securities, but we may require
you to pay any tax or other governmental charge payable in connection with a
transfer or exchange of the debt securities.
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Covenants and Events of Default
We will describe in the prospectus supplement any
restrictive covenants and events of default applicable to an issue of debt
securities.
Conversion and Exchange Rights
We will describe in the applicable prospectus
supplement the terms and conditions, if any, upon which the debt securities are
convertible or exchangeable into common stock or preferred stock. Those terms will include:
·
whether the debt
securities are convertible into or exchangeable for common stock or preferred
stock;
·
the conversion price
or exchange ratio, or manner of calculation;
·
the conversion or
exchange period;
·
provisions regarding
whether conversion or exchange will be at our option or at the option of the
holders;
·
the events requiring
an adjustment of the conversion price or exchange ratio; and
·
provisions affecting
conversion or exchange in the event of the redemption of the debt securities.
Limited Liability of Some Persons
No past, present or future stockholder, incorporator,
employee, officer or director of ours or any successor corporation or any of
our affiliates will have any personal liability for our obligations under the
indenture or the debt securities because of his, her or its status as a
stockholder, incorporator, employee, officer or director.
DESCRIPTION
OF CAPITAL STOCK
Our restated certificate of incorporation, as amended, provides that we
may issue up to 250,000,000 shares of common stock, par value $0.001 per share,
and 5,000,000 shares of preferred stock, par value $0.001 per share. A
description of the material terms and provisions of our restated certificate of
incorporation, as amended, and our amended and restated bylaws affecting the
rights of the common stock is set forth below. The description is intended as a
summary and is qualified in its entirety by reference to the restated
certificate of incorporation , as amended, and our amended and restated bylaws
incorporated herein by reference.
The following is a summary of the material
features of our capital stock:
Common Stock
Holders of our common stock are entitled to one vote per share in the
election of directors and on all other matters on which stockholders are
entitled or permitted to vote. Holders of common stock are not entitled to
cumulative voting rights. Therefore, holders of a majority of the shares voting
for the election of directors can elect all the directors. Subject to the terms
of any outstanding series of preferred stock, the holders of common stock are
entitled to dividends in amounts and at times as may be declared by the board
of directors out of funds legally available therefor. Upon our liquidation or
dissolution, holders of common stock are entitled to share ratably in all net
assets available for distribution to stockholders after payment of any
liquidation preferences to holders of preferred stock. Holders of common stock
have no redemption, conversion or preemptive rights.
Preferred Stock
Our restated certificate of incorporation, as amended, permits us to
issue up to 5,000,000 shares of preferred stock, from time to time, in one or
more series and with such designation and preferences for each series as are
stated in the resolutions providing for the designation and issue of each such
series adopted by our board of
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directors. Our
restated certificate of incorporation, as amended, authorizes our board of
directors to determine the voting, dividend, redemption and liquidation
preferences and limitations pertaining to such series. The board of directors,
without stockholder approval, may issue preferred stock with voting rights and
other rights that could adversely affect the voting power of the holders of our
common stock and could have certain anti-takeover effects. We have no present
plans to issue any shares of preferred stock. The ability of the board of
directors to issue preferred stock without stockholder approval could have the
effect of delaying, deferring or preventing a change in control of our company
or the removal of existing management.
Anti-Takeover Effects
Provisions of Delaware law, our restated certificate of incorporation,
as amended, and our amended and restated bylaws could have the effect of
delaying or preventing a third party from acquiring us, even if the acquisition
would benefit our stockholders. These provisions are intended to enhance the
likelihood of continuity and stability in the composition of our board of
directors and in the policies formulated by the board of directors and to
discourage types of transactions that may involve our actual or threatened
change of control. These provisions are designed to reduce our vulnerability to
an unsolicited proposal for a takeover that does not contemplate the
acquisition of all of our outstanding shares, or an unsolicited proposal for
the restructuring or sale of all or part of us.
Delaware Anti-Takeover Statute.
We are subject to the provisions of Section 203 of the Delaware General
Corporation Law, an anti-takeover law. Subject to exceptions, the statute
prohibits a publicly-held Delaware corporation from engaging in a business
combination with an interested stockholder for a period of three years after
the date of the transaction in which the person became an interested
stockholder, unless:
·
Prior to such date, the board of directors of the
corporation approved either the business combination or the transaction which
resulted in the stockholder becoming an interested stockholder;
·
Upon consummation of the transaction which
resulted in the stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced, excluding for purposes of
determining the number of shares outstanding, those shares owned (1) by
persons who are directors and also officers and (2) by employee stock
plans in which employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be tendered in a
tender or exchange offer; or
·
On or after such date, the business combination
is approved by the board of directors and authorized at an annual or special
meeting of stockholders and not by written consent, by the affirmative vote of
at least 66
2
/
3
% of the outstanding voting stock which is not
owned by the interested stockholder.
For purposes of Section 203, a business combination includes a
merger, asset sale or other transaction resulting in a financial benefit to the
interested stockholder, with an interested stockholder being defined as a
person who, together with affiliates and associates, owns, or within three
years prior to the date of determination whether the person is an interested
stockholder, did own, 15% or more of the corporations voting stock.
In addition, certain provisions of our restated certificate of
incorporation, as amended, and amended and restated bylaws may have an
anti-takeover effect. These provisions may delay, defer or prevent a tender
offer or takeover attempt of our company that a stockholder might consider in
his or her best interest, including those attempts that might result in a
premium over the market price for the shares held by our stockholders. The
following summarizes these provisions.
Election, Appointment and Removal of Directors.
Our amended and restated bylaws and restated certificate of
incorporation, as amended, include provisions classifying our board of
directors into three classes with staggered three-year terms. Accordingly, only
one third of our board of directors will be elected at each annual meeting.
Only our board of directors is authorized to fill vacant directorships or
increase the size of our board. Directors may only be removed for cause by
holders of a majority of the shares entitled to vote at an election of
directors.
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Stockholder Action; Special Meeting of Stockholders.
Our restated certificate of incorporation, as amended, eliminates the
ability of stockholders to act by written consent. Our amended and restated
bylaws provide that special meetings of our stockholders may be called only by
the Chairman of the Board or by a majority of our board of directors.
Advance Notice Requirements for Stockholders Proposals and
Directors Nominations.
Our amended and restated bylaws provide that
stockholders seeking to bring business before an annual meeting of
stockholders, or to nominate candidates for election as directors at an annual
meeting of stockholders, must provide us with timely written notice of their
proposal. To be timely, a stockholders notice must be delivered to or mailed
and received at our principal executive offices not less than 120 days before the
date in the current year that corresponds to the date of the previous years
annual meeting. If, however, no meeting was held in the prior year or the date
of the annual meeting has been changed by more than 30 days from the date
contemplated in the notice of annual meeting, notice by the stockholder in
order to be timely must be received no later than the close of business on the
tenth day following the day on which the date of the annual meeting is publicly
announced. Our amended and restated bylaws also specify requirements as to the
form and content of a stockholders notice. These provisions may preclude
stockholders from bringing matters before an annual meeting of stockholders or
from making nominations for directors at an annual meeting of stockholders.
Authorized But Unissued Shares.
Our authorized but unissued shares of common stock and
preferred stock are available for our board to issue without stockholder
approval. We may use these additional shares for a variety of corporate
purposes, including future public offerings to raise additional capital,
corporate acquisitions and employee benefit plans. The existence of our
authorized but unissued shares of common stock and preferred stock could render
more difficult or discourage an attempt to obtain control of our company by
means of a proxy contest, tender offer, merger or other transaction.
Amendment of Bylaws.
Our directors are expressly
authorized to amend our amended and restated bylaws.
Transfer Agent and Registrar
Computershare Trust Company, Inc.
has been appointed as the transfer agent and registrar for our common stock.
Listing
Our common stock is quoted on
the Nasdaq Global Select Market under the symbol CROX.
Indemnification of Certain Persons
Our amended and restated bylaws require us to indemnify our directors
and officers to the fullest extent permitted by Delaware law. We have entered
into indemnification agreements with all of our directors and executive
officers. We currently maintain and intend to continue to maintain directors
and executive officers liability insurance.
Limitations of Director Liability
Our restated certificate of incorporation, as amended, limits personal
liability of our directors for breaches by the directors of their fiduciary
duties to the fullest extent provided by Delaware law. Such provisions
eliminate the personal liability of directors for damages occasioned by breach
of fiduciary duty, except for liability based on the directors duty of loyalty
to us or our stockholders, liability for acts or omissions not made in good
faith, liability for acts or omissions involving intentional misconduct or
knowing violation of law, liability based on payments of improper dividends,
liability based on a transaction from which the director derives an improper
personal benefit, liability based on violation of state securities laws and
liability for acts occurring prior to the date such provision
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was added. Any
amendment to, or repeal of, such provisions will not adversely affect any right
or protection of a director for or with respect to any acts or omissions of
such director occurring prior to such amendment or repeal.
DESCRIPTION OF STOCK PURCHASE
CONTRACTS
We may issue stock
purchase contracts obligating holders to purchase from us and obligating us to
sell to the holders, a specified number of shares of common stock or other
securities at a future date or dates. The price per share and number of shares
of the securities may be fixed at the time the stock purchase contracts are
issued or may be determined by reference to a specific formula set forth in the
stock purchase contracts. The stock purchase contracts may require holders to
secure their obligations in a specified manner.
The applicable prospectus
supplement and any documents incorporated by reference will describe the terms
of any stock purchase contracts. The description in the prospectus supplement
will not necessarily be complete, and reference may be made to the stock
purchase contracts, and, if applicable, collateral arrangements and depositary
arrangements relating to the stock purchase contracts. In the applicable
prospectus supplement, we will also discuss any material U.S. federal income
tax considerations applicable to the stock purchase contracts.
DESCRIPTION
OF SECURITIES WARRANTS
This section describes the general terms and provisions
of the securities warrants. The
prospectus supplement will describe the specific terms of the securities
warrants offered through that prospectus supplement and any general terms
outlined in this section that will not apply to those securities warrants.
We may issue warrants for the purchase of debt
securities, preferred stock or common stock, which we collectively refer to as
the
securities warrants
.
Securities warrants may be issued alone or together with debt
securities, preferred stock, or common stock offered by any prospectus
supplement and may be attached to or separate from those securities. Each series of securities warrants will be
issued under a separate warrant agreement between us and a bank or trust
company, as warrant agent, which will be described in the applicable prospectus
supplement. The securities warrant agent
will act solely as our agent in connection with the securities warrants and
will not act as an agent or trustee for any holders of securities warrants.
We have summarized the material terms and provisions
of the securities warrant agreements and securities warrants in this
section. You should read the applicable
forms of securities warrant agreement and securities warrant certificate for
additional information before you buy any securities warrants.
General
If we offer securities warrants, the applicable
prospectus supplement will describe their terms. If securities warrants for the purchase of
debt securities are offered, the applicable prospectus supplement will describe
the terms of those securities warrants, including the following where
applicable:
·
the offering price;
·
the currencies in which the
securities warrants are being offered;
·
the designation, aggregate
principal amount, currencies, denominations and terms of the series of the debt
securities that can be purchased if a holder exercises the securities warrants;
·
the designation and terms of any
series of debt securities or preferred stock with which the securities warrants
are being offered and the number of securities warrants offered with each debt
security, share of preferred stock or share of common stock;
·
the date on and after which the
holder of the securities warrants can transfer them separately from the related
common stock or series of debt securities or preferred stock;
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·
the principal amount of the
series of debt securities that can be purchased if a holder exercises the
securities warrant and the price at which and currencies in which the principal
amount may be purchased upon exercise;
·
the date on which the right to
exercise the securities warrants begins and the date on which the right
expires;
·
United States federal income tax
consequences; and
·
any other terms of the
securities warrants.
Unless we state otherwise in the applicable prospectus
supplement, the securities warrants for the purchase of debt securities will be
in registered form only.
If securities warrants for the purchase of preferred
stock or common stock are offered, the applicable prospectus supplement will
describe the terms of those securities warrants, including the following where
applicable:
·
the offering price;
·
the total number of shares that
can be purchased if a holder of the securities warrants exercises them and, in
the case of securities warrants for preferred stock, the designation, total
number and terms of the series of preferred stock that can be purchased upon
exercise;
·
the designation and terms of the
series of debt securities or preferred stock with which the securities warrants
are being offered and the number of securities warrants being offered with each
debt security, share of preferred stock or share of common stock;
·
the date on and after which the
holder of the securities warrants can transfer them separately from the related
common stock or series of debt securities or preferred stock;
·
the number of shares of
preferred stock or shares of common stock that can be purchased if a holder
exercises the securities warrant and the price at which the preferred stock or
common stock may be purchased upon each exercise;
·
the date on which the right to
exercise the securities warrants begins and the date on which the right
expires;
·
United States federal income tax
consequences; and
·
any other terms of the
securities warrants.
Securities warrants for the purchase of preferred
stock or common stock will be in registered form only.
A holder of securities warrant certificates may:
·
exchange them for new
certificates of different denominations;
·
present them for registration of
transfer; and
·
exercise them at the corporate
trust office of the securities warrant agent or any other office indicated in
the applicable prospectus supplement.
Until any securities warrants to purchase debt securities are
exercised, the holder of these securities warrants will not have any of the
rights of holders of the debt securities that can be purchased upon exercise,
including any right to receive payments of principal, premium or interest on
the underlying debt securities or to enforce covenants in the indenture. Until any securities warrants to purchase
preferred stock or common stock are exercised, holders of these securities
warrants will not have any rights of holders of the underlying preferred stock
or common stock, including any right to receive dividends or to exercise any
voting rights.
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Exercise of Securities Warrants
Each holder of a securities warrant is entitled to purchase the
principal amount of debt securities or number of shares of preferred stock or
shares of common stock, as the case may be, at the exercise price described in
the applicable prospectus supplement.
After the close of business on the day when the right to exercise
terminates (or a later date if we extend the time for exercise), unexercised
securities warrants will become void.
A holder of securities warrants may exercise them by
following the general procedure outlined below:
·
delivering to the securities
warrant agent the payment required by the applicable prospectus supplement to
purchase the underlying security;
·
properly completing and signing
the reverse side of the securities warrant certificate representing the securities
warrants; and
·
delivering the securities
warrant certificate representing the securities warrants to the securities
warrant agent within five business days of the securities warrant agent
receiving payment of the exercise price.
If you comply with the procedures described above,
your securities warrants will be considered to have been exercised when the
securities warrant agent receives payment of the exercise price. After you have completed those procedures, we
will, as soon as practicable, issue and deliver to you the debt securities,
preferred stock or common stock that you purchased upon exercise. If you exercise fewer than all of the
securities warrants represented by a securities warrant certificate, the
securities warrant agent will issue to you a new securities warrant certificate
for the unexercised amount of securities warrants. Holders of securities warrants will be
required to pay any tax or governmental charge that may be imposed in
connection with transferring the underlying securities in connection with the
exercise of the securities warrants.
Amendments and Supplements to Securities Warrant
Agreements
We may amend or supplement a securities warrant
agreement without the consent of the holders of the applicable securities
warrants if the changes are not inconsistent with the provisions of the
securities warrants and do not materially adversely affect the interests of the
holders of the securities warrants. We,
along with the securities warrant agent, may also modify or amend a securities
warrant agreement and the terms of the securities warrants if holders of a
majority of the then-outstanding unexercised securities warrants affected by
the modification or amendment consent.
However, no modification or amendment that accelerates the expiration
date, increases the exercise price, reduces the majority consent requirement
for any such modification or amendment, or otherwise materially adversely
affects the rights of the holders of the securities warrants may be made
without the consent of each holder affected by the modification or amendment.
Common Stock Warrant Adjustments
Unless the applicable prospectus supplement states
otherwise, the exercise price of, and the number of shares of common stock
covered by, a common stock warrant will be adjusted in the manner set forth in
the applicable prospectus supplement if certain events occur, including:
·
if we issue capital stock as a
dividend or distribution on the common stock;
·
if we subdivide, reclassify or
combine the common stock;
·
if we issue rights or warrants to all
holders of common stock entitling them to purchase common stock at less than
the current market price; or
·
if we distribute to all holders of
common stock evidences of our indebtedness or our assets, excluding certain
cash dividends and distributions described below, or if we distribute to all
holders of common stock rights or warrants, excluding those referred to in the
bullet point above.
Except as stated above, the exercise price and number
of shares of common stock covered by a common stock warrant will not be
adjusted if we issue common stock or any securities convertible into or
exchangeable for
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common stock, or securities carrying the right to
purchase common stock or securities convertible into or exchangeable for common
stock.
Holders of common stock warrants may have additional
rights under the following circumstances:
·
a reclassification or change of the
common stock;
·
a consolidation or merger involving
our company; or
·
a sale or conveyance to another
corporation of all or substantially all of our property and assets.
If one of the above transactions occurs and holders of
our common stock are entitled to receive stock, securities, other property or
assets, including cash, with respect to or in exchange for common stock, the
holders of the common stock warrants then outstanding will be entitled to
receive upon exercise of their common stock warrants the kind and amount of
shares of stock and other securities or property that they would have received
upon the reclassification, change, consolidation, merger, sale or conveyance if
they had exercised their common stock warrants immediately before the
transaction.
PLAN
OF DISTRIBUTION
We may sell the
securities offered by this prospectus in any one or more of the following ways:
·
directly to investors, including
through a specific bidding, auction, or other process;
·
to investors through agents;
·
directly to agents;
·
to or through brokers or dealers;
·
to the public through underwriting
syndicates led by one or more managing underwriters;
·
to one or more underwriters acting
alone for resale to investors or to the public; and
·
through a combination of any such
methods of sale.
Our common stock or
preferred stock may be issued upon conversion of our debt securities or
preferred stock or in exchange for our debt securities. Securities may also be
issued upon exercise of warrants and we reserve the right to sell securities
directly to investors on their own behalf in those jurisdictions where they are
authorized to do so.
If we sell securities to
a dealer acting as principal, the dealer may resell such securities at varying
prices to be determined by such dealer in its discretion at the time of resale
without consulting with us and such resale prices may not be disclosed in the
applicable prospectus supplement.
Any underwritten offering
may be on a best efforts or a firm commitment basis. We may also offer
securities through subscription rights distributed to our stockholders on a pro
rata basis, which may or may not be transferable. In any distribution of
subscription rights to stockholders, if all of the underlying securities are
not subscribed for, we may then sell the unsubscribed securities directly to
third parties or may engage the services of one or more underwriters, dealers
or agents, including standby underwriters, to sell the unsubscribed securities to
third parties.
Sales of the securities
may be effected from time to time in one or more transactions, including
negotiated transactions:
·
at a fixed price or prices, which may
be changed;
·
at market prices prevailing at the
time of sale;
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·
at prices related to prevailing
market prices; or
·
at negotiated prices.
Any of the prices may
represent a discount from the then prevailing market prices.
In the sale of the
securities, underwriters or agents may receive compensation from us in the form
of underwriting discounts or commissions and may also receive compensation from
purchasers of the securities, for whom they may act as agents, in the form of
discounts, concessions or commissions. Underwriters may sell the securities to
or through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agents. Discounts, concessions and
commissions may be changed from time to time. Dealers and agents that
participate in the distribution of the securities may be deemed to be
underwriters under the Securities Act, and any discounts, concessions or
commissions they receive from us and any profit on the resale of securities
they realize may be deemed to be underwriting compensation under applicable
federal and state securities laws.
The applicable prospectus
supplement will, where applicable:
·
identify any such underwriter, dealer
or agent;
·
describe any compensation in the form
of discounts, concessions, commissions or otherwise received from us by each
such underwriter or agent and in the aggregate by all underwriters and agents;
·
describe any discounts, concessions
or commissions allowed by underwriters to participating dealers;
·
identify the amounts underwritten;
and
·
identify the nature of the
underwriters or underwriters obligation to take the securities.
Unless otherwise
specified in the related prospectus supplement, each series of securities will
be a new issue with no established trading market, other than shares of common
stock, which are listed on the Nasdaq Global Select Market. Any common stock sold pursuant to a
prospectus supplement will be listed on the Nasdaq Global Select Market. We may
elect to list any series of debt securities, preferred stock, stock purchase
contracts or warrants on an exchange, but we are not obligated to do so. It is
possible that one or more underwriters may make a market in the securities, but
such underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. No assurance can be given as to the liquidity
of, or the trading market for, any offered securities.
We may enter into
derivative transactions with third parties, or sell securities not covered by
this prospectus to third parties in privately negotiated transactions. If
disclosed in the applicable prospectus supplement, in connection with those
derivative transactions third parties may sell securities covered by this
prospectus and such prospectus supplement, including in short sale
transactions. If so, the third party may use securities pledged by us or
borrowed from us or from others to settle those short sales or to close out any
related open borrowings of securities, and may use securities received from us
in settlement of those derivative transactions to close out any related open
borrowings of securities. If the third party is or may be deemed to be an
underwriter under the Securities Act, it will be identified in the applicable
prospectus supplement.
Until the distribution of
the securities is completed, rules of the SEC may limit the ability of any
underwriters and selling group members to bid for and purchase the securities.
As an exception to these rules, underwriters are permitted to engage in some
transactions that stabilize the price of the securities. Such transactions
consist of bids or purchases for the purpose of pegging, fixing or maintaining
the price of the securities.
Underwriters may engage
in over-allotment. If any underwriters create a short position in the
securities in an offering in which they sell more securities than are set forth
on the cover page of the applicable prospectus supplement, the
underwriters may reduce that short position by purchasing the securities in the
open market.
The lead underwriters may
also impose a penalty bid on other underwriters and selling group members
12
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participating in an offering. This means that if the
lead underwriters purchase securities in the open market to reduce the
underwriters short position or to stabilize the price of the securities, they
may reclaim the amount of any selling concession from the underwriters and
selling group members who sold those securities as part of the offering.
In general, purchases of
a security for the purpose of stabilization or to reduce a short position could
cause the price of the security to be higher than it might be in the absence of
such purchases. The imposition of a penalty bid might also have an effect on
the price of a security to the extent that it were to discourage resales of the
security before the distribution is completed.
We do not make any representation or prediction as to
the direction or magnitude of any effect that the transactions described above
might have on the price of the securities. In addition, we do not make any
representation that underwriters will engage in such transactions or that such
transactions, once commenced, will not be discontinued without notice.
Under agreements into which we may enter,
underwriters, dealers and agents who participate in the distribution of the
securities may be entitled to indemnification by us against or contribution
towards certain civil liabilities, including liabilities under the applicable
securities laws.
Underwriters, dealers and agents may engage in
transactions with us, perform services for us or be our tenants in the ordinary
course of business.
If indicated in the applicable prospectus supplement,
we will authorize underwriters or other persons acting as our agents to solicit
offers by particular institutions to purchase securities from us at the public
offering price set forth in such prospectus supplement pursuant to delayed
delivery contracts providing for payment and delivery on the date or dates
stated in such prospectus supplement. Each delayed delivery contract will be
for an amount no less than, and the aggregate amounts of securities sold under
delayed delivery contracts shall be not less nor more than, the respective
amounts stated in the applicable prospectus supplement. Institutions with which
such contracts, when authorized, may be made include commercial and savings
banks, insurance companies, pension funds, investment companies, educational
and charitable institutions and others, but will in all cases be subject to our
approval. The obligations of any purchaser under any such contract will be
subject to the conditions that (a) the purchase of the securities shall
not at the time of delivery be prohibited under the laws of any jurisdiction in
the United States to which the purchaser is subject, and (b) if the
securities are being sold to underwriters, we shall have sold to the
underwriters the total amount of the securities less the amount thereof covered
by the contracts. The underwriters and such other agents will not have any
responsibility in respect of the validity or performance of such contracts.
To comply with applicable state securities laws, the
securities offered by this prospectus will be sold, if necessary, in such
jurisdictions only through registered or licensed brokers or dealers. In
addition, securities may not be sold in some states unless they have been
registered or qualified for sale in the applicable state or an exemption from the
registration or qualification requirement is available and is complied with.
Underwriters, dealers or agents that participate in
the offer of securities, or their affiliates or associates, may have engaged or
engage in transactions with and perform services for us or our affiliates in
the ordinary course of business for which they may have received or receive
customary fees and reimbursement of expenses.
LEGAL
MATTERS
Faegre & Benson LLP, Denver, Colorado, will
issue an opinion about the legality of the securities offered under this
prospectus. Any underwriters will be
represented by their own legal counsel.
EXPERTS
The consolidated
financial statements incorporated in this prospectus by reference from the
Companys Annual Report on Form 10-K for the year ended December 31,
2008 and the effectiveness of Crocs, Inc.s internal control over
financial reporting have been audited by Deloitte & Touche LLP, an
independent registered public accounting firm, as stated in their reports,
which are incorporated herein by reference (which reports (1) express an
unqualified opinion on the financial statements and includes explanatory
paragraphs relating to (a) the existence of
13
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substantial doubt about
the Companys ability to continue as a going concern and (b) the adoption
on January 1, 2007 of the Financial Accounting Standards Boards
Interpretation No. 48,
Accounting for Uncertainty
in Income Taxes
, and (2) express an unqualified opinion on the
effectiveness of internal control over financial reporting). Such financial statements have been so
incorporated in reliance upon the reports of such firm given upon their authority
as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
Other Expenses of Issuance and Distribution
Our estimated expenses in connection with the issuance
and distribution of the securities being registered are set forth in the
following table.
SEC Registration
Fee
|
|
$
|
4,185
|
|
Legal Fees and
Expenses*
|
|
300,000
|
|
Trustee Fees and
Expenses*
|
|
30,000
|
|
Accounting Fees
and Expenses*
|
|
250,000
|
|
Printing and
Engraving Fees*
|
|
250,000
|
|
Rating Agency
Fees*
|
|
100,000
|
|
NASDAQ and Other
Listing Fees*
|
|
60,000
|
|
Miscellaneous*
|
|
10,000
|
|
Total
|
|
$
|
1,004,185
|
|
* Estimated pursuant to instruction to Item 511 of Regulation S-K.
Item 15.
Indemnification of Directors and Officers
Section 145
of the Delaware General Corporation Law (the DGCL) provides, in effect, that
any person made a party to any action by reason of the fact that he is or was a
director, officer, employee or agent of the Company may and, in some cases,
must be indemnified by the Company against, in the case of a non-derivative
action, judgments, fines, amounts paid in settlement and reasonable expenses
(including attorneys fees) incurred by him as a result of such action and in
the case of a derivative action, against expenses (including attorneys fees),
if in either type of action he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company. This indemnification does not apply, in a derivative action, to
matters as to which it is adjudged that the director, officer, employee or
agent is liable to the Company, unless upon court order it is determined that,
despite such adjudication of liability, but in view of all the circumstances of
the case, he is fairly and reasonably entitled to indemnity for expenses and,
in a non-derivative action, to any criminal proceeding in which such person had
no reasonable cause to believe his conduct was unlawful.
Our restated
certificate of incorporation, as amended, provides that no director is liable
to us or our stockholders for monetary damages for breach of fiduciary duty as
a director to the fullest extent permitted by the DGCL. Our amended and
restated bylaws require us to indemnify our directors and officers to the
fullest extent permitted by Delaware law. We have entered into indemnification
agreements with all of our directors and executive officers and have purchased
directors and officers liability insurance.
Any underwriting
agreement will provide for indemnification by the underwriters of us and our
officers and directors for certain liabilities arising under the Securities Act
of 1933, or otherwise.
Item 16.
Exhibits
The following exhibits
are filed as part of this registration statement:
Exhibit No.
|
|
Document
|
|
|
|
1.1*
|
|
Form of Underwriting Agreement.
|
|
|
|
4.1
|
|
Restated Certificate of Incorporation of
Crocs, Inc. (Incorporated herein by reference to Exhibit 3.1 to
Crocs, Inc.s Registration Statement on Form S-8, filed on
March 9, 2006 (File No. 333-132312)).
|
|
|
|
4.2
|
|
Certificate of Amendment to the Restated Certificate
of Incorporation of Crocs, Inc. (Incorporated herein by reference to
Exhibit 3.1 to Crocs, Inc. Current Report on Form 8-K, filed
on
|
II-1
Table
of Contents
|
|
July 12, 2007 (File No. 000-51754)).
|
|
|
|
4.3
|
|
Amended and Restated Bylaws of Crocs, Inc.
(Incorporated herein by reference to Exhibit 4.2 to Crocs, Inc.s
Registration Statement on Form S-8, filed on March 9, 2006 (File
No. 333-132312)).
|
|
|
|
4.4
|
|
Form of Common Stock Certificate (Incorporated
herein by reference to Exhibit 4.2 to Crocs, Inc.s Registration
Statement on Form S-1, filed on August 15, 2005 (File
No. 333-127526)).
|
|
|
|
4.5
|
|
Form of Indenture for Debt Securities.
|
|
|
|
4.6*
|
|
Form of Debt Security.
|
|
|
|
4.7*
|
|
Form of Warrant Agreement and Warrant
Certificate.
|
|
|
|
4.8*
|
|
Form of Stock Purchase Contract.
|
|
|
|
4.9*
|
|
Certificate of Designation of Preferred Stock.
|
|
|
|
5.1
|
|
Opinion of Faegre & Benson LLP.
|
|
|
|
12.1
|
|
Calculation of Ratio of Earnings to Fixed Charges.
|
|
|
|
23.1
|
|
Consent of Faegre & Benson LLP (included in
Exhibit 5.1).
|
|
|
|
23.2
|
|
Consent of Deloitte & Touche LLP.
|
|
|
|
24.1
|
|
Power of Attorney (included on the signature
page hereof).
|
|
|
|
25.1
|
|
Statement of Eligibility of Wells Fargo Bank, N.A.
under the Indenture for Debt Securities.
|
*
|
To be filed, if necessary, after the effectiveness
of this registration statement as an exhibit to a post-effective amendment
hereto or filed as an exhibit to a report filed under the Securities Exchange
Act of 1934, and incorporated herein by reference.
|
Item 17.
Undertakings
(a)
The
undersigned registrant hereby undertakes:
(1)
To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i)
to
include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
(ii)
to
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the Calculation of Registration Fee
table in the effective registration statement;
II-2
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(iii)
to
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided, however
, that
paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above will not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement.
(2)
That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3)
To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4)
That,
for the purpose of determining any liability under the Securities Act of 1933
to any purchaser:
(i)
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall
be deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement; and
(ii)
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for
the purpose of providing the information required by Section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in Rule 430B,
for liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement
to which the prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Provided, however
,
that no statement made in a registration statement or prospectus that is part
of the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such effective date.
(5)
That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities, the
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i)
Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii)
Any
free writing prospectus relating to the offering prepared by or on behalf of
the undersigned registrant or used or referred to by the undersigned
registrant;
(iii)
The
portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant; and
II-3
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(iv)
Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b)
The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrants
annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c)
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers, and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer, or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(d)
The
undersigned registrant hereby undertakes that:
(1)
For
purposes of determining any liability under the Securities Act of 1933, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2)
For
the purpose of determining any liability under the Securities Act of 1933, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(e)
The
undersigned registrant hereby undertakes to file an application for the purpose
of determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of
the Trust Indenture Act.
II-4
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SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Niwot and the State of
Colorado, on the 22nd day of May, 2009.
|
CROCS, INC.
|
|
By:
|
/s/ John
Duerden
|
|
|
John Duerden
|
|
|
President and
Chief Executive Officer
|
Each person whose signature appears below constitutes
and appoints John Duerden and Russell C. Hammer, and each or either of them,
his or her true and lawful attorney-in-fact and agent, each acting alone, with
full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any or all amendments
or supplements (including post-effective amendments) to the registration
statement on Form S-3, and to sign any and all additional registration
statements relating to the same offering of securities as those that are
covered by the registration statement that are filed pursuant to Rule 462(b) under
the Securities Act of 1933, and to file the same, with all exhibits thereto,
and all documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his or her substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the
requirements of the Securities Act of 1933, this registration statement and any
amendment thereto has been signed below by the following persons on behalf of
Crocs, Inc. in the capacities and on the dates indicated.
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
(i) Principal Executive Officer
|
|
|
|
|
|
|
|
|
|
/s/
John Duerden
|
|
President,
Chief Executive Officer and Director
|
|
May 22,
2009
|
John Duerden
|
|
|
|
|
|
|
|
|
|
(ii) Principal Financial Officer and
|
|
|
|
|
Principal Accounting Officer
|
|
|
|
|
|
|
|
|
|
/s/
Russell C. Hammer
|
|
Chief Financial Officer, Senior Vice
|
|
May 22,
2009
|
Russell C. Hammer
|
|
PresidentFinance, and
Treasurer
|
|
|
|
|
|
|
|
(iii) Directors
|
|
|
|
|
|
|
|
|
|
/s/
W. Stephen Cannon
|
|
Director
|
|
May 22,
2009
|
W.
Stephen Cannon
|
|
|
|
|
|
|
|
|
|
/s/Raymond
D. Croghan
|
|
Director
|
|
May 22,
2009
|
Raymond D. Croghan
|
|
|
|
|
|
|
|
|
|
/s/
Ronald L. Frasch
|
|
Director
|
|
May 22,
2009
|
Ronald L. Frasch
|
|
|
|
|
|
|
|
|
|
/s/
Peter A. Jacobi
|
|
Director
|
|
May 22,
2009
|
Peter A. Jacobi
|
|
|
|
|
|
|
|
|
|
/s/
Richard L. Sharp
|
|
Chairman
of the Board
|
|
May 22,
2009
|
Richard
L. Sharp
|
|
|
|
|
|
|
|
|
|
/s/
Thomas J. Smach
|
|
Director
|
|
May 22,
2009
|
Thomas J. Smach
|
|
|
|
|
|
|
|
|
|
/s/
Ronald R. Snyder
|
|
Director
|
|
May 22,
2009
|
Ronald R. Snyder
|
|
|
|
|
Table
of Contents
EXHIBIT
INDEX
Exhibit No.
|
|
Document
|
|
|
|
1.1*
|
|
Form of Underwriting Agreement.
|
|
|
|
4.1
|
|
Restated Certificate of Incorporation of
Crocs, Inc. (Incorporated herein by reference to Exhibit 3.1 to
Crocs, Inc.s Registration Statement on Form S-8, filed on
March 9, 2006 (File No. 333-132312)).
|
|
|
|
4.2
|
|
Certificate of Amendment to the Restated Certificate
of Incorporation of Crocs, Inc. (Incorporated herein by reference to
Exhibit 3.1 to Crocs, Inc. Current Report on Form 8-K, filed
on July 12, 2007 (File No. 000-51754)).
|
|
|
|
4.3
|
|
Amended and Restated Bylaws of Crocs, Inc.
(Incorporated herein by reference to Exhibit 4.2 to Crocs, Inc.s
Registration Statement on Form S-8, filed on March 9, 2006 (File
No. 333-132312)).
|
|
|
|
4.4
|
|
Form of Common Stock Certificate (Incorporated
herein by reference to Exhibit 4.2 to Crocs, Inc.s Registration
Statement on Form S-1, filed on August 15, 2005 (File
No. 333-127526)).
|
|
|
|
4.5
|
|
Form of Indenture for Debt Securities.
|
|
|
|
4.6*
|
|
Form of Debt Security.
|
|
|
|
4.7*
|
|
Form of Warrant Agreement and Warrant
Certificate.
|
|
|
|
4.8*
|
|
Form of Stock Purchase Contract.
|
|
|
|
4.9*
|
|
Certificate of Designation of Preferred Stock.
|
|
|
|
5.1
|
|
Opinion of Faegre & Benson LLP.
|
|
|
|
12.1
|
|
Calculation of Ratio of Earnings to Fixed Charges.
|
|
|
|
23.1
|
|
Consent of Faegre & Benson LLP (included in
Exhibit 5.1).
|
|
|
|
23.2
|
|
Consent of Deloitte & Touche LLP.
|
|
|
|
24.1
|
|
Power of Attorney (included on the signature
page hereof).
|
|
|
|
25.1
|
|
Statement of Eligibility of Wells Fargo Bank, N.A.
under the Indenture for Debt Securities.
|
*
|
To be filed, if necessary, after the effectiveness
of this registration statement as an exhibit to a post-effective amendment hereto
or filed as an exhibit to a report filed under the Securities Exchange Act of
1934, and incorporated herein by reference.
|
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