PHILIP A. BRIMMER, District Judge.
1. The Court preliminarily approves the Stipulation and the Settlement set forth therein, subject to further consideration at the Settlement Hearing described below.
2. A hearing (the "Settlement Hearing") shall be held before this Court on
3. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court preliminarily certifies, for settlement purposes only, a Settlement Class consisting of all Persons who purchased or otherwise acquired publicly traded securities of Crocs, Inc. between April 2, 2007 and April 14, 2008, inclusive ("Settlement Class Period"). Excluded from the Settlement Class are Defendants, their officers and directors during the Settlement Class Period, the members of their immediate families, and their respective representatives, heirs, successors, and assigns, as well as any entity in which Defendants have or had a controlling interest. Also excluded from the Settlement Class are those Persons who otherwise satisfy the above requirements for membership in the Settlement Class, but who timely and validly request exclusion from the Settlement Class pursuant to the Notice to be sent to Settlement Class Members.
4. With respect to the Settlement Class, this Court preliminarily finds, solely for purposes of effectuating the Settlement, that the prerequisites for a class action under Rule 23(a) and Rule 23(b)(3) of the Federal Rules of Civil Procedure have been satisfied in that: (a) the Members of the Settlement Class are so numerous that joinder of all Settlement Class Members in the Action is impracticable; (b) there are questions of law and fact common to the Settlement Class Members which predominate over any individual questions; (c) the claims of the Plaintiffs are typical of the claims of the Settlement Class; (d) the Plaintiffs and Plaintiffs' Counsel have fairly and adequately represented and protected the interests of all of the Settlement Class Members; and (e) a class action is superior to other available methods for the fair and efficient adjudication of the controversy, considering: (i) the interests of the Members of the Settlement Class in individually controlling the prosecution of the separate actions; (ii) the extent and nature of any litigation concerning the controversy already commenced by Members of the Settlement Class; (iii) the desirability or undesirability of continuing the litigation of these claims in this particular forum; and (iv) the difficulties likely to be encountered in the management of the Action.
5. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and solely for the purposes of this Settlement, the Court preliminarily certifies Fernando Pedrera Sánchez, Harvey Babitt, and Daniel Lundberg, or any of them, as class representative for the Settlement Class and appoints Plaintiffs' Counsel as counsel for the Settlement Class. The Court preliminarily finds, solely for the purposes of this Settlement, that the claims of Plaintiffs are typical of the claims of the Settlement Class, and that the Plaintiffs and Plaintiffs' Counsel fairly and adequately represent and protect the interests of all of the Settlement Class Members. Plaintiffs' Counsel are authorized to act on behalf of the Settlement Class with respect to all acts required by, or that may be undertaken pursuant to, the Stipulation or such other acts as are reasonably necessary to consummate the proposed Settlement as set forth in the Stipulation.
6. The Court approves the payment of the Settlement Amount to the Escrow Agent in accordance with the terms and obligations of the Stipulation. Before the Effective Date, Plaintiffs' Counsel may use up to $250,000 from the Settlement Fund, without further approval from the Settling Defendants or the Court, to pay costs and expenses reasonably, necessarily, and actually incurred by the Claims Administrator in connection with providing notice to the Settlement Class, including printing, mailing and disseminating the Notice and Summary Notice, locating Settlement Class Members, reimbursing brokers, banks, and other nominee holders for Settlement Class Members, assisting with the filings of Proofs of Claims, administering the Settlement Fund to Authorized Claimants, and processing Proofs of Claims. In the event Plaintiffs' Counsel believe the costs of providing notice to the Settlement Class and/or administering the Settlement will exceed $250,000, before the Effective Date, Plaintiffs' Counsel shall submit a written request to Crocs' counsel, Morrison & Foerster LLP, in accordance with the terms of the Stipulation. No person or entity who is not a Settlement Class Member or counsel for Plaintiffs shall have any right to any portion of, or to the distribution of, the Settlement Fund unless otherwise ordered by the Court or provided in the Stipulation.
7. The Court approves, as to form and content, the Notice of Pendency and Proposed Partial Settlement of Class Action (the "Notice"), the Summary Notice, and the Proof of Claim and Release form (the "Proof of Claim") annexed as Exhibits A-1, A-2 and A-3 hereto, and finds that the mailing and distribution of the Notice and publishing of the Summary Notice substantially in the manner and form set forth in ¶¶7-8 of this Order meet the requirements of Rules 23(c) and (e) of the Federal Rules of Civil Procedure, the Private Securities Litigation Reform Act of 1995, and due process, and is the best notice practicable under the circumstances and shall constitute due and sufficient notice to all Persons entitled thereto.
8. Pursuant to Rule 53 of the Federal Rules of Civil Procedure, the Court appoints the firm of the Garden City Group, Inc. ("Claims Administrator") to, under the direction of Plaintiffs' Lead Counsel, supervise and administer the notice procedure as well as the processing of claims as more fully set forth below:
(a) Not later than fifteen (15) business days after entry of this Order, (the "Notice Date"), Plaintiffs' Counsel shall cause a copy of the Notice and the Proof of Claim, substantially in the forms annexed as Exhibits A-1 and A-3 hereto, to be mailed by first class mail to all Settlement Class Members who can be identified with reasonable effort;
(b) Not later than twenty-eight (28) days after entry of this Order, Plaintiffs' Counsel shall cause the Summary Notice attached as Exhibit A-2 hereto to be published three times on a national newswire, such as Business Wire or PR Newswire, with no less than three (3) business days between each publication; and
(c) Not later than fifteen (15) days after entry of this Order, Plaintiffs' Counsel shall cause the Stipulation and its Exhibits to be posted on the following website: www.gcginc.com/cases/CrocsSecuritiesLitigation; and
(d) At least seven (7) calendar days prior to the Settlement Hearing, Plaintiffs' Counsel shall cause to be served on Settling Defendants' counsel and filed with the Court proof, by affidavit or declaration, of such mailing and publishing. Such proof should also include proof of any notice to beneficial owners under ¶9 hereof.
9. The Claims Administrator shall use reasonable efforts to give notice to brokers and other nominees who hold Crocs securities purchased or acquired during the period between April 2, 2007 and April 14, 2008, inclusive. Such brokers and other nominees are directed to either (i) send the Notice and the Proof of Claim to all beneficial owners of such Crocs securities within ten (10) calendar days after receipt thereof, or (ii) send a list of the names and addresses of such beneficial owners to the Claims Administrator within ten (10) calendar days of receipt thereof, in which event the Claims Administrator shall promptly mail the Notice and Proof of Claim to such beneficial owners within seven (7) calendar days after receipt thereof. Plaintiffs' Counsel shall, if requested, reimburse banks, brokerage houses, or other nominees solely for their reasonable out-of-pocket expenses incurred in identifying and providing notice to beneficial owners, who are Settlement Class Members, out of the Settlement Fund, which expenses would not have been incurred except for the identifying and sending of such Notice and Proof of Claim, subject to further order of this Court with respect to any dispute concerning such compensation.
10. All Members of the Settlement Class shall be bound by all determinations and judgments in the Action concerning the Settlement, including, but not limited to, the releases provided for therein, whether favorable or unfavorable to the Settlement Class, regardless of whether such Persons or entities seek or obtain any distribution from the Settlement Fund by any means, including, without limitation, by submitting a Proof of Claim or any similar document.
11. Pending final determination of whether the Stipulation should be approved, Plaintiffs and all other Settlement Class Members, and Plaintiffs' Counsel, are barred and enjoined from commencing or prosecuting any action asserting any Released Claims against any Released Parties.
12. Settlement Class Members who wish to participate in the Settlement shall complete and submit Proof of Claim forms in accordance with the instructions contained therein. Unless the Court orders otherwise, all Proof of Claim forms must be postmarked no later than one hundred and twenty days (120) from entry of this Order. Any Settlement Class Member who does not timely submit a Proof of Claim within the time provided for shall be barred from sharing in the distribution of the proceeds of the Net Settlement Fund, unless otherwise ordered by the Court, but shall nevertheless be bound by a final judgment entered by the Court and will in all other respects be subject to and bound by the terms and provisions of the Stipulation, the releases contained therein, and the Class Judgment, and will be permanently barred and enjoined from bringing any action, claim, or other proceeding of any kind against any Released Party concerning any Released Claim (including any Unknown Claim).
13. Any Member of the Settlement Class may request exclusion from the Settlement Class by submitting a written request for exclusion postmarked no later than ninety (90) days after entry of this Order and shall be addressed to:
To be valid, all requests for exclusions must include: (a) such Person's name, address, and telephone number, along with a clear statement that such Person wishes to be excluded from the Settlement Class; and (b) the number and type of Crocs securities such Person purchased or acquired during the Settlement Class Period, the number and type of securities sold during the Settlement Class Period, if any, and the dates of such purchases and sales. All Persons who submit valid and timely requests for exclusion ("Requests for Exclusion") in the manner set forth in this order shall have no rights under the Stipulation, shall not share in the distribution of the Net Settlement Fund, and shall not be bound by the Stipulation or the Class Judgment entered in the Action.
14. Plaintiffs' Counsel shall cause to be provided to counsel for the Settling Defendants copies of all Requests for Exclusion as provided in the Stipulation.
15. Any Member of the Settlement Class may enter an appearance in the Action, at his, her, or its own expense, individually or through counsel of his, her, or its own choice, pursuant to the process set forth in the Notice. Any Class Member desiring to enter an appearance in the Action, individually or through counsel of his, her, or its own choice, at his, her, or its own expense, must do so no later than ninety (90) days after entry of this Order. If a Settlement Class Member does not enter an appearance, he, she, or it will be represented by Plaintiffs' Counsel.
16. Any Member of the Settlement Class may object to approval of the proposed Settlement of the Action, the Plan of Allocation and/or Plaintiffs and Plaintiffs' Counsel's request for an award of attorneys' fees and/or reimbursement of expenses; provided, however, that no Settlement Class Member or any other Person shall be heard or entitled to contest the approval of these matters unless that Person has filed with the Clerk of the United States District Court for the District of Colorado, and delivered by hand or sent by first class mail to Plaintiffs' Counsel and counsel for the Settling Defendants, written objections and copies of any papers and briefs that include: (a) such Person's or entity's name, address, and telephone number, along with a representation as to whether such Person or entity intends to appear to be heard at the Settlement Hearing; (b) a statement of the reason(s) for objection; (c) proof of all purchases, acquisitions or sales of Crocs securities during the Settlement Class Period indicating, without limitation, the exchange upon which the securities were purchased, acquired, or sold and the price(s) paid and received; and (d) if such Person or entity has indicated that he, she, or it intends to appear at the Settlement Hearing, the identities of any witnesses that he, she, or it may call to testify and any exhibits that he, she, or it intends to introduce into evidence at the Settlement Hearing. Any such objections must be filed with the Court and received by the following counsel at the addresses below no later than ninety (90) days after entry of this Order:
17. Any Member of the Settlement Class who does not make his, her, or its objection in the manner provided shall be deemed to have waived such objection and shall forever be foreclosed from making any objection to the fairness or adequacy of the proposed Settlement as set forth in the Stipulation, to the Plan of Allocation, or to the award of attorneys' fees and/or expenses to Plaintiffs' Counsel or Plaintiffs, unless otherwise ordered by the Court.
18. All funds held by the Escrow Agent shall be deemed and considered to be in custodia legis of the Court, and shall remain subject to the jurisdiction of the Court, until such time as such funds shall be invested and distributed pursuant to the Stipulation and/or further order(s) of the Court.
19. All opening briefs in support of the Settlement, the Plan of Allocation, and the application by Plaintiffs' Counsel for attorneys' fees or reimbursement of expenses shall be filed and served no later than sixty (60) days after the entry of this Order.
20. Any reply papers to any timely filed objections to the Settlement, the Plan of Allocation, or any application for an award of fees and expenses by Plaintiffs' Counsel or Plaintiffs shall be filed and served no later than seven (7) calendar days before the Settlement Hearing.
21. Neither the Settling Defendants nor the Released Parties shall have any responsibility for or liability with respect to the Plan of Allocation or any application for attorneys' fees or reimbursement of expenses submitted by Plaintiffs' Counsel or Plaintiffs, and such matters will be considered separately from the fairness, reasonableness, and adequacy of the Settlement.
22. At or after the Settlement Hearing, the Court shall determine whether the Plan of Allocation and the request for an award of attorneys' fees and/or reimbursement of expenses by Plaintiffs and Plaintiffs' Counsel shall be approved.
23. All reasonable expenses incurred by Plaintiffs' Counsel and the Claims Administrator in identifying and notifying Settlement Class Members, as well as administering the Settlement Fund, including the payment of any Taxes and Tax Expenses, shall be paid as set forth in the Stipulation. In the event the Settlement is not approved by the Court, or otherwise fails to become effective for any reason, neither the Plaintiffs nor Plaintiffs' Counsel shall have any obligation to repay any amounts actually and properly disbursed from the Settlement Fund.
24. In the event that the Settlement does not become Final in accordance with the terms of the Stipulation or the Effective Date does not occur, then this Order shall be rendered null and void to the extent provided by and in accordance with the Stipulation and shall be vacated and, in such event, all orders entered and releases given in connection herewith shall be null and void to the extent provided by and in accordance with the Stipulation.
25. Neither the Stipulation, nor any of its terms or provisions, nor any of the negotiations, discussions, or proceedings connected with it, shall be construed as an admission or concession by the Settling Defendants or the Released Parties of the truth of any of the allegations in the Action, or of any liability, fault, omission, or wrongdoing of any kind, and shall not be used against or offered against any Settling Defendant or any Released Party in any way for any reason, including without limitation, as set forth in ¶9.4 of the Stipulation.
26. The Court reserves the right to adjourn the date of the Settlement Hearing without further notice to the Members of the Settlement Class, and retains jurisdiction to consider all further applications arising out of or connected with the proposed Settlement. The Court may approve the Settlement, with such modifications as may be agreed to by the Settling Parties, if appropriate, without further notice to the Settlement Class.
A federal court authorized this Notice. This is not a solicitation from a lawyer. You should read this Notice carefully
• Your legal rights are affected whether you act or do not act. Read this Notice carefully.
• These rights and options —
• The Court in charge of this case must decide whether to approve the Settlement. Payments will be made if the Court approves the Settlement and, if there are any appeals, after appeals are resolved. Please be patient.
You or someone in your family may have purchased or acquired the publicly traded securities of Crocs between April 2, 2007 and April 14, 2008, inclusive.
The Court ordered that this Notice be sent to you because you have a right to know about a proposed settlement of a class action lawsuit, and about all of your options, before the Court decides whether to approve the Settlement. If the Court approves it, and after any objections or appeals are resolved, the Claims Administrator appointed by the Court will make the payments that the Settlement allows.
This package explains the lawsuit, the Settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them.
The Court in charge of the case is the United States District Court for the District of Colorado, and the case is known as In re Crocs, Inc. Securities Litigation, Case No. 07-cv-02351-PAB-KLM. The persons who sued are called the Plaintiffs, and the companies and the individuals they sued — Crocs, Inc., Ronald R. Snyder, Peter S. Case, Russell Hammer, John P. McCarvel, Scott Crutchfield, Michael E. Marks, Raymond D. Croghan, Michael E. Margolis, Richard L. Sharp, Thomas J. Smach, and Deloitte & Touche LLP — are called the Defendants. All of the Defendants except Deloitte & Touche LLP have agreed to settle the claims made in this case and are called the Settling Defendants. Deloitte & Touche LLP has not agreed to settle the claims against it and the case will continue to proceed against Deloitte & Touche LLP.
This case was brought as a class action alleging that between April 2, 2007 and April 14, 2008, inclusive, the Settling Defendants made certain materially false and misleading statements about Crocs' financial results, internal controls, and inventory accounting. Settling Defendants have denied and continue to deny that they did anything wrong.
In a class action, one or more people called class representatives sue on behalf of people who have similar claims. Here, all these people are called a Settlement Class or Settlement Class Members. One court resolves the issues for all Settlement Class Members, except for those who timely and validly exclude themselves from the Settlement Class. Judge Philip A. Brimmer is in charge of this class action.
The Court did not decide in favor of the Plaintiffs or the Settling Defendants. Instead, both sides agreed to a settlement. That way, they avoid the cost and uncertainty of continued litigation, including a possible trial, and eligible Settlement Class Members who make valid claims will receive compensation. The Plaintiffs and their attorneys think the Settlement is best for all Settlement Class Members.
To see if you will get money from this Settlement, you first have to determine if you are a Settlement Class Member.
The Settlement Class includes
You are not a Settlement Class Member if you are:
• a Defendant;
• a director or officer of Crocs or Deloitte & Touche LLP during the Settlement Class Period;
• a member of the immediate family of any excluded party;
• an entity in which any excluded person has or had a controlling interest; or
• a legal representative, heir, successor, or assign of any excluded party.
If you sold Crocs securities between April 2, 2007 and April 14, 2008, inclusive, that alone does not make you a Settlement Class Member. You are a Settlement Class Member only if you purchased or acquired Crocs securities between April 2, 2007 and April 14, 2008. You are also not a Settlement Class Member if you timely and validly exclude yourself from the Settlement Class pursuant to this Notice.
If you are still not sure whether you are included, you can ask for free help. You can call (888) 331-9141 for more information or you can fill out and return the claim form described in question 10, to see if you qualify.
Settling Defendants have agreed to settle this case for $10,000,000 in cash. The balance of the Settlement Fund, after payment of Court-approved attorneys' fees and expenses and the costs of claims administration, including the costs of printing and mailing this Notice and the cost of publishing newspaper notice (the "Net Settlement Fund"), will be divided among all eligible Settlement Class Members who send in valid claim forms.
Your share of the Net Settlement Fund will depend on the number of valid claim forms that Settlement Class Members send in and the number and type of Crocs securities you purchased during the relevant period and when you bought and sold them. A claim will be calculated, subject to Court approval, under the following Plan of Allocation.
The Net Settlement Fund shall be distributed pursuant to the calculation of "Recognized Loss" as set forth in the Plan of Allocation described below. Only Settlement Class Members who submit a valid, timely, and complete Proof of Claim and Release ("Authorized Claimants"), and who have a Recognized Loss under the Plan of Allocation will receive a distribution from the Net Settlement Fund.
To the extent there are sufficient funds in the Net Settlement Fund, each Authorized Claimant will receive an amount equal to the Authorized Claimant's entire Recognized Loss. However, it is estimated by Plaintiffs' Counsel that the amount of the Net Settlement Fund will not be sufficient to permit payment of the total Recognized Loss of each Authorized Claimant. Accordingly, each Authorized Claimant shall be paid the percentage that each Authorized Claimant's claim bears to the total of the claims of all Authorized Claimants. Payment in this manner shall be deemed conclusive against all Authorized Claimants. No Person shall have any claim against Plaintiffs, Plaintiffs' Counsel, any claims administrator, the Escrow Agents, or any agent designated by Plaintiffs' Counsel, any claims administrator, the Escrow Agent or any agent designated by Settling Defendants, Defendants' counsel, or their respective counsel, based on the investment or distributions made substantially in accordance with the Stipulation and the Settlement contained herein, the Plan of Allocation, or further orders of the Court. The Settling Defendants and the other Released Parties shall have no responsibility for, or liability whatsoever with respect to, the Settlement Fund, the Escrow Agent, the Escrow Agent's actions, any transaction executed or approved by the Escrow Agent, or the Escrow Agent's administration of the Settlement Fund. All Settlement Class Members who have failed to file a complete, valid and timely Proof of Claim in this Settlement shall be barred from participating in distributions from the Net Settlement Fund (unless otherwise ordered by the Court), but otherwise shall be bound by all of the terms of the Settlement and Stipulation, including the terms of the Class Judgment entered and the releases given.
A. $34.69;
B. The price paid less $10.11.
A. $34.69;
B. The price paid less $10.11;
C. The price paid less the price received;
D. The price paid less the price in Table A on the date of sale.
A. $27.01;
B. The price paid less $47.74.
A. $27.01;
B. The price paid less $47.74;
C. The price paid less the price received.
A. $7.68;
B. The price paid less $10.11.
A. $7.68;
B. The price paid less $10.11;
C. The price paid less the price received;
D. The price paid less the price in Table A on the date of sale.
A. $8.67;
B. Twenty-five percent (25%) of the price paid for the contract less twenty-five (25%) percent of the price received on sale of the contract.
If the option contract expired worthless while still owned by the Authorized Claimant, the sale price will be deemed to be zero.
A. $6.75;
B. Twenty-five percent (25%) of the price paid for the contract less twenty-five (25%) percent of the price received on sale of the contract.
If the option contract expired worthless while still owned by the Authorized Claimant, the sale price will be deemed to be zero.
A. $1.92;
B. Twenty-five percent (25%) of the price paid for the contract less twenty-five percent (25%) of the price received on sale of the contract.
If the option contract expired worthless while still owned by the Authorized Claimant, the sale price will be deemed to be zero.
Shares of Crocs common stock acquired during the Settlement Class Period through the exercise of a call option shall be treated as a purchase on the date of exercise for the exercise price plus the cost of the call option, and any Recognized Claim arising from such transaction shall be computed as provided for other purchases of Crocs common stock as set forth herein.
No Recognized Claim shall be calculated based upon the sale or writing of any call option that was subsequently repurchased.
A. $17.34;
B. Fifty percent (50%) of the price paid for the contract less fifty (50%) percent of the price received on sale of the contract.
If the option contact expired worthless while still owned by the Authorized Claimant, the sale price will be deemed to be zero.
A. $13.50;
B. Fifty percent (50%) of the price paid for the contract less fifty (50%) percent of the price received on sale of the contract.
If the option contact expired worthless while still owned by the Authorized Claimant, the sale price will be deemed to be zero.
A. $3.84;
B. Fifty percent (50%) of the price paid for the contract less fifty (50%) percent of the price received on sale of the contract.
In calculating Recognized Loss, the following principles shall be followed:
• If the option contact expired worthless while still owned by the Authorized Claimant, the purchase price will be deemed to be zero.
• For Crocs put options that were sold or written during the Settlement Class Period, that were "put" to the Authorized Claimant (i.e. exercised) at any time, the Authorized Claimant's Recognized Claim shall be calculated as a purchase of Crocs' common stock as shown herein, and as if the sale of the put option were instead a purchase of Crocs' common stock on the date of the sale or writing of the put option, and the "purchase price paid" shall be the strike price of the put option less the proceeds received from the sale of the put option.
• No Recognized Claim shall be calculated based upon the sale of any put option that was previously purchased.
• The total recovery payable to Authorized Claimants from transactions in call or put options shall not exceed ten percent (10%) of the Distribution Amount.
• Each Authorized Claimant shall be paid the percentage that each Authorized Claimant's claim bears to the total of the claims of all Authorized Claimants.
The date of purchase, acquisition, or sale is the "contract" or "trade" date as distinguished from the "settlement" date.
• For Settlement Class Members who held Crocs securities at the beginning of the Settlement Class Period or made multiple purchases or sales during the Settlement Class Period, the first-in, first-out ("FIFO") method will be applied to such holdings, purchases, and sales for purposes of calculating a claim. Under the FIFO method, sales of securities during the Settlement Class Period will be matched, in chronological order, first against securities held at the beginning of the Settlement Class Period. The remaining sales of securities during the Settlement Class Period will then be matched, in chronological order, against securities purchased during the Settlement Class Period.
• A Settlement Class Member will be eligible to receive a distribution from the Net Settlement Fund only if a Settlement Class Member has a net Recognized Claim, after all profits from transactions in Crocs securities during the Settlement Class Period are subtracted from all losses. In addition, no distribution will be made unless the amount of the check is at least $10.00.
The Recognized Claim formula (which is set forth herein) is not intended to be an estimate of the amount that a Settlement Class Member might have been able to recover after a trial; nor is it an estimate of the amount that will be paid to Authorized Claimants pursuant to the Settlement. Rather, the Recognized Claim formula is the basis upon which the Net Settlement Fund will be proportionately allocated to the Authorized Claimants based upon several factors, including when a Settlement Class Member purchased Crocs securities during the Class Period, when or if a Settlement Class Member sold those Crocs securities, and Plaintiffs' Counsel's estimation, based on consultation with Plaintiffs' experts, of the relative strengths and weaknesses of the Settlement Class claims and the impact of the alleged misconduct by the Settling Defendants on the price of Crocs' securities at various times during the Settlement Class Period.
The payment you get will reflect your pro rata share of the Net Settlement Fund which will depend on the number of claims submitted under the Settlement. The number of claimants who send in claims varies widely from case to case and, therefore, it is not possible to accurately estimate what each claimant will receive on a per-share basis
The Plan of Allocation is a matter separate and apart from the proposed settlement, and any decision by the Court concerning the Plan of Allocation shall not affect the validity or finality of the proposed Settlement. The Plan of Allocation may be modified in connection with, among other things, a ruling by the Court, an objection filed by a Settlement Class Member, without further notice to the Settlement Class
To qualify for payment, you must be an eligible Settlement Class Member and you must send in a timely and valid claim form. A claim form is enclosed with this Notice. Read the instructions carefully, fill out the form, include all the documents the form asks for, sign it, and mail it in the enclosed envelope postmarked
The Court will hold a hearing on __________, 2012, to decide whether to approve the Settlement. If Judge Brimmer approves the Settlement, there may be appeals. It is always uncertain whether these appeals can be resolved, and resolving them can take time, perhaps several years. Everyone who sends in a claim form will be informed of the determination with respect to their claim. Please be patient.
Unless you timely and validly exclude yourself, you are staying in the Settlement Class, and that means that you cannot sue, continue to sue, or be part of any other lawsuit against the Settling Defendants (or other Released Parties) about the Released Claims in this case. It also means that all of the Court's orders will apply to you and legally bind you and you will release your claims in this case against the Settling Defendants and the other Released Parties. The terms of the release are included in the claim form that is enclosed.
If you do not want a payment from this Settlement, but you want to keep the right to sue or continue to sue any of the Settling Defendants (or other Released Parties) on your own about the Released Claims in this case, then you must take steps to get out of the Settlement Class. This is called excluding yourself or is sometimes referred to as opting out of the Settlement Class.
To exclude yourself from the Settlement Class, you must send a letter by mail stating that you want to be excluded from In re Crocs, Inc. Securities Litigation, Case 07-cv-02351-PAB-KLM. You must include your name, address, telephone number, signature, the number and type of Crocs securities you purchased or acquired between April 2, 2007 and April 14, 2008, the number and type of securities sold during this time period, if any, and the dates of such purchases and sales. You must mail your exclusion request postmarked no later than ________, 2012 to:
You cannot exclude yourself on the phone or by e-mail. If you ask to be excluded, you are not eligible to get any settlement payment, and you cannot object to the Settlement. You will not be legally bound by anything that happens in this lawsuit.
No. Unless you exclude yourself, you give up any right to sue the Settling Defendants (and other Released Parties) for the Released Claims in this Settlement. If you have a pending lawsuit against any of the Settling Defendants (or other Released Parties), speak to your lawyer in that case immediately. Remember, the deadline to request exclusion from the Settlement Class is ___________, 2012.
No. If you exclude yourself, do not send in a claim form. But, if you exclude yourself, you may be able to sue, continue to sue, or be part of a different lawsuit involving the Released Claims against any of the Settling Defendants (or other Released Parties).
The Court asked the law firms of Brower Piven, a Professional Corporation, and Zuckerman Spaeder LLP to represent you and other Settlement Class Members.
These lawyers, who have been appointed by the Court to represent the Settlement Class, are also referred to as Plaintiffs' Counsel. You will not be directly charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.
Plaintiffs' Counsel will ask the Court for attorneys' fees of 33 1/3% of the Settlement Fund and for reimbursement of their out-of-pocket litigation expenses, which were advanced in connection with the Action. Such sums as may be approved by the Court will be paid from the Settlement Fund. Settlement Class Members are not personally liable for any such fees or expenses.
The attorneys' fees and expenses requested will be the only payment to Plaintiffs' Counsel for their efforts in achieving this Settlement and for their risk in undertaking this representation on a wholly contingent basis. To date, Plaintiffs' Counsel have not been paid for their services for conducting this litigation on behalf of the Plaintiffs and the Settlement Class nor for their out-of-pocket expenses. The fee requested will compensate Plaintiffs' Counsel for their work in achieving the Settlement Fund and is within the range of fees awarded to class counsel under similar circumstances in other cases of this type. The Court will decide what is a reasonable fee award and may award less than the amount requested by Plaintiffs' Counsel.
Plaintiffs' Counsel will also request reimbursement of expenses for administration of the Settlement including the costs associated with notice and the fees and expenses of the claims administrator, as well as hourly attorneys' fees incurred solely in connection with administering the Settlement. Those amounts will be requested before distribution of the Net Settlement Fund to Settlement Class Members. Again, such sums as may be approved by the Court will be paid from the Settlement Fund.
You can tell the Court that you do not agree with the Settlement or some part of it.
If you are a Settlement Class Member, you can object to the proposed Settlement, the proposed Plan of Allocation and/or Plaintiffs' Counsel's request for an award of attorneys' fees and/or reimbursement of expenses. To object, you must send a letter saying that you object to the Settlement in In re Crocs, Inc. Securities Litigation, Case No. 07-cv-02351-PAB-KLM. Be sure to include your name, address, telephone number, signature, whether you intend to appear to be heard at the Settlement Hearing, the number and type of Crocs securities acquired or purchased and sold between April 2, 2007 and April 14, 2008, inclusive, the dates of such purchases, acquisitions, and any sales, the exchange upon which the securities were purchased, acquired or sold, and the price(s) paid and received, and all reasons you object to the Settlement, Plan of Allocation and/or Plaintiffs' Counsel's request for an award of attorneys' fees and/or reimbursement of expenses. If you intend to appear at the Settlement Hearing, you must also indicate the identities of any witnesses that you intend to call to testify, and any exhibits that you intend to introduce into evidence at the Settlement Hearing. Any objection you wish to make as to the Settlement, Plan of Allocation and/or Plaintiffs' Counsel's request for an award of attorneys' fees and/or reimbursement of expenses must be mailed or delivered such that it is received by
Objecting is simply telling the Court that you do not like something about the Settlement. You can object only if you stay in the Settlement Class. Excluding yourself is telling the Court that you do not want to be part of the Settlement Class. If you exclude yourself, you have no basis to object because the case no longer affects you.
The Court will hold a hearing to decide whether to approve the Settlement. You may attend and you may ask to speak, but you do not have to.
The Court will hold a fairness hearing at _____ a.m./p.m., on _______, 2012; at the United States Courthouse, 901 19th Street, Courtroom A701, Denver, Colorado. At this hearing the Court will consider whether the Settlement is fair, reasonable, and adequate. If there are objections, the Court will consider them. Judge Brimmer will listen to people who have asked to speak at the hearing. The Court will also consider how much to pay to Plaintiffs' Counsel. The Court may decide these issues at the hearing or take them under consideration. We do not know how long these decisions will take.
No. Plaintiffs' Counsel will answer any questions Judge Brimmer may have. But, you are welcome to come at your own expense. If you send an objection, you do not have to come to Court to talk about it. As long as you mailed your written objection on time, the Court will consider it. You may also pay your own lawyer to attend, but it is not necessary.
You may ask the Court for permission to speak at the fairness hearing. To do so, you must send a letter saying that it is your intention to appear in In re Crocs, Inc. Securities Litigation, Case No. 07-cv-02351-PAB-KLM. Be sure to include your name, address, telephone number, signature, the number and type of Crocs securities acquired or purchased and sold between April 2, 2007 and April 14, 2008, inclusive, the dates of such purchases, acquisitions, and any sales, the exchange upon which the securities were purchased, acquired or sold, and the price(s) paid and received, the reasons you object to the Settlement, and the identities of any witnesses that you intend to call to testify, and any exhibits that you intend to introduce into evidence at the Settlement Hearing. Your notice of intention to appear must be received no later than __________, 2012, by the Clerk of the Court, Plaintiffs' Counsel, and Settling Defendants' counsel, at the three addresses listed in question 18. You cannot speak at the hearing if you exclude yourself from the Settlement Class.
If you do nothing, you will get no money from this Settlement. But, unless you exclude yourself, you will not be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against the Settling Defendants (or other Released Parties) about the Released Claims in this case. If the proposed Settlement is approved and becomes Final and no longer appealable, any Settlement Class Member who does not exclude himself, herself or itself from the Settlement Class will be bound by the Class Judgment entered in the Action and the releases and bar orders provided therein.
"Released Claims" means all claims (including without limitation Unknown Claims, as defined below) demands, rights, liabilities, suits, debts, obligations, and causes of action of every nature and description whatsoever, whether known or unknown, contingent or absolute, mature or unmature, discoverable or undiscoverable, liquidated or unliquidated, accrued or unaccrued, concealed or hidden, regardless of legal theory, including, without limitation, claims for negligence, gross negligence, recklessness, intentional wrongdoing, fraud, breach of fiduciary duty, breach of the duty of care and/or loyalty or violations of the common law, administrative rule or regulation, tort, contract, equity, or otherwise or of any state or federal statutes, rules or regulations or international law, or the law of any foreign jurisdiction, that were asserted, or could have been asserted, or might have been asserted, in the Action or in any other litigation, action, or forum by Plaintiffs or the Settlement Class Members, or any of them, against the Released Parties, or any of them, which arise out of or relate in any way, directly or indirectly, in whole or in part, to (a) the purchase or acquisition of Crocs securities during the Settlement Class Period; (b) any allegations or statements in the Complaint; or (c) the Settling Defendants' defense or settlement of the Action. It is hereby expressly agreed by and is the intent of the Settling Parties that Plaintiffs' and/or any Settlement Class Member's claims against Deloitte are not being released by the Stipulation or any Exhibits hereto and are not Released Claims.
"Released Parties" means collectively, each and all of the Settling Defendants, each and all of the Settling Defendants' respective past, present, or future parents, subsidiaries, affiliates, successors, predecessors, assigns, any entity in which any Settling Defendant has or had a controlling interest (directly or indirectly), members of an Individual Defendant's immediate family, any entity in which any member of any Individual Defendant's immediate family has or had a controlling interest (directly or indirectly), and any trust of which any Individual Defendant is the settler or which is for the benefit of any Individual Defendant and/or member(s) of his family, and each and all of their respective past, present, or future accountants, administrators, advisors, affiliates, agents, analysts, assignees, assigns, associates, attorneys, co-insurers, commercial bank lenders, consultants, controlling shareholders, directors, divisions, domestic partners, employees, employers, executors, financial advisors, general or limited partners, general or limited partnerships, heirs, insurers, investment advisors, investment bankers, investment banks, joint ventures and joint venturers, managers, marital communities, members, officers, parents, personal or legal representatives, predecessors, principals, reinsurers, representatives, shareholders, current and former spouses, subsidiaries, successors, and underwriters. "Released Parties" expressly does not include Deloitte.
"Unknown Claims" means any and all Released Claims which Plaintiffs or any other Settlement Class Member, does not know or suspect to exist in his, her or its favor at the time of the release of the Released Parties, which, if known by him, her or it, might have affected his, her or its settlement with, and release of, the Released Parties, or might have affected his, her or its decision not to object to this Settlement. Unknown Claims include those claims in which some or all of the facts composing the claim may be suspected, or even undisclosed or hidden. With respect to any and all Released Claims, upon the Effective Date, Plaintiffs shall expressly waive and relinquish, and each Settlement Class Member, shall be deemed to have, and by operation of the Class Judgment shall have, waived and relinquished, to the fullest extent permitted by law, the provisions, rights and benefits of California Civil Code §1542, which provides:
Upon the Effective Date, Plaintiffs shall expressly waive and relinquish, and each Settlement Class Member, shall be deemed to have, and by operation of the Class Judgment shall have, waived and relinquished, to the fullest extent permitted by law, any and all provisions, rights and benefits conferred by the law of the United States, any law of any state or territory of the United States, or principle of common law, or of international law or foreign law, which is similar, comparable or equivalent in effect to California Civil Code §1542. It is understood that Plaintiffs and each Settlement Class Member may hereafter discover facts in addition to or different from those which he, she or it now knows or believes to be true with respect to the subject matter of the Released Claims (including the Unknown Claims), but Plaintiffs and each Settlement Class Member, upon the Effective Date, shall be deemed to have, and by operation of the Class Judgment shall have, fully, finally, and forever discharged, settled, and released any and all Released Claims, known or unknown, suspected or unsuspected, contingent or non-contingent, accrued or unaccrued, whether or not concealed or hidden, which now exist, or heretofore have existed, upon any theory of law or equity now existing or coming into existence in the future, including, but not limited to, conduct which is negligent, grossly negligent, reckless, intentional, with or without malice, or a breach of any duty, law or rule, without regard to the subsequent discovery or existence of such different or additional facts. Plaintiffs acknowledge, and the other Settlement Class Members shall be deemed by operation of the Class Judgment to have acknowledged, that the foregoing waivers were separately bargained for and are key elements of the Settlement of which this release is a part.
Upon the Effective Date, Plaintiffs and each of the Settlement Class Members for themselves and for each of their respective past, present, and future accountants, administrators, advisors, affiliates, agents, analysts, assignees, assigns, associates, attorneys, auditors, co-insurers, commercial bank lenders, consultants, controlling shareholders, directors, divisions, domestic partners, employees, employers, executors, financial advisors, general or limited partners, general or limited partnerships, heirs, insurers, investment advisors, investment bankers, investment banks, joint ventures and joint venturers, managers, marital communities, members, officers, parents, personal or legal representatives, predecessors, principals, reinsurers, representatives, shareholders, spouses, subsidiaries, successors, and underwriters, and any other Person claiming (now or in the future) through or on behalf of any of them (whether or not such Settlement Class Member ever seeks or obtains by any means, including without limitation, by submitting a Proof of Claim, any distribution from the Settlement Fund) shall be deemed to have, and by operation of the Class Judgment entered in the Action shall have, fully, finally, and forever released, relinquished, and discharged all Released Claims (including Unknown Claims) against each and all of the Released Parties, and shall have covenanted not to sue any of the Released Parties with respect to all such Released Claims, except to enforce the releases and other terms and conditions contained in the Stipulation or the Class Judgment entered pursuant thereto. It is expressly agreed to by the Settling Parties that nothing in the Stipulation releases, shall release, or is intended to release Deloitte of or from any claim by Plaintiffs and/or any Settlement Class Member whatsoever and/or of or from any liability therefor, including of or from Released Claims and/or any liability therefor.
Upon the Effective Date, Plaintiffs and each of the Settlement Class Members for themselves and for each of their respective past, present, and future accountants, administrators, advisors, affiliates, agents, analysts, assignees, assigns, associates, attorneys, auditors, co-insurers, commercial bank lenders, consultants, controlling shareholders, directors, divisions, domestic partners, employees, employers, executors, financial advisors, general or limited partners, general or limited partnerships, heirs, insurers, investment advisors, investment bankers, investment banks, joint ventures and joint venturers, managers, marital communities, members, officers, parents, personal or legal representatives, predecessors, principals, reinsurers, representatives, shareholders, spouses, subsidiaries, successors, and underwriters of each of them, and any other Person claiming (now or in the future) through or on behalf of any of them, directly or indirectly, individually, representatively, or in any other capacity (whether or not such Settlement Class Member executes and delivers a Proof of Claim) shall be forever permanently barred, enjoined, and restrained from commencing, instituting, asserting, maintaining, enforcing, prosecuting, or continuing to prosecute, either directly or in any other capacity, any Released Claim (including any Unknown Claim) against any of the Released Parties, in the Action or in any other action or any proceeding, in any state, federal, or foreign court of law or equity, arbitration tribunal, administrative forum, or other forum of any kind, or in the court of any foreign jurisdiction. It is expressly agreed to by the Settling Parties that nothing in the Stipulation bars, shall bar or is intended to bar any claim by Plaintiffs and/or any Settlement Class Member against Deloitte.
Upon the Effective Date, each of the Settling Defendants shall be deemed to have, and by operation of the Class Judgment entered in the Action, shall have, fully, finally, and forever released, relinquished, and discharged each and all of the Settlement Class Members and Plaintiffs, including their respective successors, assigns, heirs, domestic partners, spouses, marital communities, executors, administrators, attorneys and legal representatives, from all claims, including Unknown Claims, arising out of, relating to, or in connection with the institution, prosecution, assertion, settlement or resolution of the Action, except to enforce the releases and other terms and conditions contained in the Stipulation or any Court order (including but not limited to the Class Judgment) entered pursuant thereto.
The Class Judgment in the Action will contain a Bar Order as required by section 21D(f)(7) of the Securities Exchange Act of 1934, 15 U.S.C. §78u-4(f)(7) and shall be as broad as permitted by state or federal law, and shall permanently and forever bar all Persons from filing, instituting, prosecuting, or maintaining, directly or indirectly, in any capacity, any claims under state, federal, or common law for contribution or indemnity against any Settling Defendant, whether based in tort, contract, or any other theory, arising from, based upon, or related to the Released Claims, the Action, or the subject matters of the Action.
This Notice summarizes the proposed Settlement. More details are in the Stipulation and Agreement of Partial Class Settlement dated May 14, 2012. You can get a copy of the Stipulation by writing to David A.P. Brower, Brower Piven, A Professional Corporation, 488 Madison Avenue, 8th Floor, New York, NY 10022 or from the Clerk's office at the United States District Court for the District of Colorado, Alfred A. Arraj United States Courthouse, Room A-105, 901 19th Street, Denver, Colorado 80294-3589 during regular business hours.
You can call (212) 501-9000 or write to Brower Piven, A Professional Corporation, 488 Madison Avenue, 8th Floor, New York, NY 10022 or visit the following website: www.gcginc.com/cases/CrocsSecuritiesLitigation.
If you hold shares of any Crocs securities purchased or acquired between April 2, 2007 and April 14, 2008, inclusive, as nominee for a beneficial owner, then, within ten (10) days after you receive this Notice, you must either: (l) send a copy of this Notice by first class mail to all such Persons; or (2) provide a list of the names and addresses of such Persons to the Claims Administrator:
If you choose to mail the Notice and Proof of Claim yourself, you may obtain from the Claims Administrator (without cost to you) as many additional copies of these documents as you will need to complete the mailing.
Regardless of whether you choose to complete the mailing yourself or elect to have the mailing performed for you, you may obtain reimbursement for or advancement of reasonable administrative costs actually incurred or expected to be incurred in connection with forwarding the Notice and which would not have been incurred but for the obligation to forward the Notice, upon submission of appropriate documentation to the Claims Administrator.
>TO:
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States District Court for the District of Colorado, that a hearing will be held on _______, 2012, at ____ a.m./p.m., before the Honorable Philip A. Brimmer at the United States Courthouse, 901 19th Street, Courtroom A701, Denver, Colorado, for the purpose of determining (1) whether the proposed partial settlement of the claims in the Action for the sum of $10,000,000 in cash (the "Settlement Fund") should be approved by the Court as fair, reasonable, and adequate; (2) whether a proposed settlement class should be certified for the purposes of the Settlement; (3) whether, thereafter, the Action should be dismissed with prejudice as to the Settling Defendants pursuant to the terms and conditions set forth in the Stipulation and Agreement of Partial Class Settlement dated May 14, 2012 ("Stipulation"); (4) whether the proposed plan of allocation is fair, reasonable, and adequate and therefore should be approved; and (5) whether Plaintiffs' Counsel's request for an award of attorneys' fees of up to 33 1/3% of the Settleme Fund and up to $250,000.00 in reimbursement of expenses incurred in connection with the Action should be approved.
If you purchased or acquired Crocs securities during the period April 2, 2007 through April 14, 2008, inclusive, your rights may be affected by the Settlement of this Action. If you have not received a detailed Notice of Pendency and Proposed Partial Settlement of Class Action ("Notice") and a copy of the Proof of Claim and Release form, you may obtain copies by writing to:
If you are a Settlement Class Member, in order to share in the distribution of the Net Settlement Fund, you must submit a complete and valid Proof of Claim and Release form postmarked
If you wish to be excluded from the Settlement Class, you must submit a request for exclusion postmarked
If you wish to object to the proposed settlement, the proposed plan of allocation and/or Plaintiffs' Counsel's request for an award of attorneys' fees and/or reimbursement of expenses, you must file any objection in the manner and with the content explained in the detailed Notice referred to above,
1. To recover as a member of the Settlement Class based on your claims in the action entitled In re Crocs, Inc. Securities Litigation, Case No. 07-cv-02351-PAB-KLM (the "Action"), YOU MUST MAIL YOUR COMPLETED AND SIGNED PROOF OF CLAIM AND RELEASE POSTMARKED ON OR BEFORE _______________, 2012 TO THE FOLLOWING ADDRESS:
2. If you fail to properly and fully complete this Proof of Claim and Release form or fail to send it to the Claims Administrator before the deadline set forth above, your claim may be rejected and you may be precluded from any recovery from the Settlement Fund created in connection with the proposed Settlement of the Action. If you are a Member of the Settlement Class, you are bound by the terms of any judgment entered in the Action, WHETHER OR NOT YOU SUBMIT A PROOF OF CLAIM AND RELEASE FORM unless you timely and validly request exclusion from the Settlement Class pursuant to the Notice.
3. If you are NOT a Member of the Settlement Class, as defined in the Notice of Pendency and Proposed Partial Settlement of Class Action ("Notice"), DO NOT submit a Proof of Claim and Release form
1. "Crocs" means Crocs, Inc.
2. "Defendants" means Crocs, the Individual Defendants, and Deloitte.
3. "Deloitte" means Deloitte & Touche LLP.
4. "Individual Defendants" means Ronald R. Snyder, Peter S. Case, Russell Hammer, John P. McCarvel, Scott Crutchfield, Michael E. Marks, Raymond D. Croghan, Michael E. Margolis, Richard L. Sharp, and Thomas J. Smach.
5. "Released Parties" means collectively, each and all of the Settling Defendants, each and all of the Settling Defendants' respective past, present, or future parents, subsidiaries, affiliates, successors, predecessors, assigns, any entity in which any Settling Defendant has or had a controlling interest (directly or indirectly), members of an Individual Defendant's immediate family, any entity in which any member of any Individual Defendant's immediate family has or had a controlling interest (directly or indirectly), and any trust of which any Individual Defendant is the settler or which is for the benefit of any Individual Defendant and/or member(s) of his family, and each and all of their respective past, present, or future accountants, administrators, advisors, affiliates, agents, analysts, assignees, assigns, associates, attorneys, co-insurers, commercial bank lenders, consultants, controlling shareholders, directors, divisions, domestic partners, employees, employers, executors, financial advisors, general or limited partners, general or limited partnerships, heirs, insurers, investment advisors, investment bankers, investment banks, joint ventures and joint venturers, managers, marital communities, members, officers, parents, personal or legal representatives, predecessors, principals, reinsurers, representatives, shareholders, current and former spouses, subsidiaries, successors, and underwriters. "Released Parties" expressly does not include Deloitte.
6. "Settling Defendants" means Crocs and the Individual Defendants.
7. All capitalized terms not otherwise defined herein shall have the meanings set forth in the Stipulation and Agreement of Partial Class Settlement dated May 14, 2012 ("Stipulation").
1. If you purchased or acquired Crocs securities and held the certificate(s) in your name, you are the beneficial purchaser as well as the record purchaser. If, however, the certificate(s) were registered in the name of a third party, such as a nominee or brokerage firm, you are the beneficial purchaser and the third party is the record purchaser.
2. Use Part I of this form entitled "Claimant Identification" to identify each purchaser of record ("nominee"), if different from the beneficial purchaser of Crocs securities which form the basis of this claim.
3. All joint purchasers must sign this claim. Executors, administrators, guardians, conservators, and trustees must complete and sign this claim on behalf of Persons represented by them; their authority must accompany this claim and their titles or capacities must be stated. The Social Security (or taxpayer identification) number and telephone number of the beneficial owner may be used in verifying the claim. Failure to provide the foregoing information could delay verification of your claim or result in rejection of the claim.
1. Use Part II of this form entitled "Schedule of Transactions in Crocs Securities" to supply all required details of your transaction(s) in Crocs securities purchased or acquired during the Settlement Class Period. If you need more space or additional schedules, attach separate sheets giving all of the required information in substantially the same form. Sign and print or type your name on each additional sheet.
2. On the schedules, provide all of the requested information with respect to
3. List each transaction in the Settlement Class Period separately and in chronological order, by trade date, beginning with the earliest. You must accurately provide the month, day, and year of each transaction you list.
4. The date of covering a "short sale" is deemed to be the date of purchase of Crocs securities. The date of a "short sale" is deemed to be the date of sale of Crocs securities.
5. Broker confirmations or other documentation of your transactions in Crocs securities should be attached to your claim. Failure to provide this documentation could delay verification of your claim or result in rejection of your claim.
6. The above requests are designed to provide the minimum amount of information necessary to process the simplest claims. The Claims Administrator may request additional information as required to efficiently and reliably calculate your losses. In some cases where the Claims Administrator cannot perform the calculation accurately or at a reasonable cost to the Settlement Class with the information provided, the Claims Administrator may condition acceptance of the claim upon the production of additional information and/or the hiring of an accounting expert at the Claimant's cost.
If you require additional space, attach extra schedules in the same format as above. Sign and print your name on each additional page.
YOU MUST READ AND SIGN THE RELEASE ON PAGE 11.
I (We) submit this Proof of Claim and Release under the terms of the Stipulation described in the Notice. I (We) also submit to the jurisdiction of the United States District Court for the District of Colorado, with respect to my (our) claim as a Settlement Class Member (as defined in the Notice) and for purposes of enforcing the release set forth herein. I (We) further acknowledge that I am (we are) bound by and subject to the terms of any judgment that may be entered in the Action. I (We) agree to furnish additional information to Plaintiffs' Counsel to support this claim if required to do so. I (We) have not submitted any other claim covering the same purchases, acquisitions, or sales of Crocs securities during the Settlement Class Period and know of no other Person having done so on my (our) behalf.
1. I (We) hereby acknowledge full and complete satisfaction of, and do hereby fully, finally and forever settle, release, relinquish and discharge all of the Released Claims against each and all of the Released Parties (as defined above) and shall not sue any Released Party with respect to any and all such Released Claims.
2. "Released Claims" means all claims (including without limitation Unknown Claims, as defined below) demands, rights, liabilities, suits, debts, obligations, and causes of action of every nature and description whatsoever, whether known or unknown, contingent or absolute, mature or unmature, discoverable or undiscoverable, liquidated or unliquidated, accrued or unaccrued, concealed or hidden, regardless of legal theory, including, without limitation, claims for negligence, gross negligence, recklessness, intentional wrongdoing, fraud, breach of fiduciary duty, breach of the duty of care and/or loyalty or violations of the common law, administrative rule or regulation, tort, contract, equity, or otherwise or of any state or federal statutes, rules or regulations or international law, or the law of any foreign jurisdiction, that were asserted, or could have been asserted, or might have been asserted, in the Action or in any other litigation, action, or forum by Plaintiffs or the Settlement Class Members, or any of them, against the Released Parties, or any of them, which arise out of or relate in any way, directly or indirectly, in whole or in part, to (a) the purchase or acquisition of Crocs securities during the Settlement Class Period; (b) any allegations or statements in the Complaint; or (c) the Settling Defendants' defense or settlement of the Action. It is hereby expressly agreed by and is the intent of the Settling Parties that Plaintiffs' and/or any Settlement Class Member's claims against Deloitte are not being released by the Stipulation or any Exhibits hereto and are not Released Claims.
3. "Unknown Claims" means any and all Released Claims which Plaintiffs or any other Settlement Class Member, does not know or suspect to exist in his, her or its favor at the time of the release of the Released Parties, which, if known by him, her or it, might have affected his, her or its settlement with, and release of, the Released Parties, or might have affected his, her or its decision not to object to this Settlement. Unknown Claims include those claims in which some or all of the facts composing the claim may be suspected, or even undisclosed or hidden. With respect to any and all Released Claims, the Settling Parties stipulate and agree that, upon the Effective Date, Plaintiffs shall expressly waive and relinquish, and each Settlement Class Member, shall be deemed to have, and by operation of the Class Judgment shall have, waived and relinquished, to the fullest extent permitted by law, the provisions, rights and benefits of California Civil Code §1542, which provides:
Plaintiffs shall expressly waive and relinquish, and each Settlement Class Member, shall be deemed to have, and by operation of the Class Judgment shall have, waived and relinquished, to the fullest extent permitted by law, any and all provisions, rights and benefits conferred by the law of the United States, any law of any state or territory of the United States, or principle of common law, or of international law or foreign law, which is similar, comparable or equivalent in effect to California Civil Code §1542. It is understood that Plaintiffs and each Settlement Class Member may hereafter discover facts in addition to or different from those which he, she or it now knows or believes to be true with respect to the subject matter of the Released Claims (including the Unknown Claims), but Plaintiffs and each Settlement Class Member, upon the Effective Date, shall be deemed to have, and by operation of the Class Judgment shall have, fully, finally, and forever discharged, settled, and released any and all Released Claims, known or unknown, suspected or unsuspected, contingent or non-contingent, accrued or unaccrued, whether or not concealed or hidden, which now exist, or heretofore have existed, upon any theory of law or equity now existing or coming into existence in the future, including, but not limited to, conduct which is negligent, grossly negligent, reckless, intentional, with or without malice, or a breach of any duty, law or rule, without regard to the subsequent discovery or existence of such different or additional facts. Plaintiffs acknowledge, and the other Settlement Class Members shall be deemed by operation of the Class Judgment to have acknowledged, that the foregoing waivers were separately bargained for and are key elements of the Settlement of which this release is a part.
4. This release shall be of no force or effect unless and until the Court approves the Stipulation and the Stipulation becomes effective on the Effective Date (as defined in the Stipulation).
5. I (We) hereby warrant and represent that I (we) have not assigned or transferred or purported to assign or transfer, voluntarily or involuntarily, any matter released pursuant to this release or any other part or portion thereof.
6. I (We) hereby warrant and represent that I (we) have included information about all of my (our) transactions in Crocs securities that occurred during the Settlement Class Period as well as the number and type of Crocs securities held by me (us) at the opening of trading on April 2, 2007, and at the close of trading on July 13, 2008.
7. I (We) understand and intend that the signature below serves as the release of the Released Claims.
Reminder Checklist:
1. Please sign the above release and declaration.
2. Remember to attach supporting documentation, if available.
3. Do not send original stock certificates.
4. Keep a copy of your claim form for your records.
5. If you desire an acknowledgment of receipt of your claim form, please send it Certified Mail, Return Receipt Requested.
6. If you move, please send us your new address.
B = warrants
C = options
