Exhibit 10.1


 


Award Number:
                     


 


HEELYS, INC. 2006 STOCK INCENTIVE PLAN


(As Amended and Restated Effective May 20, 2010)


 


RESTRICTED STOCK UNIT AGREEMENT


 


Grantee:


 


Address:


 


 


Total Units Subject to Restricted
Stock Unit Award:


 


Date of Grant:


 


Vesting Commencement Date:


 


1.  Issuance
of Restricted Stock Units.  Heelys, Inc.,
a Delaware corporation (the “Company”), hereby agrees to issue to the Grantee
named above, and the Grantee hereby accepts,  an
award (the “Restricted Stock Unit Award”) of the number of restricted stock units set forth above as the “Total Units
Subject to Restricted Stock Unit Award” (the “Units”), with one Unit entitling
the Grantee to one share of Common Stock (each a “Share”) in accordance with
this Restricted Stock Unit Agreement and subject to the terms and conditions of
the Heelys, Inc. 2006 Stock Incentive Plan, as amended and restated
effective May 20, 2010 and as amended from time to time (the “Plan”),
which are incorporated herein by reference. 
Unless otherwise defined herein, capitalized terms used herein shall
have the respective meanings ascribed to them in the Plan.


 


2.  Forfeiture;
Company’s Cancellation Right.  Except
as specifically provided otherwise in this Restricted Stock Unit Agreement,
upon the date of any termination of the Grantee’s Continuous Service (the “Termination
Date”) for any reason before all of the Units are released from the Forfeiture
Restrictions described in Section 3 of this Restricted Stock Unit
Agreement, all of the Units in which the Grantee is not, as of the Termination
Date, vested in accordance with the provisions of this Restricted Stock Unit
Agreement and that are subject to the Forfeiture Restrictions on that
Termination Date (the “Unvested Units”) shall automatically be forfeited by the
Grantee on the Termination Date and the Company shall cancel, without any
additional consideration, such Unvested Units.


 


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3.  Forfeiture
Restrictions; Vesting.


 


(a)  The
Grantee may not sell, transfer, pledge, exchange, hypothecate, or otherwise
dispose of any of the Unvested Units, or any right or interest therein, before
the lapse of the Forfeiture Restrictions under this Restricted Stock Unit
Agreement.


 


(b)  The “Vesting
Commencement Date” set forth on the first page of this Restricted Stock
Unit Agreement is the date on which the vesting period for the Restricted Stock
Unit Award begins.  The Units shall vest
and shall be released from the Forfeiture Restrictions in accordance with Exhibit A
attached hereto.


 


If an installment
of the vesting and release of Units from the Forfeiture Restrictions covers a
fractional Unit, such installment will be rounded to the next higher Unit,
except the final installment, which will be for the balance of the total Units.


 


(c)  The
Forfeiture Restrictions under this Restricted Stock Unit Agreement may lapse,
and the Unvested Units may become vested and released from the Forfeiture
Restrictions, earlier than the times stated above in accordance with Section 14(c) of
the Plan, but only if the Change in Control constitutes a “change in control”
within the meaning of Section 409A of the Code.


 


(d)  Upon the
lapse or expiration of the Forfeiture Restrictions regarding any of the Units,
the Company shall promptly (and, in no event, more than ninety (90) days after
the date of such lapse or expiration) issue and deliver or cause the issuance
and deliverance of, in the name of the Grantee or Grantee’s legal
representative, one or more stock certificates representing the corresponding
number of Shares equal to those Units, free of Forfeiture Restrictions.  Alternatively, upon written request of the
Grantee, the Company may direct that the Shares be transferred to a broker
designated by the Grantee.


 


4.  Representations
of the Grantee.  The Grantee
represents and warrants to the Company that the Grantee has received, read, and
understood the Plan and this Restricted Stock Unit Agreement and agrees to
abide by and be bound by their terms and conditions.


 


5.  Stockholder
Rights.  The Grantee shall not have
the right to dividends with respect to any of the Shares that may become
issuable pursuant to the Restricted Stock Unit Award upon vesting of the Units,
to vote any such Shares, or to enjoy any other stockholder rights with respect
to any such Shares until the Forfeiture Restrictions expire and those Shares
are actually issued and delivered in settlement of the Restricted Stock Unit
Award, as evidenced by an appropriate entry on the books of the Company or of a
duly authorized transfer agent of the Company. 
No adjustment shall be made for dividends or distributions or other
rights for which the record date is prior to such date of issuance and delivery
of Shares, except as provided in the Plan.


 


6.  Refusal
to Transfer.  The Company shall not
be required (i) to transfer on its books any Units that have been sold or
otherwise transferred in violation of any of the provisions of this Restricted
Stock Unit Agreement or the Plan, or (ii) to treat as owner of such Units,
or accord the 


 


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right to vote or pay or deliver dividends or other
distributions to, any purchaser or other transferee to whom or which such Units
shall have been purported to be so transferred.


 


7.  Tax
Withholding Obligations.  No Shares
will be delivered to the Grantee or any other person upon the lapse or
expiration of the Forfeiture Restrictions regarding any of the Units until the
Grantee or such other person has made arrangements acceptable to the Committee
for the satisfaction of applicable federal, state or local income tax,
employment tax, and social security tax withholding obligations, including
obligations incident to the receipt of Shares. 
In connection with the lapse or expiration of the Forfeiture
Restrictions regarding any of the Units and the issuance and deliverance of the
corresponding number of Shares equal to those Units, the Company or other
Grantee’s employer may offset or withhold (from any amount owed by the Company
or the Grantee’s employer to the Grantee) or collect from the Grantee or such
other person an amount sufficient to satisfy such tax obligations and/or the
employer’s withholding obligations.


 


8.  Capital
Adjustments and Corporate Events. 
If, from time to time during the term of this Restricted Stock Unit
Agreement, there is (i) any capital adjustment with respect to the Shares
which may become issuable with respect to the Unvested Units, the Unvested
Units shall be adjusted in accordance with the provisions of Section 14(a) of
the Plan, or (ii) any Change in Control which constitutes a “change in
control” of the Company within the meaning of Section 409A of the Code,
the Shares which may become issuable with respect to the Unvested Units shall
be subject to the provisions of Sections 14(b) and 14(c) of the
Plan.  Any and all new, substituted or
additional securities to which the Grantee may be entitled by reason of the
Grantee’s ownership of the Unvested Units hereunder and such capital adjustment
or such corporate event shall be immediately subject to the forfeiture and
cancellation provisions of this Restricted Stock Unit Agreement and included
thereafter as “Unvested Units” for purposes of this Restricted Stock Unit
Agreement.


 


9.  Nontransferability
of Restricted Stock Unit Award.  None
of the Grantee’s rights under this Restricted Stock Unit Agreement may be
transferred or assigned in any manner other than by will or by the laws of
descent and distribution; the Grantee’s rights under this Restricted Stock Unit
Agreement may be exercised during the lifetime of the Grantee only by the
Grantee.


 


10.  Tax
Consequences.  The issuance and
deliverance of Shares upon the lapse or expiration of the Forfeiture
Restrictions regarding any of the Units will have tax consequences to the Grantee
under the Code.  The Grantee has reviewed
with the Grantee’s own tax advisors the federal, state and local tax
consequences that may arise under this Restricted Stock Unit Agreement. The
Grantee is relying solely on such advisors and not on any statements or
representations of the Company or any of its agents. The Grantee understands
that the Grantee (and not the Company) shall be responsible for the Grantee’s
own tax liability that may arise under this Restricted Stock Unit Agreement.
The Grantee understands that the Shares to be issued and delivered upon the
lapse or expiration of the Forfeiture Restrictions regarding any of the Units
shall be taxed under Section 83 of the Code as ordinary income in an
amount equal to the Fair Market Value of the Shares on the date those Shares
are actually issued and delivered.


 


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11.  Successors
and Assigns.  The Company may assign
any of its rights under this Restricted Stock Unit Agreement and this
Restricted Stock Unit Agreement shall inure to the benefit of the successors
and assigns of the Company.  Subject to
the restrictions on transfer herein set forth, this Restricted Stock Unit
Agreement shall be binding upon the Grantee and his heirs, executors,
administrators, successors, and permitted assigns.


 


12.  Entire
Agreement; Governing Law.  The Plan
and this Restricted Stock Unit Agreement constitute the entire agreement of the
Company and the Grantee (collectively the “Parties”) with respect to the
subject matter hereof and supersede in their entirety all prior undertakings
and agreements of the Parties with respect to the subject matter hereof, and
may not be modified adversely to the Grantee’s interest except by means of a
writing signed by the Parties.  Nothing in
the Plan and this Restricted Stock Unit Agreement (except as expressly provided
therein or herein) is intended to confer any rights or remedies on any person
other than the Parties.  The Plan and
this Restricted Stock Unit Agreement are to be construed in accordance with and
governed by the internal laws of the State of Texas without giving effect to
any choice-of-law rule that would cause the application of the laws of any
jurisdiction other than the internal laws of the State of Texas to the rights
and duties of the Parties.


 


13.  Severability
and Reformation.  The Company and the
Grantee intend all provisions of the Plan and this Restricted Stock Unit
Agreement to be enforced to the fullest extent permitted by law.  Accordingly, should a court of competent
jurisdiction determine that the scope of any provision of the Plan or this
Restricted Stock Unit Agreement is too broad to be enforced as written, the
court should reform the provision to such narrower scope as it determines to be
enforceable.  If, however, any provision
of the Plan or this Restricted Stock Unit Agreement is held to be wholly
illegal, invalid, or unenforceable under present or future law, such provision
shall be fully severable and severed, and the Plan and this Restricted Stock
Unit Agreement shall be construed and enforced as if such illegal, invalid, or
unenforceable provision were never a part thereof or hereof, and the remaining
provisions of the Plan and this Restricted Stock Unit Agreement shall remain in
full force and effect and shall not be affected by the illegal, invalid, or
unenforceable provision or by its severance.


 


14.  Interpretive
Matters.  Whenever required by the
context, pronouns and any variation thereof shall be deemed to refer to the
masculine, feminine, or neuter, and the singular shall include the plural, and
vice versa.  The term “include” or “including”
does not denote or imply any limitation. 
The term “business day” means any Monday through Friday other than such
a day on which banks are authorized to be closed in the State of Texas.  The captions and headings used in this
Restricted Stock Unit Agreement are inserted for convenience and shall not be
deemed a part of the Restricted Stock Unit Award or this Restricted Stock Unit
Agreement for construction or interpretation.


 


15.  Dispute
Resolution.  Unless provided
otherwise in a then-effective written employment agreement, the provisions of
this Section 15 shall be the exclusive means of resolving disputes of the
Parties (including any other persons claiming any rights or having any
obligations through the Company or the Grantee) arising out of or relating to
the Plan and this Restricted Stock Unit Agreement.  The Parties shall attempt in good faith to
resolve any disputes arising out of or relating to the Plan and this Restricted
Stock Unit Agreement by negotiation 


 


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between individuals who have authority to settle the
controversy.  Negotiations shall be
commenced by either Party by a written statement of the Party’s position and
the name and title of the individual who will represent the Party.  Within thirty (30) days of the written
notification, the Parties shall meet at a mutually acceptable time and place,
and thereafter as often as they reasonably deem necessary, to resolve the
dispute.  If either Party determines that
the dispute cannot be resolved by negotiation, such Party shall notify the
other Party and the Parties agree that any suit, action, or proceeding arising
out of or relating to the Plan or this Restricted Stock Unit Agreement shall be
brought in the United States District Court for the Northern District of Texas
(or should such court lack jurisdiction to hear such action, suit or
proceeding, in a Texas state court in Dallas County, Texas) and that the
Parties shall submit to the jurisdiction of such court.  The Parties irrevocably waive, to the fullest
extent permitted by law, any objection a Party may have to the laying of venue
for any such suit, action or proceeding brought in such court.  THE PARTIES ALSO EXPRESSLY WAIVE ANY RIGHT
THEY HAVE OR MAY HAVE TO A JURY TRIAL OF ANY SUCH SUIT, ACTION OR
PROCEEDING.  If any one or more
provisions of this Section 15 shall for any reason be held invalid or
unenforceable, it is the specific intent of the Parties that such provisions
shall be modified to the minimum extent necessary to make it or its application
valid and enforceable.


 


16.  Notice.  Any notice or other communication required or
permitted hereunder shall be given in writing and shall be deemed given,
effective, and received upon prepaid delivery in person or by courier or upon
the earlier of delivery or the third business day after deposit in the United
States mail if sent by certified mail, with postage and fees prepaid, addressed
to the other Party at its address as shown beneath its signature in this
Restricted Stock Unit Agreement, or to such other address as such Party may
designate in writing from time to time by notice to the other Party in
accordance with this Section 16.


 


17.  Further
Instruments.  Each Party agrees to
execute such further instruments and to take such further action as may be
necessary or reasonably appropriate to carry out the purposes and intent of
this Restricted Stock Unit Agreement.


 


	
   

  	
  HEELYS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  3200
  Belmeade Drive, Suite 100

  
	
   

  	
   

  	
  Carrollton,
  Texas 75006

  
				



 


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THE GRANTEE ACKNOWLEDGES AND
AGREES THAT, EXCEPT AS EXPRESSLY
PROVIDED OTHERWISE HEREIN, THE FORFEITURE RESTRICTIONS ON  THE UNITS SUBJECT TO THE RESTRICTED
STOCK UNIT AWARD SHALL LAPSE, IF
AT ALL, ONLY DURING THE PERIOD OF THE GRANTEE’S CONTINUOUS SERVICE (NOT THROUGH
THE ACT OF BEING HIRED, ELECTED OR APPOINTED, BEING GRANTED THE RESTRICTED
STOCK UNIT AWARD OR BEING ISSUED SHARES HEREUNDER).  THE GRANTEE FURTHER ACKNOWLEDGES AND AGREES
THAT NOTHING IN THIS RESTRICTED STOCK UNIT AGREEMENT OR THE PLAN SHALL CONFER
UPON THE GRANTEE ANY RIGHT WITH RESPECT TO FUTURE AWARDS OR CONTINUATION OF THE
GRANTEE’S CONTINUOUS SERVICE, NOR SHALL IT INTERFERE IN ANY WAY WITH THE
GRANTEE’S RIGHT OR THE RIGHT OF THE COMPANY OR ANY AFFILIATE (OR THE GRANTEE’S
EMPLOYER) TO TERMINATE THE GRANTEE’S CONTINUOUS SERVICE, WITH OR WITHOUT CAUSE,
AND WITH OR WITHOUT NOTICE.  THE GRANTEE
ACKNOWLEDGES THAT UNLESS THE GRANTEE HAS A WRITTEN EMPLOYMENT AGREEMENT WITH
THE COMPANY TO THE CONTRARY, THE GRANTEE’S EMPLOYMENT IS “AT WILL.”


 


The Grantee acknowledges
receipt of a copy of the Plan, represents that he is familiar with the terms
and provisions thereof, and hereby accepts the Restricted Stock Unit Award
subject to all of the terms and provisions hereof and thereof.  The Grantee has reviewed this Restricted
Stock Unit Agreement and the Plan in their entirety, has had an opportunity to
obtain the advice of counsel prior to executing this Restricted Stock Unit
Agreement, and fully understands all provisions of this Restricted Stock Unit
Agreement and the Plan.  The Grantee
hereby agrees that all disputes arising out of or relating to this Restricted
Stock Unit Agreement and the Plan shall be resolved in accordance with Section 15
of this Restricted Stock Unit Agreement. 
The Grantee further agrees to notify the Company upon any change in the
address for notice indicated in this Restricted Stock Unit Agreement.


 


 


	
  Dated:

  	
   

  	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  	
   

  	
  , Grantee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address:

  
	
   

  	
   

  	
   

  



 


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EXHIBIT A


 


HEELYS, INC. 2006 STOCK INCENTIVE PLAN


(As Amended and Restated Effective May 20,
2010)


 


RESTRICTED STOCK UNIT AGREEMENT


 


[VESTING AND OTHER INDIVIDUALIZED TERMS TO
BE PLACED HERE]


 


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