IN ANY WAY GROWING OUT OF, RESULTING
FROM, OR TO RESULT FROM THE EMPLOYEE'S EMPLOYMENT WITH THE COMPANY, INCLUDING
WITHOUT LIMITATION, ANY AND ALL OBLIGATIONS UNDER THE EMPLOYMENT AGREEMENT,
EMPLOYEE'S TERMINATION OR RESIGNATION FROM EMPLOYMENT WITH THE COMPANY, FOR OR
BECAUSE OF ANY MATTER OR THING DONE, OMITTED, OR ALLOWED TO BE DONE BY, THE
EMPLOYEE, THE COMPANY FOR ANY INCIDENTS, INCLUDING THOSE PAST AND PRESENT, WHICH
EXISTED AT ANY TIME PRIOR TO AND/OR CONTEMPORANEOUSLY WITH THE EFFECTIVE DATE OF
THIS AGREEMENT, INCLUDING ALL PAST, PRESENT, AND FUTURE DAMAGES, INJURIES,
COSTS, EXPENSES, FEES, EFFECTS, AND RESULTS IN ANY WAY RELATED TO OR CONNECTED
WITH SUCH INCIDENTS. NOTHING IN THIS AGREEMENT WILL BE CONSIDERED A RELEASE OF
EMPLOYEE'S CLAIMS, IF ANY, FOR VESTED EMPLOYMENT BENEFITS PURSUANT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974 AS AMENDED, WORKER'S
COMPENSATION INSURANCE COVERAGE, AND/OR UNEMPLOYMENT INSURANCE COVERAGE, OR THE
COMPANY'S BREACH OF THIS AGREEMENT.
B.
NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN, THE COMPANY OR HEELYS, INC.'S OBLIGATIONS TO EMPLOYEE UNDER THAT CERTAIN
INDEMNIFICATION AGREEMENT, EFFECTIVE JANUARY 2, 2008 (THE "INDEMNIFICATION
AGREEMENT"), AND THIS AGREEMENT ARE NOT RELEASED, ARE NOT AFFECTED, AND
EXPRESSLY SURVIVE THE RELEASE HEREIN IN ALL RESPECTS.
SIMILARLY, THE COMPANY OR
HEELYS, INC.'S INDEMNIFICATION OBLIGATIONS TO EMPLOYEE UNDER HEELYS, INC.'S
CERTIFICATE OF INCORPORATION AND BYLAWS OR AT LAW ARE NOT RELEASED, ARE NOT
AFFECTED, AND EXPRESSLY SURVIVE THE RELEASE HEREIN.
4.
NO ADMISSION OF LIABILITY:
THE PARTIES
STIPULATE THAT BY DISCUSSING AND/OR ENTERING INTO THIS AGREEMENT, THE PARTIES DO
NOT ADMIT, AND THEY SPECIFICALLY DENY, ANY VIOLATION OF ANY CONSTITUTIONAL,
FEDERAL, STATE, LOCAL, OR MUNICIPAL LAW, WHETHER, STATUTORY, REGULATORY, COMMON
LAW, OR OTHERWISE.
NEITHER THE PROPOSAL OF THIS AGREEMENT NOR THE PARTIES'
EXECUTION OF IT SHALL IN ANY WAY BE CONSTRUED AS AN ADMISSION OF LIABILITY IN
ANY LEGAL, ARBITRAL, OR ADMINISTRATIVE PROCEEDING.
5.
STATEMENT OF UNDERSTANDING:
BY
EXECUTING THIS AGREEMENT, EMPLOYEE ACKNOWLEDGES THAT (A) EMPLOYEE HAS BEEN GIVEN
AT LEAST TWENTY-ONE (21) DAYS TO CONSIDER THE TERMS OF THIS AGREEMENT, AND HAS
EITHER CONSIDERED IT FOR THAT PERIOD OF TIME OR KNOWINGLY AND VOLUNTARILY WAIVED
THE RIGHT TO DO SO; (B) EMPLOYEE HAS BEEN ADVISED BY VIRTUE OF THIS PART OF THE
AGREEMENT TO CONSULT WITH AN ATTORNEY REGARDING THE TERMS OF THIS AGREEMENT;
(C) EMPLOYEE HAS CONSULTED WITH, OR HAD SUFFICIENT OPPORTUNITY TO CONSULT WITH,
AN ATTORNEY OF EMPLOYEE'S OWN CHOOSING REGARDING THE TERMS OF THIS AGREEMENT;
(D) EMPLOYEE HAS READ THIS AGREEMENT AND FULLY UNDERSTANDS THE TERMS OF THIS
AGREEMENT AND THEIR IMPORT; (E) EXCEPT AS PROVIDED BY THIS AGREEMENT, EMPLOYEE
HAS NO
3
CONTRACTUAL RIGHT OR CLAIM TO THE PAYMENTS AND BENEFITS DESCRIBED HEREIN;
(F) THE CONSIDERATION PROVIDED FOR HEREIN IS GOOD AND VALUABLE; AND (G) EMPLOYEE
IS ENTERING INTO THIS AGREEMENT VOLUNTARILY, OF EMPLOYEE'S OWN FREE WILL, AND
WITHOUT ANY COERCION, UNDUE INFLUENCE, THREAT, OR INTIMIDATION OF ANY KIND.
6.
REVOCATION: WITHIN THE SEVEN
(7) CONSECUTIVE CALENDAR DAYS FOLLOWING EMPLOYEE'S EXECUTION OF THIS AGREEMENT
(THE "REVOCATION PERIOD"), EMPLOYEE MAY REVOKE THIS AGREEMENT BY WRITTEN NOTICE