"HEREBY," "HERETO," AND DERIVATIVE OR SIMILAR WORDS SHALL
REFER TO THIS ENTIRE AGREEMENT.
17.
GOVERNING LAW.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO ANY
PRINCIPLE OF CONFLICT OF LAWS THAT WOULD REQUIRE THE APPLICATION OF THE LAW OF
ANY OTHER JURISDICTION.
18.
SURVIVAL.
EMPLOYEE'S TERMINATION FROM EMPLOYMENT, FOR WHATEVER
REASON, SHALL NOT REDUCE OR TERMINATE EMPLOYEE'S OR THE COMPANY'S COVENANTS AND
AGREEMENTS SET FORTH HEREIN.
19.
NOTICES.
ANY NOTICE NECESSARY UNDER THIS AGREEMENT SHALL BE IN
WRITING AND SHALL BE CONSIDERED DELIVERED THREE DAYS AFTER MAILING IF SENT
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR WHEN RECEIVED, IF SENT BY TELECOPY,
PREPAID COURIER, EXPRESS MAIL OR PERSONAL DELIVERY TO THE FOLLOWING ADDRESSES:
If to the Company:
Heelys, Inc.
3200 Belmeade Dr., Suite 100
Carrollton, Texas 75006
Telecopy: (214) 390-1661
Attention: Chairman of the Board
If to the Employee:
John O'Neil
3200 Belmeade Dr., Suite 100
Carrollton, Texas 75006
Telecopy: (214) 390-1661
20.
ATTORNEYS' FEES.
THE PREVAILING PARTY IN ANY LEGAL PROCEEDINGS
BROUGHT BY OR AGAINST THE OTHER PARTY TO ENFORCE ANY PROVISION OF THIS AGREEMENT
SHALL BE ENTITLED TO RECOVER AGAINST THE NON-PREVAILING PARTY THE REASONABLE
ATTORNEYS' FEES, COURT COSTS, ARBITRATION FEES AND OTHER EXPENSES INCURRED BY
THE PREVAILING PARTY.
THIS SECTION SHALL NOT APPLY TO ARBITRATION, WHICH IS
GOVERNED BY SECTION 14(C)(VIII).
15
21.
ENTIRE AGREEMENT.
THIS AGREEMENT, INCLUDING THE RECITALS AND
INTRODUCTIONS AND ALL EXHIBITS REFERRED TO, EMBODIES THE ENTIRE AGREEMENT AND
UNDERSTANDING OF THE PARTIES HERETO IN RESPECT OF THE SUBJECT MATTER CONTAINED
HEREIN AND SUPERSEDES ALL PRIOR CONFLICTING OR INCONSISTENT AGREEMENTS, CONSENTS
AND UNDERSTANDINGS RELATING TO SUCH SUBJECT MATTER.
EMPLOYEE ACKNOWLEDGES AND
AGREES THAT THERE IS NO ORAL OR OTHER AGREEMENT BETWEEN THE COMPANY AND EMPLOYEE
RELATING TO THE EMPLOYMENT RELATIONSHIP WHICH HAS NOT BEEN INCORPORATED IN THIS
AGREEMENT.
22.
NO WAIVER.
THE FOREBEARANCE OR FAILURE OF ONE OF THE PARTIES
HERETO TO INSIST UPON STRICT COMPLIANCE BY THE OTHER WITH ANY PROVISIONS OF THIS
AGREEMENT, WHETHER CONTINUING OR NOT, SHALL NOT BE CONSTRUED AS A WAIVER OF ANY
RIGHTS OR PRIVILEGES HEREUNDER.
NO WAIVER OF ANY RIGHT OR PRIVILEGE OF A PARTY
ARISING FROM ANY DEFAULT OR FAILURE HEREUNDER OF PERFORMANCE BY THE OTHER SHALL
AFFECT SUCH PARTY'S RIGHTS OR PRIVILEGES IN THE EVENT OF A FURTHER DEFAULT OR
FAILURE OF PERFORMANCE.
23.
ASSIGNMENT.
THIS AGREEMENT MAY NOT BE ASSIGNED BY THE COMPANY
WITHOUT THE EMPLOYEE'S APPROVAL, BUT NO APPROVAL SHALL BE REQUIRED FOR THE
COMPANY TO ASSIGN THIS AGREEMENT TO ANY AFFILIATE OR SUCCESSOR IN INTEREST TO
THE COMPANY'S BUSINESS OR IN CONNECTION WITH A CHANGE OF CONTROL.
THIS
AGREEMENT MAY NOT BE ASSIGNED BY EMPLOYEE.
ANY ASSIGNMENT MADE BY EITHER PARTY
IN CONTRAVENTION OF THIS SECTION SHALL BE NULL AND VOID FOR ALL PURPOSES.
24.
BINDING EFFECT.
THIS AGREEMENT SHALL BE BINDING ON AND INURE TO
THE BENEFIT OF THE PARTIES AND THEIR RESPECTIVE SUCCESSORS AND PERMITTED
ASSIGNS.
25.
MODIFICATION.
THIS AGREEMENT MAY BE MODIFIED ONLY BY A