SUBJECT TO THE
TERMS OF THIS PROVISION, THE COMPANY MAY ISSUE A PRESS RELEASE REGARDING
EMPLOYEE'S RESIGNATION FROM THE COMPANY.
PRIOR TO ISSUANCE OF THE REFERENCED
PRESS RELEASE EMPLOYEE SHALL BE PERMITTED TO REVIEW THE RELEASE AND TO PROVIDE
COMMENTS TO IT.
THE PARTIES SHALL MUTUALLY AGREE ON THE LANGUAGE CONCERNING
EMPLOYEE'S RESIGNATION AND RELATED MATTERS.
12.
PAYMENT TERMINATION; LIQUIDATED DAMAGES:
IN
THE EVENT THAT EMPLOYEE COMMITS A MATERIAL BREACH OF THE TERMS OF THE FOREGOING
SECTIONS 9 AND/OR 10 OF THIS AGREEMENT (INCLUDING THE RESTRICTIVE COVENANTS
STATED IN EXHIBIT A), THE COMPANY MAY FOREVER TERMINATE PAYMENT OF ALL REMAINING
SEVERANCE COMPENSATION PAYMENTS, AND THE EMPLOYEE SHALL BECOME IMMEDIATELY
LIABLE TO THE COMPANY FOR LIQUIDATED DAMAGES IN THE AMOUNT OF NINETY PERCENT
(90%) OF ALL SEVERANCE COMPENSATION PAID TO EMPLOYEE BY THE COMPANY.
THE
PARTIES STIPULATE THAT SUCH LIQUIDATED DAMAGES ARE REASONABLE CONSIDERING THAT
THIS AGREEMENT HAS INTRINSIC VALUE FOR THE COMPANY BECAUSE OF ITS COMPLETE
CONFIDENTIALITY AND OTHER PROTECTIONS, AND FURTHER CONSIDERING THAT IN THE EVENT
OF SUCH A BREACH, THE COMPANY'S ACTUAL DAMAGES WILL BE DIFFICULT AND IMPRACTICAL
TO ASCERTAIN, SO THAT THE STATED LIQUIDATED DAMAGES WILL BE JUST AND PROPER
COMPENSATION FOR ANY DAMAGES CAUSED BY ANY BREACH FOR WHICH THIS
SECTION APPLIES; PROVIDED, HOWEVER, THAT THE COMPANY MAY MAKE AN ELECTION OF
REMEDIES FOR ACTUAL DAMAGES, TO THE EXTENT THAT IT CAN PROVE RECOVERABLE ACTUAL
DAMAGES IN EXCESS OF THE LIQUIDATED DAMAGES STATED IN THIS SECTION OF THE
AGREEMENT.
NOTWITHSTANDING ANY REQUIREMENT THAT THE EMPLOYEE PAY DAMAGES AS
PROVIDED IN THIS SECTION, THE REMAINING PROVISIONS OF THIS AGREEMENT WILL REMAIN
IN FULL FORCE AND EFFECT.
13.
RESIGNATION; SECURITIES FILINGS:
AS OF THE
EFFECTIVE DATE, THE EMPLOYEE RESIGNS FROM HIS EMPLOYMENT WITH THE COMPANY AND
ALL COMPANY AFFILIATES AND SUBSIDIARIES, AS APPLICABLE, AND FROM ANY AND ALL
POSITIONS AS AN OFFICER OR DIRECTOR, OR BOTH, OF THE COMPANY AND ALL COMPANY
AFFILIATES AND SUBSIDIARIES.
THIS AGREEMENT WILL BE DISCLOSED IN AN 8-K FILING
AND/OR OTHER REQUIRED SECURITIES FILINGS WITH THE SECURITIES AND EXCHANGE
COMMISSION, AS APPLICABLE.
14.
WAIVER OF RE-EMPLOYMENT:
THE EMPLOYEE
WAIVES AND RELEASES FOREVER ANY RIGHT OR RIGHTS HE MIGHT HAVE TO EMPLOYMENT,
REEMPLOYMENT, OR REINSTATEMENT WITH THE COMPANY OR THE OTHER HEELYS RELEASEES,
FOR NOW AND ANY TIME IN THE FUTURE, AND
8
AGREES NOT TO SEEK OR MAKE APPLICATION FOR EMPLOYMENT WITH EITHER THE COMPANY OR
THE OTHER HEELYS RELEASEES.
15.
SECTION 409A COMPLIANCE:
THIS AGREEMENT
SHALL BE CONSTRUED AND INTERPRETED TO THE MAXIMUM EXTENT POSSIBLE IN A MANNER TO
AVOID ANY ADVERSE TAX CONSEQUENCES TO EMPLOYEE UNDER SECTION 409A.
IF THE
COMPANY OR EMPLOYEE REASONABLY DETERMINES THAT ANY COMPENSATION OR BENEFITS
PAYABLE UNDER THIS AGREEMENT MAY BE SUBJECT TO SECTION 409A, THE COMPANY AND
EMPLOYEE SHALL WORK TOGETHER TO ADOPT SUCH AMENDMENTS TO THIS AGREEMENT OR ADOPT
OTHER POLICIES OR PROCEDURES (INCLUDING AMENDMENTS, POLICIES AND PROCEDURES WITH
RETROACTIVE EFFECT), OR TAKE ANY OTHER COMMERCIALLY REASONABLE ACTIONS NECESSARY
OR APPROPRIATE TO:
(A) EXEMPT THE COMPENSATION AND BENEFITS PAYABLE UNDER THIS
AGREEMENT FROM