BEEN INSERTED FOR CONVENIENCE AND DO NOT CONSTITUTE MATTER
TO BE CONSTRUED OR INTERPRETED IN CONNECTION WITH THIS AGREEMENT.
UNLESS THE
CONTEXT OF THIS AGREEMENT OTHERWISE REQUIRES, (I) WORDS OF ANY GENDER SHALL BE
DEEMED TO INCLUDE EACH OTHER GENDER; (II) WORDS USING THE SINGULAR OR PLURAL
NUMBER SHALL ALSO INCLUDE THE PLURAL OR SINGULAR NUMBER, RESPECTIVELY; AND (III)
THE TERMS "HEREOF," "HEREIN," "HEREBY," "HERETO," AND DERIVATIVE OR SIMILAR
WORDS SHALL REFER TO THIS ENTIRE AGREEMENT.
18.
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.
19.
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.
20.
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:
James S. Peliotes
3200 Belmeade Dr., Suite 100
Carrollton, Texas 75006
Telecopy:
214-390-1661
15
21.
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 15©(VIII).
22.
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.
23.
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.
24.
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