Exhibit 10.1
SEVERANCE AND GENERAL RELEASE
AGREEMENT
This Severance and General Release
Agreement (“ Agreement ”) is made and entered
into effective as of February 10, 2009 (the “
Effective Date ”) by and between Heeling Sports
Limited, a Texas limited partnership (the “ Company
”) and Don Carroll (the “ Employee ”) (the
Company and the Employee are collectively referred to herein as the
“ Parties ”).
WHEREAS, beginning on or about
January 1, 2008, the Employee became employed as the
Company’s Senior Vice President of Marketing and on or about
May 20, 2008 was named the Company’s President and Chief
Executive Officer;
WHEREAS, effective as of
July 17, 2008, the Employee and the Company entered into an
EXECUTIVE EMPLOYMENT AGREEMENT, a true and correct conformed copy
of which is attached as Exhibit A (the “ Employment
Agreement ”);
WHEREAS, as of the Effective Date,
the Employee’s employment with the Company ended due to
Employee’s resignation; and
WHEREAS, the Employee and the
Company desire to compromise and settle fully and finally, by the
execution of this Agreement, all claims and causes of action of any
kind whatsoever, whether known or unknown, which have arisen prior
to or at the time of the execution of this Agreement, for any
matter, including, but in no way limited to, any and all claims,
controversies and causes of action arising out of or related to the
Employee’s employment with and/or departure from the
Company.
NOW, THEREFORE, in full compromise,
release and settlement, accord and satisfaction, and discharge of
all claims and causes of action, known or unknown, possessed by or
belonging to the Employee for and in consideration of the above
recitals and the mutual promises, covenants and agreements set
forth herein, the adequacy of which the Parties hereby acknowledge
for all purposes, the Parties to this Agreement covenant and agree
as follows:
1.
Severance
Proceeds : Subject to the terms
of Sections 6 and 12 herein, the Parties agree to the following
terms of severance compensation:
a.
The Company shall
pay Employee or his estate six (6) months severance amounting
to the total sum of ONE HUNDRED AND FIFTY THOUSAND DOLLARS
($150,000.00), minus tax-related deductions (the “
Severance Proceeds ”), in full compromise and
settlement. The Severance Proceeds will be paid over a six
(6) month period in equal installments in accordance with the
Company’s normal payroll practices and policies beginning on
the first payroll date following the Revocation Period described in
Section 6 herein;
b.
If Employee
elects continuation coverage (with respect to Employee’s
coverage and/or any eligible dependent coverage) under the
Consolidated Omnibus Budget Reconciliation Act of 1985 (“
COBRA Continuation Coverage ”) with respect to the
Company’s group health insurance plan, Employee will be
responsible for payment of the monthly cost of COBRA Continuation
Coverage, provided,
1
however, the
Company will reimburse Employee for the monthly cost of all COBRA
Continuation Coverage net of all co-pay amounts (if any) for the
six (6) month period following the Effective Date. Nothing
herein will affect Employee’s rights to COBRA Continuation
Coverage, at Employee’s expense, following the Effective
Date.
2.
Payment of
Expenses and Accrued Leave :
a.
Subject to
Employee’s compliance with all applicable expense policies
and procedures, the Company will reimburse Employee for all
reasonable accrued but unpaid travel, lodging, long distance
telephone and other business costs and expenses reasonably incurred
by Employee while rendering Services pursuant to Exhibit A,
through and including the Effective Date.
b.
The Company will
pay Employee an amount equal to all accrued and unused vacation and
personal day pay through and including the Effective Date,
calculated in accordance with the Company’s vacation and
personal day policies, practices, and procedures.
3.
General
Release :
a.
Employee,
individually, and on behalf of, as applicable, Employee’s
current, former, and successor attorneys, representatives,
guardians, heirs, assigns, successors, executors, administrators,
insurers, servants, agents, employees, affiliates, and entities
does hereby GENERALLY RELEASE, ACQUIT, AND DISCHARGE the Company,
and as applicable, its respective current, former, and successor
officers, employees, agents, attorneys, assigns, representatives,
directors, shareholders, owners, servants, administrators,
insurers, parents, subsidiaries, affiliates, and related
corporations, firms, associations, partnerships, and entities,
specifically including all affiliates of the Company and all of
their respective officers and directors, from any and all claims,
debts, damages, demands, liabilities, benefits, suits in equity,
complaints, grievances, obligations, promises, agreements, rights,
controversies, costs, losses, remedies, attorneys’ fees and
expenses, back pay, front pay, severance pay, percentage recovery,
injunctive relief, lost profits, emotional distress, mental
anguish, personal injuries, liquidated damages, punitive damages,
disability benefits, fraud, interest, expert fees and expenses,
reinstatement, other compensation, suits, appeals, actions, and
causes of action, of whatever kind or character, including, but not
limited to, any dispute, claim, charge, or cause of action arising
under the Civil Rights Act of 1964, Title VII, 42 U.S.C.
§§ 2000e et seq ., as amended (including the Civil
Rights Act of 1991), the Civil Rights Act of 1866, 42 U.S.C.
§§ 1981 et seq. , as amended, the Equal Pay Act,
29 U.S.C. §§ 201 et seq ., as amended, the
Americans with Disabilities Act of 1990, 42 U.S.C. §§
12101 et seq. , as amended, the Age Discrimination in Employment Act, 29
U.S.C. §§ 621 et seq ., as amended, the Employee
Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001
et seq. , as amended, the Fair Labor Standards Act of 1938,
29 U.S.C. §§ 201 et seq. , as amended, the Family
and Medical Leave Act, 29 U.S.C. §§ 2601
et
2
seq. , as amended, RICO, 18
U.S.C. §§ 1961 et seq ., as amended, the Texas
discrimination, retaliation, and wrongful discharge laws, including
without limitation Tex. Lab. Code §§ 21.001 et seq
., 451.001, and 411.082, as amended, Tex. Civ. Prac. &
Rem. Code § 122.001, as amended, the Texas pay day laws,
including without limitation Tex. Lab. Code §§ 61.001
et seq. and 62.001 et seq ., as amended, and all
other constitutional, federal, state, local, and municipal law
claims, whether statutory, regulatory, common law or otherwise,
arising out of or relating to any and all disputes now existing
between Employee and the Company, whether related to or 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,
whe
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