Agreement
QuickLinks -- Click here to rapidly navigate through this document
Exhibit 10.22
This Agreement is by and between Xxxxx X. Xxxxx ("Xxxxx") and Xxxxxx X. Xxxx ("Xxxx")(collectively called "Parties")
For and in consideration of the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties covenant and agree as follows:
1) The Parties shall execute and deliver to each other such additional forms, documents, consents, agreements, and releases as may be reasonably requested to effectuate the intent of this Agreement and to facilitate the successful, efficient, and timely contemplated initial public offering of Heelys, Inc. ("Heelys") (which, including the underwriters' over-allotment option to purchase shares from Heelys' existing shareholders and resell them to the public, is referred to as the "IPO").
2) Effective as of the initial public offering, and in consideration solely for the fulfillment of all rights, obligations, duties, claims and demands owed to Xxxx by Xxxxx arising out of the Stockholders Agreement dated May 24, 2000 ("Stockholders Agreement"), Xxxxx shall assign and transfer to Xxxx 136,775 shares in Heelys (subject to the provisions of paragraph 7 of this Agreement), such that Xxxx shall own a total of 386,775 shares, and provide Xxxx with the right to sell up to 136,775 shares transferred from Xxxxx to Xxxx at the initial public offering. Effective as of the initial public offering, Xxxx hereby authorizes Heelys to remove the "Legend" referenced in the Stockholders Agreement from all shares of legended stock owned by Xxxxx. For purposes of the initial public offering, Xxxx consents to the immediate removal of the "Legend" from 1.25 million shares of legended stock owned by Xxxxx.
3) The Parties understand and agree that if the 136,775 shares are transferred to Xxxx by Xxxxx pursuant to this Agreement, these 136,775 shares will be sold at the initial public offering and neither those shares nor the legended shares owned by Xxxxx and referenced in the prior paragraph (whether sold in the IPO or retained) shall bear any restrictive legend or otherwise be encumbered. The Parties further understand and agree that none of such stock is being transferred to Xxxx from Heelys, but all such stock is being transferred from Xxxxx to Xxxx.
4) Xxxxx acknowledges and agrees that the 136,775 shares transferred by Xxxxx to Xxxx, and the allocation of 136,775 shares to be sold by Xxxx at the initial public offering, will be exchanged solely for all of Xxxx'x contract rights set forth in the Stockholders Agreement, and none of that represents compensation for services rendered by Xxxx or anyone else. Xxxxx further agrees that he will not take a deduction from ordinary income for said transfer, or otherwise claim a right to a deduction for the transfer of said shares in any filing with the Internal Revenue Service on a tax return or otherwise, or take a tax position that is in any way inconsistent with the provisions of this Agreement.
5) Heelys has represented in its November 17, 2006 S-1 filing with the SEC that Xxxx shall be permitted to sell up to 272,269 of the 386,775 shares owned by Xxxx at the IPO, and that Xxxx has the right to sell up to a total of 136,775 shares at the initial public offering, and up to a total of 135,494 shares in the over-allotment, if any. Heelys has represented in its November 17, 2006 S-1 filing with the SEC that Xxxxx shall be permitted to sell up to 1,123,581 shares at the IPO, and that Xxxxx has the right to sell up to a total of 815,656 shares at the initial public offering, and up to a total of 307,925 shares in the over-allotment, if any.
6) If the over-allotment (also referred to as the "Greenshoe") is not exercised, the Parties agree to use commercially reasonably efforts to register Xxxx'x allocation of 135,494 shares upon Heelys' first firm underwritten secondary offering. The Parties agree that the numbers of shares of stock to be sold as stated in paragraphs 3 and 5 herein above are based upon calculations provided
by Heelys, and in the event the calculations prove to be incorrect and the actual shares available to be sold in the over-allotment, if any, are materially different from what is stated herein, Xxxxx and Xxxx shall mediate such issues in good faith in Dallas County, Texas, but in no event shall Xxxx be liable to Xxxxx or shall Xxxxx be liable to Xxxx for such error, and neither Xxxx nor Xxxxx waive any rights, benefits, or remedies pursuant to existing agreements or understandings with Heelys.
7) If Heelys does not close an initial public offering by June 30, 2007, then this Agreement is void ab initio and Xxxxx and Xxxx shall immediately be placed in the same position as to the Stockholders Agreement as if this Agreement had never existed, with all of their rights, obligations, claims, and defenses.
8) The Parties each acknowledge that he/it is fully and completely informed by independent counsel and by his/its independent investigation of the facts relating to the subject matter of this Agreement and of the rights and liabilities of all Parties; that each enter into this Agreement voluntarily, after having given careful and mature consideration to the making of this Agreement; that this Agreement represents the entire agreement of the parties with regard to the subject matter of this Agreement; that each Party is legally competent to execute this Agreement and, if executed in a representative capacity, that the individual executing this Agreement has the actual authority to execute this Agreement; and that this Agreement shall not be suspended, amended, or modified in any manner except by an instrument in writing signed by all Parties sought to be bound.
9) Where applicable, the terms hereof shall survive the closing of this Agreement. As used in this Agreement, whenever the context so indicates, the masculine, feminine, or neuter gender, and the singular or plural number, shall each be defined to include the others. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted, while still carrying out the intent of this Agreement.
10) This Agreement may be signed in counterpart copies. A set of counterpart copies that collectively contains the signature of all Parties shall constitute an original.
11) It is expressly understood and agreed that the terms hereof are contractual and not merely recitals. Each Party expressly warrants and represents that he/it owns the rights being compromised and released; that no persons or entities not expressly made a Party to this Agreement are required to join in this Agreement on behalf of any of them in order to make this Agreement and the documents to be executed by each of the Parties pursuant to this Agreement, valid, binding, and enforceable against each of them; and that none of them have compromised, settled, sold, assigned, or transferred any rights or interests made the subject of this Agreement.
12) This Agreement shall be binding on and shall inure to the benefit of the Parties and their respective heirs, legal representatives, successors, and assigns.
13) This Agreement has been drafted after negotiation between and among all the Parties, all of whom are represented by counsel, and contains the work product of all Parties. Therefore, it is not to be construed strictly against any Party, but instead is to be construed fairly, according to the plain meaning of its terms.
14) This Agreement shall be governed by the laws of the State of Texas and is expressly performable in Dallas County, Texas.
2
Agreed on this 17th day of November 2006.
| /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx, Individually |
||
/s/ Xxxxxx X. Xxxx Xxxxxx X. Xxxx, Individually |
3
Agreement
