Current Report

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

 

FORM 8-K

 

CURRENT REPORT PURSUANT TO

SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

Date of report (Date of earliest event reported): June 10, 2009

 

HEELYS, INC.

(Exact name of registrant as specified in its charter)

 

Delaware

 

Commission

 

75-2880496

(State or other jurisdiction of incorporation or
organization)

 

File No.: 001-33182

 

(IRS Employer Identification No.)

 

3200 Belmeade Drive, Suite 100, Carrollton, Texas 75006

(Address of principal executive offices and zip code)

 

(214) 390-1831

(Registrant’s telephone number, including area code)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions:

 

o                                     Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o                                     Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o                                     Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o                                     Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


 

Item  3.01                                                                       Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing .

 

On June 10, 2009, Heelys, Inc. (the “Company”) received a deficiency letter from The Nasdaq Stock Market (“Nasdaq”) indicating that the Company was not in compliance with Nasdaq Listing Rule 5605 due to the vacancy created by the resignation of Mr. Richard E. Middlekauff from his position as a director and a member of the Company’s audit committee, as disclosed on the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on May 28, 2009.  At the time of Mr. Middlekauff’s resignation, the Company’s audit committee consisted of only three members.

 

Listing Rule 5605 requires each Nasdaq issuer to have at least three independent members on its audit committee (as defined by Nasdaq Listing Rule 5605(a)(2) and Rule 10A-3(b)(1) under the Securities Exchange Act of 1934).  As such, since the time of Mr. Middlekauff’s resignation, the Company has not been in compliance with Listing Rule 5605 because the Company only has two of the three required independent audit committee members.

 

Under Marketplace Rule 5605(c)(4)(A), the Company has until November 23, 2009 to cure such non-compliance.

 

On June 11, 2009, in accordance with Listing Rule 5810(b), the Company issued a press release regarding its receipt of the deficiency letter and the Nasdaq rules upon which such deficiency letter was based.  A copy of the press release is attached as Exhibit 99.1 and is incorporated herein by reference.

 

Item 9.01

Financial Statements and Exhibits .

 

 

 

 

(d)

 

 

Exhibits.

 

 

 

 

 

 

99.1

Press Release of Heelys, Inc. dated June 11, 2009.

 

2


 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

 

Heelys, Inc.

 

 

 

 

  Date: June 11, 2009

By:

/s/ Lisa K. Peterson

 

 

Lisa K. Peterson

 

 

Chief Financial Officer

 

3


 

EXHIBIT INDEX

 

Exhibit No.

 

Description

 

 

 

99.1

 

Press Release of Heelys, Inc. dated June 11, 2009.

 

4

Exhibit 99.1

 

Company Contact:

 

Lisa K. Peterson / Chief Financial Officer

 

 

(214) 390-1831

 

HEELYS, INC. RECEIVES DEFICIENCY LETTER FROM NASDAQ

 

DALLAS (June 11, 2009) — Heelys, Inc. (NASDAQ: HLYS) today announced that the Company received a Nasdaq Staff deficiency letter on June 10, 2009 indicating that the Company no longer complies with the Nasdaq audit committee requirement as set forth in Listing Rule 5605, which requires a listed company to have an audit committee of at least three members.

 

As a result of Richard E. Middlekauff’s resignation from the Board of Directors on May 27, 2009, the Company’s audit committee presently has only two members.  NASDAQ has requested the Company provide, on or before November 23, 2009, documentation evidencing compliance with Listing Rule 5605.

 

Gary L. Martin, Chairman of the Board of Directors of Heelys, Inc., stated “We have initiated a search for a new independent director and we intend to be fully compliant as soon as possible.”

 

About Heelys, Inc.

 

Heelys, Inc. designs, markets and distributes innovative, action sports-inspired products under the HEELYS® brand targeted to the youth market.  The Company’s primary product, HEELYS-wheeled footwear, is patented dual purpose footwear that incorporates a stealth, removable wheel in the heel.  HEELYS-wheeled footwear allows the user to seamlessly transition from walking or running to rolling by shifting weight to the heel.  Users can transform HEELYS-wheeled footwear into street footwear by removing the wheel.  HEELYS-wheeled footwear provides users with a unique combination of fun and style that differentiates it from other footwear and wheeled sports products.

 

Forward Looking Statements

 

Certain statements in this press release and oral statements made from time to time by representatives of the Company are “forward-looking statements” for purposes of the safe harbor provisions of The Private Securities Litigation Reform Act of 1995, including in particular, statements regarding our guidance, outlook for future events, financial performance, customer demand, growth and profitability. In some cases, you can identify forward-looking statements by terminology such as “subject to,” “believes,” “anticipates,” “plans,” “expects,” “intends,” “estimates,” “may,” “will,” “should,” “can,” the negatives thereof, variations thereon, similar expressions, or discussions of strategy.  All forward-looking statements are based upon management’s current expectations and various assumptions, but they are inherently uncertain, and the Company may not realize its expectations and the underlying assumptions may not prove correct.  The Company’s actual results and the timing of events could differ materially from those described in or implied by the forward-looking statements as a result of risks and uncertainties, including, without limitation, the fact that substantially all of the Company’s net sales are generated by one product, continued changes in fashion trends and consumer preferences and general economic conditions, the Company’s intellectual property may not restrict competing products that infringe on its patents from being sold, the Company’s dependence on independent manufacturers, the Company may not be able to successfully introduce new product categories, the outcome of lawsuits filed against the Company, which could have a material adverse effect on us, and additional factors which are detailed in the Company’s filings with the Securities and Exchange Commission, including the Risk Factors contained in the Company’s Annual Report on Form 10-K.  Investors, potential investors and other readers are urged to consider these factors carefully in evaluating the forward-looking statements and are cautioned not to place undue reliance on such forward-looking statements. The forward-looking statements made herein are only made as of the date of this press release and the Company undertakes no obligation to publicly update such forward-looking statements to reflect subsequent events or circumstances.