Heelys, Inc. (the "Company") (Nasdaq:HLYS) today announced the
mailing of definitive proxy materials for a special meeting
("Meeting") of holders of the Company's issued and outstanding
common stock (the "Stockholders"), to be held on Thursday, December
13, 2012 at 10:00 a.m. Central Time at the offices of Gardere Wynne
Sewell LLP, 1601 Elm Street, Suite 3000, Dallas, Texas 75201.
STOCKHOLDERS ARE ENCOURAGED TO READ CAREFULLY THE PROXY
STATEMENT AND ITS ANNEXES AND THE NOTICE OF SPECIAL MEETING AND THE
OTHER MATERIALS FILED OR PROVIDED TO THE SECURITIES AND EXCHANGE
COMMISSION WHEN THEY BECOME AVAILABLE, BECAUSE THESE DOCUMENTS
CONTAIN IMPORTANT INFORMATION REGARDING THE COMPANY AND THE MATTERS
TO BE VOTED ON AT THE MEETING. ANY STOCKHOLDER WHO IS IN DOUBT AS
TO HOW TO MAKE ANY DECISION REGARDING THE MATTERS TO BE VOTED ON AT
THE MEETING SHOULD CONSULT HIS, HER OR ITS FINANCIAL, LEGAL OR
OTHER PROFESSIONAL ADVISORS.
At the Meeting, our Stockholders will be asked to consider and
vote on, among other things, (1) a proposal to approve the sale of
substantially all of the assets of the Company and its subsidiaries
(the "Sale") pursuant to, and the other transactions contemplated
by, an Asset Purchase Agreement between the Company and its
subsidiaries and The Evergreen Group Ventures, LLC and one or more
of its subsidiaries (the "Asset Purchase Agreement"); (2) a
proposal to approve an amendment to the Company's Certificate of
Incorporation to change its corporate name, contingent on and
effective upon the consummation of the Sale (the "Name Change");
(3) a proposal to approve a Plan of Liquidation and Dissolution
(the "Plan of Dissolution"), previously adopted by the Company's
Board of Directors (the "Board"), pursuant to which the Company
will be wound up, liquidated and dissolved (the "Winding Up")
contingent on Stockholder approval and consummation of the Sale;
(4) a non-binding, advisory proposal approving certain executive
compensation payable as a result of the Sale; and (5) the grant of
discretionary authority to the Board to adjourn the Meeting, even
if a quorum is present, to solicit additional proxies in the event
that there are insufficient shares present in person or by proxy
voting in favor of the Sale, the amendment to the Company's
Certificate of Incorporation to change its corporate name and/or
the Plan of Dissolution.
The Evergreen Group Ventures, LLC has informed the Company that
it plans to continue producing, distributing and marketing shoes
under the Heelys brand name after completion of the Sale.
If the Stockholders approve the Sale, and if the Sale is
consummated, the Company will cease to be engaged in an ongoing
business and will not be eligible to remain listed on the The
Nasdaq Capital Market. In addition, if the Stockholders approve the
Sale and the Plan of Dissolution, upon completion of the Sale, the
Company intends to (a) file a Certificate of Dissolution with the
Delaware Secretary of State and (b) delist from the The Nasdaq
Capital Market as soon as practicable following the closing of the
Sale. In addition, the Company plans to deregister its shares of
common stock under Section 12(b), and suspend its periodic
reporting obligations under Section 15(d), of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
At the time the Company files a Certificate of Dissolution with
the Delaware Secretary of State, the Company intends to close its
stock transfer books and discontinue recording transfers of its
common stock as of the date of such filing. After the Company
closes its stock transfer books, it will not record any further
transfers of its common stock on its books except by will,
intestate succession or operation of law. Therefore, as of
such time, shares of the Company's common stock will not be
transferable. All distributions to Stockholders after the date
the Company files a Certificate of Dissolution with the Delaware
Secretary of State will be made to Stockholders pro rata according
to their respective holdings of the Company's common stock as of
date of such filing.
About Heelys, Inc.
Heelys, Inc. designs, markets and distributes innovative,
action sports-inspired products primarily under the
HEELYS(R) 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.
Additional Information and Where to Find It
This communication may be deemed to be solicitation material in
respect of the Sale, the Name Change, the Winding Up, the Plan of
Dissolution and related matters. The Company filed a
Definitive Proxy Statement on Schedule 14A (the "Proxy Statement"),
including a Notice of Special Meeting of Stockholders (the "Notice
of Special Meeting"), with the Securities and Exchange Commission
on November 16, 2012.
The Proxy Statement, the Notice of Special Meeting and related
materials are available without charge on our website at
http://investors.heelys.com or by writing to: Corporate Secretary,
Heelys, Inc., 3200 Belmeade Drive, Ste. 100, Carrollton, Texas
75006. These documents also are available on the website
maintained by the Securities and Exchange Commission at
www.sec.gov. The reference to such website addresses does not
constitute incorporation by reference of the information contained
on, or linked to, such websites and none of such information is
part of this press release, the Proxy Statement, the Notice of
Special Meeting or any other document.
Participants in Solicitation
The Company and its directors, executive officers and other
members of its management and employees may be deemed to be
participants in the solicitation of proxies from the Stockholders
in connection with the Sale, the Name Change, the Winding Up, the
Plan of Dissolution and related matters. Information
concerning the interests of the Company's participants in the
solicitation, and any deemed participants in the solicitation, is
set forth in the Proxy Statement and in the Company's periodic
reports previously or in the future filed with the Securities and
Exchange Commission. Each of these documents is, or will be,
available free of charge at the Securities and Exchange
Commission's website at http://www.sec.gov and from the Company at
http://investors.heelys.com or by writing to: Corporate Secretary,
Heelys, Inc., 3200 Belmeade Drive, Ste. 100, Carrollton, Texas
75006.
Forward-Looking Statements
Certain statements in this press release and oral statements
made from time to time by representatives of Heelys are
forward-looking statements ("forward-looking statements") that
involve risks and uncertainties. For this purpose, any statements
contained in this press release that are not statements of
historical fact may be deemed to be forward-looking statements.
When used in this press release and in documents referenced herein,
forward-looking statements include, without limitation, statements
regarding our expectations, beliefs or intentions that are
signified by terminology such as "subject to," "believes,"
"anticipates," "plans," "expects," "intends," "estimates," "may,"
"will," "should," "can," the negatives thereof, variations thereon
and similar expressions. Such forward-looking statements reflect
the Company's current views with respect to future events, based on
what the Company believes are reasonable assumptions; however, such
statements are subject to certain risks, uncertainties and other
factors. Our actual results may differ materially from those
anticipated in any forward-looking statements due to known and
unknown risks, uncertainties and other factors. The section
entitled "Risk Factors" set forth in Item 1A of Part I of our
Annual Report on Form 10-K for the year ended December 31, 2011, in
Item 1A of Part II of our Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 3012 and in similar
discussions in our other Securities and Exchange Commission
filings, discuss some of the important risks, uncertainties and
other factors that may affect our business, results of operations
and financial condition. Such risks, uncertainties and factors
include, but are not limited to:
- The fact that substantially all of Heelys' net sales are
generated by one product;
- Heelys' intellectual property may not restrict competing
products that infringe on its patents from being sold;
- Continued changes in fashion trends and consumer preferences
and general economic conditions;
- Heelys' dependence on its relationships with retail customers
and independent distributors with whom Heelys does not have long
term contracts;
- Heelys outsources all of its manufacturing to, and relies on, a
limited number of independent manufacturers;
- Heelys' distribution model and recent moves in select markets
to takeover distribution of its products directly to customers
contains inherent risks;
- Heelys is subject to the risks of conducting business
internationally;
- Foreign exchange rate fluctuations could harm the Company's
results of operations;
- Heelys has expanded its product offering to mass merchants
which may affect its brand image and reputation;
- Heelys may not be able to successfully introduce new product
categories;
- The Sale, even if approved by the Stockholders, may not be
completed;
- The timing and amount of distributions to Stockholders cannot
be predicted with certainty;
- Any estimate of the amount available for distribution to
Stockholders could be reduced if the Company's expectations
regarding operating expenses, employee retention, costs of
satisfying or discharging liabilities and winding up costs are
inaccurate;
- Any estimate of the amount available for distribution to
Stockholders is based on a number of assumptions, including with
respect to administrative and professional expenses incurred in
connection with the Sale and the Winding Up, some or all of which
may be inaccurate;
- Any delay in the closing of the Sale will decrease the funds
available for distribution, because the Company will continue to be
subject to ongoing operating expenses;
- The Company may face lawsuits or other claims and it may take
time and Company resources to defend or settle any such lawsuits or
claims;
- Fluctuations in the exchange rate between the U.S. dollar and
the foreign currencies of the Company's subsidiaries may affect the
funds available for distribution to Stockholders;
- Stockholders could approve the Plan of Dissolution but vote
against the Sale, thereby making the Sale impossible and adding
great uncertainty as to the ability to make any distribution to
Stockholders;
- Stockholders could approve the Sale but not our Name Change,
which may result in our inability to close the Sale;
- The occurrence of certain events, changes or other circumstance
could give rise to the termination of the Asset Purchase Agreement,
which would result in the Sale not being consummated;
- The Company may receive a Superior Proposal (as defined in the
Asset Purchase Agreement), the Asset Purchase Agreement may be
terminated in connection with the Company's pursuit of such
alternative transaction, and that alternative transaction may not
be consummated;
- The Sale process may disrupt current plans and operations and
we may face difficulties in employee retention;
- The process of voluntarily winding up a public company involves
significant uncertainties that affect both the amount that can be
distributed to Stockholders and the time to complete the Winding
Up;
- The Company may not receive any competing transaction proposals
or Superior Proposals because of the termination fee payable to the
Buyer;
- Stockholders will not be able to buy or sell shares of our
common stock after we file our Certificate of Dissolution with the
Delaware Secretary of State;
- If our common stock were delisted from the The Nasdaq Capital
Market but the Certificate of Dissolution is not filed, our
Stockholders may find it difficult to dispose of their shares of
our common stock;
- If we decide to use a liquidating trust, as permitted by the
Plan of Dissolution, interests of our Stockholders in such a trust
may not be transferable;
- Stockholders may not be able to recognize a loss for federal
income tax purposes until they receive a final distribution from
the Company, which may be three or more years after the Company's
dissolution;
- Our directors and executive officers may have interests that
are different from, or in addition to, those of Stockholders
generally;
- We will continue to incur the expenses of complying with public
company reporting requirements until we deregister our shares of
our common stock under Section 12(b), and suspend our periodic
reporting obligations under Section 15(d), of the Exchange
Act;
- The Board may at any time turn management of the Winding Up
over to a third party, and some or all of our directors may resign
from the Board at that time;
- If we fail to create an adequate contingency reserve for
payment of our expenses and liabilities, each Stockholder who
receives liquidating distributions could be held liable for payment
to our creditors of his or her pro rata share of amounts owed to
creditors in excess of the contingency reserve, up to the amount
actually distributed to such Stockholder in the dissolution;
- If our contingent reserves are insufficient to satisfy our
liabilities, creditors could assert claims against us seeking to
prevent distributions or against our Stockholders to the extent of
distributions they receive; and
- Tax treatment of any liquidating distributions may vary from
Stockholder to Stockholder.
Stockholders are urged to consider such risks, uncertainties and
factors carefully in evaluating the forward-looking statements and
are cautioned not to place undue reliance on such forward-looking
statements. Should one or more of these risks,
uncertainties or factors materialize, or should underlying
assumptions prove incorrect, actual results may differ materially
from those in the forward-looking statements. The
Company disclaims any intention or obligation to update or review
any forward-looking statements or information, whether as a result
of new information, future events or otherwise. The
Company undertakes no obligation to comment on analyses,
expectations or statements made by third-parties in respect of the
Company, the Sale, the Asset Purchase Agreement, the Name Change,
the Winding Up, the Plan of Dissolution or related matters.
CONTACT: Heelys, Inc.
Craig Storey, 214-390-1831
Chief Financial Officer
Heelys, Inc. (MM) (NASDAQ:HLYS)
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