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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D. C. 20549

 

FORM 10-Q

 

(Mark One)

 

ý  QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934

 

FOR THE QUARTERLY PERIOD ENDED
March 31, 2004

 

OR

 

o  TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934

 

FOR THE TRANSITION PERIOD
FROM                  TO                 

 

Commission file number 0-19658

 

TUESDAY MORNING CORPORATION

(Exact Name of Registrant as Specified in its Charter)

 

Delaware

 

75-2398532

(State or Other Jurisdiction of
Incorporation or Organization)

 

(I.R.S. Employer
Identification Number)

 

 

 

6250 LBJ Freeway
Dallas, Texas 75240

(Address, including zip code, of principal executive offices)

 

(972) 387-3562

(Registrant’s telephone number, including area code)

 

Not applicable

(Former name, former address and former fiscal year, if changed since last report)

 

Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.

Yes  ý  No  o

 

Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Securities Exchange Act).

Yes  ý  No  o

 

Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date.

 

 

Class

 

Outstanding at April 26, 2004

 

 

Common Stock, par value $0.01 per share

 

41,045,185

 

 

 



 

Forward Looking Statements

 

This Quarterly Report on Form 10-Q contains forward-looking statements within the meaning of the federal securities laws and Private Securities Litigation Reform Act of 1995.  These statements may be found throughout this Form 10-Q particularly under the heading “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” among others.  Forward-looking statements typically are identified by the use of terms such as “may, “will,” “should,” “expect,” “anticipate,” “believe,” “estimate,” “intend” and similar words, although some forward-looking statements are expressed differently.  You should consider statements that contain these words carefully because they describe our expectations, plans, strategies and goals and our beliefs concerning future business conditions, our results of operations, financial position, and our business outlook or state other “forward-looking” information based on currently available information.

 

Readers are referred to the caption “Risk Factors” appearing at the end of Item I of the Company’s Annual Report on Form 10-K for the year ended December 31, 2003 for additional factors that may affect our forward-looking statements.  In light of these risks, uncertainties and assumptions, the forward-looking events discussed in this report might not occur.  We undertake no obligation to update or revise our forward-looking statements, whether as a result of new information, future events or otherwise.

 

The terms “Tuesday Morning,” “we,” “us” and “our” as used in this Quarterly Report on Form 10-Q refer to Tuesday Morning Corporation and its subsidiaries.

 



 

PART I - FINANCIAL INFORMATION

 

Item 1 – Financial Statements

 

 

 

Consolidated Balance Sheets as of March 31, 2004 and December 31, 2003

 

 

 

Consolidated Statements of Income for the Three Months Ended March 31, 2004 and 2003

 

 

 

Consolidated Statements of Cash Flows for the Three Months Ended March 31, 2004 and 2003

 

 

 

Notes to Consolidated Financial Statements

 

 

 

Item 2 – Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

 

 

Item 3 – Quantitative and Qualitative Disclosures about Market Risk

 

 

 

Item 4 – Controls and Procedures

 

 

 

PART II – OTHER INFORMATION

 

 

Item 1 – Legal Proceedings

 

 

 

Item 5 – Other Information

 

 

 

Item 6 – Exhibits and Reports  on Form 8-K

 

 



 

Tuesday Morning Corporation

Consolidated Balance Sheets

(In thousands, except for share data)

 

 

 

March 31,
2004

 

Dec. 31,
2003

 

 

 

 

 

 

 

ASSETS

 

 

 

 

 

Current assets:

 

 

 

 

 

Cash and cash equivalents

 

$

7,096

 

$

23,536

 

Inventories

 

195,194

 

143,023

 

Prepaid expenses and other current assets

 

5,355

 

4,948

 

Deferred income taxes

 

5,106

 

5,106

 

Total current assets

 

212,751

 

176,613

 

 

 

 

 

 

 

Property and equipment, net

 

78,484

 

74,875

 

Deferred financing costs

 

806

 

907

 

Other assets

 

998

 

999

 

 

 

 

 

 

 

Total Assets

 

$

293,039

 

$

253,394

 

 

 

 

 

 

 

LIABILITIES AND SHAREHOLDERS’ EQUITY

 

 

 

 

 

Current liabilities:

 

 

 

 

 

Revolving credit facility

 

$

7,000

 

$

 

Accounts payable

 

83,256

 

66,091

 

Accrued liabilities

 

30,133

 

36,321

 

Income taxes payable

 

6,490

 

13,247

 

Total current liabilities

 

126,879

 

115,659

 

 

 

 

 

 

 

Revolving credit facility, excluding current portion

 

20,000

 

 

Deferred income taxes

 

5,641

 

5,641

 

 

 

 

 

 

 

Total Liabilities

 

152,520

 

121,300

 

 

 

 

 

 

 

Commitments and contingencies

 

 

 

 

 

Shareholders’ equity:

 

 

 

 

 

Senior exchangeable preferred stock, par value $.01 per share, authorized 10,000,000 shares, none issued or outstanding

 

 

 

Common stock, par value $.01 per share, authorized 100,000,000 shares;  41,045,185 shares issued and outstanding at March 31, 2004 and 40,923,737 shares at December 31, 2003

 

410

 

409

 

Additional paid-in capital

 

186,769

 

186,455

 

Accumulated deficit

 

(46,683

)

(54,872

)

Accumulated other comprehensive income

 

23

 

102

 

 

 

 

 

 

 

Total Shareholders’ Equity

 

140,519

 

132,094

 

 

 

 

 

 

 

Total Liabilities and Shareholders’ Equity

 

$

293,039

 

$

253,394

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

1



 

Tuesday Morning Corporation

Consolidated Statements of Income

(In thousands, except per share data)

 

 

 

Three Months Ended
March 31,

 

 

 

2004

 

2003

 

 

 

 

 

 

 

Net sales

 

$

168,597

 

$

150,355

 

Cost of sales

 

102,585

 

93,103

 

Gross profit

 

66,012

 

57,252

 

Selling, general and administrative expenses

 

52,531

 

45,194

 

Operating income

 

13,481

 

12,058

 

Other income (expense):

 

 

 

 

 

Interest income

 

4

 

28

 

Interest expense

 

(411

)

(2,402

)

Other income (expense)

 

241

 

219

 

 

 

(166

)

(2,155

)

Income before income taxes

 

13,315

 

9,903

 

Income tax expense

 

5,126

 

3,820

 

 

 

 

 

 

 

Net income

 

$

8,189

 

$

6,083

 

 

 

 

 

 

 

Earnings Per Share

 

 

 

 

 

Net income per common share:

 

 

 

 

 

Basic

 

$

0.20

 

$

0.15

 

Diluted

 

$

0.20

 

$

0.15

 

Weighted average number of common shares:

 

 

 

 

 

Basic

 

40,980

 

40,273

 

Diluted

 

41,742

 

41,193

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

2



 

Tuesday Morning Corporation

Consolidated Statements of Cash Flows

(In thousands)

 

 

 

 

Three Months Ended
March 31,

 

 

 

2004

 

2003

 

 

 

 

 

 

 

Net cash flows from operating activities:

 

 

 

 

 

Net income

 

$

8,189

 

$

6,083

 

Adjustments to reconcile net income to net cash used in operating activities:

 

 

 

 

 

Depreciation and amortization

 

2,670

 

2,207

 

Amortization of financing fees

 

101

 

177

 

Change in operating assets and liabilities:

 

 

 

 

 

Inventories

 

(52,211

)

(23,238

)

Prepaid and other assets

 

(406

)

(185

)

Accounts payable

 

17,165

 

(6,186

)

Accrued liabilities

 

(6,227

)

2,548

 

Income taxes payable

 

(6,820

)

(8,528

)

Net cash used in operating activities

 

(37,539

)

(27,122

)

Net cash flows from investing activities:

 

 

 

 

 

Capital expenditures.

 

(6,279

)

(3,482

)

Net cash used in investing activities

 

(6,279

)

(3,482

)

Net cash flows from financing activities:

 

 

 

 

 

Payment of debt and mortgages

 

 

(4,224

)

Proceeds from revolving credit facility

 

27,000

 

20,000

 

Proceeds from exercise of common stock options and stock purchase plan purchases

 

378

 

12

 

Net cash provided by financing activities

 

27,378

 

15,788

 

Net decrease in cash and cash equivalents

 

(16,440

)

(14,816

)

Cash and cash equivalents, beginning of period

 

23,536

 

31,929

 

Cash and cash equivalents, end of period

 

$

7,096

 

$

17,113

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

3



 

Tuesday Morning Corporation

Notes to Consolidated Financial Statements

 

1.               Basis of Presentation - The consolidated interim financial statements included herein have been prepared by us pursuant to the rules and regulations of the Securities and Exchange Commission.  Certain information and footnote disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States have been condensed or omitted pursuant to such rules and regulations.  These financial statements include all adjustments, consisting only of those of a normal recurring nature, which, in the opinion of management, are necessary to present fairly the results of the interim periods presented and should be read in conjunction with the consolidated financial statements and notes thereto in our Form 10-K filing for the year ended December 31, 2003.  Because of the seasonal nature of our business, the results of operations for the quarter are not indicative of the results to be expected for the entire year.

 

2.               Comprehensive income - Comprehensive income is defined as net income plus the change in equity during a period from transactions and other events, excluding those resulting from investments by and distributions to stockholders. Total comprehensive income for the three month period ended March 31, 2004 and 2003 was $8.1 million and $6.0 million, respectively.

 

3.               Legal proceedings – During 2001 and 2002, we were named as a defendant in three complaints filed in the Superior Court of California in and for the County of Los Angeles. The plaintiffs are seeking to certify a statewide class made up of some of our current and former employees, which they claim are owed compensation for overtime wages, penalties and interest. The plaintiffs are also seeking attorney’s fees and costs. In October 2003, we entered into a settlement agreement with a sub-class of these plaintiffs consisting of manager-in-training and management trainees.  This settlement agreement was approved by the court on April 2, 2004.

 

We have received two other similar complaints filed in the states of Colorado and Alabama in 2003.  The Alabama suit was dismissed with prejudice in July 2003.  We reached a settlement agreement with the plaintiffs in the Colorado suit in January 2004.

 

In December 2003, we were named as a defendant in a new lawsuit filed in the Superior Court of California, in and for the County of San Diego.  The plaintiffs are alleging failure to pay for minimum reporting time, travel time, split-shift premiums, meal periods and other labor issues.

 

We intend to vigorously defend all pending actions. We do not believe these or any other legal proceedings pending or threatened against us would have a material adverse effect on our financial condition or results of operations.

 

4



 

4.               Earnings Per Common Share

 

 

 

Three Months Ended
March 31,

 

 

 

2004

 

2003

 

 

 

(in thousands, except per share
amounts):

 

Basic earnings per share:

 

 

 

 

 

Net income

 

$

8,189

 

$

6,083

 

Weighted average number of common shares outstanding

 

40,980

 

40,273

 

Net income per common share

 

$

0.20

 

$

0.15

 

 

 

 

 

 

 

Diluted earnings per share:

 

 

 

 

 

Net income

 

$

8,189

 

$

6,083

 

 

 

 

 

 

 

Dilutive effect of employee stock options

 

762

 

921

 

Weighted average number of common shares outstanding

 

40,980

 

40,273

 

Weighted average number of common shares and diluted effect of outstanding employee stock options

 

41,742

 

41,194

 

Net income per common share

 

$

0.20

 

$

0.15

 

 

5.               Revolving Credit Facility – Our $135 million revolving credit facility expires in March 2006.  We incur commitment fees of up to 0.50% on the unused portion of the revolving credit facility. Any borrowings under the revolver incur interest at LIBOR or the prime rate, depending on the type of borrowing, plus an applicable margin. These rates are increased or reduced as our leverage ratio changes.

 

At March 31, 2004, we had $27.0 million outstanding under the revolving credit facility, of which $20 million was considered long-term, with availability of $95.5 million based on eligible inventory.

 

6.               Stock-based Compensation – We account for our stock-based compensation plans utilizing the intrinsic value method in accordance with the provisions of Accounting Principles Board Opinion No. 25 (APB 25).  Generally, no compensation expense is recognized for fixed option plans because the exercise prices of employee stock options equal or exceed the market prices of the underlying stock on the dates of grant.

 

The following table represents the effect on net income and earnings per share if we had applied the fair value based method and recognition provisions of Statement of Financial Accounting Standards (SFAS) No. 123, “Accounting for Stock-Based Compensation,” and our adoption on January 1, 2003 of Statement of Financial Accounting Standards No. 148, “Accounting for Stock-Based Compensation Transition and Disclosure.”  The pro forma effects of stock-based compensation on net income and net income per common share are as follows:

 

5



 

 

 

Three Months Ended March 31,

 

 

 

2004

 

2003

 

 

 

(in thousands, except per share
amounts):

 

Net income as reported

 

$

8,189

 

$

6,083

 

Less: Stock-based employee compensation expense determined under the fair value method, net of related tax effects

 

818

 

264

 

Pro-forma net income

 

$

7,371

 

$

5,819

 

 

 

 

 

 

 

Net income per common share

 

 

 

 

 

Basic as reported

 

$

0.20

 

$

0.15

 

Basic pro-forma

 

0.18

 

0.14

 

Diluted as reported

 

0.20

 

0.15

 

Diluted pro-forma

 

0.18

 

0.14

 

 

7.     Certain prior year amounts may have been reclassified to conform to the current period presentation.

 

Item 2.

Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

Overview

 

We sell upscale, name brand, home furnishings, gifts and related items significantly below retail prices charged by department and specialty stores throughout 594 stores in 42 states. Our unique event-based selling strategy and limited quantities creates a sense of urgency for our primarily female customer base. This differentiated marketing strategy provides an ever-changing mix of fresh, new products in a treasure-hunt atmosphere. We currently benefit from increasing interest in home decorating and customer interest in purchasing high-end products at a good value.

 

We use a no-frills approach in our stores and benefit from low real estate, store fixture and opening costs which favorably contribute to our profitability and return on investment. Our store base has grown at approximately 10% per year for the last five years, and during the first quarter of 2004 we grew our store base by 18 stores and had one store closure. In addition to new stores, we expect to extend our customer reach through broadcast advertising and expansion in our proprietary direct mail and email customer lists.

 

Our long-term vendor relationships and diverse sourcing capabilities continue to provide us with access to first quality, name brand merchandise at attractive prices. We believe that there will be an adequate selection and volume of closeout merchandise available to match our anticipated growth.

 

We believe our focus on distribution center consolidation and inventory management strategies since 2000 has contributed to our sales growth and improved inventory turnover. Additionally, we are currently implementing initiatives at the stores to enhance the timeliness of merchandise being unloaded and moved to the selling floor, exploring opportunities to improve efficiencies at our distribution center through new equipment and redesigning work processes, evaluating the process we use to allocate merchandise to our stores to improve sell-through performance and enhancing our internal training program for store managers.

 

Our operating profits, combined with more efficient use of working capital and increased inventory turns over the past 3 years, have generated excess cash flow, which has been used to reduce debt. At March 31,

 

6



 

2004 we had $27 million in debt outstanding as compared to $89 million at March 31, 2003. We anticipate using our revolving credit facility seasonally during the remainder of 2004 for inventory purchases and capital expenditures, but we expect to have substantial excess cash flow for the full year period. We will be evaluating appropriate uses of our excess cash flow in the future, including the use of capital to expand the business and the possible establishment of a dividend.

 

Results of Operations

 

The following table sets forth certain financial information from our consolidated statements of income expressed as a percentage of net sales.  Our business is highly seasonal, with a significant portion of our net sales and most of our operating income generated in the fourth quarter, which includes the holiday season. There can be no assurance that the trends in sales growth or operating results will continue in the future.

 

 

 

Three Months Ended
March 31,

 

 

 

2004

 

2003

 

Net sales

 

100.0

%

100.0

%

Cost of sales

 

60.8

 

61.9

 

Gross profit

 

39.2

 

38.1

 

Selling, general and administrative expense

 

31.2

 

30.1

 

Operating income

 

8.0

 

8.0

 

Net interest expense and other income (expense)

 

(0.1

)

(1.4

)

Income before income taxes

 

7.9

 

6.6

 

Income tax expense

 

3.0

 

2.6

 

Net income

 

4.9

%

4.0

%

 

Three Months Ended March 31, 2004

Compared to the Three Months Ended March 31, 2003

 

During the first quarter of 2004, net sales increased to $168.6 million from $150.4 million, an increase of $18.2 million or 12.1% compared to the same quarter of 2003. The increase in first quarter sales is primarily due to $16.1 million of sales from new stores opened in the last 12 months.

 

In the first quarter of 2004, we refined our methodology for calculating our comparable store sales, in light of changes to the timing of store openings during a quarter.  Stores are now included in the same store calculation at the beginning of the quarter following the anniversary date of the store opening.  Previously, stores were included in the same store calculation at the beginning of the quarter that contained the anniversary date of the store opening, since the majority of our store openings used to be only at the beginning of the respective quarter.  Using our refined methodology, the comparable sales increase for the first quarter of 2003 would have been 4.9% compared to the 4.5% previously reported.  Stores that relocated within the same geographic market are still considered same store for purposes of this computation.  The number of days our stores are open may fluctuate by a few days from year to year.

 

Comparable store sales increased 1.7% for the quarter.  The increase in comparable sales for the first quarter of 2004 was comprised of a 2.0% increase in the number of transactions offset by a 0.3% decrease in the average transaction amount.  Average store sales for the first quarter were flat when compared to the same prior year quarter.

 

Gross profit increased $8.7 million to $66.0 million for the three months ending March 31, 2004 as compared to last year’s first quarter of $57.3 million, primarily as a result of our increased net sales.  Our gross profit percentage increased to 39.2% from 38.1% in the prior year’s first quarter.  This 1.1%

 

7



 

increase is composed of a 0.6% reduction in the cost of our product, net of markdowns, a 0.4% reduction in our distribution and freight expenses and a 0.1% decrease in damages and shrink.

 

Selling, general and administrative expenses are comprised of store labor, store occupancy costs, advertising, miscellaneous store operating expenses and corporate office costs. Increases in dollar amounts of these expenses are attributable to increases in the number of stores, general price level increases and increases in variable expenses due to sales growth. Variable expenses include payroll and related benefits, advertising expense and other expenses such as credit card fees.

 

Selling, general and administrative expenses increased $7.3 million, or 16.2%, to $52.5 million from $45.2 million in the first quarter of 2003.  The increase was attributable to new stores, and increases in variable expenses.  As a percentage of net sales these expenses increased 1.1% to 31.2% in first quarter of 2004 from 30.1% in the first quarter of 2003.  The increased percentage includes a 0.6% increase related to rent, occupancy and depreciation expense associated with the increase in our store base, and a 0.5% increase in advertising, primarily television which began in the second quarter of 2003.

 

Net interest and other expense decreased $2.0 million compared to the first quarter of 2003.   This reduction is a result of lower debt levels with the repayment of the $69 million senior subordinated debt in the fourth quarter of 2003.

 

The income tax provision for the three month periods ended March 31, 2004 and 2003 was $5.1 million and $3.8 million, respectively, reflecting an effective tax rate of 38.5% and 38.6%, respectively.

 

Liquidity and Capital Resources

 

We have financed our operations with funds generated from operating activities and borrowings under our revolving credit facility. Our cash flow strategy during the last three years has been focused on funding our store growth and distribution improvements and reducing our debt and financing costs associated with our recapitalization in 1997. Our cash flows will continue to be utilized for the expansion of our business, but we are exploring the possibility of declaring a cash dividend in the future. Other than the letters of credit described below, we have no off-balance sheet arrangements or transactions with unconsolidated, limited purpose or variable interest entities, nor do we have material transactions or commitments involving related persons or entities.

 

Net cash used in operating activities for the three months ended March 31, 2004 and 2003 was $37.5 million and $27.1 million, respectively, representing a $10.4 million increase. This increase is predominantly due to the growth of our store base, the increased purchases of inventory in the first quarter of 2004 as compared to the first quarter of 2003, the shift in timing of annual property tax payments from December to January, and increased payments for sales taxes due to the increase in net sales in December 2003.  At March 31, 2004, our inventory increased $52.2 million to $195.2 million from $143.0 million at December 31, 2003 primarily due to the increase in the number of stores and the increased procurement of seasonal merchandise.  Accounts payable balances have increased to $83.3 million as of March 31, 2004 from $66.1 million at December 31, 2003 due to the timing of merchandise deliveries in the first quarter of 2004.

 

Capital expenditures principally associated with new store opening and warehouse equipment were $6.3 million and $3.5 million for the three months ending March 31, 2004 and 2003, respectively.  We expect to spend approximately $14.0 million for additional capital expenditures for the remainder of 2004, which will include the opening of new stores, enhancements of selected stores, and purchases of equipment for our distribution center.

 

We have a $135 million revolving credit facility that expires in March 2006.  Our indebtedness under the credit facility is secured by a lien on our inventory, tangible personal property and our owned real property,

 

8



 

as well as a pledge of our ownership interests in all of our subsidiaries.  For 15 consecutive days between November 1 and December 31 of each calendar year, the aggregate principal amount of loans outstanding under the revolving credit facility and any swing loans may not exceed $20 million.  Any borrowings under the revolver incur interest at LIBOR or the prime rate, depending on the type of borrowing, plus an applicable margin. We incur commitment fees of up to 0.50% on the unused portion of the revolving credit facility. These rates are increased or reduced as our leverage ratio changes.

 

At March 31, 2004, we had $27.0 million outstanding under the revolving credit facility, of which $20 million was considered long-term, with availability of $95.5 million based on eligible inventory.  As of March 31, 2004 and 2003, we had outstanding letters of credit of $6.2 million and $4.5 million, respectively, primarily for insurance.

 

The revolving credit facility contains certain restrictive covenants, which among other things, require us to comply with certain financial ratios covering maximum leverage, minimum fixed charge coverage, minimum interest coverage and minimum tangible net worth. Other restrictions affect our ability to incur liens or make certain other restricted payments, sell assets or merge or consolidate with any other person. As of March 31, 2004, we were in compliance with all covenants.

 

We anticipate that our future net cash flows from operations and unused borrowings under our revolving credit facility will be sufficient to fund our working capital needs, planned capital expenditures and scheduled interest payments for the next 12 months.

 

Inventory

 

Our inventory increased to $195.2 million at March 31, 2004 from $143.0 million at December 31, 2003, an increase of $52.2 million.  This increase is primarily a result of the seasonal nature of our business that reflects lower inventory levels at December 31 and increases after the beginning of the year.   In order to support our sales and our expanded level of growth, our inventories are arriving somewhat earlier to allow for adequate time for processing.

 

Store Openings/Closings

 

 

 

Three Months
Ended
March 31
2004

 

Three Months
Ended
March  31
2003

 

Twelve Months
Ended
December 31,
2003

 

 

 

 

 

 

 

 

 

Stores Open at beginning of period

 

577

 

515

 

515

 

Stores Opened

 

18

 

21

 

74

 

Stores Closed

 

(1

)

(9

)

(12

)

Stores Open at end of period

 

594

 

527

 

577

 

 

Item 3.            Quantitative and Qualitative Disclosures about Market Risk

 

We are exposed to various market risks, including changes in foreign currency exchange rates and interest rates.  Market risk is the potential loss arising from adverse changes in market prices and rates, such as foreign currency exchange and interest rates.  Based on our market risk sensitive instruments outstanding as of March 31, 2004, we have determined that there was no material market risk exposure to our consolidated financial position, results of operations or cash flows as of such date.  Our market risk is discussed in more detail in our Annual Report on Form 10-K for the year ended December 31, 2003.  We do not enter into derivatives or other financial instruments for trading or speculative purposes.  There have been no significant changes in the foreign currency exchange rate or interest rate market risks since December 31, 2003.

 

9



 

Item 4. Controls and Procedures

 

Our principal executive officer and our principal financial officer have informed us that, based upon their evaluation as of March 31, 2004, of the effectiveness of our disclosure controls and procedures (as defined in Rule 13a-15(e) and Rule 15d-15(e) under the Securities Exchange Act of 1934 (the “Exchange Act”), they have concluded that those disclosure controls and procedures are effective in timely alerting them to material information relating to us that is required to be included in our periodic filings with the Securities Exchange Commision.

 

There have been no significant changes in our internal controls or in other factors known to us that could significantly affect these controls subsequent to their evaluation, nor any corrective actions with regard to significant deficiencies and material weaknesses.

 

PART II - OTHER INFORMATION

 

Item 1.  Legal Proceedings

 

During 2001 and 2002, we were named as a defendant in three complaints filed in the Superior Court of California in and for the County of Los Angeles. The plaintiffs are seeking to certify a statewide class made up of some of our current and former employees, which they claim are owed compensation for overtime wages, penalties and interest. The plaintiffs are also seeking attorney’s fees and costs. In October 2003, we entered into a settlement agreement with a sub-class of these plaintiffs consisting of manager-in-training and management trainees.  This settlement agreement was approved by the court on April 2, 2004.

 

We have received two other similar complaints filed in the states of Colorado and Alabama in 2003.  The Alabama suit was dismissed with prejudice in July 2003.  We reached a settlement agreement with the plaintiffs in the Colorado suit in January 2004.

 

In December 2003, we were named as a defendant in a new lawsuit filed in the Superior Court of California, in and for the County of San Diego.  The plaintiffs are alleging failure to pay for minimum reporting time, travel time, split-shift premiums, meal periods and other labor issues.

 

We intend to vigorously defend all pending actions. We do not believe these or any other legal proceedings pending or threatened against us would have a material adverse effect on our financial condition or results of operations.

 

Item 5. Other Information

 

There have been no material changes to the procedures by which security holders may recommend nominees to our Board of Directors since April 21, 2003.

 

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Item 6.   Exhibits and Reports on Form 8-K.

 

(a)           Exhibits

 

Exhibit
Number

 

Title of Exhibit

3.1

 

Certificate of Incorporation of the Company. (1)

3.2

 

Certificate of Amendment to the Certificate of Incorporation of the Company. (2)

3.3

 

Certificate of Designation of the Company. (1)

3.4

 

By-laws of the Company. (1)

31.1

 

Certification by the Chief Executive Officer of Tuesday Morning Corporation pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. (3)

31.2

 

Certification by the Chief Financial Officer of Tuesday Morning Corporation pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. (3)

32.1

 

Certifications by the Chief Executive Officer and Chief Financial Officer of Tuesday Morning Corporation pursuant to 18.U.S.C §1350, adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. (3)

 


(1)          Incorporated by reference to the corresponding exhibits of the Company’s Registration Statement on Form S-4 (File No. 333-46017).

(2)          Incorporated by reference to the corresponding exhibits of the Company’s Registration Statement on Form S-1 (File No. 333-74365).

(3)          Filed herewith.

 

(b)                                 Reports on Form 8-K during the quarter ending March 31, 2004.

 

On January 8, 2004, we filed a Form 8-K with the SEC in which we provided a press release announcing our fourth quarter sales and estimated net income and earnings per diluted share for the quarter and full year ending December 31, 2003.

 

On February 24, 2004, we filed a Form 8-K, as subsequently amended on February 27, 2004, with the SEC in which we furnished a press release announcing our fourth quarter and full-year net income and earnings per diluted share for the period ending December 31, 2003 and furnished the following financial statements: (i) Consolidated Statement of Income for the Three Months and Full Year Ended December 31, 2003 and 2002; (ii) Consolidated Balance Sheets for the Full Year Ended December 31, 2003 and 2002; and (iii) Consolidated Statement of Cash Flows for the Twelve Months Ended December 31, 2003 and 2002 .

 

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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.

 

 

TUESDAY MORNING CORPORATION

 

 

(Registrant)

 

 

 

 

 

DATE:

April 30, 2004

By:

/s/ Loren K. Jensen

 

 

 

Loren K. Jensen, Executive Vice President,
Chief Financial Officer and Secretary
(Principal Financial Officer and duly
authorized to sign this report on behalf of the registrant)

 

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