UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D. C. 20549

 

FORM 10-Q

 

(Mark One)

 

 

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 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.

 

 

 

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 June 30, 2004 and December 31, 2003
Consolidated Statements of Income for the Three Months and Six Months Ended June 30, 2004 and 2003
Consolidated Statements of Cash Flows for the Six Months Ended June 30, 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 4 – Submission of Matters to a Vote of Security Holders
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)

 

		June 30, 2004			Dec. 31, 2003
ASSETS
Current assets:
Cash and cash equivalents		$	7,746		$	23,536
Inventories		204,532			143,023
Prepaid expenses and other current assets		4,767			4,948
Deferred income taxes		5,106			5,106
Total current assets		222,151			176,613
Property and equipment, net		81,304			74,875
Deferred financing costs		1,042			907
Other assets		2,146			999
Total Assets		$	306,643		$	253,394
LIABILITIES AND SHAREHOLDERS’ EQUITY
Current liabilities:
Revolving credit facility		$	24,500		$	—
Accounts payable		66,985			66,091
Accrued liabilities		33,492			36,321
Income taxes payable		5,477			13,247
Total current liabilities		130,454			115,659
Revolving credit facility, excluding current portion		20,000			—
Deferred income taxes		5,641			5,641
Total Liabilities		156,095			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; 41,048,451 shares issued and outstanding at June 30, 2004 and 40,923,737 shares at December 31, 2003		410			409
Additional paid-in capital		186,824			186,455
Accumulated deficit		(36,674		)	(54,872		)
Accumulated other comprehensive income (loss)		(12		)	102
Total Shareholders’ Equity		150,548			132,094
Total Liabilities and Shareholders’ Equity		$	306,643		$	253,394

 

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

 

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Tuesday Morning Corporation

Consolidated Statements of Income

(In thousands, except per share data)

 

		Three Months Ended June 30,						Six Months Ended June 30,
		2004			2003			2004			2003
Net sales		$	210,697		$	177,413		$	379,294		$	327,767
Cost of sales		134,307			115,436			236,892			208,538
Gross profit		76,390			61,977			142,402			119,229
Selling, general and administrative expenses		59,837			49,719			112,368			94,914
Operating income		16,553			12,258			30,034			24,315
Other income (expense):
Interest income		3			28			7			57
Interest expense		(472		)	(2,299		)	(883		)	(4,702		)
Other income (expense)		206			237			447			456
		(263		)	(2,034		)	(429		)	(4,189		)
Income before income taxes		16,290			10,224			29,605			20,126
Income tax expense		6,281			3,932			11,407			7,751
Net income		$	10,009		$	6,292		$	18,198		$	12,375
Earnings Per Share
Net income per common share:
Basic		$	0.24		$	0.16		$	0.44		$	0.31
Diluted		$	0.24		$	0.15		$	0.44		$	0.30
Weighted average number of common shares:
Basic		41,047			40,399			41,013			40,337
Diluted		41,716			41,451			41,764			41,330

 

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

 

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Tuesday Morning Corporation

Consolidated Statements of Cash Flows

(In thousands)

 

		Six Months Ended June 30,
		2004			2003
Net cash flows from operating activities:
Net income		$	18,198		$	12,375
Adjustments to reconcile net income to net cash used in operating activities:
Depreciation and amortization		5,429			4,690
Amortization of financing fees		202			354
Other non-cash items		43			42
Change in operating assets and liabilities:
Inventories		(61,579		)	(28,521		)
Prepaid and other assets		(966		)	(219		)
Accounts payable		894			3,556
Accrued liabilities		(2,873		)	209
Income taxes payable		(7,833		)	(13,874		)
Net cash used in operating activities		(48,485		)	(21,388		)
Net cash flows from investing activities:
Capital expenditures		(11,858		)	(7,458		)
Net cash used in investing activities		(11,858		)	(7,458		)
Net cash flows from financing activities:
Payment of debt and mortgages		—			(4,224		)
Proceeds from revolving credit facility, net		44,500			10,000
Payment of financing fees		(337		)	—
Proceeds from exercise of common stock options and stock purchase plan purchases		390			321
Net cash provided by financing activities		44,553			6,097
Net decrease in cash and cash equivalents		(15,790		)	(22,749		)
Cash and cash equivalents, beginning of period		23,536			31,929
Cash and cash equivalents, end of period		$	7,746		$	9,180

 

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

 

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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 shareholders. Total comprehensive income for the three month period ended June 30, 2004 and 2003 was $10.0 million and $6.4 million, respectively and for the six month period ended June 30, 2004 and 2003 was $18.1 million and $12.4 million, respectively.

 

3.               Legal proceedings – During 2001 and 2002, we were named as a defendant in three separate 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, but is currently under appeal by a certain class of the plaintiffs.

 

In April 2003, we were named as a defendant in a complaint filed in the U.S. District Court of Colorado.  The plaintiffs were seeking to certify a statewide class composed of certain of our current and former employees.  We reached a settlement agreement with the plaintiffs in January 2004 and paid the settlement in full in April 2004.

 

In December 2003, we were named as a defendant in a complaint 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.   This lawsuit is still in the discovery phase.

 

In April 2004, we were named as a defendant in a complaint filed in the U.S. District Court, Northern District of Texas, Dallas Division.  The plaintiffs, Liz Claiborne, Inc. and L.C. Licensing, Inc., are alleging that we knowingly and improperly purchased and engaged in the sale of unauthentic merchandise.  This lawsuit is in the discovery phase.

 

In June 2004, we were named as a defendant in a complaint filed in the U.S. District Court, Central District of California.  The plaintiffs, Thomas Kinkade Company (f/k/a/ Media Arts Group Inc.), are alleging copyright infringement and false advertisements on merchandise we sold in the second quarter of 2004.  This lawsuit is in the discovery phase.

 

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

 

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4.               Earnings Per Common Share

 

		Three Months Ended June 30						Six Months Ended June 30
		2004			2003			2004			2003
Basic earnings per share:
Net income		$	10,009		$	6,292		$	18,198		$	12,375
Net income per common share		$	0.24		$	0.16		$	0.44		$	0.31
Diluted earnings per share:
Net income		$	10,009		$	6,292		$	18,198		$	12,375
Dilutive effect of employee stock options		669			1,052			751			993
Weighted average number of common shares outstanding		41,047			40,399			41,013			40,337
Weighted average number of common shares and diluted effect of outstanding employee stock options		41,716			41,451			41,764			41,330
Net income per common share		$	0.24		$	0.15		$	0.44		$	0.30

 

5.               Revolving Credit Facility – Our $160 million revolving credit facility expires in March 2006.  On June 30, 2004, we amended our revolving credit facility to increase the borrowing capacity from $135 million to $215 million, which includes a $55 million overadvance facility that is only available to us from June 30, 2004 to March 31, 2005.  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 or overadvance declines.

 

At June 30, 2004, we had $44.5 million outstanding under the revolving credit facility, of which $20 million was considered long-term, with availability of $138.3 million based on eligible inventory plus the $55 million overadvance facility.

 

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:

 

		Three Months Ended June 30,						Six Months Ended June 30,
(in thousands, except per share data)		2004			2003			2004			2003
Net income as reported		$	10,009		$	6,292		$	18,198		$	12,375
Less: Stock-based employee compensation expense determined under the fair value method, net of related tax effects		839			790			1,658			1,054
Pro-forma net income		$	9,170		$	5,502		$	16,540		$	11,321
Net income per common share:
Basic as reported		$	0.24		$	0.16		$	0.44		$	0.31
Basic pro-forma		$	0.22		$	0.14		$	0.40		$	0.28
Diluted as reported		$	0.24		$	0.15		$	0.44		$	0.30
Diluted pro-forma		$	0.22		$	0.14		$	0.40		$	0.28

 

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

 

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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 621 stores in 43 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 half of 2004 we grew our store base by 47 stores and had 3 store closures. 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 June 30, 2004 we had $44.5 million in debt outstanding as compared to $79 million at June 30, 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 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 other alternative uses for our cash.

 

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 June 30				Six Months Ended June 30
		2004		2003		2004		2003
Net sales		100.0	%	100.0	%	100.0	%	100.0	%
Cost of sales		63.7		65.1		62.5		63.6
Gross profit		36.3		34.9		37.5		36.4
Selling, general and administrative expense		28.4		28.0		29.6		29.0
Operating income		7.9		6.9		7.9		7.4
Net interest expense and other income (expense)		(0.2	)	(1.1	)	(0.1	)	(1.3	)
Income before income taxes		7.7		5.8		7.8		6.1
Income tax expense		2.9		2.3		3.0		2.3
Net income		4.8	%	3.5	%	4.8	%	3.8	%

 

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Three Months Ended June 30, 2004

Compared to the Three Months Ended June 30, 2003

 

During the second quarter of 2004, net sales increased to $210.7 million from $177.4 million, an increase of $33.3 million or 18.8% compared to the same quarter of 2003. The increase in second quarter sales is primarily due to sales from non-comparable new stores and a 6.6% increase in comparable store sales.

 

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 second quarter of 2003 would have been 1.9% compared to the 1.5% 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 from period to period.

 

Comparable store sales increased 6.6% for the quarter.  The increase in comparable sales for the second quarter of 2004 was comprised of a 0.2% decrease in the number of transactions offset by a 6.8% increase in the average transaction amount.  Average store sales for the second quarter increased 3.8% when compared to the same prior year quarter.

 

Gross profit increased $14.4 million or 23.2% to $76.4 million for the three months ending June 30, 2004 as compared to last year’s second quarter of $62.0 million, primarily as a result of our increased net sales.  Our gross profit percentage increased to 36.3% from 34.9% in the prior year’s second quarter.  This 1.4% increase is primarily due to an improved leveraging of our distribution and freight expenses.

 

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 $10.1 million, or 20.4%, to $59.8 million from $49.7 million in the second quarter of 2003.  The increase was attributable to new stores, and increases in variable expenses.  As a percentage of net sales these expenses increased 0.4% to 28.4% in second quarter of 2004 from 28.0% in the second quarter of 2003.  The increased percentage includes a 0.5% increase in store repairs and general and administrative expenses and a 0.4% increase related to rent, occupancy and depreciation expense associated with the increase in our store base, offset by a 0.5% decrease in advertising.

 

Net interest and other expense decreased $1.8 million compared to the second 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 June 30, 2004 and 2003 was $6.3 million and $3.9 million, respectively, reflecting an effective tax rate of 38.6% and 38.5%, respectively.

 

Six Months Ended June 30, 2004

Compared to the Six Months Ended June 30, 2003

 

During the first six months of 2004, net sales increased to $379.3 million from $327.8 million, an increase of $51.5 million or 15.7% compared to the same period of 2003. The increase in sales for the first six months is primarily due to sales from non-comparable new stores and a 4.4% increase in comparable store sales.

 

Six month comparable store sales are the summation of the individual quarterly results within the year. The 4.4% increase in comparable sales for the first six months of the year was comprised primarily of a 0.8% increase in the number of transactions and a 3.6% increase in the average transaction amount.  Using our refined methodology, the comparable sales increase for the six month period of 2003 would have been 3.3% compared to the 2.8% previously reported.  Average store sales for the six months increased 1.8% compared to the same prior year period.

 

Gross profit increased $23.2 million or 19.5% to $142.4 million for the six months ending June 30, 2004 as compared to the six month period last year of $119.2 million, primarily as a result of our increased net sales.  Our gross profit percentage increased to 37.5% from 36.4% in the prior year’s six month period.  This 1.1% increase is primarily due to a 0.9%

 

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improvement in our leveraging of our distribution and freight expenses and 0.2% improvement in shrink, damages and markdowns.

 

Selling, general and administrative expenses increased $17.5 million, or 18.4%, to $112.4 million from $94.9 million in the first six months of 2003.  The increase was attributable to new stores, and increases in variable expenses.  As a percentage of net sales these expenses increased 0.6% to 29.6% in the first six months of 2004 from 29.0% in the first six months of 2003.  The increased percentage primarily includes a 0.5% increase related to rent, occupancy and depreciation expense associated with the increase in our store base.

 

Net interest and other expense decreased $3.8 million compared to the first six months 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 six month periods ended June 30, 2004 and 2003 was $11.4 million and $7.8 million, respectively, reflecting an effective tax rate of 38.5% for each period.

 

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 alternative uses of excess cash for 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 six months ended June 30, 2004 and 2003 was $48.5 million and $21.4 million, respectively, representing a $27.1 million increase. This increase is predominantly due to the growth of our store base and the increased purchases of inventory in the first six months of 2004 as compared to the first six months of 2003.  At June 30, 2004, our inventory increased $61.5 million to $204.5 million from $143.0 million at December 31, 2003 primarily due to the increase in the number of stores and the increased procurement of merchandise.  Accounts payable balances have increased slightly to $67.0 million as of June 30, 2004 from $66.1 million at December 31, 2003.

 

Capital expenditures principally associated with new store opening and warehouse equipment were $11.9 million and $7.5 million for the six months ending June 30, 2004 and 2003, respectively.  We expect to spend approximately $8.0 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 $160 million revolving credit facility that expires in March 2006.  On June 30, 2004 we amended our revolving credit facility to increase the borrowing capacity from $135 million to $215 million, which includes a $55 million overadvance facility that is only available to us from June 30, 2004 to March 31, 2005.  Our indebtedness under the credit facility is secured by a lien on our inventory, tangible personal property and our owned real property, 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 $160 revolving credit facility. These rates are increased or reduced as our leverage ratio changes or overadvance declines.

 

At June 30, 2004, we had $44.5 million outstanding under the revolving credit facility, of which $20 million was considered long-term, with availability of $138.3 million based on eligible inventory plus the $55 million overadvance facility.  As of June 30, 2004 and 2003, we had outstanding letters of credit of $7.9 million and $5.5 million, respectively, primarily for self-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 June 30, 2004, we were in compliance with all covenants.

 

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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 $204.5 million at June 30, 2004 from $143.0 million at December 31, 2003, an increase of $61.5 million.  This increase is primarily a result of the seasonal nature of our business.  Generally, we have 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 due to increased distribution center productivity.

 

Store Openings/Closings

 

		Six Months Ended June 30 2004		Six Months Ended June 30 2003		Twelve Months Ended December 31, 2003
Stores Open at beginning of period		577		515		515
Stores Opened		47		37		74
Stores Closed		(3	)	(9	)	(12	)
Stores Open at end of period		621		543		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 June 30, 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.

 

Item 4. Controls and Procedures

 

Our principal executive officer and our principal financial officer have informed us that, based upon their evaluation as of June 30, 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 Commission.

 

There were no changes in our internal control over financial reporting that occurred during the quarter ending June 30, 2004 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

 

PART II - OTHER INFORMATION

 

Item 1.  Legal Proceedings

 

During 2001 and 2002, we were named as a defendant in three separate 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, but is currently under appeal by a certain class of the plaintiffs.

 

In April 2003, we were named as a defendant in a complaint filed in the U.S. District Court of Colorado.  The plaintiffs were seeking to certify a statewide class composed of certain of our current and former employees. We reached a settlement agreement with the plaintiffs in January 2004 and paid the settlement in full in April 2004.

 

In December 2003, we were named as a defendant in a complaint filed in the Superior Court of California, in and for the

 

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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.  This lawsuit is still in the discovery phase.

 

In April 2004, we were named as a defendant in a complaint filed in the U.S. District Court Northern District of Texas, Dallas Division.  The plaintiffs, Liz Claiborne, Inc. and L.C. Licensing, Inc., are alleging that we knowingly and improperly purchased and engaged in the sale of unauthentic merchandise.  This lawsuit is in the discovery phase.

 

In June 2004, we were named as a defendant in a complaint filed in U.S. District Court, Central District of California.  The plaintiffs, Thomas Kinkade Company (f/k/a/ Media Arts Group Inc.), are alleging copyright infringement and false advertisements on merchandise we sold in the second quarter of 2004.  This lawsuit is in the discovery phase.

 

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

 

Item 4. Submission of Matters to a Vote of Security Holders

 

At the Annual Meeting of Stockholders held on May 18, 2004, the following proposals were submitted to stockholders with the following results:

 

1.                              Election of seven directors to serve until their terms expire at the annual meeting of stockholders to be held in 2005, or the earlier of retirement, resignation or removal

 

		Number of Shares
		For		Withheld		Broker Non-Votes
Benjamin D. Chereskin		32,828,167		6,615,639		—
Kathleen Mason		33,145,163		6,298,643		—
William J. Hunckler, III		38,029,068		1,414,738		—
Robin P. Selati		38,955,208		488,598		—
Sally Frame Kasaks		38,478,612		965,194		—
Henry F. Frigon		26,781,522		12,662,284		—
Giles H. Bateman		33,489,894		5,953,912		—

 

2.                              Approval of the Tuesday Morning Corporation 2004 Long-Term Equity Incentive Plan

 

		Number of Shares
For		27,055,371
Against		9,561,441
Abstain		9,995

 

No other matters were voted upon at the meeting.

 

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 Tuesday Morning Corporation (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)
10.7		Second Amendment to the Senior Secured Credit Agreement, dated as of June 30, 2004, among the Company, as Borrower, the Subsidiary Guarantors, as Guarantors, each of the Revolving Credit Lenders that is a signatory thereto, Fleet National Bank, as Administrative Agent, and Wells Fargo Bank, N.A., as Syndication Agent. (3)
10.8		Tuesday Morning Corporation 2004 Long-Term Equity Incentive Plan (4)
31.1		Certification by the Chief Executive Officer of the Company pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. (3)
31.2		Certification by the Chief Financial Officer of the Company 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 the Company 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.

(4)          Incorporated by reference to Appendix B of the Company’s definitive proxy statement with respect to its annual meeting of stockholders held on May 18, 2004, and filed with the Securities and Exchange Commission under cover of Schedule 14A on April 19, 2004.

 

(b)                                 Reports on Form 8-K during the quarter ending June 30, 2004.

 

On April 8, 2004, we filed a Form 8-K with the SEC in which we furnished a press release announcing first quarter sales, comparable store sales increase and estimated earnings per share for the quarter ending March 31, 2004.

 

On April 22, 2004, we filed a Form 8-K with the SEC in which we furnished a press release announcing our first quarter net income and earnings per diluted share for the quarter ending March 31, 2004 and furnished the following financial statements: (i) Consolidated Statement of Operations for the Three Months Ended March  31, 2004 and 2003; (ii) Consolidated Balance Sheets for the Period Ended March 31, 2004 and December 31, 2003; and (iii) Consolidated Statement of Cash Flows for the Three Months Ended March  31, 2004 and 2003.

 

On May 12, 2004, we filed Form 8-K with the SEC in which we furnished a press release responding to recent news reports regarding the Liz Claiborne, Inc. lawsuit against us claiming trademark counterfeiting, trademark infringement and other claims.

 

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SIGNATURE

 

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:	July 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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