AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 2, 2004
Registration No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Tuesday Morning Corporation
(Exact name of registrant as specified in its charter)
| Delaware (State or other jurisdiction of incorporation or organization) |
75-2398532 (I.R.S. Employer Identification No.) |
|
6250 LBJ Freeway Dallas, Texas (Address of Principal Executive Offices) |
75240 (Zip Code) |
TUESDAY MORNING CORPORATION 2004 LONG-TERM EQUITY INCENTIVE PLAN
(Full title of the plan)
Loren K. Jensen
Executive Vice President, Chief Financial Officer and Secretary
Tuesday Morning Corporation
6250 LBJ Freeway
Dallas, Texas 75240
(Name and address of agent for service)
(972) 387-3562
(Telephone number, including area code, of agent for service)
copy to:
Harva R. Dockery
Fulbright & Jaworski L.L.P.
2200 Ross Avenue
Suite 2800
Dallas, Texas 75201
(214) 855-8000
CALCULATION OF REGISTRATION FEE
| Title of securities to be registered |
Amount to be registered |
Proposed maximum offering price per share(1) |
Proposed maximum aggregate offering price(1) |
Amount of registration fee |
||||
|---|---|---|---|---|---|---|---|---|
| Common Stock, $0.01 par value per share | 2,000,000 shares | (2) | $32.14 | $64,280,000 | $8,144.28 | |||
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Tuesday Morning Corporation, a Delaware corporation (the "Company" or the "Registrant"), will send or give to all participants in the Tuesday Morning Corporation 2004 Long-Term Equity Incentive Plan the document(s) containing information specified by Part I of Form S-8 as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933 (the "Securities Act"). The Company has not filed such document(s) with the Commission, but such documents (along with the documents incorporated by reference into this Form S-8 Registration Statement (the "Registration Statement") pursuant to Item 3 of Part II hereof) shall constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents have been filed with the Commission by the Company, and are incorporated herein by reference and made a part hereof:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2003, filed with the Commission pursuant to the Securities Exchange Act of 1934 (the "Exchange Act") on February 27, 2004;
(b)
(i) the Company's Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2004, filed with the Commission pursuant to the Exchange Act on April 30, 2004; and
(ii) the Company's Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2004, filed with the Commission pursuant to the Exchange Act on July 30, 2004.
(c) the description of the Company's common stock, $0.01 par value per share, contained in Item 1 of the Company's Registration Statement on Form 8-A filed with the Commission pursuant to the Exchange Act on April 22, 1999.
All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold, shall also be deemed to be incorporated by reference herein and to be a part hereof from the dates of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
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Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "DGCL") provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person's conduct was unlawful. Section 145 of the DGCL further provides that a corporation similarly may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or such other court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper.
Section 145 of the DGCL also provides that a corporation has the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person's status as such, whether or not the corporation would have the power to indemnify such person against such liability under this section.
Article Nine of the Company's Certificate of Incorporation, as amended, provides that, to the fullest extent permitted by the DGCL, as the same exists or may be amended, a director of the Company is not liable to the Company or its stockholders for monetary damages for a breach of fiduciary duty as a director.
Article V of the Amended and Restated By-laws of the Company (Effective as of December 29, 1997) (the "By-laws") provides, among other things, that each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he, or a person of whom he is the legal representative, is or was a director or officer, of the Company or is or was serving at the request of the Company as a director, officer, employee, fiduciary, or agent of another corporation or of a partnership, joint venture, trust or other enterprise, shall be indemnified and held harmless by the Company to the fullest extent which it is empowered to do so unless prohibited from doing so by the DGCL, as the same exists or may be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than the DGCL permitted the Company to provide prior to such amendment) against all expense, liability and loss (including attorneys' fees actually and reasonably incurred by such person in connection with such
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proceeding) and such indemnification inures to the benefit of the person's heirs, executors and administrators; provided, however, that, subject to certain exceptions, the Company shall indemnify any such person seeking indemnification in connection with a proceeding initiated by such person only if such proceeding was authorized by the board of directors of the Company. The right to indemnification conferred in Article V is a contract right and, subject to certain exceptions, includes the right to be paid by the Company the expenses incurred in defending any such proceeding in advance of its final disposition.
Article V of the By-laws also provides that the Company may purchase and maintain insurance on its own behalf and on behalf of any person who is or was a director, officer, employee, fiduciary, or agent of the Company or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, whether or not the Company would have the power to indemnify such person against such liability under Article V of the By-laws.
Item 7. Exemption from Registration Claimed
Not applicable.
| Exhibit Number |
Description |
|
|---|---|---|
| 4.1.1 | Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Company's Registration Statement on Form S-4 (File No. 333-46017) as filed with the Commission on February 10, 1998) | |
4.1.2 |
Certificate of Amendment to the Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.3 to the Company's Registration Statement on Form S-1/A (File No. 333-74365) as filed with the Commission on March 29, 1999) |
|
4.1.3 |
Certificate of Designation (incorporated by reference to Exhibit 3.2 to the Company's Registration Statement on Form S-4 (File No. 333-46013) as filed with the Commission on February 10, 1998) |
|
4.2 |
Amended and Restated By-laws of the Company (incorporated by reference to Exhibit 3.7 to the Company's Registration Statement on Form S-4 (File No. 333-46017) as filed with the Commission on February 10, 1998) |
|
4.3 |
Form of Common Stock Certificate (incorporated by reference to Exhibit 1.1 to the Company's Form 8-A (File No. 000-19658) as filed with the Commission on April 21, 1999) |
|
5.1* |
Opinion of Fulbright & Jaworski L.L.P. |
|
23.1* |
Consent of Independent Registered Public Accounting Firm |
|
23.2* |
Consent of Fulbright & Jaworski L.L.P. (included in the opinion filed as Exhibit 5.1 hereto) |
|
24.1* |
Power of Attorney (included in the signature pages hereto) |
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(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; and
(iii) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on July 30, 2004.
| TUESDAY MORNING CORPORATION | |||
By: |
/s/ LOREN K. JENSEN Loren K. Jensen Executive Vice President and Chief Financial Officer |
||
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, Kathleen Mason, Loren K. Jensen and Terry Crump and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments, to this Registration Statement, and any registration statement relating to the offering covered by this Registration Statement and filed pursuant to Rule 462(b) under the Securities Act, and to file the same, with exhibits thereto and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents or their substitute may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
| Signature |
Title |
Date |
||
|---|---|---|---|---|
| /s/ KATHLEEN MASON Kathleen Mason |
President, Chief Executive Officer and Director (Principal Executive Officer) | July 30, 2004 | ||
/s/ LOREN K. JENSEN Loren K. Jensen |
Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) |
July 30, 2004 |
||
/s/ BENJAMIN D. CHERESKIN Benjamin D. Chereskin |
Chairman of the Board |
July 30, 2004 |
||
/s/ GILES H. BATEMAN Giles H. Bateman |
Director |
July 30, 2004 |
||
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/s/ SALLY FRAME KASAKS Sally Frame Kasaks |
Director |
July 30, 2004 |
||
/s/ HENRY F. FRIGON Henry F. Frigon |
Director |
July 30, 2004 |
||
/s/ WILLIAM J. HUNCKLER, III William J. Hunckler, III |
Director |
July 30, 2004 |
||
/s/ ROBIN P. SELATI Robin P. Selati |
Director |
July 30, 2004 |
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| Exhibit Number |
Description |
|
|---|---|---|
| 4.1.1 | Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Company's Registration Statement on Form S-4 (File No. 333-46017) as filed with the Commission on February 10, 1998) | |
4.1.2 |
Certificate of Amendment to the Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.3 to the Company's Registration Statement on Form S-1/A (File No. 333-74365) as filed with the Commission on March 29, 1999) |
|
4.1.3 |
Certificate of Designation (incorporated by reference to Exhibit 3.2 to the Company's Registration Statement on Form S-4 (File No. 333-46013) as filed with the Commission on February 10, 1998) |
|
4.2 |
Amended and Restated By-laws of the Company (incorporated by reference to Exhibit 3.7 to the Company's Registration Statement on Form S-4 (File No. 333-46017) as filed with the Commission on February 10, 1998) |
|
4.3 |
Form of Common Stock Certificate (incorporated by reference to Exhibit 1.1 to the Company's Form 8-A (File No. 000-19658) as filed with the Commission on April 21, 1999) |
|
5.1* |
Opinion of Fulbright & Jaworski L.L.P. |
|
23.1* |
Consent of Independent Registered Public Accounting Firm |
|
23.2* |
Consent of Fulbright & Jaworski L.L.P. (included in the opinion filed as Exhibit 5.1 hereto) |
|
24.1* |
Power of Attorney (included in the signature pages hereto) |
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