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As Filed with the Securities And Exchange Commission on November 4, 1999
Registration No. 333___
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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Tuesday Morning Corporation
(Exact name of issuer as specified in its charter)
Delaware 75-2398532
(State of incorporation) (I.R.S. Employer Identification No.)
14621 Inwood Road
Addison, Texas 75001
(Address of Principal Executive Offices) (Zip Code)
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Tuesday Morning Corporation 1997 Long-Term Equity Incentive Plan
(Full title of the plan)
Mark E. Jarvis Susan Henderson
Senior Vice President, Chief Financial Hallett & Perrin, P.C.
Officer and Secretary 717 N. Harwood St.
Tuesday Morning Corporation Suite 1400
14621 Inwood Road Dallas, Texas 75201
Dallas, Texas 75244 214-953-0053
972-387-3562
(Names, addresses and telephone numbers, including area codes,
of agents for service)
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APPROXIMATE DATE OF PROPOSED COMMENCEMENT OF SALES PURSUANT TO THE PLANS: Sales
to the optionees of securities proposed to be registered hereunder will occur
from time to time after the effective date of this Registration Statement.
-----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Aggregate Amount of
to be Registered Registered Price Per Unit/1/ Offering Price Registration Fee
---------------- ---------- ----------------- -------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, 2,951,923 $21.57 $63,672,980 $17,702
$.01 par value
</TABLE>
- -----------------------------
/1/ Estimated solely for purposes of calculating the registration fee,
which has been computed in accordance with Rule 457(g), based on the average of
the high and low prices reported for November 2, 1999.
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Item 3. Incorporation of Documents by Reference.
The documents listed (i) through (iii) below are hereby incorporated by
reference into this Registration Statement. All documents subsequently filed by
the registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 (the "1934 Act") prior to filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents.
(i) The registrant's latest annual report filed pursuant to Section 13 or
15(d) of the 1934 Act or the latest prospectus filed pursuant to Rule 424(b) or
(c) under the Securities Act of 1933 (the "1933 Act"), which contains, either
directly or by incorporation by reference, certified financial statements for
the registrant's latest fiscal year for which such statements have been filed.
(ii) All other reports filed pursuant to Section 13(a) or 15(d) of the
1934 Act since the end of the fiscal year covered by the annual reports or the
prospectus referred to in (i) above.
(iii) The description of the registrant's Common Stock, $.01 par value,
which is contained in a registration statement on Form 8-A filed under the 1934
Act, including any amendment or report filed for the purpose of updating such
description.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Officers and Directors.
Delaware General Corporation Law
The Registrant is incorporated under the laws of the State of Delaware.
Section 145 ("Section 145") of the General Corporation Law of the State of
Delaware, as the same exists or may hereafter be amended (the "DGCL"), provides
that a Delaware corporation may indemnify any persons who were, are or are
threatened to be made, parties 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 such corporation), by reason of the
fact that such person is or was an officer, director, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and
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reasonably incurred by such person in connection with such action, suit or
proceeding, provided such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best interests
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe that his conduct was illegal.
A Delaware corporation may also indemnify any persons who are, were or are
threatened to be made, a party to any threatened, pending or completed action or
suit by or in the right of the corporation by reason of the fact that such
person was a director, officer, employee or agent of such corporation, or is or
was serving at the request of such corporation as a director, officer, employee
or agent of another corporation or enterprise. The indemnity may include
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit,
provided such person acted in good faith and in a manner he reasonably believed
to be in or not opposed to the corporation's best interests, provided that no
such indemnification is permitted without judicial approval if the officer,
director, employee or agent is adjudged to be liable to the corporation.
If an officer, director, employee or agent is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him against the expenses which such officer or director has actually
and reasonably incurred.
Section 145 further authorizes a corporation 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 or enterprise,
against any liability asserted against him and incurred by him in any such
capacity, arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145.
Certificate of Incorporation of the Registrant
The Certificate of Incorporation of the Registrant provides that, to the
fullest extent permitted by the DGCL, a director of the Registrant shall not be
liable to the Registrant or its shareholders for monetary damages for a breach
of fiduciary duty as a director.
By-Laws of Registrant
Article V of the By-laws of the Registrant ("Article V") 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 (hereinafter a "Proceeding"), 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 Registrant or is or was serving at the
request of the Registrant 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 Registrant to the
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fullest extent which it is empowered to do so by the DGCL against all expense,
liability and loss (including attorneys' fees actually and reasonably incurred
by such person in connection with such Proceeding) and such indemnification
shall inure to the benefit of his heirs, executors and administrators; provided,
however, that, except in certain circumstances, the Registrant 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 Registrant . The right to indemnification conferred in Article
V shall be a contract right and shall include the right to be paid by the
Registrant the expenses incurred in defending any such Proceeding in advance of
its final disposition. The Registrant may, by action of its board of directors,
provide indemnification to employees and agents of the Registrant with the same
scope and effect as the foregoing indemnification of directors and officers.
Article V further provides that any indemnification of a director or
officer of the Registrant under Article V or advance of expenses shall be made
promptly, and in any event within 30 days, upon the written request of the
director or officer. If a determination by the Registrant that the director or
officer is entitled to indemnification pursuant to Article V is required, and
the Registrant fails to respond within 60 days to a written request for
indemnity, the Registrant shall be deemed to have approved the request. If the
Registrant denies a written request for indemnification or advancing of
expenses, in whole or in part, or if payment in full pursuant to such request is
not made within 30 days, the right to indemnification or advances as granted by
Article V shall be enforceable by the director or officer in any court of
competent jurisdiction. Such person's costs and expenses incurred in connection
with successfully establishing his right to indemnification, in whole or in
part, in any such action shall also be indemnified by the Registrant. It shall
be a defense to any such action (other than an action brought to enforce a claim
for expenses incurred in defending any Proceeding in advance of its final
disposition where the required undertaking, if any, has been tendered to the
Registrant ) that the claimant has not met the standards of conduct which make
it permissible under the DGCL for the Registrant to indemnify the claimant for
the amount claimed, but the burden of such defense shall be on the Registrant .
Neither the failure of the Registrant (including its board of directors,
independent legal counsel, or its shareholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he has met the applicable standard of
conduct set forth in the DGCL, nor an actual determination by the Registrant
(including its board of directors, independent legal counsel, or its
shareholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. Persons who are not covered by
Article V and who are or were employees or agents of the Registrant, or who are
or were serving at the request of the Registrant as employees or agents of
another corporation, partnership, joint venture, trust or other enterprise, may
be indemnified to the extent authorized at any time or from time to time by the
board of directors.
Article V provides that the Registrant 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 Registrant or was serving at the request of
the Registrant as a director, officer, employee or agent of
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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 Registrant would have the power to
indemnify such person against such liability under Article V.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
5 Opinion of Hallett & Perrin, P.C.
23(a) Consent of KPMG LLP
23(b) Consent of Arthur Andersen LLP
23(c) Consent of Hallett & Perrin, P.C. (included as part of Exhibit
5).
Item 9. Undertakings.
(1) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement 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; and
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 the time shall be deemed to
be the initial bona fide offering thereof; and
(c) 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.
(2) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
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(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the certificate of incorporation or bylaws
of the registrant or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the 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 Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
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Pursuant to the requirements of the Securities Act of 1933, as amended, 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 and the State of Texas, on the 4th day of
November, 1999.
TUESDAY MORNING CORPORATION
By: /s/ Mark E. Jarvis, Senior Vice President
-----------------------------------------
Mark E. Jarvis, Senior Vice President,
Chief Financial Officer and Secretary
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on November 4th, 1999.
Signature Title
- --------- -----
/s/ Jerry M. Smith Chief Executive Officer, President
- ------------------ and Director
Jerry M. Smith (Principal Executive Officer)
/s/ Mark E. Jarvis Senior Vice President, Chief Financial
- ------------------ and Secretary (Principal Financial
Mark E. Jarvis and Accounting Officer)
/s/ Benjamin D. Chereskin Director
- -------------------------
Benjamin D. Chereskin
/s/ William J. Hunckler, III Director
- ----------------------------
William J. Hunckler, III
II-1
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/s/ Sally Frame Kasaks Director
- ----------------------
Sally Frame Kasaks
Director
- ----------------------
Robin P. Selati
II-2
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Exhibit Index
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5 Opinion of Hallett & Perrin, P.C.
23(a) Consent of KPMG LLP
23(b) Consent of Arthur Andersen LLP
23(c) Consent of Hallett & Perrin, P.C. (included as part of Exhibit 5).
<PAGE>
Exhibit 5
(214) 953-0053
November 4, 1999
Tuesday Morning Corporation
14621 Inwood Road
Dallas, Texas 75244
Gentlemen:
We have served as counsel for Tuesday Morning Corporation, a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 covering the sale of a maximum of 2,951,923 shares (the "Shares") of
Common Stock, $.01 par value, of the Company. The Shares are to be issued in
connection with the Tuesday Morning Corporation 1997 Long-Term Equity Incentive
Plan (the "Plan") described in the Registration Statement.
We have examined such documents and questions of law as we have deemed
necessary to render the opinion expressed below. Based upon the foregoing, we
are of the opinion that, at the time of purchase by participants pursuant to the
Plan, the Shares will be duly and validly issued, fully paid and non-assessable.
We consent to the use of this opinion as Exhibit 5 to the Registration
Statement.
Very truly yours,
/s/ Hallett & Perrin, P.C.
<PAGE>
Exhibit 23(a)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
---------------------------------------------------
The Board of Directors
Tuesday Morning Corporation:
We consent to incorporation by reference herein of our report dated February 20,
1998, except for the second paragraph of Note 17, as to which the date is March
25, 1999, with respect to the consolidated balance sheet of Tuesday Morning
Corporation and subsidiaries as of December 31, 1997, and the related
consolidated statements of operations, stockholders' equity, and cash flows for
the each of the years in the two-year period ended December 31, 1997 which
report is included in the Company's prospectus dated April 21, 1999 filed
pursuant to Rule 424(b) of the Securities Act of 1933.
/s/ KPMG LLP
Dallas, Texas
November 2, 1999
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Exhibit 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 12, 1999
included in Tuesday Morning Corporations' Form 10-K for the year ended December
31, 1998 and to all references to our Firm included in this registration
statement.
/s/ Arthur Andersen LLP
Dallas, Texas
November 2, 1999
70132-1
