Table of Contents

 

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 


 

FORM 10-Q

 

(Mark One)

 

x

 

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

 

For the quarterly period ended November 1, 2008

 

 

 

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 0-23071

 


 

THE CHILDREN’S PLACE RETAIL STORES, INC.

(Exact name of registrant as specified in its charter)

 

Delaware

 

31-1241495

(State or other jurisdiction of

 

(I.R.S. employer

Incorporation or organization)

 

identification number)

 

 

 

915 Secaucus Road

 

 

Secaucus, New Jersey

 

07094

(Address of Principal Executive Offices)

 

(Zip Code)

 

(201) 558-2400

(Registrant’s Telephone Number, Including Area Code)

 

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 x  No o

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company.  See definition of a “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one).

 

Large accelerated filer       x

 

Accelerated filer      o

 

Non-accelerated filer      o

 

Smaller reporting company      o

 

 

 

 

(Don’t check if smaller reporting company)

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).

 

Yes o   No x

 

 The number of shares outstanding of the registrant’s common stock with a par value of $0.10 per share, as of December 5, 2008 was 29,378,535 shares.

 

 

 



Table of Contents

 

THE CHILDREN’S PLACE RETAIL STORES, INC. AND SUBSIDIARIES

 

QUARTERLY REPORT ON FORM 10-Q

 

FOR THE PERIOD ENDED NOVEMBER 1, 2008

 

TABLE OF CONTENTS

 

PART I – FINANCIAL INFORMATION

 

1

 

 

 

 

 

Item 1.

 

Condensed Consolidated Financial Statements:

 

1

 

 

Condensed Consolidated Balance Sheets

 

1

 

 

Condensed Consolidated Statements of Operations

 

2

 

 

Condensed Consolidated Statements of Cash Flows

 

3

 

 

Notes to Condensed Consolidated Financial Statements

 

5

Item 2.

 

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

 

23

Item 3.

 

Quantitative and Qualitative Disclosures about Market Risk

 

34

Item 4.

 

Controls and Procedures

 

36

 

 

 

 

 

PART II – OTHER INFORMATION

 

36

 

 

 

 

 

Item 1.

 

Legal Proceedings

 

36

Item 6.

 

Exhibits

 

37

Signatures

 

38

 



Table of Contents

 

PART I.     FINANCIAL INFORMATION

 

Item 1.       Condensed Consolidated Financial Statements.

 

THE CHILDREN’S PLACE RETAIL STORES, INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED BALANCE SHEETS

(In thousands)

 

 

 

(unaudited)

 

 

 

(unaudited)

 

 

 

November 1,

 

February 2,

 

November 3,

 

 

 

2008

 

2008

 

2007

 

ASSETS

 

 

 

 

 

 

 

Current assets:

 

 

 

 

 

 

 

Cash and cash equivalents

 

$

185,980

 

$

81,626

 

$

108,291

 

Accounts receivable

 

24,213

 

41,143

 

43,686

 

Inventories

 

232,776

 

196,606

 

263,301

 

Prepaid expenses and other current assets

 

81,460

 

67,589

 

79,499

 

Deferred income taxes

 

22,758

 

25,321

 

17,504

 

Restricted assets in bankruptcy estate of subsidiary

 

78,971

 

 

 

Assets held for sale

 

 

98,591

 

135,312

 

Total current assets

 

626,158

 

510,876

 

647,593

 

Long-term assets:

 

 

 

 

 

 

 

Property and equipment, net

 

336,921

 

354,141

 

374,432

 

Deferred income taxes

 

76,932

 

125,292

 

82,073

 

Other assets

 

6,298

 

3,065

 

2,509

 

Assets held for sale

 

 

4,163

 

76,065

 

Total assets

 

$

1,046,309

 

$

997,537

 

$

1,182,672

 

 

 

 

 

 

 

 

 

LIABILITIES AND STOCKHOLDERS’ EQUITY

 

 

 

 

 

 

 

LIABILITIES:

 

 

 

 

 

 

 

Current liabilities:

 

 

 

 

 

 

 

Revolving loan

 

$

 

$

88,976

 

$

108,886

 

Short-term portion of term loan

 

30,000

 

 

 

Accounts payable

 

79,913

 

80,807

 

163,934

 

Income taxes payable

 

8,448

 

3,845

 

15,362

 

Accrued expenses, interest, and other current liabilities

 

114,731

 

136,867

 

151,240

 

Liabilities of bankruptcy estate of subsidiary

 

107,767

 

 

 

Total current liabilities

 

340,859

 

310,495

 

439,422

 

Long-term liabilities:

 

 

 

 

 

 

 

Deferred rent liabilities

 

107,349

 

136,708

 

134,928

 

Deferred royalty

 

 

42,988

 

43,436

 

Other tax liabilities

 

23,024

 

23,520

 

22,065

 

Long-term portion of term loan

 

55,000

 

 

 

Other long-term liabilities

 

10,611

 

11,593

 

6,988

 

Total liabilities

 

536,843

 

525,304

 

646,839

 

COMMITMENTS AND CONTINGENCIES

 

 

 

 

 

 

 

STOCKHOLDERS’ EQUITY:

 

 

 

 

 

 

 

Preferred stock, $1.00 par value, 1,000,000 shares authorized, 0 shares issued and outstanding at November 1, 2008, February 2, 2008, and November 3, 2007

 

 

 

 

Common stock, $0.10 par value, 100,000,000 shares authorized, 29,377,783, 29,139,664 and 29,083,916 issued and outstanding at November 1, 2008, February 2, 2008, and November 3, 2007, respectively

 

2,938

 

2,914

 

2,909

 

Additional paid-in capital

 

204,912

 

195,591

 

194,348

 

Accumulated other comprehensive (loss) income

 

(1,764

)

13,934

 

20,289

 

Retained earnings

 

303,380

 

259,794

 

318,287

 

Total stockholders’ equity

 

509,466

 

472,233

 

535,833

 

Total liabilities and stockholders’ equity

 

$

1,046,309

 

$

997,537

 

$

1,182,672

 

 

See accompanying notes to these condensed consolidated financial statements.

 

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THE CHILDREN’S PLACE RETAIL STORES, INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

(Unaudited)

(In thousands, except per share amounts)

 

 

 

Thirteen Weeks Ended

 

Thirty-nine Weeks Ended

 

 

 

November 1,

 

November 3,

 

November 1,

 

November 3,

 

 

 

2008

 

2007

 

2008

 

2007

 

Net sales

 

$

450,623

 

$

430,572

 

$

1,188,864

 

$

1,077,065

 

Cost of sales

 

254,239

 

258,251

 

692,839

 

659,326

 

 

 

 

 

 

 

 

 

 

 

Gross profit

 

196,384

 

172,321

 

496,025

 

417,739

 

 

 

 

 

 

 

 

 

 

 

Selling, general and administrative expenses

 

126,716

 

131,004

 

351,919

 

347,998

 

Asset impairment charges

 

954

 

947

 

1,081

 

1,582

 

Depreciation and amortization

 

17,791

 

17,063

 

53,152

 

46,814

 

 

 

 

 

 

 

 

 

 

 

Operating income

 

50,923

 

23,307

 

89,873

 

21,345

 

Interest (expense) income, net

 

(1,912

)

(796

)

(2,803

)

632

 

 

 

 

 

 

 

 

 

 

 

Income from continuing operations before income taxes

 

49,011

 

22,511

 

87,070

 

21,977

 

Provision for income taxes

 

20,563

 

7,586

 

36,466

 

7,789

 

 

 

 

 

 

 

 

 

 

 

Income from continuing operations

 

28,448

 

14,925

 

50,604

 

14,188

 

Loss from discontinued operations, net of income taxes

 

(4,391

)

(2,622

)

(7,018

)

(15,262

)

Net income (loss)

 

$

24,057

 

$

12,303

 

$

43,586

 

$

(1,074

)

 

 

 

 

 

 

 

 

 

 

Basic earnings (loss) per share amounts (1)

 

 

 

 

 

 

 

 

 

Income from continuing operations

 

$

0.97

 

$

0.51

 

$

1.73

 

$

0.49

 

Loss from discontinued operations

 

(0.15

)

(0.09

)

(0.24

)

(0.52

)

Net income (loss)

 

$

0.82

 

$

0.42

 

$

1.49

 

$

(0.04

)

Basic weighted average common share outstanding

 

29,364

 

29,084

 

29,173

 

29,084

 

 

 

 

 

 

 

 

 

 

 

Diluted earnings (loss) per share amounts (1)

 

 

 

 

 

 

 

 

 

Income from continuing operations

 

$

0.96

 

$

0.51

 

$

1.72

 

$

0.48

 

Loss from discontinued operations

 

(0.15

)

(0.09

)

(0.24

)

(0.51

)

Net income (loss)

 

$

0.81

 

$

0.42

 

$

1.48

 

$

(0.04

)

Diluted weighted average common share outstanding

 

29,726

 

29,357

 

29,444

 

29,766

 

 


(1) Table may not add due to rounding

 

See accompanying notes to these condensed consolidated financial statements.

 

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THE CHILDREN’S PLACE RETAIL STORES, INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(Unaudited) (In thousands)

 

 

 

Thirty-nine Weeks Ended

 

 

 

November 1,
2008

 

November 3,
2007

 

CASH FLOWS FROM OPERATING ACTIVITIES:

 

 

 

 

 

Net income (loss)

 

$

43,586

 

$

(1,074

)

Less loss from discontinued operations

 

(7,018

)

(15,262

)

Income from continuing operations

 

50,604

 

14,188

 

Reconciliation of net income (loss) to net cash provided by (used in) operating activities of continuing operations:

 

 

 

 

 

Depreciation and amortization

 

53,152

 

46,814

 

Other amortization

 

477

 

211

 

(Gain) loss on disposal of property and equipment

 

(1,343

)

1,056

 

Asset impairment charges

 

1,081

 

1,582

 

Stock-based compensation

 

5,324

 

3,018

 

Deferred taxes

 

49,306

 

(8,725

)

Deferred rent expense and lease incentives

 

(12,115

)

(10,642

)

Changes in operating assets and liabilities:

 

 

 

 

 

Accounts receivable

 

7,907

 

(9,650

)

Inventories

 

(41,155

)

(87,855

)

Prepaid expenses and other current assets

 

(643

)

(4,005

)

Other assets

 

(194

)

(132

)

Accounts payable

 

53,602

 

42,887

 

Accrued expenses, interest and other current liabilities

 

18,372

 

8,321

 

Intercompany (discontinued operations)

 

(21,200

)

27,139

 

Income taxes payable, net of prepayments

 

(20,904

)

(35,150

)

Deferred rent liabilities

 

10,465

 

18,834

 

Other liabilities

 

(663

)

5,049

 

Total adjustments

 

101,469

 

(1,248

)

Net cash provided by operating activities of continuing operations

 

152,073

 

12,940

 

Net cash provided by (used in) operating activities of discontinued operations

 

20,410

 

(49,120

)

Net cash provided by (used in) operating activities

 

172,483

 

(36,180

)

CASH FLOWS FROM INVESTING ACTIVITIES:

 

 

 

 

 

Property and equipment purchases, lease acquisition and software costs

 

(39,229

)

(144,945

)

Cash received for sale of store assets and leases

 

2,300

 

 

Purchase of investments

 

 

(776,405

)

Sale of investments

 

 

823,255

 

Net cash used in investing activities of continuing operations

 

(36,929

)

(98,095

)

Net cash (used in) provided by investing activities of discontinued operations

 

(19,213

)

12,811

 

Net cash used in investing activities

 

(56,142

)

(85,284

)

CASH FLOWS FROM FINANCING ACTIVITIES:

 

 

 

 

 

Borrowings under revolving credit facilities

 

691,718

 

311,568

 

Repayments under revolving credit facilities

 

(761,279

)

(215,560

)

Borrowings under term loan

 

85,000

 

 

Exercise of stock options and employee stock purchases

 

4,725

 

 

Capital contribution to subsidiary in discontinued operations

 

(8,250

)

 

Deferred financing costs

 

(3,839

)

 

Net cash provided by financing activities of continuing operations

 

8,075

 

96,008

 

Net cash (used in) provided by financing activities of discontinued operations

 

(11,878

)

12,877

 

Net cash (used in) provided by financing activities

 

(3,803

)

108,885

 

Effect of exchange rate changes on cash of continuing operations

 

(6,221

)

5,774

 

Effect of exchange rate changes on cash of discontinued operations

 

(1,963

)

1,080

 

Effect of exchange rate changes on cash

 

(8,184

)

6,854

 

Net increase (decrease) in cash and cash equivalents

 

104,354

 

(5,725

)

Cash and cash equivalents, beginning of year

 

81,626

 

114,016

 

Cash and cash equivalents, end of quarter

 

$

185,980

 

$

108,291

 

 

See accompanying notes to these condensed consolidated financial statements.

 

3



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THE CHILDREN’S PLACE RETAIL STORES, INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(Unaudited) (In thousands)

 

 

 

Thirty-nine Weeks Ended

 

 

 

November 1,
2008

 

November 3,
2007

 

OTHER CASH FLOW INFORMATION:

 

 

 

 

 

Net cash paid during the year for income taxes

 

$

4,012

 

$

40,237

 

Cash paid during the year for interest

 

4,507

 

973

 

Increase (decrease) in accrued purchases of property and equipment, lease acquisition and software costs

 

3,880

 

(7,547

)

Land received for distribution center

 

 

1,800

 

 

See accompanying notes to these condensed consolidated financial statements.

 

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THE CHILDREN’S PLACE RETAIL STORES, INC. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(Unaudited)

 

1.             BASIS OF PRESENTATION

 

The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States (“U.S. GAAP”) for interim financial information and the rules and regulations of the Securities and Exchange Commission (the “SEC”).  Accordingly, certain information and footnote disclosures normally included in the annual consolidated financial statements prepared in accordance with U.S. GAAP have been condensed or omitted.

 

In the opinion of management, the accompanying unaudited condensed consolidated financial statements contain all adjustments (consisting only of normal recurring accruals) necessary to present fairly The Children’s Place Retail Stores, Inc.’s (the “Company”) consolidated financial position as of November 1, 2008 and November 3, 2007, the results of its consolidated operations for the thirteen weeks and thirty-nine weeks ended November 1, 2008 and November 3 2007, and its consolidated cash flows for the thirty-nine weeks ended November 1, 2008 and November 3, 2007.  Due to the seasonal nature of the Company’s business, the results of operations for the thirteen and thirty-nine weeks ended November 1, 2008 and November 3, 2007 are not necessarily indicative of operating results for a full fiscal year.  The accompanying unaudited condensed consolidated financial statements have classified the Disney Store business (as defined below) as discontinued operations in accordance with U.S. GAAP, reflecting the Company’s exit of the Disney Store business (see Note 2-Discontinued Operations).  Correspondingly, reclassifications have been made to conform to the current year’s presentation.  Also, a reclassification of cash disbursement overdraft balances from accounts payable to cash to the extent a right of offset exists was made to the November 3, 2007 balances, which had the effect of reducing cash and accounts payable by $2.5 million.  These condensed consolidated financial statements should be read in conjunction with the consolidated financial statements for the fiscal year ended February 2, 2008 included in the Company’s Annual Report on Form 10-K for the fiscal year ended February 2, 2008 and the Company’s Current Report on Form 8-K filed with the SEC on August 6, 2008 to classify the Disney Stores as a discontinued operation.

 

2.             DISCONTINUED OPERATIONS

 

After a thorough review of the Disney Store business (as defined below), its potential earnings growth, its capital needs and its ability to fund such needs from its own resources, the Company announced on March 20, 2008 that it had decided to exit the Disney Store business.  The Company’s subsidiaries that operated the Disney Store business are referred to herein interchangeably and collectively as “Hoop.” After assessing the above factors and considering Hoop’s liquidity, Hoop’s Board of Directors determined that the best way to complete an orderly wind-down of Hoop’s affairs was for Hoop to seek relief under Chapter 11 of the United States Bankruptcy Code (the “Bankruptcy Code”) and pursuant to the Companies’ Creditors Arrangement Act (the “CCAA”).  On March 26, 2008, Hoop Holdings, LLC, Hoop Retail Stores, LLC and Hoop Canada Holdings, Inc. each filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware (the “U.S. Bankruptcy Court”) (Case Nos. 08-10544, 08-10545, and 08-10546, respectively, the “Cases”).  On March 27, 2008, Hoop Canada, Inc. filed for protection pursuant to the CCAA in the Ontario Superior Court of Justice (Commercial List) (“Canadian Bankruptcy Court”) (Court File No. 08-CL-7453, and together with the Cases, the “Filings”).  Each of the foregoing Hoop entities are referred to collectively herein as the “Hoop Entities.” After receiving the approval of the U.S. Bankruptcy Court and the Canadian Bankruptcy Court, on April 30, 2008, Hoop transferred the Disney Store business in the U.S. and Canada and a substantial portion of the Disney Store assets to affiliates of The Walt Disney Company (“Disney”) in an asset sale (the “Private Sale”), pursuant to section 363 of the Bankruptcy Code (and a similar provision under the CCAA.)

 

In November 2004, the Company had acquired, through two wholly-owned subsidiaries, certain assets used to operate the Disney Store retail chain in North America (the “Disney Store business”) from affiliates of Disney.  As a result of this acquisition and a subsequent transaction, Hoop had acquired 315 Disney Stores, consisting of 313 mall-based existing Disney Stores in the United States and Canada and two Disney flagship stores (together, the “Original Acquisition”), along with certain other assets used in the Disney Store business.  The Original Acquisition excluded stores located at Disney theme parks, other flagship stores and certain other Disney properties.

 

Concurrent with the Original Acquisition, the Company entered into a License Agreement (the “License Agreement”) and a Guaranty and Commitment (the “Guaranty and Commitment Agreement”).  Under the License

 

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Agreement, Hoop had the right to use certain Disney intellectual property, subject to Disney approval, in the Disney Store business in exchange for ongoing royalty payments.  These royalty payments commenced in November 2006, after a two-year royalty holiday period subsequent to the Original Acquisition.  Royalty payments were equal to 5% of net sales at the physical Disney Store retail locations, subject to a royalty abatement with respect to a limited number of stores.  The amortization of the estimated value of the two-year holiday under the License Agreement was recognized on a straight-line basis over the term of the License Agreement.

 

The License Agreement, as well as the Company’s credit facilities, placed certain liquidity restrictions on the Company.  These agreements restricted the commingling of funds between The Children’s Place and Hoop, limited borrowings by Hoop from The Children’s Place, and limited distributions other than payment for the allocated costs of shared services from Hoop to The Children’s Place.  From the time of the Original Acquisition, the Company segregated all cash receipts and disbursements, investments and credit facility borrowings and letter of credit activity.

 

In August 2007, the Company, Hoop and Disney amended the License Agreement by executing the Refurbishment Amendment (the “Refurbishment Amendment”).  Subject to compliance with the terms and satisfaction of the conditions in the Refurbishment Amendment, Disney agreed to forbear from exercising any of its rights or remedies under the License Agreement based on previously asserted breaches of the License Agreement.  If the Company breached any of the provisions of the Refurbishment Amendment on three or more occasions and Disney had not previously terminated the Refurbishment Amendment, the Company would have owed $18.0 million to Disney with respect to the breach fees called for by the License Agreement.  If the Company violated any of the provisions of the Refurbishment Amendment on five or more occasions, the Refurbishment Amendment provided that Disney would have the right to immediately terminate the License Agreement, without any right by the Company to defend, counterclaim, protest or cure.  The Refurbishment Amendment set forth specific requirements to remodel and otherwise refresh the Disney Stores while the Refurbishment Amendment remained in effect.  In connection with the Refurbishment Amendment, the Company’s Board of Directors authorized an investment of $175 million to remodel and refresh stores through fiscal 2011.  Prior to the Filings, Hoop had received notices of several material breaches under the License Agreement.  Hoop had believed it had cured some of the asserted breaches and intended to cure or to assert defenses to the other asserted breaches.

 

Since the Filings, the Hoop Entities have managed their properties and have operated their businesses as “debtors-in-possession” under the jurisdiction of the U.S. Bankruptcy Court or the Canadian Bankruptcy Court, as applicable, and in accordance with the applicable provisions of the Bankruptcy Code or the CCAA, as applicable.  Neither the Company, as Hoop’s parent company nor any of the Company’s other subsidiaries, has commenced or plans to commence a Chapter 11 case (or equivalent under applicable bankruptcy laws).

 

Upon the closing of the Private Sale, affiliates of Disney paid approximately $64 million for the acquired assets of the Disney Store business, subject to a post-closing inventory and asset adjustment.  Approximately $6.0 million of the purchase price is being held in escrow for such true-up purposes.  The Company anticipates finalizing the purchase price by the end of fiscal 2008.  The proceeds received from the Private Sale will be utilized to settle the Hoop Entities’ liabilities as “debtors-in-possession” under the jurisdiction of the U.S. Bankruptcy Court or Canadian Bankruptcy Court, as applicable.  As a “debtor-in-possession,” certain claims against Hoop that existed prior to the Filings are stayed under the jurisdiction of the U.S. Bankruptcy Court or Canadian Bankruptcy Court, as applicable, and are “liabilities subject to compromise” and are reflected in the November 1, 2008 balance sheet within “Liabilities of bankruptcy estate of subsidiary.”

 

According to the terms of the Private Sale, Hoop transferred 217 Disney Store leases to affiliates of Disney and granted such affiliates the right to operate and wind-down the affairs of the remaining 100 Disney Stores for a specified time period, after which Disney may choose to return such stores to Hoop’s bankruptcy estate for treatment as approved by the relevant bankruptcy court.  Hoop recorded a liability of approximately $19.2 million for the potential settlement of these remaining Disney Stores leases.  As of November 1, 2008, Disney has returned 88 stores to the Hoop Estate.  Additional claims (liabilities subject to compromise) may arise as a result of the rejection of executory contracts, including leases for the stores returned to the Hoop estate, and from the determination by the U.S. Bankruptcy Court or Canadian Bankruptcy Court (or agreed to by Hoop’s creditors) of claims allowed for contingencies and other related amounts.  Claims secured against Hoop’s assets (“secured claims”) also are stayed, although the holders of such claims have the right to petition the U.S. Bankruptcy Court or Canadian Bankruptcy Court, as applicable, for relief from the stay.

 

During the year ended February 2, 2008, the Company recorded $80.3 million in asset impairment charges related to the Company’s decision to exit the Disney Store business.  In addition, during the year ended February 2, 2008, the Company recorded $6.1 million in costs primarily related to the cancellation of the Disney Store remodeling program.  As a “debtor-in-possession,” Hoop has filed a plan of liquidation and the equivalent under the CCAA (the “Plans”) with the U.S. and

 

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Canadian bankruptcy courts, respectively.  In accordance with such Plans, Hoop will settle its obligations through the distribution of its assets.

 

In connection with the closing of the Private Sale, Disney’s relevant affiliates released Hoop from its rights and obligations under the License Agreement, as amended by the Refurbishment Amendment and the Guaranty and Commitment Agreement, and any related future liabilities and unlimited claims.  Further, in connection with the Private Sale and the satisfaction of other conditions, Disney and its affiliates released the Company from its obligations under the Guaranty and Commitment Agreement and Refurbishment Amendment.  Separately, the Company entered into a settlement and release of claims with Hoop and its creditors’ committee, which was approved by the U.S. Bankruptcy Court on April 29, 2008.  The Company had agreed to:

 

·                  Provide transitional services;

·                  Forgive all pre- and post-bankruptcy petition claims against Hoop, which included inter-company charges for shared services of approximately $24.1 million and a capital contribution the Company made to Hoop of approximately $8.3 million in cash on March 18, 2008;

·                  Pay severance and other employee costs for the Company’s employees servicing Hoop of approximately $7.8 million; and

·                  Pay certain other professional fees and other costs that may be attributed to the Company.

 

The Disney Store business has been segregated from continuing operations and included in “Discontinued operations, net of taxes” in the condensed consolidated statements of operations.  Since the consummation of the Private Sale on April 30, 2008, Hoop has been in the process of winding down its affairs under the jurisdiction of the U.S. Bankruptcy Court or Canadian Bankruptcy Court, as applicable.  In discontinued operations, the Company has reversed its historical allocation of shared services to the Disney Stores and has charged discontinued operations with the administrative and distribution expenses that were attributable to the Disney Stores.  During the thirteen and thirty-nine weeks ended November 1, 2008, discontinued operations included certain one-time costs related to professional and restructuring fees, asserted claims, and severance and other employee costs.  Discontinued operations for the thirteen and thirty-nine weeks ended November 1, 2008 and November 3, 2007 were comprised of (in thousands):

 

 

 

Thirteen Weeks Ended

 

Thirty-nine Weeks Ended

 

 

 

November 1,
2008

 

November 3,
2007

 

November 1,
2008

 

November 3,
2007

 

Net sales

 

$

 

$

157,956

 

$

129,177

 

$

414,623

 

Cost of sales

 

 

103,602

 

93,367

 

284,438

 

 

 

 

 

 

 

 

 

 

 

Gross profit

 

 

54,354

 

35,810

 

130,185

 

 

 

 

 

 

 

 

 

 

 

Selling, general and administrative expenses

 

3,129

 

53,926

 

49,556

 

143,307

 

Restructuring charges

 

1,624

 

 

17,608

 

 

Depreciation and amortization

 

 

3,489

 

 

10,042

 

 

 

 

 

 

 

 

 

 

 

Operating loss

 

(4,753

)

(3,061

)

(31,354

)

(23,164

)

Gain (loss) on disposal of assets and liabilities of discontinued operations

 

(655

)

 

22,480

 

 

Interest (expense) income, net

 

414

 

22

 

(377

)

478

 

 

 

 

 

 

 

 

 

 

 

Loss before income taxes

 

(4,994

)

(3,039

)

(9,251

)

(22,686

)

Benefit for income taxes

 

(603

)

(417

)

(2,233

)

(7,424

)

 

 

 

 

 

 

 

 

 

 

Loss from discontinued operations, net of income taxes

 

$

(4,391

)

$

(2,622

)

$

(7,018

)

$

(15,262

)

 

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Table of Contents

 

As of November 1, 2008, the assets and liabilities of Hoop have been segregated and have been included in “Restricted assets in bankruptcy estate of subsidiary” and “Liabilities of bankruptcy estate of subsidiary” in the condensed consolidated balance sheet.  They are detailed as follows (in thousands):

 

 

 

November 1,
2008

 

Restricted assets in bankruptcy estate of subsidiary:

 

 

 

Cash and cash equivalents

 

$

67,741

 

Accounts receivable

 

10,395

 

Prepaid expenses

 

835

 

 

 

$

78,971

 

 

 

 

 

Liabilities of bankruptcy estate of subsidiary:

 

 

 

Subject to compromise

 

 

 

Accounts payable - pre-petition

 

$

55,308

 

Accrued expenses and other current liabilities - pre-petition

 

39,792

 

Not subject to compromise

 

 

 

Accounts payable - post-petition

 

8,510

 

Accrued expenses and other current liabilities - post-petition

 

4,157

 

 

 

$

107,767

 

 

For the condensed consolidated balance sheets as of February 2, 2008 and November 3, 2007, “Assets held for sale” reflect the assets subsequently sold to affiliates of Disney.  They are detailed as follows (in thousands):

 

 

 

February 2,
2008

 

November 3,
2007

 

Current assets held for sale:

 

 

 

 

 

Accounts receivable

 

$

4,555

 

$

1,007

 

Inventories

 

88,674

 

129,384

 

Prepaid expenses and other current assets

 

5,362

 

4,921

 

 

 

$

98,591

 

$

135,312

 

 

 

 

 

 

 

Non-current assets held for sale:

 

 

 

 

 

Property and equipment, net

 

3,317

 

75,438

 

Other assets - security deposits

 

846

 

627

 

 

 

$

4,163

 

$

76,065

 

 

For the condensed consolidated balance sheets as of February 2, 2008 and November 3, 2007, the remaining assets and liabilities of Hoop are included in their respective balance sheet categories and were included in the following asset and liability categories (in thousands):

 

 

 

February 2,
2008

 

November 3,
2007

 

 

 

 

 

 

 

Cash and cash equivalents

 

$

12,644

 

$

10,363

 

Accounts receivable

 

8,627

 

9,405

 

Prepaid expenses and other current assets

 

11,214

 

8,621

 

Total current assets

 

32,485

 

28,389

 

Other assets

 

497

 

1,817

 

Total assets

 

$

32,982

 

$

30,206

 

 

 

 

 

 

 

Revolving loan

 

$

19,415

 

$

12,877

 

Accounts payable

 

51,795

 

65,093

 

Accrued expenses and other current liabilities

 

41,662

 

38,717

 

Total current liabilities

 

112,872

 

116,687

 

Deferred rent liabilities

 

25,518

 

22,416

 

Deferred royalty

 

42,988

 

43,436

 

Other long-term liabilities

 

1,863

 

1,877

 

Total liabilities

 

$

183,241

 

$

184,416

 

 

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Table of Contents

 

Cash flows from the Company’s discontinued operations were as follows (in thousands):

 

 

 

Thirty-nine Weeks Ended

 

 

 

November 1,
2008

 

November 3,
2007

 

CASH FLOWS FROM OPERATING ACTIVITIES:

 

 

 

 

 

Loss from discontinued operations

 

$

(7,018

)

$

(15,262

)

Reconciliation of loss from discontinued operations to net cash provided by (used in) operating activities:

 

 

 

 

 

Depreciation and amortization

 

 

10,042

 

Deferred financing fees and related amortization

 

65

 

153

 

Gain on disposal of the Disney Store business

 

(22,480

)

 

Loss on disposal of assets

 

 

954

 

Stock compensation

 

297

 

292

 

Deferred royalty, net

 

(368

)

(734

)

Deferred rent expense and lease incentives

 

(709

)

(403

)

Changes in operating assets and liabilities:

 

 

 

 

 

Accounts receivable

 

3,550

 

925

 

Inventories

 

13,048

 

(58,340

)

Prepaid expenses and other current assets

 

11,026

 

1,612

 

Other assets

 

758

 

(116

)

Accounts payable

 

13,055

 

40,399

 

Accrued expenses, interest and other current liabilities

 

(13,721

)

1,133

 

Intercompany (continuing operations)

 

21,200

 

(27,139

)

Income taxes payable, net of prepayments

 

1,147

 

(935

)

Deferred rent liabilities

 

569

 

746

 

Other liabilities

 

(9

)

(2,447

)

Total adjustments

 

27,428

 

(33,858

)

Net cash provided by (used in) operating activities

 

20,410

 

(49,120

)

CASH FLOWS FROM INVESTING ACTIVITIES:

 

 

 

 

 

Property and equipment purchases, lease acquisition and software costs

 

(9,520

)

(15,514

)

Cash received from sale of Disney Store assets

 

57,598

 

 

Restriction of cash

 

(67,291

)

 

Purchase of investments

 

 

(263,620

)

Sale of investments

 

 

291,945

 

Net cash (used in) provided by investing activities

 

(19,213

)

12,811

 

CASH FLOWS FROM FINANCING ACTIVITIES:

 

 

 

 

 

Borrowings under revolving credit facilities

 

160,237

 

85,358

 

Repayments under revolving credit facilities

 

(179,652

)

(72,481

)

Cash contribution from parent company

 

8,250

 

 

Deferred financing fees

 

(713

)

 

Net cash (used in) provided by financing activities

 

(11,878

)

12,877

 

 

 

 

 

 

 

Effect of exchange rate changes on cash

 

(1,963

)

1,080

 

Net decrease in cash and cash equivalents

 

(12,644

)

(22,352

)

Cash and cash equivalents, beginning of year

 

12,644

 

32,715

 

Cash and cash equivalents, end of quarter

 

$

 

$

10,363

 

 

3.             STOCK-BASED COMPENSATION

 

The Company maintains several equity compensation plans under which it grants various forms of equity compensation, including stock options, deferred and restricted stock and performance awards.

 

The following tables summarize the Company’s equity compensation expense for the thirteen and thirty-nine weeks ended November 1, 2008 and November 3, 2007 (in thousands):

 

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Table of Contents

 

 

 

Thirteen Weeks Ended November 1, 2008

 

 

 

Cost of
Goods Sold

 

Selling,
General &
Administrative

 

Discontinued
Operations

 

Total

 

Stock option expense (1)

 

$

 

$

177

 

$

(141

)

$

36

 

Deferred stock expense

 

447

 

1,251

 

 

1,698

 

Restricted stock expense

 

 

314

 

 

314

 

Performance award expense

 

 

350

 

 

350

 

Total stock-based compensation expense

 

$

447

 

$

2,092

 

$

(141

)

$

2,398

 

 

 

 

Thirty-nine Weeks Ended November 1, 2008

 

 

 

Cost of
Goods Sold

 

Selling,
General &
Administrative

 

Discontinued
Operations

 

Total

 

Stock option expense

 

$

 

$

481

 

$

55

 

$

536

 

Deferred stock expense

 

694

 

2,758

 

242

 

3,694

 

Restricted stock expense

 

 

580

 

 

580

 

Performance award expense

 

 

811

 

 

811

 

Total stock-based compensation expense

 

$

694

 

$

4,630

 

$

297

 

$

5,621

 

 

 

 

Thirteen Weeks Ended November 3, 2007

 

 

 

Cost of
Goods Sold

 

Selling,
General &
Administrative

 

Discontinued
Operations

 

Total

 

Stock option expense

 

$

 

$

283

 

$

 

$

283

 

Stock compensation expense related to the issuance of liability awards (2)

 

 

(26

)

(8

)

(34

)

Expense related to the modification of previously issued stock options, primarily tolling (3)

 

 

341

 

 

341

 

Fair market value adjustments of tolled stock options accounted for as liability awards (3)

 

(35

)

(36

)

(3

)

(74

)

Total stock-based compensation expense

 

$

(35

)

$

562

 

$

(11

)

$

516

 

 

 

 

Thirty-nine Weeks Ended November 3, 2007

 

 

 

Cost of
Goods Sold

 

Selling,
General &
Administrative

 

Discontinued
Operations

 

Total

 

Stock option expense

 

$

 

$

895

 

$

 

$

895

 

Stock compensation expense related to the issuance of liability awards (2)

 

 

139

 

(26

)

113

 

Expense related to the modification of previously issued stock options, primarily tolling (3)

 

383

 

2,369

 

339

 

3,091

 

Fair market value adjustments of tolled stock options accounted for as liability awards (3)

 

(543

)

(225

)

(21

)

(789

)

Total stock-based compensation expense

 

$

(160

)

$

3,178

 

$

292

 

$

3,310

 

 


(1)     Stock option expense of discontinued operations for the thirteen weeks ended November 1, 2008 includes a reversal of expense related to the cancellation of 20,000 shares of unvested stock option awards.

 

(2)     During fiscal 2006, the Company promised stock options and deferred stock awards for which it was unable to complete the granting process due to the suspension of equity award grants.  Based on the Company’s commitment to honor these grants, a liability was recorded.  In the fourth quarter of fiscal 2007 after the suspension was lifted, these liabilities were converted to equity awards.

 

(3)     Under the terms of the Company’s equity compensation plans, terminated employees have 90 days from date of termination to exercise their vested options.  Due to the suspension of stock option exercises on September 14,

 

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Table of Contents

 

2006, the Company modified options held by terminated employees to extend their expiration dates until after the date the suspension was lifted (i.e., tolled stock options).  After the suspension was lifted on December 10, 2007, terminated employees had the same number of days to exercise their options as if the suspension had not occurred.  Options that were tolled for employees terminated prior to September 14, 2006 were accounted for as liability awards because the option holders were no longer employees at the time of the modification and because of the Company’s inability to provide shares upon exercise.  These options were reclassified to equity awards after the suspension was lifted.  Options that were tolled for employees terminated after September 14, 2006 were accounted for as equity awards because their options were tolled in conjunction with their termination.

 

The Company recognized a tax benefit related to stock-based compensation expense of $2.3 million and $1.3 million for the thirty-nine weeks ended November 1, 2008 and November 3, 2007, respectively.

 

2008 Long Term Incentive Plan

 

During the fourth quarter of fiscal 2007, the Company’s Board of Directors approved the 2008 Long Term Incentive Plan (the “LTIP”).  The LTIP provides for the issuance of deferred stock awards and performance awards to key members of management (the “Participants”).  The awards are based on salary level and the fair market value of the Company’s common stock on the grant date.  Fair market value is equal to the average of the high and low trading price of the Company’s common stock.  The deferred stock awards vest over three years and have a service requirement only.  Key features of the performance awards are as follows:

 

·                  Each performance award has a defined number of shares that a Participant can earn (the “Target Shares”).  Based on performance levels, Participants can earn up to 200% of their Target Shares.

 

·                  The awards have a service requirement and performance criteria that must be achieved for the awards to vest.

 

·                  The performance criteria are based on the Company’s achievement of operating income levels in each of the fiscal years 2008, 2009 and 2010, as well as in the aggregate.

 

·                  Awards may be earned in each of the fiscal years based upon meeting the established performance criteria for that year, however, except in certain circumstances, the Participants must be employed by the Company at the end of the three year performance period or their awards are forfeited.

 

During the thirty-nine weeks ended November 1, 2008, the Company awarded to key members of management: (a) 42,645 deferred stock awards; and (b) performance awards that provide for 42,645 Target Shares (assuming they are earned at 100%).  Changes in the Company’s unvested Performance Awards for the thirty-nine weeks ended November 1, 2008 were as follows:

 

 

 

Number of
Performance
Shares (1)

 

Weighted
Average
Grant Date
Fair Value

 

 

 

(in thousands)

 

 

 

Unvested performance shares, beginning of year (2)

 

210

 

$

20.97

 

Granted

 

43

 

31.92

 

Vested

 

 

 

Forfeited

 

(112

)

20.97

 

Unvested performance shares, November 1, 2008

 

141

 

$

24.28

 

 


(1)          The number of unvested performance shares is based on the Participants earning their Target Shares at 100%.  As of November 1, 2008, the Company estimates that Participants will earn 133% of their Target Shares.  The cumulative expense recognized reflects that estimate.

 

(2)          The performance criteria for the performance awards were established on March 6, 2008.  The beginning balance represents those shares authorized in the fourth quarter of fiscal 2007.

 

Total unrecognized equity compensation expense related to unvested performance awards approximated $3.7 million as of November 1, 2008, which will be recognized over a weighted average period of approximately 2.3 years.

 

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Table of Contents

 

Stock Option Plans

 

The Company estimates the fair value of issued stock options using the Black-Scholes option pricing model using certain assumptions for stock price volatility, risk-free interest rates, and the expected life of the options as of each grant date.  During the thirty-nine weeks ended November 1, 2008, 30,000 options were granted to two new members of the Company’s Board of Directors and the table below displays the assumptions that were used to estimate their fair value.  Due to the Company’s suspension of equity awards during its stock option investigation, no options were granted during the thirty-nine weeks ended November 3, 2007.

 

 

 

November 1,

 

 

 

2008

 

Dividend yield

 

0%

 

Volatility factor (1)

 

45.6%

 

Weighted average risk-free interest rate (2)

 

3.2%

 

Expected life of options (3)

 

5.1 years

 

Weighted average fair value on grant date

 

$12.81 per share

 

 


(1)          Expected volatility is based on a 50:50 blend of the historical and implied volatility with a two-year look back on the date of each grant.

 

(2)          The risk-free interest rate is based on the risk-free rate corresponding to the grant date and expected term.

 

(3)          The expected life used in the Black-Scholes calculation is based on a Monte Carlo simulation incorporating a forward-looking stock price model and a historical model of employee exercise and post-vest forfeiture behavior.

 

Changes in the Company’s stock options for the thirty-nine weeks ended November 1, 2008 were as follows:

 

 

 

Number of
Options

 

Weighted
Average
Exercise Price

 

Weighted Average
Remaining
Contractual Life

 

Aggregate
Intrinsic Value

 

 

 

 

 

 

 

(in years)

 

(in thousands)

 

Options outstanding at February 2, 2008

 

2,220,904

 

$

31.72

 

 

 

 

 

Granted

 

30,000

 

29.05

 

 

 

 

 

Exercised (1)

 

(219,228

)

21.55

 

 

 

 

 

Forfeited

 

(807,669

)

35.56

 

 

 

 

 

Options outstanding at November 1, 2008

 

1,224,007

 

$

31.80

 

4.8

 

$

6,958

 

Options exercisable at November 1, 2008

 

1,112,338

 

$

32.29

 

4.4

 

$

6,099

 

 


(1)          The aggregate intrinsic value of shares exercised was approximately $2.6 million.

 

Changes in the Company’s unvested stock options for the thirty-nine weeks ended November 1, 2008 were as follows:

 

 

 

Number of
Options

 

Weighted
Average
Grant Date
Fair Value

 

 

 

(in thousands)

 

 

 

Unvested options, beginning of year

 

128

 

$

11.43

 

Granted

 

30

 

12.81

 

Vested

 

 

 

Forfeited

 

(46

)

12.06

 

Unvested options, November 1, 2008

 

112

 

$

11.54

 

 

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Table of Contents

 

Total unrecognized equity compensation expense related to unvested stock options approximated $0.5 million as of November 1, 2008, which will be recognized over a weighted average period of approximately 1.8 years.

 

Deferred and Restricted Stock

 

Changes in the Company’s unvested deferred stock and restricted stock for the thirty-nine weeks ended November 1, 2008 were as follows:

 

 

 

Number of
Shares

 

Weighted
Average
Grant Date
Fair Value

 

 

 

(in thousands)

 

 

 

Unvested deferred and restricted stock, beginning of year

 

493

 

$

29.74

 

Granted

 

302

 

34.63

 

Vested (1)

 

(23

)

30.04

 

Forfeited

 

(179

)

30.09

 

Unvested deferred and restricted stock, November 1, 2008

 

593

 

$

32.11

 

 


(1)         During the thirty-nine weeks ended November 1, 2008, the Company withheld approximately 4,400 shares from those that vested to satisfy withholding tax requirements.  These shares were retired.

 

Total unrecognized equity compensation expense related to unvested deferred and restricted stock awards approximated $14.6 million as of November 1, 2008, which will be recognized over a weighted average period of approximately 2.5 years.

 

4.             NET INCOME (LOSS) PER COMMON SHARE

 

In accordance with SFAS No. 128, “Earnings Per Share,”(“FAS 128”) the following table reconciles net income (loss) and share amounts utilized to calculate basic and diluted net income (loss) per common share (in thousands):

 

 

 

Thirteen Weeks Ended

 

Thirty-nine Weeks Ended

 

 

 

November 1,

 

November 3,

 

November 1,

 

November 3,

 

 

 

2008

 

2007

 

2008

 

2007

 

Income from continuing operations

 

$

28,448

 

$

14,925

 

$

50,604

 

$

14,188

 

Loss from discontinued operations, net of taxes

 

(4,391

)

(2,622

)

(7,018

)

(15,262

)

Net income (loss)

 

$

24,057

 

$

12,303

 

$

43,586

 

$

(1,074

)

 

 

 

 

 

 

 

 

 

 

Basic weighted average common shares

 

29,364

 

29,084

 

29,173

 

29,084

 

Dilutive effect of stock awards

 

362

 

273

 

271

 

682

 

Diluted weighted average common shares

 

29,726

 

29,357

 

29,444

 

29,766

 

Antidilutive stock awards

 

553

 

1,550

 

1,088

 

555

 

 

Antidilutive stock awards (stock options, deferred stock awards and restricted stock awards) represent those awards that are excluded from the earnings per share calculation as a result of their antidilutive effect in the application of the treasury stock method.  In accordance with FAS 128, income from continuing operations is the “control number” in determining whether potential common shares are dilutive or anti-dilutive.  Consequently, the diluted weighted average common shares outstanding for the thirty-nine weeks ended November 3, 2007, includes the dilutive effect of stock awards.

 

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Table of Contents

 

5.             COMPREHENSIVE INCOME

 

The following table presents the Company’s comprehensive income (in thousands):

 

 

 

Thirteen Weeks Ended

 

Thirty-nine Weeks Ended

 

 

 

November 1,

 

November 3,

 

November 1,

 

November 3,

 

 

 

2008

 

2007

 

2008

 

2007

 

Net income (loss)

 

$

24,057

 

$

12,303

 

$

43,586

 

$

(1,074

)

Cumulative translation adjustment

 

(13,250

)

9,276

 

(15,698

)

15,945

 

Comprehensive income

 

$

10,807

 

$

21,579

 

$

27,888

 

$

14,871

 

 

Decreases in foreign currency rates, primarily the Canadian dollar, during the thirteen and thirty-nine weeks ended November 1, 2008 has resulted in a decrease in net assets of the Company’s foreign subsidiaries as reflected in our cumulative translation adjustment.  Consequently, increases in foreign currency rates, primarily the Canadian dollar, during the thirteen and thirty-nine weeks ended November 3, 2007 resulted in an increase in net assets of the Company’s foreign subsidiaries.

 

6.                                           PROPERTY AND EQUIPMENT

 

Property and equipment consist of the following (in thousands):

 

 

 

Asset

 

November 1,

 

February 2,

 

November 3,

 

 

 

Life

 

2008

 

2008

 

2007

 

Property and equipment:

 

 

 

 

 

 

 

 

 

Land and land improvements

 

 

 

$

3,403

 

$

3,403

 

$

3,403

 

Building and improvements

 

 

25 yrs

 

30,450

 

30,450

 

29,607

 

Material handling equipment

 

 

15 yrs

 

31,243

 

31,086

 

32,043

 

Leasehold improvements

 

 

Lease life

 

351,287

 

337,536

 

339,114

 

Store fixtures and equipment

 

 

3-10 yrs

 

242,867

 

243,552

 

236,468

 

Capitalized software

 

 

5 yrs

 

57,514

 

51,287

 

46,253

 

Construction in progress

 

 

 

16,500

 

12,032

 

38,293

 

 

 

 

 

 

733,264

 

709,346

 

725,181

 

Less accumulated depreciation and amortization

 

 

 

 

(396,343

)

(355,205

)

(350,749

)

Property and equipment, net

 

 

 

 

$

336,921

 

$

354,141

 

$

374,432

 

 

During the thirty-nine weeks ended November 1, 2008, the Company recorded $1.1 million of impairment charges related primarily to 11 underperforming stores.  During the thirty-nine weeks ended November 3, 2007, the Company recorded $1.6 million of impairment charges related primarily to six underperforming stores.

 

At November 1, 2008, February 2, 2008 and November 3, 2007, the Company had $11.3 million, $7.5 million and $15.7 million, respectively, of property and equipment for which payment had not been made.  These amounts are included in accounts payable and accrued expenses and other current liabilities.

 

7.                                           CREDIT FACILITIES

 

For the quarter ended November 1, 2008, the Company operated under its 2008 Credit Agreement, as defined below.  The Company entered into the 2008 Credit Agreement on July 31, 2008 upon termination of the 2007 Amended Loan Agreement and Letter of Credit Agreement.

 

2008 Credit Agreement

 

On July 31, 2008, the Company and certain of its domestic subsidiaries entered into a credit agreement (the “2008 Credit Agreement”) with Wells Fargo Retail Finance, LLC (“Wells Fargo”), as Administrative Agent, Collateral Agent, and Swing Line Lender, Bank of America, N.A., HSBC Bank USA, National Association and JP Morgan Chase Bank, N.A. (collectively, the “Lenders”).

 

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The 2008 Credit Agreement consists of a $200 million asset based revolving credit facility, which includes a $175 million letter of credit sub-facility.  Amounts outstanding under the 2008 Credit Agreement bear interest, at the Company’s option, at:

 

(i)                                     the prime rate; or

(ii)                                  LIBOR plus a margin of 1.50% to 2.00% based on the amount of the Company’s average excess availability under the facility.

 

In addition, an unused line fee of 0.25% will accrue on the unused portion of the commitments under the facility.  Letter of credit fees range from 0.75% to 1.25% for commercial letters of credit and range from 1.50% to 2.00% for standby letters of credit.  Letter of credit fees are determined based on the level of availability under the 2008 Credit Agreement and accrue on the undrawn amount of such outstanding letters of credit, respectively.  The 2008 Credit Agreement will mature on July 31, 2013.  The amount available to be borrowed under the 2008 Credit Agreement at any time depends on the Company’s levels of inventory and accounts receivable at such time.

 

The outstanding obligations under the 2008 Credit Agreement may be accelerated after the occurrence of (and, if applicable, the expiration of the cure period) certain events, including, among others, breach of covenants, the institution of insolvency proceedings, certain defaults under certain other indebtedness and a change of control.  Should the maturity of the 2008 Credit Agreement be accelerated for any reason, the Company would be responsible for an early termination fee in the amount of (i) 0.50% of the revolving credit facility ceiling then in effect within the first year of the term of the facility and (ii) 0.25% of the revolving credit facility ceiling then in effect within the second year of the term of the facility.  No early termination fee would be incurred after the completion of the second year of the term of the facility.

 

The 2008 Credit Agreement contains covenants, which include limitations on annual capital expenditures and limitations on the payment of dividends or similar payments.  Credit extended under the 2008 Credit Agreement is secured by a first or second priority security interest in substantially all of the Company’s assets and substantially all of the assets of its domestic subsidiaries.

 

The following table presents the components (in millions) of the 2008 Credit Agreement as of November 1, 2008:

 

 

 

November 1,
2008

 

2008 Credit Agreement

 

 

 

Credit facility maximum

 

$

200.0

 

Borrowing Base (1)

 

195.4

 

 

 

 

 

Borrowings outstanding

 

 

Letters of credit outstanding—merchandise

 

35.3

 

Letters of credit outstanding—standby

 

14.6

 

Utilization of credit facility at end of period

 

49.9

 

 

 

 

 

Availability

 

145.5

 

 

 

 

 

Average loan balance during the period

 

 

Highest borrowings during the period

 

1.0

 

Average interest rate

 

4.5

%

Interest rate at end of period

 

4.0

%

 


(1)          The Borrowing Base is calculated based on certain credit card receivable and inventory balances at the end of each period.  Under the 2008 Credit Agreement, the Company has the ability to borrow up to the lesser of $200 million or the Borrowing Base.

 

The Company capitalized approximately $1.6 million in deferred financing costs related to the institution of the 2008 Credit Agreement, which will be amortized on a straight line basis over the term of the 2008 Credit Agreement.

 

2007 Amended Loan Agreement; Letter of Credit Agreement

 

In June 2007, the Company and certain of its domestic subsidiaries entered into a Fifth Amended and Restated Loan and Security Agreement (the “2007 Amended Loan Agreement”) and a new letter of credit agreement (the “Letter of Credit Agreement”) with Wells Fargo as senior lender and administrative and syndication agent, and the Company’s other senior

 

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lenders to support The Children’s Place business and the seasonality of the Company’s capital needs and to reduce the fees associated with its credit facility borrowings.  The 2007 Amended Loan Agreement provided a facility maximum of $100 million for borrowings and standby letters of credit, with a $30 million “accordion” feature that enabled the Company, at its option, to increase the facility to an aggregate amount of $130 million, subject to an availability covenant which restricted maximum borrowings to 90% of the facility maximum, or $117 million.  The 2007 Amended Loan Agreement was terminated on July 31, 2008.

 

There was also a seasonal over-advance feature that enabled the Company to borrow up to an additional $20 million from July 1 through November 30, subject to satisfying certain conditions, including a condition related to earnings before interest, taxes, depreciation and amortization (“EBITDA”) on a trailing 12 month basis based upon the most recent financial statements furnished to Wells Fargo and the Company’s estimate of projected pro forma EBITDA for the over-advance period.  The LIBOR margin was 1.00% to 1.50%, depending on the Company’s average excess availability, and the unused line fee was 0.25%.

 

Credit extended under the 2007 Amended Loan Agreement was secured by a first priority security interest in substantially all of the Company’s assets, other than assets in Canada and Puerto Rico and assets owned by Hoop.  The amount that could be borrowed under the 2007 Amended Loan Agreement depended on levels of inventory and accounts receivable related to The Children’s Place business.  The 2007 Amended Loan Agreement contained covenants, which included limitations on annual capital expenditures, maintenance of certain levels of excess collateral, and a prohibition on the payment of dividends.

 

Under the Letter of Credit Agreement, the Company was able to issue letters of credit for inventory purposes for up to $60 million to support The Children’s Place business.  Interest was paid at the rate of 0.75% (or 1.00% during any period in which amounts remained outstanding under the seasonal over-advance feature) on the aggregate undrawn amount of all letters of credit outstanding thereunder.  The Company’s obligations under the Letter of Credit Agreement were secured by a security interest in substantially all of the assets of The Children’s Place business, other than assets in Canada and Puerto Rico, and assets of Hoop.

 

Prior to the termination of the 2007 Amended Loan Agreement and Letter of Credit Agreement on July 31, 2008, the Company’s average loan balance was $41.6 million, its highest borrowings were $80.6 million and its average interest rate was 5.38% thereunder.  The following table presents the components (in millions) of the Company’s credit facilities for its Children’s Place business as of February 2, 2008 and November 3, 2007:

 

 

 

February 2,
2008

 

November 3,
2007

 

2007 Amended Loan Agreement

 

 

 

 

 

Outstanding borrowings

 

$

69.6

 

$

96.0

 

Letters of credit outstanding—merchandise

 

 

 

Letters of credit outstanding—standby

 

14.3

 

12.2

 

Utilization of credit facility at end of period

 

83.9

 

108.2

 

Availability covenant (1)

 

13.0

 

12.0

 

Availability

 

33.1

 

29.8

 

Facility maximum (2)

 

130.0

 

150.0

 

Average loan balance during the period

 

44.1

 

33.3

 

Highest borrowings during the period

 

116.8

 

116.8

 

Average interest rate

 

7.21

%

7.41

%

Interest rate at end of period

 

6.00

%

7.50

%

Letter of Credit Agreement (3)

 

 

 

 

 

Letters of credit outstanding—merchandise

 

26.5

 

36.0

 

Letter of credit facility maximum

 

60.0

 

60.0

 

 


(1)   Under the 2007 Amended Loan Agreement, the Company was required to keep a minimum of additional availability of at least 10% of the facility maximum.

(2)   Under the 2007 Amended Loan Agreement, the facility maximum as of February 2, 2008 was the lesser of $130 million, subject to an availability covenant which restricted maximum borrowings to 90% of the facility maximum, or The Children’s Place business’ defined borrowing base.  Under the 2007 Amended Loan

 

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Agreement and using the seasonal over-advance feature, the facility maximum as of November 3, 2007 was the lesser of $150 million, or The Children’s Place business’ defined borrowing base.

(3)   The Letter of Credit Agreement was cancelable at any time by Wells Fargo.

 

Amended Hoop Loan Agreement

 

In connection with the Original Acquisition of the Disney Store business in 2004, the domestic Hoop entity together with certain other Hoop entities entered into a Loan and Security Agreement (the “Hoop Loan Agreement”) with Wells Fargo as senior lender and syndication and administrative agent, and certain other lenders, establishing a senior secured credit facility for Hoop.  In June 2007, concurrent with the execution of the 2007 Amended Loan Agreement, and in August 2007, Hoop entered into Second and Third Amendments to the Hoop Loan Agreement, both with Wells Fargo, as senior lender and administrative and syndication agent, and the other lenders (together with the Hoop Loan Agreement, the “Amended Hoop Loan Agreement”) to reduce the interest rates charged on outstanding borrowings and letters of credit.  The Amended Hoop Loan Agreement provided a facility maximum of $75 million for borrowings and provided for a $25 million accordion feature that enabled the Company to increase the facility to an aggregate amount of $100 million, subject to an availability restriction which limited maximum borrowings to 90% of the facility maximum, or $90 million.  The accordion feature was available at the Company’s option, subject to the amount of eligible inventory and accounts receivable of the domestic Hoop entity.

 

The Amended Hoop Loan Agreement was terminated on March 26, 2008 as a result of the filing of the Cases and Hoop was required to pay a termination fee of approximately $0.4 million.

 

Amounts outstanding under the Amended Hoop Loan Agreement bore interest at a floating rate equal to the prime rate or, at Hoop’s option, the LIBOR rate plus a pre-determined margin.  Depending on the domestic Hoop entity’s level of excess availability, the LIBOR margin was 1.50% or 1.75%, commercial letter of credit fees were 0.75% or 1.00%, and standby letter of credit fees were 1.25% or 1.50%.  The unused line fee was 0.25%.

 

Credit extended under the Amended Hoop Loan Agreement was secured by a first priority security interest in substantially all the assets of the domestic Hoop entity as well as a pledge of a portion of the equity interests in Hoop Canada.  The Amended Hoop Loan Agreement also contained covenants, including limitations on indebtedness, limitations on capital expenditures and restrictions on the payment of dividends and indebtedness.

 

The following table presents the components (in millions) of the Company’s credit facility for its Disney Store business as of February 2, 2008 and November 3, 2007:

 

 

 

February 2,
2008

 

November 3,
2007

 

Amended Hoop Loan Agreement/Hoop Loan Agreement

 

 

 

 

 

Outstanding borrowings

 

$

19.4

 

$

12.9

 

Letters of credit outstanding—merchandise

 

17.6

 

27.0

 

Letters of credit outstanding—standby

 

3.5

 

2.0

 

Utilization of credit facility at end of period

 

40.5

 

41.9

 

Availability (1)

 

18.1

 

33.1

 

Facility maximum (1)

 

58.6

 

75.0

 

Average loan balance during the period

 

3.1

 

0.4

 

Highest borrowings during the period

 

26.1

 

13.3

 

Average interest rate

 

7.41

%

7.83

%

Interest rate charged at end of period

 

6.00

%

7.50

%

 


(1)   Under the Amended Hoop Loan Agreement, the facility maximum was the lesser of $75.0 million or Hoop’s defined borrowing base.

 

DIP Credit Facility

 

As of May 3, 2008, the Hoop estate had repaid all outstanding borrowings under the DIP Credit Facility (as defined below).  On May 15, 2008, the DIP Credit Facility was closed.

 

As a result of the filing of the Cases, outstanding indebtedness under the Amended Hoop Loan Agreement, in the amount of approximately $9.3 million, was frozen and capped as of March 26, 2008.  In order to fund the bankruptcy

 

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proceedings and all projected working capital needs, Wells Fargo and Hoop Retail Stores, LLC entered into a Debtor-In-Possession Loan and Security Agreement, which was approved by the U.S. Bankruptcy Court and dated as of March 28, 2008, consisting of a $35 million revolving credit facility (the “DIP Credit Facility”).  In addition, all letters of credit issued under the Amended Hoop Credit Facility were deemed by the U.S. Bankruptcy Court to be issued under the DIP Credit Facility.  Hoop was required to pay a closing fee of approximately $0.3 million for the DIP Credit Facility.

 

Amounts outstanding under the DIP Credit Facility bore interest at a floating rate equal to the prime rate plus 1.50%, and commercial letter of credit fees and standby letter of credit fees were 2.50%.  The unused line fee was 0.375%.  Credit extended under the DIP Credit Facility was secured by a first priority security interest in substantially all the assets of the domestic Hoop entity as well as a pledge of a portion of the equity interests in Hoop Canada.

 

Letter of Credit Fees

 

Letter of credit fees approximated $0.3 million and $0.4 million in the thirty-nine week periods ended November 1, 2008 and November 3, 2007, respectively.  Letter of credit fees are included in cost of sales.

 

8.                                      NOTE PURCHASE AGREEMENT

 

On July 31, 2008, concurrently with the execution of the 2008 Credit Agreement, the Company and certain of its domestic subsidiaries and Sankaty Credit Opportunities III, L.P., Sankaty Credit Opportunities IV, L.P., RGIP, LLC, Crystal Capital Fund, L.P., Crystal Capital Onshore Warehouse LLC, 1903 Onshore Funding, LLC, and Bank of America, N.A. (collectively, the “Note Purchasers”), together with Sankaty Advisors, LLC, as Collateral Agent, and Crystal Capital Fund Management, L.P., as Syndication Agent, entered into a note purchase agreement (“Note Purchase Agreement”).

 

Under the Note Purchase Agreement, the Company issued $85 million of secured notes (the “Notes”) with no amortization with a single payment of principal due on the maturity date, July 31, 2013.  Amounts outstanding under the Note Purchase Agreement bear interest at LIBOR, with a floor of 3.00%, plus a margin between 8.50% and 9.75% depending on the Company’s leverage ratio.  As of November 1, 2008, the interest rate on the Note Purchase Agreement was 12.20%.

 

The outstanding obligations under the Note Purchase Agreement may be accelerated after the occurrence of (and, if applicable, the expiration of the cure period) certain events, including, among others, breach of covenants, certain defaults under certain other indebtedness, the institution of insolvency proceedings and a material adverse effect.  The Company is also required to make mandatory prepayments if a change of control occurs, if it receives cash in excess of certain defined thresholds for the sale of assets or other defined events, if it issues equity or other debt securities, or if annual cash flows are in excess of defined thresholds for each fiscal year.  In addition, the outstanding obligations under the Note Purchase Agreement may be prepaid at any time at the discretion of the Company.  For all prepayment types (including any made as a result of acceleration), except those relating to excess cash flows in a fiscal year and certain extraordinary receipts, the Company would be responsible for an early termination fee in the amount of (i) 2.00% of the aggregate principal amount of the Notes then prepaid within the first year of the term of the facility and (ii) 1.50% of the aggregate principal amount of the Notes then prepaid within the second year of the term of the facility.  No early termination fee would be incurred after the completion of the second year of the term of the facility.  Based on the Company’s estimated cash flow for fiscal year 2008, a prepayment of $30 million is expected to be made in the first half of fiscal 2009.  Accordingly, $30 million of the Notes are classified as current on the Company’s condensed consolidated balance sheet at November 1, 2008.

 

The Note Purchase Agreement contains covenants, which include limitations on annual capital expenditures, a minimum EBITDA, a maximum leverage ratio, a minimum fixed charge coverage ratio and limitations on the payment of dividends or similar payments.  The Company’s obligations under the Note Purchase Agreement are secured by a first or second priority security interest in substantially all of the Company’s assets and substantially all of the assets of its domestic subsidiaries.

 

On July 31, 2008, the proceeds from the Note Purchase Agreement were used in part to repay in full the borrowers’ outstanding obligations under the 2007 Amended Loan Agreement and the Letter of Credit Agreement; together with the 2007 Amended Loan Agreement, (collectively, the “2007 Facilities”) with Wells Fargo as senior lender and administrative and syndication agent, and the Company’s other senior lenders (collectively, the “2007 Lenders”).  There were no prepayment penalties associated with such repayment.  Upon receipt of such repayment by Wells Fargo for the benefit of the 2007 Lenders, the 2007 Facilities and the related guaranty and collateral agreements were terminated and the associated liens were released.

 

The Company capitalized approximately $2.2 million in deferred financing costs related to the institution of the Note Purchase Agreement, which will be amortized on a straight line basis over the term of the Note Purchase Agreement.

 

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9.                                      LEGAL AND REGULATORY MATTERS

 

The Company is involved in various legal proceedings arising in the normal course of its business and reserves for litigation settlements and contingencies when it can determine that an adverse outcome is probable and can reasonably estimate associated losses.  Estimates are adjusted as facts and circumstances require.  In the opinion of management, any ultimate liability arising out of such proceedings will not have a material adverse effect on the Company’s financial condition.

 

Matters Related to Stock Option Practices

 

SEC and U.S. Attorney Investigations

 

On September 29, 2006, the Division of Enforcement of the SEC informed the Company that it had initiated an informal investigation into the Company’s stock option granting practices.  In addition, the Office of the U.S. Attorney for the District of New Jersey has initiated an investigation into the Company’s option granting practices.  The Company has cooperated with these investigations and has briefed both authorities on the results of an investigation conducted by a sub-committee appointed by the Board of Directors.  There have been no developments in these matters since that time.

 

Shareholder Derivative Litigation

 

On January 17, 2007, a stockholder derivative action was filed in the United States District Court, District of New Jersey against certain current members of the Board and certain current and former senior executives.  The Company was named as a nominal defendant.  The complaint alleges, among other things, that certain of the Company’s current and former officers and directors (i) breached their fiduciary duties to the Company and its stockholders and were unjustly enriched by improperly backdating certain grants of stock options to officers and directors of the Company, (ii) caused the Company to file false and misleading reports with the SEC, (iii) violated the Exchange Act and common law, (iv) caused the Company to issue false and misleading public statements, and (v) were negligent and abdicated their responsibilities to the Company and its stockholders.  The complaint sought money damages, an accounting by the defendants for the proceeds of sales of any allegedly backdated stock options, and the costs and disbursements of the lawsuit, as well as equitable relief.  The plaintiff filed amended complaints adding, among other things, a claim for securities fraud under SEC rule 10b-5 and additional defendants and claims.  In May 2008, the parties entered into a stipulation of settlement to resolve this action, which settlement was approved by the court on July 21, 2008.  The only monetary portion of the settlement was $0.7 million of attorneys’ fees and reimbursement of expenses to plaintiffs’ counsel.  The majority of this cost was covered by the Company’s insurance.

 

Class Action Litigation

 

On September 21, 2007, a second stockholder class action was filed against the Company and certain current and former senior executives in the United States District Court, Southern District of New York.  This complaint alleges, among other things, that certain of the Company’s current and former officers made statements to the investing public which misrepresented material facts about the business and operations of the Company, or omitted to state material facts required in order for the statements made by them not to be misleading, causing the price of the Company’s stock to be artificially inflated in violation of provisions of the Exchange Act, as amended.  It alleges that subsequent disclosures establish the misleading nature of these earlier disclosures.  The complaint seeks monetary damages plus interest as well as costs and disbursements of the lawsuit.  On October 10, 2007, a third stockholder class action was filed in the United States District Court, Southern District of New York, against the Company and certain of its current and former senior executives.  This complaint alleges, among other things, that certain of the Company’s current and former officers made statements to the investing public which misrepresented material facts about the business and operations of the Company, or omitted to state material facts required in order for the statements made by them not to be misleading, thereby causing the price of the Company’s stock to be artificially inflated in violation of provisions of the Exchange Act, as amended.  According to this complaint, subsequent disclosures establish the misleading nature of these earlier disclosures.  This complaint seeks, among other relief, compensatory damages plus interest, and costs and expenses of the lawsuit, including counsel and expert fees.  These two actions have been consolidated and the plaintiff filed a consolidated amended class action complaint on February 28, 2008.  The Company’s motion to dismiss was denied by the Court on July 18, 2008.  While we believe there are valid defenses to the claims and we will defend ourselves vigorously, no assurance can be given as to the outcome of this litigation.  The litigation could distract our management and directors from the Company’s affairs, the costs and expenses of the litigation could unfavorably affect our net earnings, and an unfavorable outcome could adversely affect the reputation of the Company.

 

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On or about September 28, 2007, Meghan Ruggiero filed a complaint against the Company and its subsidiary, Hoop Retail Stores, LLC, in the United States District Court, Northern District of Ohio on behalf of herself and similarly situated individuals.  The lawsuit alleges violations of the Fair and Accurate Credit Transactions Act (“FACTA”) and seeks class certification, an award of statutory and punitive damages, attorneys’ fees and costs, and injunctive relief.  The plaintiff filed an amended complaint on January 25, 2008.  Effective as of March 26, 2008, the prosecution of this lawsuit against Hoop was stayed under the automatic stay provisions of the U.S. Bankruptcy Code by reason of Hoop’s petition for relief filed that same day.  While the Company believes there are valid defenses to the claims and will defend itself vigorously; no assurance can be given as to the outcome of this litigation.

 

Other Litigation

 

On or about July 12, 2006, Joy Fong, a former Disney Store manager in the San Francisco district, filed a lawsuit against the Company and its subsidiary Hoop Retail Stores, LLC in the Superior Court of California, County of Los Angeles.  The lawsuit alleges violations of the California Labor Code and California Business and Professions Code and sought class action certification on behalf of Ms. Fong and other individuals similarly situated.  The Company filed its answer on August 11, 2006 denying any and all liability, and on January 14, 2007, Ms. Fong filed an amended complaint, adding Disney as a defendant.  The Company believes it has meritorious defenses to the claims.  Effective as of March 26, 2008, the prosecution of this lawsuit against Hoop was stayed under the automatic stay provisions of the U.S. Bankruptcy Code by reason of Hoop’s petition for relief filed that same day.  The case is currently proceeding against the other defendants.  While the Company believes there are valid defenses to the claims, the Company cannot reasonably estimate the amount of loss or range of loss that might be incurred as a result of this matter.

 

Regulatory Matters

 

Nasdaq Proceedings

 

As the Company did not timely file its Quarterly Reports on Form 10-Q for the quarters ended July 29, 2006 and October 28, 2006, its Annual Report on Form 10-K for fiscal 2006, and its Quarterly Reports on Form 10-Q for the quarters ended May 5, 2007 and August 4, 2007 (collectively, the “Required Reports”), the Company was out of compliance with the reporting requirements of the SEC and the Nasdaq Global Select Market (“Nasdaq”) for more than one year.  On December 5, 2007, the Company filed the Required Reports with the SEC.

 

On February 6, 2008, the Company received a notice of non-compliance with Nasdaq rules citing our failure to solicit proxies and hold an annual meeting of shareholders for the fiscal year ended February 3, 2007, no later than February 3, 2008.  Nasdaq listing rules require that all issuers solicit proxies and hold an annual meeting of its shareholders within 12 months of the end of the issuer’s fiscal year end.  The Company requested an exception to this rule and submitted a plan of compliance to Nasdaq whereby it anticipated holding its annual shareholders’ meeting on June 27, 2008.  On April 3, 2008, the Nasdaq Listing Qualifications Panel granted the Company’s request for continued listing.  The Company informed the Panel it had solicited proxies and had held its 2007 annual shareholders’ meeting on June 27, 2008.

 

Following the resignation of an independent member of the Company’s Board of Directors in February 2008, the Company had six directors, three of whom were independent directors.  As a result of this resignation, the Company’s Board was no longer comprised of a majority of independent directors and therefore was not in compliance with Nasdaq Marketplace Rule 4350(c)(1).  On March 5, 2008, the Company received a notice of non-compliance with Nasdaq’s independent director requirements.  On May 9, 2008, the Company appointed two additional independent directors to the Company’s Board of Directors.  On May 16, 2008, the Company received a letter from Nasdaq stating that the Company was in compliance with Nasdaq Marketplace Rule 4350(c)(1) as of that date.

 

10.                               INCOME TAXES

 

The Company computes income taxes using the liability method.  This method requires recognition of deferred tax assets and liabilities, measured by enacted rates, attributable to temporary differences between financial statement and income tax basis of assets and liabilities.  Deferred tax assets and liabilities are comprised largely of book tax differences relating to depreciation, rent expense, inventory and various accruals and reserves.

 

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The Company’s effective tax rate from continuing operations for the thirteen weeks and thirty-nine weeks ended November 1, 2008 was 42.0% and 41.9%, respectively.  During the thirteen weeks and thirty-nine weeks ended November 3, 2007 the Company’s effective tax rate from continuing operations was 33.7% and 35.4%, respectively.  The effective tax rate is higher in the current year primarily because as of the fourth quarter of 2008, the Company is no longer permanently reinvested in certain Asian subsidiaries.

 

The Company adopted FASB Interpretation No. 48, “Accounting for Uncertainty in Income Taxes—An Interpretation of FASB Statement 109” (“FIN 48”) on February 4, 2007.  FIN 48 clarifies the accounting and reporting for uncertainty in income taxes recognized in an entity’s financial statements in accordance with FASB Statement No. 109, “Accounting for Income Taxes”, and prescribes a recognition threshold and measurement criteria for financial statement disclosure of tax positions taken or expected to be taken on a tax return.  Under FIN 48, the impact of an uncertain income tax position on the income tax return must be recognized at the largest amount that is more-likely-than-not to be sustained upon audit by the relevant taxing authority.  An uncertain income tax position will not be recognized if it has less than a 50% likelihood of being sustained.  Additionally, FIN 48 provides guidance on de-recognition, classification, interest and penalties, accounting in interim periods, disclosure and transition.  FIN 48 is effective for fiscal years beginning after December 15, 2006.

 

During the thirteen weeks and thirty-nine weeks ended November 1, 2008, the Company recognized approximately $0.3 million and $0.9 million, respectively of additional interest expense related to its unrecognized tax benefits.  During the thirteen weeks and thirty-nine weeks ended November 3, 2007, the Company recognized approximately $0.3 million and $0.8 million, respectively of additional interest expense related to its unrecognized tax benefits.  The Company recognizes accrued interest and penalties related to unrecognized income tax liabilities in income tax expense.

 

The Company is subject to taxation in the U.S. and various states and foreign jurisdictions.  With limited exception, the Company is no longer subject to U.S. federal, state, local or non-U.S. income tax audits by taxing authorities for years through 2003.  The Internal Revenue Service (“IRS”) commenced an examination of the Company’s U.S. consolidated income tax returns for the years 2004 through 2006 during the second quarter of fiscal 2007.  The Company believes it is reasonably possible due to the timing of audit settlements and negotiations with state taxing authorities that there may be a significant change to the total amount of unrecognized tax benefits within the next 12 months.  The Company estimates the amount of this change to be approximately $5 to $8 million.

 

11.                                    INTEREST (EXPENSE) INCOME, NET

 

The following table presents the components of the Company’s interest (expense) income, net (in thousands):

 

 

 

Thirteen Weeks Ended

 

Thirty-nine Weeks Ended

 

 

 

November 1,

 

November 3,

 

November 1,

 

November 3,

 

 

 

2008

 

2007

 

2008

 

2007

 

Interest income

 

$

977

 

$

816

 

$

2,231

 

$

1,997

 

Tax-exempt interest income

 

17

 

28

 

38

 

928

 

Total interest income

 

994

 

844

 

2,269

 

2,925

 

 

 

 

 

 

 

 

 

 

 

Less:

 

 

 

 

 

 

 

 

 

Interest expense — term loan

 

2,523

 

 

2,605

 

 

Interest expense — credit facilities

 

 

1,451

 

1,113

 

1,868

 

Capitalized interest

 

 

(234

)

 

(594

)

Unused line fee

 

97

 

19

 

189

 

121

 

Amortization of deferred financing fees

 

192

 

22

 

318

 

48

 

Other fees

 

94

 

382

 

847

 

850

 

Interest (expense) income, net

 

$

(1,912

)

$

(796

)

$

(2,803

)

$

632

 

 

12.                               NEW ACCOUNTING PRONOUNCEMENTS

 

In September 2006, the FASB issued SFAS No. 157, “Fair Value Measurements” (“SFAS 157”), which provides guidance for using fair value to measure assets and liabilities, defines fair value, establishes a framework for measuring fair value in U.S. GAAP, and expands disclosures about fair value measurements.  SFAS 157 is effective for fiscal years beginning after November 15, 2007 and for interim periods within those years, with the exception of all non-financial assets and liabilities which will be effective for years beginning after November 15, 2008.  The Company adopted SFAS 157 on

 

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February 3, 2008, the first day of fiscal year 2008.  The adoption did not have any impact on the Company’s condensed consolidated financial statements.

 

In February 2007, the FASB issued SFAS No. 159, “The Fair Value Option for Financial Assets and Financial Liabilities—Including an Amendment of FASB Statement No. 115” (“SFAS 159”).  This standard permits an entity to choose to measure many financial instruments and certain other items at fair value.  Most of the provisions in SFAS 159 are elective; however, the amendment to SFAS 115, “Accounting for Certain Investments in Debt and Equity Securities”, applies to all entities with available-for-sale and trading securities.  The fair value option established by SFAS 159 permits all entities to choose to measure eligible items at fair value at specified election dates.  A business entity will report unrealized gains and losses on items for which the fair value option has been elected in earnings (or another performance indicator if the business entity does not report earnings) at each subsequent reporting date.  The fair value option: (a) may be applied instrument by instrument, with a few exceptions, such as investments otherwise accounted for by the equity method; (b) is irrevocable (unless a new election date occurs); and (c) is applied only to entire instruments and not to portions of instruments.  The Company adopted the required provisions of SFAS 159 on February 3, 2008, the first day of fiscal year 2008.  The Company has chosen not to adopt the elective provisions of SFAS 159 and the remaining provisions did not have any impact on the Company’s condensed consolidated financial statements.

 

13.                               RELATED PARTY TRANSACTIONS

 

Merchandise for Re-Sale

 

The Company purchases footwear from Nina Footwear Corporation, which is partially owned by Stanley Silverstein, who is a member of the Board of Directors.  Mr. Silverstein is also the father-in-law of Ezra Dabah, who is also a member of the Board of Directors.  During the thirty-nine weeks ended November 1, 2008 and November 3, 2007, the Company purchased approximately $0.4 million and $3.4 million, respectively, of footwear from Nina Footwear Corporation.  No purchases were made from Nina Footwear Corporation during the thirteen weeks ended November 1, 2008 or November 3, 2007.

 

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Item 2.

 

MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

This Quarterly Report on Form 10-Q contains forward-looking statements within the meaning of federal securities laws, which are intended to be covered by the safe harbors created thereby.  Those statements include, but may not be limited to, the discussions of the Company’s operating and growth strategy.  Investors are cautioned that all forward-looking statements involve risks and uncertainties including, without limitation, those set forth under the caption “Risk Factors” in the Business section of the Company’s Annual Report on Form 10-K for the year ended February 2, 2008 and other filings with the Securities and Exchange Commission.  Although the Company believes that the assumptions underlying the forward-looking statements contained herein are reasonable, any of the assumptions could prove to be inaccurate, and therefore, there can be no assurance that the forward-looking statements included in this Quarterly Report on Form 10-Q will prove to be accurate.  In light of the significant uncertainties inherent in the forward-looking statements included herein, the inclusion of such information should not be regarded as a representation by the Company or any other person that the objectives and plans of the Company will be achieved.  The Company undertakes no obligation to publicly release any revisions to any forward-looking statements contained herein to reflect events and circumstances occurring after the date hereof or to reflect the occurrence of unanticipated events.

 

The following discussion should be read in conjunction with the Company’s unaudited financial statements and notes thereto included elsewhere in this Quarterly Report on Form 10-Q and the annual audited financial statements and notes thereto included in the Company’s Annual Report on Form 10-K for the year ended February 2, 2008 and the Company’s Current Report on Form 8-K filed with the SEC on August 6, 2008 to classify the Disney Stores as a discontinued operation.  The Disney Store business has been reported as discontinued operations in accordance with U.S. GAAP in this Quarterly Report on Form 10-Q, reflecting the Company’s exit of the Disney Store business.

 

RECENT DEVELOPMENTS

 

In the fourth quarter of fiscal 2007, our Board of Directors (the “Board”) engaged an investment banking firm to act as its financial advisor in undertaking a review of strategic alternatives to improve operations and enhance shareholder value.  As part of this review, our Board and management have been assessing a wide variety of options to maximize shareholder value, including, but not limited to, opportunities for organizational and operational improvement, and the potential sale of the Company.  As a result of this review, we have disposed of our Disney Store business and entered into an $85 million term loan and a new credit facility to increase our liquidity.  The strategic review is ongoing and the Board has not set any specific timeline for its completion.  There is no assurance that as a result of this review, the Board will decide to further change the Company’s course of action or engage in any other specific transactions.

 

To enable the evaluation of all strategic options for the Company, our Board has granted a request from Mr. Dabah, a member of our Board, and Golden Gate Private Equity, Inc. for approval under Delaware law to facilitate their working together to develop and make a proposal to acquire the Company.  There is no assurance that any such proposal will be made or, if made, would lead to an agreement providing for a sale of the Company.

 

After a thorough review of the Disney Store business, its potential earnings growth, its capital needs and its ability to fund such needs from its own resources, we announced on March 20, 2008 that we had decided to exit the Disney Store business.  After assessing the above factors and Hoop’s liquidity, Hoop’s Board of Directors determined that the best way to complete an orderly wind-down of Hoop’s affairs was for Hoop to seek relief under Chapter 11 of the United States Bankruptcy Code (the “Bankruptcy Code”).  On March 26, 2008, Hoop Holdings, LLC, Hoop Retail Stores, LLC and Hoop Canada Holdings, Inc. each filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware (the “U.S. Bankruptcy Court”) (Case Nos. 08-10544, 08-10545, and 08-10546, respectively, the “Cases”).  On March 27, 2008, Hoop Canada, Inc. filed for protection pursuant to the Companies’ Creditors Arrangement Act (the “CCAA”) in the Ontario Superior Court of Justice (Commercial List) (“Canadian Bankruptcy Court”) (Court File No. 08-CL-7453, and together with the Cases, the “Filings”).  Each of the foregoing Hoop entities are referred collectively herein as the “Hoop Entities.”

 

Since these Filings, the Hoop Entities have managed their properties and have operated their businesses as “debtors-in-possession” under the jurisdiction of the U.S. Bankruptcy Court or the Canadian Bankruptcy Court, as applicable, and in accordance with the applicable provisions of the Bankruptcy Code or the CCAA, as applicable.  Neither we, as Hoop’s parent company, nor any of our other subsidiaries, have commenced or plans to commence a Chapter 11 case (or equivalent under applicable bankruptcy laws).

 

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After receiving approval from the U.S. Bankruptcy Court and the Canadian Bankruptcy Court, on April 30, 2008, Hoop transferred the Disney Store business in the U.S. and Canada and a substantial portion of the Disney Store assets to affiliates of Disney in an asset sale (the “Private Sale”), pursuant to section 363 of the Bankruptcy Code (and a similar provision under the CCAA).  Upon closing, affiliates of Disney paid a purchase price of $64 million for the acquired assets of the Disney Store business, subject to a post-closing inventory and asset adjustment.  Approximately $6 million of the purchase price was placed in escrow for such true-up purposes.  Hoop anticipates finalizing the purchase price by the end of fiscal 2008.  The proceeds received from the Private Sale will be utilized to settle the Hoop Entities’ liabilities as “debtors-in-possession” under the jurisdiction of the U.S. Bankruptcy Court and the Canadian Bankruptcy Court, as applicable.

 

In connection with the closing of the Private Sale, Disney’s relevant affiliates released Hoop from its rights and obligations under the License Agreement, as amended by the Refurbishment Amendment, the Guaranty and Commitment Agreement, and any related future liabilities and unlimited claims.  Further, in connection with the closing of the Private Sale and the satisfaction of other conditions, Disney and its affiliates released us from our obligations under the Guaranty and Commitment Agreement and the Refurbishment Amendment.  We also agreed to provide certain transition services through the end of October 2008 to assist Disney in transitioning the Disney Stores to its administrative and distribution systems.  During the thirteen weeks and thirty-nine weeks ended November 1, 2008, we received $5.7 million and $11.1 million, respectively, net of variable expenses for these transition services.

 

Separately, we entered into a settlement and release of claims with Hoop and its creditors’ committee, which was approved by the U.S. Bankruptcy Court on April 29, 2008.  We have agreed to provide transitional services and to forgive all pre- and post-bankruptcy petition claims against Hoop, which include inter-company charges for shared services and to pay severance and other employee costs for our employees servicing Hoop, and certain other professional fees and other costs we may incur during the Hoop Entities’ bankruptcy proceedings, as well as claims that might be asserted against us in such bankruptcy proceedings.

 

Our annual profitability is highly dependent on our sales and gross margin performance during the third and fourth quarters.  During the four weeks ended November 29, 2008, our comparable store sales decreased 7% as compared to an increase of 8% in the four weeks ended December 1, 2007.

 

CRITICAL ACCOUNTING POLICIES

 

The preparation of consolidated financial statements in conformity with accounting principles generally accepted in the United States (“U.S. GAAP”) requires us to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements, as well as the reported revenues and expenses during the fiscal period.  Actual results could differ from our estimates.  The accounting policies that we believe are the most critical to aid in fully understanding and evaluating reported financial results include the following:

 

Revenue Recognition—Sales are recognized upon purchase by customers at our retail stores or when received by the customer if the product was purchased via the Internet, net of coupon redemptions and anticipated sales returns.  Actual sales return rates have historically been within our expectations and the allowance established.  However, in the event that the actual rate of sales returns by customers increased significantly, our operational results could be adversely affected.

 

Our policy with respect to gift cards is to record revenue as gift cards are redeemed for merchandise.  Prior to their redemption, unredeemed gift cards for The Children’s Place business are recorded as a liability, included within accrued expenses and other current liabilities.  We recognize income from gift cards that are not expected to be redeemed based upon an extended period of dormancy where statutorily permitted.

 

We offer a private label credit card to our The Children’s Place customers that provides a discount on future purchases once a minimum annual purchase threshold has been exceeded.  We estimate the future discounts to be provided based on history, the number of customers who have earned or are likely to earn the discount and current year sales trends on the private label credit card.  We defer a proportionate amount of revenue from customers based on an estimated value of future discounts.  We recognize such deferred revenue as future discounts are taken on sales above the minimum.  This is done by utilizing estimates based upon sales trends and the number of customers who have earned the discount privilege.  Our private label customers must earn the discount privilege on an annual basis and this privilege expires at our fiscal year end.  Accordingly, all deferred revenue is recognized by the end of the fiscal year.

 

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Inventory Valuation—Merchandise inventories are stated at the lower of average cost or market using the retail inventory method.  Under the retail inventory method, the valuation of inventories at cost and the resulting gross margins are calculated by applying a cost-to-retail ratio by merchandise department to the retail value of inventories.  At any one time, inventories include items that have been marked down to our best estimate of their fair market value and an estimate of our inventory shrinkage.

 

We base our decision to mark down merchandise upon its current rate of sale, the season, and the age and sell-through of the item.  To the extent that our markdown estimates are not adequate, additional markdowns may have to be recorded, which could reduce our gross margins and operating results.  Our success is largely dependent upon our ability to gauge the fashion taste of our customers and to provide a well-balanced merchandise assortment that satisfies customer demand.  Any inability to provide the proper quantity of appropriate merchandise in a timely manner could increase future markdown rates.

 

We adjust our inventory balance based on an annual physical inventory and shrinkage is estimated in interim periods based on the historical results of physical inventories in the context of current year facts and circumstances.  To the extent our shrinkage estimate is not adequate, we would be required to reduce our gross profits and operating results.

 

Equity Compensation—In applying SFAS 123(R), we use the Black-Scholes option pricing model based on a Monte Carlo simulation, which requires extensive use of accounting judgment and financial estimates, including estimates of how long employees will hold their vested stock options before exercise, the estimated volatility of the Company’s common stock over the expected term, and the number of options that will be forfeited prior to the completion of vesting requirements.  Application of other assumptions could result in significantly different estimates of fair value of stock-based compensation and consequently, the related expense recognized in our financial statements.  We also award key management deferred stock awards, restricted stock awards and performance share awards (“Performance Awards”) which, if earned, would be satisfied by the issuance of shares of common stock (“Performance Shares”).  The vesting of Performance Shares is dependant upon the Company achieving defined levels of earnings over a period of time.  Our cumulative expense is dependant upon our assessment of future earnings.  That assessment could differ from actual results.

 

Accounting for Liabilities subject to compromise—As a “debtor-in-possession,” certain claims against Hoop that existed prior to the Filings are stayed under the jurisdiction of the U.S. Bankruptcy Court or Canadian Bankruptcy Court, as applicable, and are “liabilities subject to compromise” and are reflected in the November 1, 2008 balance sheet within “liabilities of bankruptcy estate of subsidiary.” Additional claims (liabilities subject to compromise) may arise as a result of the rejection of executory contracts, including leases for the stores returned to the Hoop estate, and from the determination by the U.S. Bankruptcy Court or Canadian Bankruptcy Court (or agreed to by the Hoop’s creditors) of claims allowed for contingencies and other related amounts.

 

Accounting for Royalties—In exchange for the right to use certain Disney intellectual property, we were required to make royalty payments pursuant to the License Agreement to a Disney subsidiary after a two-year royalty holiday period that ended in November 2006.  The amortization of the estimated value of the royalty holiday was recognized on a straight-line basis as a reduction of royalty expense over the term of the License Agreement.  During the thirty-nine weeks ended November 1, 2008, our discontinued operations included the reversal of approximately $42.3 million in deferred royalty expense in conjunction with the termination of the License Agreement in accordance with the Private Sale.

 

Insurance and Self-Insurance Liabilities—Based on our assessment of risk and cost efficiency, we self-insure and purchase insurance policies to provide for workers’ compensation, general liability, property losses, director’s and officer’s liability, vehicle liability and employee medical benefits.  We estimate risks and record a liability based upon historical claim experience, insurance deductibles, severity factors and other actuarial assumptions.  While we believe that our risk assessments are appropriate, to the extent that future occurrences and claims differ from our historical experience, additional charges for insurance may be recorded in future periods.

 

Impairment of Assets—We periodically review our assets when events indicate that their carrying value may not be recoverable.  Such events include a history of cash flow losses or a future expectation that we will sell or dispose of an asset significantly before the end of its previously estimated useful life.  We periodically evaluate each store’s performance and compare the carrying value of each location’s fixed assets, principally leasehold improvements and fixtures, to its projected cash flows.  An impairment loss is recorded if the projected future cash flows are insufficient to recapture the net book value of their assets.  To the extent our estimates of future cash flows are incorrect, additional impairment charges may be recorded in future periods.

 

Income Taxes—We compute income taxes using the liability method.  This method requires recognition of deferred tax assets and liabilities, measured by enacted rates, attributable to temporary differences between financial statement and

 

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income tax basis of assets and liabilities.  Temporary differences result primarily from depreciation and amortization differences between book and tax and the non-deductibility of certain reserves and accruals in the current tax period for tax purposes.  In assessing the need for a valuation allowance, management considers all available evidence including past operating results, estimates of future taxable income and the feasibility of ongoing tax planning strategies.  When we change our determination of the amount of deferred tax assets that can be realized, a valuation allowance is established or adjusted with a corresponding impact to income tax expense in the period in which such determination is made.

 

During the ordinary course of business, there are many transactions and calculations for which the ultimate tax determination is uncertain.  As a result, we recognize tax liabilities based on estimates of whether additional taxes and interest will be due.  These tax liabilities are recognized when, despite our belief that our tax positions are supportable, we believe that certain positions are likely to be challenged and may not be fully sustained upon review by tax authorities.  We believe that our accruals for tax liabilities are adequate for all open audit years based on our assessment of many factors including past experience and interpretations of tax law.  This assessment relies on estimates and assumptions and may involve a series of complex judgments about future events.  To the extent that the final tax outcome of these matters is different than the amounts recorded, such differences will impact income tax expense in the period in which such determination is made.

 

We adopted FASB Interpretation No. 48, “Accounting for Uncertainty in Income Taxes—an Interpretation of FASB Statement No. 109” (FIN 48) on February 4, 2007. FIN 48 clarifies the accounting and reporting for uncertainties in income tax law.  This Interpretation prescribes a comprehensive model for the financial statement recognition, measurement, presentation and disclosure of uncertain tax positions taken or expected to be taken in income tax returns.

 

RESULTS OF OPERATIONS

 

The following table sets forth, for the periods indicated, selected income statement data expressed as a percentage of net sales.  We primarily evaluate the results of our operations as a percentage of net sales rather than in terms of absolute dollar increases or decreases by analyzing the year over year change in our business expressed as a percentage of net sales (i.e., “basis points”).  For example, our selling, general and administrative expenses decreased approximately 230 basis points to 28.1% of net sales during the thirteen weeks ended November 1, 2008 from 30.4% during the thirteen weeks ended November 3, 2007.  Accordingly, to the extent that our sales have increased at a faster rate than our costs (i.e., “leveraging”), the more efficiently we have utilized the investments we have made in our business.  Conversely, if our sales decrease or if our costs grow at a faster pace than our sales (i.e., “de-leveraging”), we have less efficiently utilized the investments we have made in our business.

 

 

 

Thirteen Weeks Ended

 

Thirty-nine Weeks Ended

 

 

 

November 1,
2008

 

November 3,
2007

 

November 1,
2008

 

November 3,
2007

 

Net sales

 

100.0

%

100.0

%

100.0

%

100.0

%

Cost of sales

 

56.4

 

60.0

 

58.3

 

61.2

 

Gross profit

 

43.6

 

40.0

 

41.7

 

38.8

 

Selling, general and administrative expenses

 

28.1

 

30.4

 

29.6

 

32.3

 

Asset impairment charges

 

0.2

 

0.2

 

0.1

 

0.1

 

Depreciation and amortization

 

3.9

 

4.0

 

4.5

 

4.3

 

Operating income

 

11.3

 

5.4

 

7.6

 

2.0

 

Interest (expense) income, net

 

(0.4

)

(0.2

)

(0.2

)

0.1

 

Income from continuing operations before income taxes

 

10.9

 

5.2

 

7.3

 

2.0

 

Provision for income taxes

 

4.6

 

1.8

 

3.1

 

0.7

 

Income from continuing operations

 

6.3

 

3.5

 

4.3

 

1.3

 

Loss from discontinued operations, net of taxes

 

(1.0

)

(0.6

)

(0.6

)

(1.4

)

Net income (loss)

 

5.3

%

2.9

%

3.7

%

(0.1

)%

Number of stores of continuing operations, end of period

 

920

 

907

 

920

 

907

 

 

Table may not add due to rounding.

 

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Thirteen Weeks Ended November 1, 2008 (the “Third Quarter 2008”) Compared to Thirteen Weeks Ended November 3, 2007 (the “Third Quarter 2007”)

 

Net sales increased by $20.0 million, or 5%, to $450.6 million during the Third Quarter 2008 from $430.6 million during the Third Quarter 2007.  Our Third Quarter 2008 sales increase resulted from a comparable store sales increase of 2%, which accounted for $6.2 million of our sales increase, a $7.3 million increase in sales from new stores and other stores that did not qualify as comparable stores, and a $6.5 million increase in our e-commerce business.  During the Third Quarter 2007, our comparable store sales increased 1%.  We define comparable store sales as net sales from stores that have been open at least 14 full months and that have not been substantially remodeled during that time.  During the Third Quarter 2008, we opened 19 stores and closed one store.

 

Our 2% comparable store sales increase was primarily the result of a 6% increase in our average dollar transaction size partially offset by a 4% decrease in the number of comparable store sales transactions.  The increase in our average dollar transaction was due to a 10% increase in our average unit retail price offset by a 4% decrease in units per transaction.  The increase in our average retail price was primarily the result of reduced markdowns taken in the Third Quarter 2008 versus the Third Quarter 2007.  During the Third Quarter 2008, comparable same store sales increased in most geographic regions except for the Midwest, where it was flat, and the West, Southeast and Canada, where we experienced decreases.  Similarly, all departments had increases in comparable same store sales except Newborn.  Street and strip stores were our strongest store types.  Our e-commerce sales grew by more than 40% in Third Quarter 2008 versus the Third Quarter 2007.

 

Gross profit increased by $24.1 million to $196.4 million during the Third Quarter 2008 from $172.3 million during the Third Quarter 2007.  As a percentage of net sales, gross profit increased approximately 360 basis points to 43.6% of net sales during the Third Quarter 2008 from 40.0% of net sales during the Third Quarter 2007.  The increase in consolidated gross profit, as a percentage of net sales, resulted from lower markdowns of approximately 370 basis points, lower production, design and other costs of approximately 20 basis points, partially offset by the impact of the lower Canadian exchange rate, a lower initial markup of approximately 10 basis points, and a slight de-leverage of occupancy of approximately 20 basis points.

 

Selling, general and administrative expenses decreased $4.3 million to $126.7 million during the Third Quarter 2008 from $131.0 million during the Third Quarter 2007.  As a percentage of net sales, selling, general and administrative expenses decreased approximately 230 basis points to 28.1% of net sales during the Third Quarter 2008 from 30.4% of net sales during the Third Quarter 2007.  Our decrease in selling, general and administrative expenses benefited from the following items, which we consider to be unusual:

 

·                  Transition service income, net of variable expenses approximated 130 basis points and was approximately $5.7 million;

·                  Lower professional fees incurred during the Third Quarter 2008 of approximately 60 basis points, or approximately $2.6 million lower than the Third Quarter 2007.  During the Third Quarter 2008, we had a net credit related to professional fees of approximately $0.2 million as a result of the recovery of certain legal costs through our insurance carrier, compared to approximately $2.4 million in professional fees incurred during the Third Quarter 2007 related to the stock option investigation and related restatements, and our strategic review;

·                  Severance costs incurred in the Third Quarter 2007, which approximated 90 basis points and $4.0 million, associated with the resignation of our former CEO; and