Exhibit 10.4


 


RESTRICTED STOCK AWARD
AGREEMENT


 


Tuesday Morning Corporation

2008 Long-Term Equity Incentive Plan


 


This RESTRICTED STOCK AWARD
AGREEMENT (this “Agreement”) is
entered into between Tuesday Morning Corporation, a Delaware corporation (the “Company”), and                               
(the “Awardee”) as of                               
(the “Grant Date”), pursuant to the Tuesday
Morning Corporation 2008 Long-Term Equity Incentive Plan (the “Plan”), the terms of which are incorporated by reference
herein in their entirety.  The Company
and the Awardee have entered into a                                                 
dated                           ,
(the “Employment Agreement”), under which the
Company has agreed to grant Awardee restricted shares of common stock of the
Company as an inducement for Awardee’s continued and effective performance of
services for the Company.


 


WHEREAS, the Company desires to grant the Awardee the shares
of equity securities specified herein (“Restricted  Shares”), subject to the terms and conditions of this
Agreement. Any term used in this Agreement that is not specifically defined
herein shall have the meaning specified in the Plan;


 


NOW, THEREFORE, in consideration of the premises, mutual covenants
and agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company agrees as
follows:


 


1.                                       Grant of Restricted Shares.  Effective as
of the Grant Date, the Company shall cause to be issued in the Awardee’s name
the following Restricted Shares:                       
shares of the Company’s common stock, $.01 par value.  The Company shall cause certificates
evidencing the Restricted Shares, and any Retained Distributions issued with
respect to the Restricted Shares, to be issued in the Awardee’s name.  During the Restricted Period such
certificates shall bear a restrictive legend to the effect that ownership of
such Restricted Shares (and any such Retained Distributions), and the enjoyment
of all rights appurtenant thereto, are subject to the restrictions, terms, and
conditions provided in the Plan and this Agreement.  The Awardee shall have the right to vote the Restricted
Shares awarded to the Awardee and to receive and retain all regular cash
dividends, and to exercise all other rights, powers and privileges of a holder
of Common Stock, with respect to such Restricted Shares, with the exception
that (a) the Awardee shall not be entitled to delivery of the stock
certificate or certificates representing such Restricted Shares until the
Forfeiture Restrictions applicable thereto shall have expired, (b) the
Company shall retain custody of all Retained Distributions made or declared
with respect to the Restricted Shares (and such Retained Distributions shall be
subject to the same restrictions, terms and conditions as are applicable to the
Restricted Shares) until such time, if ever, as the Restricted Shares with
respect to which such Retained Distributions shall have been made, paid, or
declared shall have become vested, and such Retained Distributions shall not
bear interest or be segregated in separate accounts and (c) the Awardee
may not sell, assign, transfer, pledge, exchange, encumber, or dispose of the Restricted
Shares or any Retained Distributions during the Restricted Period.  Upon 


 

















 


issuance the certificates for the Restricted Shares
shall be delivered to the Secretary of the Company or to such other depository
as may be designated by the Committee as a depository for safekeeping until the
forfeiture of such Restricted Shares occurs or the Forfeiture Restrictions
lapse, together with stock powers or other instruments of assignment, each
endorsed in blank, which will permit transfer to the Company of all or any
portion of the Restricted Shares and any securities constituting Retained
Distributions which shall be forfeited in accordance with the Plan and this
Agreement.  In accepting the award of Restricted
Shares set forth in this Agreement the Awardee accepts and agrees to be bound
by all the terms and conditions of the Plan and this Agreement.


 


2.                                       Definitions.  For purposes
of this Agreement, the following terms shall have the meanings indicated below:


 


(a)                                  “Forfeiture Restrictions”
shall mean any prohibitions and restrictions set forth herein with respect to
the sale or other disposition of Restricted Shares issued to the Awardee
hereunder and the obligation to forfeit and surrender such Restricted Shares to
the Company.


 


(b)                                 “Restricted Period”
shall mean the period designated by the Committee during which Restricted
Shares may not be sold, assigned, transferred, pledged, or otherwise
encumbered.


 


(c)                                  “Restricted Shares”
shall mean Shares that are subject to the Forfeiture Restrictions under this
Agreement.


 


(d)                                 “Retained Distributions”
shall mean any securities or other property (other than regular cash dividends)
distributed by the Company in respect of Restricted Shares during any
Restricted Period.


 


Capitalized terms not otherwise defined in this
Agreement shall have the meanings given to such terms in the Plan.


 


3.                                       Transfer Restrictions.  The Restricted
Shares granted hereby may not be sold, assigned, pledged, exchanged,
hypothecated or otherwise transferred, encumbered or disposed of (other than by
will or the applicable laws of descent and distribution) to the extent then
subject to the Forfeiture Restrictions. 
Any such attempted sale, assignment, pledge, exchange, hypothecation,
transfer, encumbrance or disposition in violation of this Agreement shall be
void and the Company shall not be bound thereby.  Further, the Restricted Shares granted hereby
that are no longer subject to Forfeiture Restrictions may not be sold or
otherwise disposed of in any manner that would constitute a violation of any
applicable federal or state securities laws. 
The Awardee also agrees (a) that the Company may refuse to cause
the transfer of the Restricted Shares to be registered on the applicable stock
transfer records if such proposed transfer would in the opinion of counsel
satisfactory to the Company constitute a violation of any applicable securities
law and (b) that the Company may give related instructions to the transfer
agent, if any, to stop registration of the transfer of the Restricted Shares.


 

















 


4.                                       Vesting.  The Restricted
Shares that are granted hereby shall be subject to Forfeiture
Restrictions.  The Forfeiture
Restrictions shall lapse as to the Restricted Shares that are granted hereby in
accordance with the provisions of subsections (a) through (d) of
this Section 4.


 


(a)                                  Generally. 
The Forfeiture Restrictions shall lapse as to the Restricted Shares that
are granted hereby as provided in subsections (b), provided that the Awardee’s
service as an employee has not terminated prior to the applicable date provided
in subsection (b).  If the Awardee’s
service as a employee terminates before a date provided in subsections (b) then
except as otherwise specified in subsections (c) or (d) below
the Forfeiture Restrictions then applicable to any of the Restricted Shares
shall not lapse and all of the Restricted Shares with respect to which
Forfeiture Restrictions have not then lapsed shall be forfeited to the Company
upon such cessation of service.


 


(b)                                 Vesting Date.  The Restricted Shares will vest (subject to the
provisions of subsection (a)) in accordance with the following schedule:


 


(i)                                     on                       ,
the Forfeiture Restrictions shall lapse, and the Restricted Shares will vest,
with respect to one-third of the Restricted Shares;


 


(ii)                                  on                           
the Forfeiture Restrictions shall lapse, and the Restricted Shares will vest,
with respect to an additional one-third of the Restricted Shares; and


 


(iii)                               on                           ,
the Forfeiture Restrictions shall lapse, and the Restricted Shares will vest,
with respect to the remaining one-third of the Restricted Shares, so that on                         
the Restricted Shares will vest in full.


 


(c)                                  Death or Disability. 
Notwithstanding any provisions of Section 4 to the contrary, in the
event the Awardee’s service as an employee is terminated due to the death or
Disability of the Awardee prior to a date provided in subsections (b), the
Forfeiture Restrictions for all of the Restricted Shares with respect to which
Forfeiture Restrictions have not then lapsed shall lapse on the date of such cessation
of service due to death or Disability.


 


(d)                                 Change in Control. 
Notwithstanding any provisions of Section 4 to the contrary, in the
event a Change in Control occurs prior to the date the Awardee’s service with
the Company is terminated the Forfeiture Restrictions for all of the Restricted
Shares with respect to which Forfeiture Restrictions have not then lapsed shall
lapse on the date of such Change in Control.


 


5.                                       Effect of Lapse of
Restrictions.  Upon the lapse of the Forfeiture Restrictions
with respect to a Restricted Share granted hereby the Company shall cause to be
delivered to the Awardee a stock certificate representing such Restricted Share,
and such Restricted Share shall be transferable by the Awardee (except to the extent
that any proposed 


 

















 


transfer would, in the opinion of counsel satisfactory
to the Company, constitute a violation of applicable securities law).


 


6.                                       Capital Adjustments and
Reorganizations.  The existence of the Restricted Shares shall
not affect in any way the right or power of the Company or any company the
stock of which is awarded pursuant to this Agreement to make or authorize any
adjustment, recapitalization, reorganization or other change in its capital
structure or its business, engage in any merger or consolidation, issue any
debt or equity securities, dissolve or liquidate, or sell, lease, exchange or
otherwise dispose of all or any part of its assets or business, or engage in
any other corporate act or proceeding.


 


7.                                       Section 83(b) Election.  The Awardee
shall not exercise the election permitted under section 83(b) of the Code
with respect to the Restricted Shares without the written approval of the Chief
Financial Officer of the Company.


 


8.                                       Legend.  The
Awardee consents to the placing on the certificate for the Restricted Shares of
an appropriate legend restricting resale or other transfer of the Restricted
Shares except in accordance with the Securities Act of 1933 and all applicable rules thereunder.


 


9.                                       Notices.  Any notice,
instruction, authorization, request or demand required hereunder shall be in
writing, and shall be delivered either by personal delivery, by telegram,
telex, telecopy or similar facsimile means, by certified or registered mail,
return receipt requested, or by courier or delivery service, addressed to the
Company at the Company’s principal business office address and to the Awardee
at the Awardee’s residential address, or at such other address and number as a
party shall have previously designated by written notice given to the other
party in the manner hereinabove set forth. 
Notices shall be deemed given when received, if sent by facsimile means
(confirmation of such receipt by confirmed facsimile transmission being deemed
receipt of communications sent by facsimile means); and when delivered (or upon
the date of attempted delivery where delivery is refused), if hand-delivered,
sent by express courier or delivery service, or sent by certified or registered
mail, return receipt requested.


 


10.                                 Amendment and Waiver.  Except as
otherwise provided herein or in the Plan or as necessary to implement the
provisions of the Plan, this Agreement may be amended, modified or superseded
only by written instrument executed by the Company and the Awardee.  Only a written instrument executed and
delivered by the party waiving compliance hereof shall waive any of the terms
or conditions of this Agreement.  Any
waiver granted by the Company shall be effective only if executed and delivered
by a duly authorized director or officer of the Company other than the Awardee.  The failure of any party at any time or times
to require performance of any provisions hereof shall in no manner effect the
right to enforce the same.  No waiver by
any party of any term or condition, or the breach of any term or condition
contained in this Agreement, in one or more instances, shall be construed as a
continuing waiver of any such condition or breach, a waiver of any other
condition, or the breach of any other term or condition.


 


11.                                 Governing Law and Severability.  This Agreement
shall be governed by the laws of the State of Delaware without regard to its
conflicts of law provisions.  The
invalidity of any 


 

















 


provision of this Agreement shall not affect any other
provision of this Agreement, which shall remain in full force and effect.


 


12.                                 Successors and Assigns.  Subject to the
limitations which this Agreement imposes upon the transferability of the Restricted
Shares granted hereby, this Agreement shall bind, be enforceable by and inure
to the benefit of the Company and its successors and assigns, and to the Awardee,
the Awardee’s permitted assigns and upon the Awardee’s death, the Awardee’s
estate and beneficiaries thereof (whether by will or the laws of descent and
distribution), executors, administrators, agents, legal and personal
representatives.


 


13.                                 Counterparts.  This Agreement
may be executed in two or more counterparts, each of which shall be an original
for all purposes but all of which taken together shall constitute but one and
the same instrument.


 


IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by an officer thereunto duly authorized as of the date first above
written.


 


	
   

  	
  TUESDAY MORNING CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:   Chief
  Financial Officer

  
				



 





















 


IRREVOCABLE
STOCK POWER


 


KNOW ALL MEN BY THESE PRESENTS, That
The Undersigned,
For Value Received, has bargained,
sold, assigned and transferred and by these presents does bargain, sell, assign
and transfer unto Tuesday Morning Corporation, a Delaware corporation (the “Company”), the Restricted Shares transferred pursuant to the
RESTRICTED STOCK AWARD AGREEMENT dated                             
by the Company granting Restricted Shares to the undersigned (the “Award Agreement”); and subject
to and in accordance with the Award Agreement the undersigned does hereby
constitute and appoint the Secretary of the Company the undersigned’s true and
lawful attorney, IRREVOCABLY, to sell, assign, transfer, hypothecate, pledge
and make over all or any part of such Restricted Shares and for that purpose to
make and execute all necessary acts of assignment and transfer thereof, and to
substitute one or more persons with like full power, hereby ratifying and
confirming all that said attorney or his substitutes shall lawfully do by
virtue hereof.


 


In Witness Whereof, the undersigned has executed this
Irrevocable Stock Power on this             
day of                                               .


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name of Awardee:

  	
  «Name»