Exhibit
10.1


 


PERFORMANCE STOCK AWARD
AGREEMENT


 


Tuesday Morning Corporation

2004 Long-Term Equity Incentive Plan


 


This PERFORMANCE STOCK AWARD
AGREEMENT (this “Agreement”) is
made by Tuesday Morning Corporation, a Delaware corporation (the “Company”), as of                       
(the “Grant Date”), pursuant to the Tuesday
Morning Corporation 2004 Long-Term Equity Incentive Plan, as amended (the “Plan”), the terms of which are incorporated by reference
herein in their entirety.


 


WHEREAS, the Company desires to
grant to                       
(the “Awardee”) the shares of equity
securities specified herein (“Performance  Stock Shares”), subject to the terms and conditions of this
Agreement;


 


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 Performance Stock
Shares.  Effective as of the Grant Date, the Company
shall cause to be issued in the Awardee’s name the following Performance Stock
Shares                       
shares of the Company’s common stock, $.01 par value.  The Company shall cause certificates
evidencing the Performance Stock Shares, and any Retained Distributions issued
with respect to the Performance Stock 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 Performance Stock 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
Performance Stock 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 Performance Stock Shares,
with the exception that (a) the Awardee shall not be entitled to delivery
of the stock certificate or certificates representing such Performance Stock
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 Performance Stock Shares (and such Retained
Distributions shall be subject to the same restrictions, terms and conditions
as are applicable to the Performance Stock Shares) until such time, if ever, as
the Performance Stock 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 Performance Stock Shares or any Retained
Distributions during the Restricted Period. 
Upon issuance the certificates for the Performance Stock 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 Performance Stock 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 Performance Stock Shares and any securities
constituting Retained Distributions which shall be forfeited in accordance with
the Plan and this Agreement.  In accepting
the award of 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 Performance Stock Shares issued to the Awardee
hereunder and the obligation to forfeit and surrender such Performance Stock
Shares to the Company.


 

















 


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


 


(c)           “Performance Stock 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 Performance Stock 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
Performance Stock 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 Performance Stock 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 Performance Stock 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
Performance Stock Shares.


 


4.             Vesting.  The
Performance Stock Shares that are granted hereby shall be subject to Forfeiture
Restrictions.  The Forfeiture
Restrictions shall lapse as to the Performance Stock 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 Performance Stock
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 an 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 Performance Stock Shares
shall not lapse and all of the Performance Stock Shares with respect to which
Forfeiture Restrictions have not then lapsed shall be forfeited to the Company
upon such cessation of service.


 


(b)           Period Following Achievement of
Performance Goal.  The Performance Stock Shares shall not
vest either in part or in whole unless the performance goal set forth on the
attached Exhibit 1
(the “Performance Goal”) is achieved by June 30,
2009 (the “Performance Date”).  If the Performance Goal is achieved by the
Performance Date then the Performance Stock Shares will vest (subject to the
provisions of subsection (a)) in accordance with the following schedule:


 


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


 


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


 

















 


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


 


If the Performance Goal is not achieved by the Performance Date then
the Forfeiture Restrictions shall not lapse and the Performance Stock Shares
and all rights of the Awardee pursuant to this Agreement shall lapse and become
null and void, and all of the Performance Stock Shares shall be forfeited to
the Company, on the Performance Date.


 


(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 Performance Stock 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
Performance Stock 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 Performance Stock Share granted hereby the Company shall
cause to be delivered to the Awardee a stock certificate representing such
Performance Stock Share, and such Performance Stock 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 Performance Stock 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 Performance Stock 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
Performance Stock Shares of an appropriate legend restricting resale or other
transfer of the Performance Stock 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
Performance Stock 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:

  



 

















 


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 Performance Stock
Shares transferred pursuant to the PERFORMANCE STOCK AWARD AGREEMENT
dated                       
by the Company granting Performance Stock 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 Performance Stock 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:

  



 

















 


Exhibit 1


 


Performance
Goal


 


Subject to the
limitations set forth in the Plan, the (Compensation) Committee (of the Board
of Directors), at any time, and from time to time, may grant Performance Stock
Awards under the Plan to Eligible Participants, in such amount and upon such
terms as the Committee determines. 
Subject to the limitations set forth in the Plan, the Committee shall
have complete discretion in determining the size and composition of Performance
Stock Awards so granted to a Participant and the appropriate period over which
performance is to be measured (a performance cycle). The performance cycle for
this agreement is the twelve months ending                             .


 


The amount of the vesting
and transferability restrictions applicable to the Performance Stock Shares
delineated in this Agreement shall be based upon the attainment of the
Performance Goal as the Committee may determine.  The Performance Goal is based on objective
criteria such that a third party having knowledge of the relevant facts could
determine whether the goal is met.


 


On                             ,
the Compensation Committee approved an earnings per share (dilutive)
Performance Goal of     
cents for aforementioned performance cycle.  If the earnings per share (dilutive) achieved
by the Company for the fiscal year of the Company ending                       ,
equals or exceeds      cents per share of common stock on a
fully-dilutive basis, the Performance Stock Shares may then vest, if at all, as
provided in Section 4(b).  If the
earnings per share (basic) achieved by the Company for the fiscal year of the
Company ending                         ,
is less than      cents per share of common stock on a
fully-dilutive basis, the Forfeiture Restrictions applicable to the Performance
Stock Shares shall not lapse and all of the Performance Stock Shares shall be
forfeited to the Company on                         .


 


Earning per share
(dilutive) shall be determined no later than                         ,
as disclosed in the Company’s audited financial statements filed with the
Securities and Exchange Commission Form 10-K for the fiscal year ending                         .


 


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