Exhibit
10.4


FORM OF

RESTRICTED STOCK AWARD AGREEMENT


FOR EMPLOYEES


 


Tuesday Morning Corporation

2004 Long-Term Equity Incentive Plan


 


This RESTRICTED STOCK AWARD AGREEMENT (this “Agreement”) is made by Tuesday Morning
Corporation, a Delaware corporation (the “Company”),
as of the          day 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 “Employee”) the shares of
equity securities specified herein (the “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 Restricted Shares.  Effective as of the Grant Date,
the Company shall cause to be issued in the Employee’s name the following
Shares as 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 Employee’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 Employee shall have the right to vote the
Restricted Shares awarded to the Employee and to receive and retain all regular
cash dividends, and to exercise all other rights, powers and privileges of a
holder of Shares, with respect to such Restricted Shares, with the exception
that (a) the Employee 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 Employee
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
Shares set forth in this Agreement the Employee 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 Shares issued to the Employee hereunder and the obligation
to forfeit and surrender such shares to the Company.


 


(b)                                 “Vesting Date” shall mean
                              .


 


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


 


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


 


(e)                                  “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 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
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 Employee also agrees (a) that the
Company may refuse to cause the transfer of the 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 Shares.


 


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


 


 


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(a)                                  Generally.  The Forfeiture Restrictions shall lapse as to
the Shares that are granted hereby on the Vesting Date, provided that the
Employee’s employment with the Company and all affiliates has not terminated
prior to such date.  If the Employee’s
employment relationship with the Company and all affiliates terminates before
the Vesting Date, except as otherwise specified in subsections (b) or
(c), below, the Forfeiture Restrictions then applicable to the Restricted
Shares shall not lapse and all the Restricted Shares shall be forfeited to the
Company upon such termination of the Employee’s employment relationship.


 


(b)                                 Death
or Disability. 
Notwithstanding any provisions of Section 4(a) to the
contrary, in the event the Employee’s employment relationship with the Company
and all affiliates is terminated due to the death or Disability of the Employee
prior to the Vesting Date, the Forfeiture Restrictions shall lapse as to the
Shares that are granted hereby on the date of such termination of the Employee’s
employment relationship due to death or Disability.


 


(c)                                  Change
in Control. 
Notwithstanding any provisions of Section 4(a) to the
contrary, in the event a Change in Control occurs prior to the date the
Employee’s employment relationship with the Company and all affiliates is
terminated and prior to the Vesting Date, the Forfeiture Restrictions shall
lapse as to the Shares that are granted hereby on the date of such termination
of the Employee’s employment relationship.


 


5.                                       Effect of Lapse of Restrictions.  Upon the lapse of the Forfeiture Restrictions
with respect to Shares granted hereby the Company shall cause to be delivered
to the Employee a stock certificate representing such Shares, and such Shares
shall be transferable by the Employee (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.                                       Tax Withholding.  To the extent that the receipt of the Shares
or the lapse of any Forfeiture Restrictions results in income, wages or other
compensation to the Employee for any income, employment or other tax purposes
with respect to which the Company has a withholding obligation, the Employee
shall deliver to the Company at the time of such receipt or lapse, as the case
may be, such amount of money as the Company may require to meet its obligation
under applicable tax laws or regulations, and, if the Employee fails to do so,
the Company is authorized to withhold from the Shares issued under the
Agreement or from any cash or stock remuneration or other payment then or
thereafter payable to the Employee any tax required to be withheld by reason of
such taxable income, wages or compensation including (without limitation)
Shares sufficient to satisfy the withholding obligation based on the Fair
Market Value as of the date the amount of tax to be withheld is determined.


 


7.                                       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, 


 


 


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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.


 


8.                                       Employment Relationship.  For purposes of this Agreement,
the Employee shall be considered to be in the employment of the Company as long
as the Employee has an employment relationship with the Company.  The Committee shall determine any questions
as to whether and when there has been a termination of such employment
relationship, and the cause of such termination, under the Plan and the
Committee’s determination shall be final and binding on all persons.


 


9.                                       Section 83(b) Election.  The Employee 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.


 


10.                                 Not an Employment Agreement.  This Agreement is not an
employment agreement, and no provision of this Agreement shall be construed or
interpreted to create an employment relationship between the Employee and the
Company or any of its affiliates or guarantee the right to remain employed by
the Company or any of its affiliates for any specified term.


 


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


 


12.                                 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 Employee at the Employee’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.


 


13.                                 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 Employee.  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
Employee.  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 


 


 


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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.


 


14.                                 Governing Law and Severability.  This Agreement shall be
governed by the laws of the State of Texas 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.


 


15.                                 Successors and Assigns.  Subject to the limitations
which this Agreement imposes upon the transferability of the 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 Employee, the
Employee’s permitted assigns and upon the Employee’s death, the Employee’s
estate and beneficiaries thereof (whether by will or the laws of descent and
distribution), executors, administrators, agents, legal and personal
representatives.


 


16.                                 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.


 


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remainder of this page is intentionally left blank.]


 


 


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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:

  	
   

  
					



 


 


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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
Shares transferred pursuant to the RESTRICTED
STOCK AWARD AGREEMENT dated
                              
by the Company granting restricted stock 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 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: