Exhibit 10.28a
H OT T OPIC , I NC .
2006 E QUITY I NCENTIVE P LAN
P ERFORMANCE S HARE A WARD P ROGRAM
2007 A WARD G RANT N OTICE
Hot Topic, Inc. (the
“Company” ), pursuant to its Performance
Share Award Program (the “Program” )
under its 2006 Equity Incentive Plan (the
“Plan” ), hereby awards to Participant
the Target Award set forth below. This Award (both the Target Award
and the Maximum Award, as noted below) is subject to all of the
terms and conditions as set forth herein and in the Performance
Share Award Agreement, the Program and the Plan, all of which are
incorporated herein in their entirety. Unless otherwise defined
herein, capitalized terms shall have the meanings set forth in the
Performance Share Award Agreement, the Plan or the Program, as
applicable.
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Participant:
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Date of Grant:
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Number of Shares Subject to Target Award
1
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[
] shares of Common Stock
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Performance Period:
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Delivery of Shares:
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Subject to the
limitations contained herein and to the provisions of the Plan and
the Program, Participant shall be entitled to receive an Actual
Award equal to all or a portion (including none) of the Target
Award (and Maximum Award) on the date specified in the Performance
Share Award Agreement, provided that (i) the Committee
determines that the specified level of applicable Performance Goals
has been met during the Performance Period and
(ii) Participant continues to render service to the Company or
an Affiliate from the date hereof through the entire Performance
Period and until such Committee determination.
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Additional
Terms/Acknowledgements: The undersigned Participant acknowledges receipt
of, and understands and agrees to, this Award Grant Notice, the
Performance Share Award Agreement, the Program, and the Plan.
Participant further acknowledges that as of the Date of Grant, this
Award Grant Notice, the Performance Share Award Agreement, the
Program, and the Plan set forth the entire understanding between
Participant and the Company regarding the Target Award (and Maximum
Award) and supersede all prior oral and written agreements on that
subject with the exception of (i) Awards previously granted to
Participant under the Plan, if any and (ii) the following
agreements only:
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O THER A GREEMENTS :
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None.
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H OT T OPIC , I NC .:
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P
ARTICIPANT
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By:
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Betsy McLaughlin, CEO
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Signature
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Date:
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Date:
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D OCUMENTS I NCORPORATED BY R EFERENCE : Performance Share Award Agreement, Performance
Share Award Program and 2006 Equity Incentive Plan
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1 Number of Shares Subject to Maximum Award:
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[ ]
shares of Common Stock
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H OT T OPIC , I NC .
2006 E QUITY I NCENTIVE P LAN
P ERFORMANCE S HARE A WARD P ROGRAM
P ERFORMANCE S HARE A WARD A GREEMENT
Pursuant to the Award Grant Notice (
“Grant Notice” ) and this Performance
Share Award Agreement ( “Award Agreement”
), Hot Topic, Inc. (the “Company” ) has
awarded you, pursuant to its Performance Share Award Program (the
“Program” ) under its 2006 Equity
Incentive Plan (the “Plan” ), the Target
Award (and Maximum Award) as indicated in the Grant Notice. Unless
otherwise defined herein, capitalized terms shall have the meanings
set forth in the Plan or the Program, as applicable.
The details of your Award are as
follows.
1. E NTITLEMENT TO S HARES . E NTITLEMENT TO S HARES . Subject to the limitations contained herein and
to the provisions of the Program and the Plan, you shall be
entitled to receive an Actual Award equal to all or a portion
(including none) of the Target Award (and Maximum Award, in the
event of performance exceeding that of the Target Award as
indicated herein) provided that (i) the Committee determines
that the specified level of applicable Performance Goals has been
met during the Performance Period and (ii) your Continuous
Status as an Employee, Director or Consultant has not terminated
prior to such Committee determination; provided, however,
that (x) if a specified level of Performance Goals is not
achieved during the Performance Period, you will not receive any
shares of stock, and (y) the maximum number of shares of stock
that you may receive as an Actual Award will in no event exceed the
Maximum Award. The applicable target and maximum award levels for
the applicable Performance Period are set forth in Exhibit A
hereto.
2. D IVIDENDS . Prior to your receipt of any shares of stock as
an Award, you shall not receive any payment or other adjustment in
the number of shares subject to your Target Award (or Maximum
Award) for dividends or other distributions that may be made in
respect of the shares of stock to which your Award relates.
Notwithstanding the foregoing, with respect to any election you may
make for the deferred receipt of shares of stock as an Actual
Award, any dividends or other distributions that may be made in
respect of such shares of stock after the end of the Performance
Period will be paid in the same form issued to other shareholders
and will be subject to the terms of your deferral
election.
3. D ELIVERY OF S HARES . Provided that you become entitled to receive an
Actual Award in accordance with Section 1 of this Award
Agreement, then you shall be a general unsecured creditor of the
Company with respect to the shares to be issued pursuant to your
Actual Award until such time as the company issues to you (or your
heirs in the case of death) the certificates for the shares (the
“Certificates” ) subject to your Actual
Award. Such Certificates, when issued, shall be registered in your
name (or your heirs) and, subject to Section 13 of this Award
Agreement, will be delivered to you (or your heirs) within thirty
(30) days following the completion of an independent audit
and/or certification by the Committee, as described in
Section 4(a) of the Program. Notwithstanding the foregoing, if
you elect to defer
delivery of the shares of stock as provided in
Section 4 of this Award Agreement, the shares of stock will be
delivered to you on the date or dates that you elect on your
Deferral Election Form. However, in the event that the Company
determines that you are subject to its policy regarding insider
trading of the Company’s stock and any shares are scheduled
to be delivered to you on a day (the “Original Distribution
Date”) that does not occur during an open “window
period” applicable to you, as determined by the Company in
accordance with such policy, then the Certificates covering such
shares shall not be delivered on such Original Distribution Date
and shall instead be delivered as soon as practicable within the
next open “window period” applicable to you pursuant to
such policy. The form of delivery ( e.g. , a stock
certificate or electronic entry evidencing such shares) shall be
determined by the Company.
4. D EFERRAL E LECTION . If
permitted by the Company to do so, you may elect to defer issuance
of the shares of stock that would otherwise be issued pursuant to
your Award. If such deferral election is made, it shall be made in
accordance with the following requirements:
(a) No deferral period shall exceed the maximum
period permitted by the Company;
(b) You must complete a Deferral Election Form (in
the form provided by the Company) at such time as the Company shall
require, which in no event shall be later than six (6) months
prior to the end of the applicable Performance Period;
and
(c) The Board (or appropriate committee thereof)
will, in its sole discretion, establish the rules and procedures
for such deferrals.
5. E FFECT OF L EAVES OF A BSENCE . Unless otherwise required by law, in the case of
a Designated Participant who has taken in excess of thirty
(30) days of leaves of absence during a Performance Period,
the shares of stock otherwise deliverable as an Actual Award shall
be prorated on the basis of the number of days of the
Participant’s Continuous Status as an Employee, Director or
Consultant during the Performance Period during which the
Participant was not on a leave of absence.
6. N UMBER OF S HARES . The
number of shares of stock subject to your Target Award (and Maximum
Award) may be adjusted from time to time for capitalization
adjustments, as provided in Section 12(a) of the
Plan.
7. S ECURITIES L AW C OMPLIANCE . The
grant of your Target Award (and Maximum Award) and the issuance of
any shares of stock as an Actual Award shall be subject to
compliance with all applicable requirements of federal, state or
foreign law with respect to such securities. You may not be issued
any shares of stock as an Actual Award if the issuance of shares of
stock would constitute a violation of any applicable federal, state
or foreign securities laws or other law or regulations or the
requirements of any stock exchange or market system upon which the
stock may then be listed. In addition, you may not be issued any
shares of stock as an Actual Award unless (i) a registration
statement under the Securities Act shall at the time of issuance be
in effect with respect to the shares or (ii) in the opinion of
legal counsel to the Company, the shares may be issued in
accordance with the terms of an applicable exemption from the
registration requirements of the Securities Act. The inability of
the Company to obtain
from any regulatory body having jurisdiction the
authority, if any, deemed by the Company’s legal counsel to
be necessary to the lawful issuance and sale of any shares as an
Actual Award shall relieve the Company of any liability in respect
of the failure to issue or sell such shares as to which such
requisite authority shall not have been obtained. As a condition to
the issuance of any shares as an Actual Award, the Company may
require you to satisfy any qualifications that may be necessary or
appropriate, to evidence compliance with any applicable law or
regulation and to make any representation or warranty with respect
thereto as may be requested by the Company.
8. R ESTRICTIVE L EGENDS . The
shares of stock issued as an Actual Award shall be endorsed with
appropriate legends, if any, determined by the Company.
9. T RANSFERABILITY . Your
Award is not transferable, except by will or by the laws of descent
and distribution. Notwithstanding the foregoing, by delivering
written notice to the Company, in a form satisfactory to the
Company, you may designate a third party who, in the event of your
death, shall thereafter be entitled to receive any distribution of
shares of stock pursuant to Section 3 of this Award
Agreement.
10. A WARD NOT A S ERVICE C ONTRACT . Your
Award is not an employment or service contract, and nothing in your
Award shall be deemed to create in any way whatsoever any
obligation on your part to continue in the service of the Company
or an Affiliate, or on the part of the Company or an Affiliate to
continue such service. In addition, nothing in your Award shall
obligate the Company or an Affiliate, their respective
shareholders, boards of directors, Officers or Employees to
continue any relationship that you might have as an Employee,
Director or Consultant for the Company or an Affiliate.
11. U NSECURED O BLIGATION . Your
Award is unfunded and you shall be considered an unsecured creditor
of the Company with respect to the Company’s obligation, if
any, to issue shares of stock pursuant to this Award
Agreement.
12. W ITHHOLDING O BLIGATIONS .
(a) At the time you receive a distribution of shares
of stock pursuant to your Award, or at any time thereafter as
requested by the Company, you hereby authorize any required
withholding from payroll and any other amounts payable to you and
otherwise agree to make adequate provision for any sums required to
satisfy the federal, state, local and foreign tax withholding
obligations of the Company or an Affiliate, if any, which arise in
connection with your Award.
(b) Unless the tax withholding obligations of the
Company and/or any Affiliate are satisfied, the Company shall have
no obligation to issue a certificate for such shares.
13. N ATURE OF A WARD . In
accepting your Award, you acknowledge that:
(a) the Plan is established voluntarily by the
Company; it is discretionary in nature and it may be modified,
amended, suspended or terminated by the Company at any time, unless
otherwise provided in the Plan, Program and this Award
Agreement;
(b) the grant of your Award is voluntary and
occasional and does not create any contractual or other right to
receive future grants of Awards, or benefits in lieu of Awards,
even if Awards have been granted repeatedly in the past;
(c) all decisions with respect to future Award
grants, if any, will be at the sole discretion of the
Board;
(d) your participation in the Plan shall not create
a right to further employment with the Company or an Affiliate and
shall not interfere with any ability of the Company or an Affiliate
to terminate your employment relationship at any time with or
without cause;
(e) you are voluntarily participating in the
Plan;
(f) an Actual Award is not part of normal or
expected compensation or salary for any purpose, including, but not
limited to, calculating any severance, resignation, termination,
redundancy, end-of-service payments, bonuses, long-service awards,
pension or retirement benefits or similar payments;
(g) in the event that you are not an employee of the
Company, your Award will not be interpreted to form an employment
contract or relationship with the Company; and furthermore, your
Award will not be interpreted to form an employment contract with
the other members of the Company or an Affiliate;
(h) the future value of the shares subject to your
Award is un