Exhibit 10.4


 


RESTRICTED STOCK UNIT AGREEMENT


PURSUANT TO THE 


GENIUS BRANDS INTERNATIONAL, INC.


2020 INCENTIVE PLAN


 


* * * * *


 


Participant: [NAME]


 


Grant Date: [DATE]


 


Number of Restricted Stock Units Granted: [NUMBER]


 


* * * * *


 


 


THIS RESTRICTED
STOCK UNIT AWARD AGREEMENT (this “Agreement”), dated as of the Grant Date specified above, is entered
into by and between Genius Brands International, Inc. (the “Company”), and the Participant specified
above, pursuant to the Genius Brands International, Inc. 2020 Incentive Plan, as in effect and as amended from time to time (the
“Plan”), which is administered by the Committee; and


 


WHEREAS, it
has been determined under the Plan that it would be in the best interests of the Company to grant the Restricted Stock Units (“RSUs”)
provided herein to the Participant.


 


NOW, THEREFORE,
in consideration of the mutual covenants and promises hereinafter set forth and for other good and valuable consideration,
the parties hereto hereby mutually covenant and agree as follows:


 


1.              
Incorporation By Reference; Plan Document Receipt. This Agreement is subject in all respects to the terms
and provisions of the Plan (including, without limitation, any amendments thereto adopted at any time and from time to time unless
such amendments are expressly intended not to apply to the Award provided hereunder), all of which terms and provisions are made
a part of and incorporated in this Agreement as if they were each expressly set forth herein. Any capitalized term not defined
in this Agreement shall have the same meaning as is ascribed thereto in the Plan. The Participant hereby acknowledges receipt of
a true copy of the Plan and that the Participant has read the Plan carefully and fully understands its content. In the event of
any conflict between the terms of this Agreement and the terms of the Plan, the terms of the Plan shall control.


 


2.              
Grant of Restricted Stock Unit Award. The Company hereby grants to the Participant, as of the Grant Date specified
above, the number of RSUs specified above. Except as otherwise provided by the Plan, the Participant agrees and understands that
nothing contained in this Agreement provides, or is intended to provide, the Participant with any protection against potential
future dilution of the Participant’s interest in the Company for any reason, and no adjustments shall be made for dividends
in cash or other property, distributions or other rights in respect of the shares of Common Stock underlying the RSUs, except as
otherwise specifically provided for in the Plan or this Agreement.


 


3.              
Vesting.


 


(a)            
Time-Based Vesting. Subject to the provisions of Sections 3(b), 3(c) and 3(d) hereof, 100% of the RSUs subject to
this Award shall become vested as follows, provided that the Participant has not incurred a termination of employment or service
with the Company prior to each such vesting date:


 


	Vesting Date	Number of RSUs
	First Anniversary of the Grant Date	[NUMBER]
	Second Anniversary of the Grant Date	[NUMBER]
	Third Anniversary of the Grant Date	[NUMBER]


 


 






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There shall be no proportionate
or partial vesting in the periods prior to each vesting date and all vesting shall occur only on the appropriate vesting date,
subject to the Participant’s continued service with the Company or any of its Subsidiaries on each applicable vesting date.


 


(b)            
Committee Discretion to Accelerate Vesting. Notwithstanding the foregoing, the Committee may, in its sole discretion,
provide for accelerated vesting of the RSUs at any time and for any reason.


 


(c)            
Termination of Employment. All unvested RSUs shall become fully vested upon the termination of the Participant’s
employment or service with the Company by the Company without Cause or a resignation by the Participant for Good Reason. For purposes
of this Agreement, “Cause” shall have the meaning set forth in that certain Amended and Restated
Employment Agreement, by and between the Participant and the Company, effective as of November [____], 2020 (the “Employment
Agreement”). For purposes of this Agreement, “Good Reason” shall mean following events
or conditions: (i) a material reduction by the Company in the Participant’s Base Salary or Target Bonus (each, as defined
in the Employment Agreement) level; (ii) the Participant shall be required to work at a location more than fifty (50) miles away
from the Participant’s place of work as of the Grant Date; (iii) the assignment to the Participant by the Company of duties
substantially inconsistent with, any change in the Participant’s titles or the significant reduction of the powers and functions
associated with, the Participant’s positions, titles or offices as described herein; (iv) the failure of any successor (whether
direct or indirect, by stock or asset purchase, merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly to assume and agree to perform the Employment Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such succession had taken place. Any assertion by the Participant
of a termination for Good Reason shall not be effective unless all of the following conditions are satisfied: (A) the condition
described in Sections 3(d)(i), 3(d)(ii), 3(d)(iii) or 3(d)(iv) giving rise to the Participant’s termination of employment
must have arisen without the Participant’s consent; (B) the Participant must provide written notice to the Board of the existence
of such condition(s) within thirty (30) days of the initial existence of such condition(s); (C) the condition(s) specified in such
notice must remain uncorrected for thirty (30) days following the Board’s receipt of such written notice; and (D) the date
of the Participant’s termination of employment must occur within sixty (60) days after the initial existence of the condition(s)
specified in such notice.


 


(d)            
Forfeiture. Subject to the provisions of Sections 3(b) and 3(c), all unvested RSUs shall be immediately forfeited
upon (i) the Participant’s termination of employment or service with the Company for any reason and (ii) the Participant’s
violation of any of Sections 8.1, 8.3 or 8.5 of the Employment Agreement.


 


4.              
Delivery of Shares.


 


(a)            
General. Subject to the provisions of Sections 4.(b) and 4.(c) hereof, the Participant shall receive 25% of the number
of shares of Common Stock that correspond to the number of RSUs that have become vested on the applicable vesting date within thirty
(30) days following the applicable vesting date, and will receive an additional 25% of the number of shares of Common Stock that
correspond to the number of RSUs that have become vested on the applicable vesting date on each of (i) 90 days following the applicable
vesting date, (ii) 180 days following the applicable vesting date, and (iii) 270 days following the applicable vesting date.


 


(b)            
Blackout Periods. If the Participant is subject to any Company “blackout” policy or other trading restriction
imposed by the Company on the date such distribution would otherwise be made pursuant to Section 4(a) hereof, such distribution
shall be instead made on the earlier of (i) the date that the Participant is not subject to any such policy or restriction and
(ii) the later of (A) the end of the calendar year in which such distribution would otherwise have been made and (B) a date that
is immediately prior to the expiration of two and one-half months following the date such distribution would otherwise have been
made hereunder.


 


(c)            
Deferrals. If permitted by the Company, the Participant may elect, subject to the terms and conditions of the Plan
and any other applicable written plan or procedure adopted by the Company from time to time for purposes of such election, to defer
the distribution of all or any portion of the shares of Common Stock that would otherwise be distributed to the Participant hereunder
(the “Deferred Shares”), consistent with the requirements of Section 409A of the Code. Upon the vesting of RSUs
that have been so deferred, the applicable number of Deferred Shares shall be credited to a bookkeeping account established on
the Participant’s behalf (the “Account”). Subject to Section 5 hereof, the number of shares of Common
Stock equal to the number of Deferred Shares credited to the Participant’s Account shall be distributed to the Participant
in accordance with the terms and conditions of the Plan and the other applicable written plans or procedures of the Company, consistent
with the requirements of Section 409A of the Code.


 


 






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5.              
Dividends; Rights as Stockholder. Cash dividends on shares of Common Stock issuable hereunder shall be credited
to a dividend book entry account on behalf of the Participant with respect to each RSU granted to the Participant, provided
that such cash dividends shall not be deemed to be reinvested in shares of Common Stock and shall be held uninvested and without
interest and paid in cash at the same time that the shares of Common Stock underlying the RSUs are delivered to the Participant
in accordance with the provisions hereof. Stock dividends on shares of Common Stock shall be credited to a dividend book entry
account on behalf of the Participant with respect to each RSU granted to the Participant, provided that such stock dividends
shall be paid in shares of Common Stock at the same time that the shares of Common Stock underlying the RSUs are delivered to the
Participant in accordance with the provisions hereof. Except as otherwise provided herein, the Participant shall have no rights
as a stockholder with respect to any shares of Common Stock covered by any RSU unless and until the Participant has become the
holder of record of such shares.


 


6.              
Non-Transferability. No portion of the RSUs may be sold, assigned, transferred, encumbered, hypothecated or
pledged by the Participant, other than to the Company as a result of forfeiture of the RSUs as provided herein, unless and until
payment is made in respect of vested RSUs in accordance with the provisions hereof and the Participant has become the holder of
record of the vested shares of Common Stock issuable hereunder.


 


7.              
Governing Law. All questions concerning the construction, validity and interpretation of
this Agreement shall be governed by, and construed in accordance with, the laws of
the State of Nevada, without regard to the choice of law principles thereof.


 


8.              
Withholding of Tax. The Company shall have the power and the right to deduct or withhold, or require the Participant
to remit to the Company, an amount sufficient to satisfy any federal, state, local and foreign taxes of any kind (including, but
not limited to, the Participant’s FICA and SDI obligations) which the Company, in its sole discretion, deems necessary to
be withheld or remitted to comply with the Code and/or any other applicable law, rule or regulation with respect to the RSUs and,
if the Participant fails to do so, the Company may otherwise refuse to issue or transfer any shares of Common Stock otherwise required
to be issued pursuant to this Agreement. Any minimum statutorily required withholding obligation with regard to the Participant
may be satisfied by reducing the amount of cash or shares of Common Stock otherwise deliverable to the Participant hereunder.


 


9.              
Legend. The Company may at any time place legends referencing any applicable federal, state or foreign securities
law restrictions on all certificates representing shares of Common Stock issued pursuant to this Agreement. The Participant shall,
at the request of the Company, promptly present to the Company any and all certificates representing shares of Common Stock acquired
pursuant to this Agreement in the possession of the Participant in order to carry out the provisions of this Section 9.


 


10.           
Securities Representations. This Agreement is being entered into by the Company in reliance upon the following
express representations and warranties of the Participant. The Participant hereby acknowledges, represents and warrants that:


 


(a)            
The Participant has been advised that the Participant may be an “affiliate” within the meaning of Rule 144 under
the Securities Act of 1933 (the “Securities Act”) and in this connection the Company is relying in part
on the Participant’s representations set forth in this Section 10.


 


(b)            
If the Participant is deemed an affiliate within the meaning of Rule 144 of the Securities Act, the shares of Common Stock
issuable hereunder must be held indefinitely unless an exemption from any applicable resale restrictions is available or the Company
files an additional registration statement (or a “re-offer prospectus”) with regard to such shares of Common Stock
and the Company is under no obligation to register such shares of Common Stock (or to file a “re-offer prospectus”).


 


(c)            
If the Participant is deemed an affiliate within the meaning of Rule 144 of the Securities Act, the Participant understands
that (i) the exemption from registration under Rule 144 will not be available unless (A) a public trading market then exists for
the Common Stock of the Company, (B) adequate information concerning the Company is then available to the public, and (C) other
terms and conditions of Rule 144 or any exemption therefrom are complied with, and (ii) any sale of the shares of Common Stock
issuable hereunder may be made only in limited amounts in accordance with the terms and conditions of Rule 144 or any exemption
therefrom.


 


 


 






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11.           
Entire Agreement; Amendment. This Agreement, together with the Plan, and the Employment Agreement contains
the entire agreement between the parties hereto with respect to the subject matter contained herein, and supersedes all prior agreements
or prior understandings, whether written or oral, between the parties relating to such subject matter. The Committee shall have
the right, in its sole discretion, to modify or amend this Agreement from time to time in accordance with and as provided in the
Plan. This Agreement may also be modified or amended by a writing signed by both the Company and the Participant. The Company shall
give written notice to the Participant of any such modification or amendment of this Agreement as soon as practicable after the
adoption thereof.


 


12.           
Notices. Any notice hereunder by the Participant shall be given to the Company in writing and such notice
shall be deemed duly given only upon receipt thereof by the General Counsel of the Company. Any notice hereunder by the Company
shall be given to the Participant in writing and such notice shall be deemed duly given only upon receipt thereof at such address
as the Participant may have on file with the Company.


 


13.           
No Right to Employment. Any questions as to whether and when there has been a termination of employment or
service with the Company and the cause of such termination of employment or service with the Company shall be determined in the
sole discretion of the Committee. Nothing in this Agreement shall interfere with or limit in any way the right of the Company,
its Subsidiaries or its Affiliates to terminate the Participant’s employment or service at any time, for any reason and with
or without Cause.


 


14.           
Transfer of Personal Data. The Participant authorizes, agrees and unambiguously consents to the transmission
by the Company (or any Subsidiary) of any personal data information related to the RSUs awarded under this Agreement for legitimate
business purposes (including, without limitation, the administration of the Plan). This authorization and consent is freely given
by the Participant.


 


15.           
Compliance with Laws. The grant of RSUs and the issuance of shares of Common Stock hereunder shall be subject
to, and shall comply with, any applicable requirements of any foreign and U.S. federal and state securities laws, rules and regulations
(including, without limitation, the provisions of the Securities Act, the Exchange Act and in each case any respective rules and
regulations promulgated thereunder) and any other law, rule regulation or exchange requirement applicable thereto. The Company
shall not be obligated to issue the RSUs or any shares of Common Stock pursuant to this Agreement if any such issuance would violate
any such requirements. As a condition to the settlement of the RSUs, the Company may require the Participant to satisfy any qualifications
that may be necessary or appropriate to evidence compliance with any applicable law or regulation. Each installment payable hereunder
shall constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b), including Treasury Regulation Section
1.409A-2(b)(2)(iii). Each payment that is made within the terms of the “short-term deferral” rule set forth in Treasury
Regulation Section 1.409A-1(b)(4) is intended to meet the “short-term deferral” rule.


 


16.           
Binding Agreement; Assignment. This Agreement shall inure to the benefit of, be binding upon, and be enforceable
by the Company and its successors and assigns. The Participant shall not assign (except in accordance with Section 6 hereof) any
part of this Agreement without the prior express written consent of the Company.


 


17.           
Headings. The titles and headings of the various sections of this Agreement have been inserted for convenience
of reference only and shall not be deemed to be a part of this Agreement.


 


18.           
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to
be an original, but all of which shall constitute one and the same instrument.


 


19.           
Further Assurances. Each party hereto shall do and perform (or shall cause to be done and performed) all such
further acts and shall execute and deliver all such other agreements, certificates, instruments and documents as either party hereto
reasonably may request in order to carry out the intent and accomplish the purposes of this Agreement and the Plan and the consummation
of the transactions contemplated thereunder.


 


20.           
Severability. The invalidity or unenforceability of any provisions of this Agreement in any jurisdiction shall
not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction or the validity, legality
or enforceability of any provision of this Agreement in any other jurisdiction, it being intended that all rights and obligations
of the parties hereunder shall be enforceable to the fullest extent permitted by law.


 


 


 






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21.           
Acquired Rights. The Participant acknowledges and agrees that: (a) the Company may terminate or amend the
Plan at any time; (b) the Award of RSUs made under this Agreement is completely independent of any other award or grant and is
made at the sole discretion of the Company; (c) no past grants or awards (including, without limitation, the RSUs awarded hereunder)
give the Participant any right to any grants or awards in the future whatsoever; and (d) any benefits granted under this Agreement
are not part of the Participant’s ordinary salary, and shall not be considered as part of such salary in the event of severance,
redundancy or resignation.


 


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IN WITNESS WHEREOF,
the parties hereto have executed this Agreement as of the date first written above.


 





 


	 	GENIUS BRANDS INTERNATIONAL, INC.

                                             

	 	By: _______________
	 	 
	 	Name:______________
	 	 
	 	Title:_______________





 


 


 


 


	 	PARTICIPANT
	 	 
	 	 
	 	____________________
	 	 
	 	Name: _______________






 


 


 






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