Exhibit 10.46





Exhibit 10.46




RUSS BERRIE AND COMPANY, INC.


RESTRICTED STOCK UNIT AGREEMENT




Date of Grant:                      __, 20__




RESTRICTED STOCK UNIT AGREEMENT (the “Agreement”), dated as of the date set forth above, between
Russ Berrie and Company, Inc., a New Jersey corporation (the “Company”), and the Grantee whose name
appears on the signature page hereof (the “Grantee”).



1. Confirmation of Grant. The Company hereby confirms the grant to the Grantee, effective
as of the date set forth above, of
 _____ 

restricted stock units (“RSUs”), subject to the terms and
conditions of this Agreement and the Plan (defined below). Each RSU is equal in value to one share
of the Common Stock, stated value $0.10 per share, of the Company (“Common Stock”). The RSUs
granted hereunder are issued under and subject to the terms and conditions of the Company’s Equity
Incentive Plan (the “Plan”), which is incorporated into this Agreement by reference. Unless
otherwise defined in this Agreement, capitalized terms used herein shall have the meanings ascribed
to them in the Plan. If there is any conflict between the provisions of this Agreement and the
Plan, the provisions of the Plan will govern. The Grantee acknowledges receipt of a copy of the
Plan.



2. Vesting. Except as provided in Section 3 below, the RSUs shall vest ratably over five
years (20% of aggregate grant per year), commencing on the first anniversary of the Date of Grant
set forth above.



3. Forfeiture of RSUs.



(a) Termination of Employment. Except as provided in Section 3(b) below, in the event
that the employment of the Grantee with a Participating Company is terminated for any reason (not
including an authorized leave of absence) prior to the vesting of any RSUs pursuant to Section 2
above, all such non-vested RSUs shall be forfeited and all rights of Grantee to such unvested RSUs
shall terminate without payment of consideration by the Company immediately after such termination.



(b) Death or Disability. Notwithstanding the provisions of Section 3(a) above, in the
event that the employment of the Grantee with a Participating Company is terminated as a result of
such Grantee’s death or Disability prior to the vesting of any RSUs pursuant to Section 2 above,
all such non-vested RSUs shall become fully vested as of the date of such Grantee’s death or
Disability, as applicable.


 


 









 





4. Settlement of RSUs. No action shall be taken by the Company in respect of the RSUs
prior to the date on which such RSUs vest in accordance with the provisions of this Agreement
(each, a “Vesting Date”). Promptly following each Vesting Date (but in no event more than 30 days
subsequent thereto), the Company shall, at the election and as determined by the Committee in its
sole discretion:



(1) cause to be issued, in the name of the Grantee or in the name of the Grantee’s legal
representatives, beneficiaries or heirs, as applicable, one share of Common Stock for each vested
RSU;



(2) cause to be paid to the Grantee in a single, lump sum cash payment, an amount per vested
RSU equal to the Fair Market Value on the Vesting Date of one share of Common Stock; or



(3) a combination of (1) and (2) above, as determined by the Committee in its sole
discretion.



Unless terminated earlier pursuant to Section 3 above, the Grantee’s rights under this Agreement
shall terminate with respect to each RSU at the time such RSU is converted into cash or a share of
Common Stock pursuant to the terms hereof.



5. Transferability. Until the date that the RSUs vest pursuant to the terms hereof, none
of the RSUs or any shares of Common Stock issuable upon vesting thereof (the “Shares”) may be sold,
assigned, transferred, pledged, hypothecated or otherwise disposed of, and any purported sale,
assignment, transfer, pledge, hypothecation or other disposition shall be void and unenforceable
against the Company, and no attempt to transfer the RSUs or any Shares, whether voluntarily or
involuntarily, by operation of law or otherwise, shall vest the purported transferee with any
interest or right in or with respect to the RSUs or any Shares. Notwithstanding the foregoing, the
Grantee may designate a beneficiary or beneficiaries to exercise the rights of the Grantee and
receive any property distributable with respect to the RSUs upon the death of the Grantee, and such
property shall be transferable to such beneficiary or beneficiaries or to the person or persons
entitled thereto by the laws of descent and distribution, and none of the limitations of the
preceding sentence shall in such event apply to such Common Stock or other property. The Grantee
acknowledges and agrees that a violation of this Section 5 will cause the Company irreparable
injury for which adequate remedy at law is not available. Accordingly, the Grantee agrees that the
Company shall be entitled to an injunction, restraining order or other equitable relief, without
the posting of any bond, to prevent the breach of this Section 5 and to enforce the terms and
provisions hereof in any court of competent jurisdiction in the United States or any state thereof,
in addition to any other remedy to which it may be entitled at law or equity.



6. Dividend Equivalents. With respect to record dates that occur prior to the settlement
of an RSU, and subject to the remainder of this paragraph, the Grantee shall be entitled to receive
dividend equivalents if dividends are paid by the Board of Directors on the Common Stock. If
dividends are paid in cash to the holders of Common Stock, the dividend equivalents shall equal an
amount in cash per RSU equal to the dividends per share paid to common stockholders of the Company;
if dividends are paid through the distribution of securities of the Company (including in shares of
Common Stock) to the holders of Common Stock, the dividend equivalents shall equal a distribution
per RSU in the form and amount of securities distributed per share to common stockholders of the
Company; provided, however, that in each case all dividend equivalents shall be accrued (without
interest and earnings), and shall be paid or distributed only if and when the Company settles the
related RSU in accordance with Section 4 above. The dividend equivalents for an RSU shall be
subject to the same substantial risk of forfeiture as the
related RSU, so that if such RSU is forfeited, the dividend equivalents on such RSU are forfeited.


 


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7. Restrictions. Notwithstanding any other provision of this Agreement, no payments shall
be made nor Shares issued in respect of a vested RSU hereunder: (i) unless all requisite
approvals and consents of any governmental authority of any kind having jurisdiction over such
payment or issuance shall have been secured; (ii) unless the issuance of any such Shares
shall be exempt from registration under applicable U.S. federal and state securities laws, and
applicable non-U.S. securities laws, or the shares of Common Stock shall have been registered under
such laws; and (iii) unless all applicable U.S. federal, state and local and non-U.S. tax
withholding requirements shall have been satisfied or adequate provision made therefor (in the sole
discretion of the Committee). As a condition to the issuance of any Shares, the Company may require
the Grantee to make any representation and warranty to the Company as may be required by applicable
laws, rules or regulations.



8. Tax Withholding. If a Participating Company is required to withhold any amount under
the laws and regulations of the United States, any jurisdiction thereof or local government with
respect to the vesting of any RSUs, or the settlement thereof (“Withholding Taxes”), the Grantee
shall be required to remit to the applicable Participating Company an amount sufficient to satisfy
the employer’s Withholding Tax requirements. Such remittance may be required prior to the issuance
of any Shares or the payment of any cash amounts hereunder. Notwithstanding the foregoing, the
Committee may, in its sole discretion, in lieu of all or any portion of a cash payment in respect
of Withholding Taxes, permit the Grantee to elect to have the Company withhold cash or Shares
having an aggregate Fair Market Value, determined on the date the obligation to withhold or pay
such taxes arises, equal to the amount (or portion thereof) required to be withheld. Any fraction
of a share of Common Stock which would be required to satisfy the Grantee’s Withholding Tax
obligation shall be disregarded and the remaining amount due shall be paid in cash by the Grantee.



9. Adjustments.



(a) The RSUs or this Agreement shall be subject to adjustment or substitution, as determined
by the Committee in its sole discretion, as to the number or kind of a share of Common Stock or
other consideration subject to the RSU, and any and all other matters deemed appropriate by the
Committee, including, without limitation, accelerating the vesting period pertaining to the RSUs,
or as otherwise determined by the Committee to be equitable, in the event of: (i) changes in the
outstanding Common Stock or in the capital structure of the Company by reason of a dissolution or
liquidation of the Company, sale of all or substantially all of the assets of the Company, mergers,
consolidations or combinations with or into any other entity if the Company is the surviving
entity, stock or extraordinary dividends, stock splits, reverse stock splits, stock combinations,
rights offerings, statutory share exchanges involving capital stock of the Company,
reorganizations, recapitalizations, reclassifications, exchanges, spin-offs, dividends in kind, or
other relevant changes in capitalization; or (ii) any change in applicable laws or any change in
circumstances which results in or would result in any substantial dilution or enlargement of the
rights granted to, or available for, Participants in the Plan, or which otherwise warrants
equitable adjustment because, in the sole discretion of the Committee, it interferes with the
intended operation of the Plan. Any adjustments under this
Section 9 shall be made in a manner which does not adversely affect the exemption provided
pursuant to Rule 16b-3 under the Exchange Act and which otherwise is permissible under Code Section
409A, if applicable. The Company shall give the Grantee notice of any adjustment hereunder and,
upon notice, such adjustment shall be conclusive and binding for all purposes.


 


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(b) In connection with a Business Combination, the Committee, in its sole discretion, may
provide for: (i) the continuation of the Plan and/or the assumption of the RSUs granted hereunder
by a successor corporation (or a parent or subsidiary thereof); (ii) the substitution for the RSUs
of new awards covering the stock of a successor corporation (or a parent or subsidiary thereof),
with appropriate adjustments as to the number and kind of shares; (iii) upon 10 days’ advance
notice from the Committee to the Grantee, the acceleration of the vesting period pertaining to the
RSU; or (iv) upon 10 days’ advance notice from the Committee to the Grantee, (x) the cancellation
of any outstanding portion of the RSUs that are then vested and the payment to the holders thereof,
in cash or stock, or any combination thereof, of the value of such portion of the RSUs based upon
the price per share of stock received or to be received by other stockholders of the Company in
connection with the Business Combination, and (y) the cancellation of any portion of the RSUs that
are not then vested. In the event of any continuation, assumption or substitution contemplated by
the foregoing clauses, the Plan and/or the RSUs shall continue in the manner and under the terms so
provided.



(c) If, by reason of a change in capitalization described in this Section 9, the Grantee shall
be entitled to new, additional or different shares of stock or securities of the Company or any
other corporation in respect of such Grantee’s RSUs, in the event that the Plan continues, such
new, additional or different shares shall thereupon be subject to all of the conditions,
restrictions and performance criteria which were applicable to the shares of Common Stock subject
to the RSUs, as the case may be, prior to such change in capitalization.



10. Authority of Committee. Subject to the limitations set forth in the Plan, the
Committee is vested with absolute discretion and authority to interpret the Plan and make all
determinations necessary or advisable for the administration thereof. Any determination of the
Committee in the administration of the Plan, as described therein, shall be final, conclusive and
binding upon the Grantee and any person claiming under or through the Grantee, including, without
limitation, as to any adjustments pursuant to Section 9 hereof.



11. No Right to Continued Employment. Nothing contained in the Plan or this Agreement
shall confer upon the Grantee any right with respect to continuance of employment or service by any
Participating Company nor limit in any way the right of any Participating Company to terminate or
modify the employment or retention of the Grantee at any time, with or without Cause. By accepting
these RSUs, the Grantee expressly acknowledges that there is no obligation on the part of any
Participating Company to continue the Plan and/or grant any additional Awards to the Grantee.



12. No Rights as Stockholder. The Grantee shall have no voting or other rights as a
stockholder of the Company with respect to the shares of Common Stock underlying the RSUs until the
vesting of the RSUs and the issuance of a certificate or certificates to the Grantee for Shares in
connection therewith.


 


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13. Limitations on Delivery of Certificates. The Company shall not be required to issue or
deliver a certificate for Shares hereunder unless the issuance of such certificate complies with
all applicable legal requirements including, without limitation, compliance with the provisions of
applicable state securities laws, the Securities Act of 1933, as amended (the “Securities Act”),
the Securities Exchange Act of 1934, as amended, and the requirements of the exchanges, if any, on
which the Company’s shares of Common Stock may, at that time, be listed.



14. Disposition of Common Stock. Notwithstanding anything contained in the Plan or herein
to the contrary, in the event that the disposition of shares of Common Stock acquired pursuant to
the vesting of all or a portion of the RSUs is not covered by a then current registration statement
under the Securities Act, and is not otherwise exempt from such registration, such shares shall be
restricted against transfer to the extent required by the Securities Act and Rule 144 or other
regulations thereunder. The certificates evidencing any of such shares shall be appropriately
amended or have an appropriate legend placed thereon to reflect their status as restricted
securities as aforesaid.



15. Miscellaneous.



(a) Notices. All notices and other communications required or permitted by this
Agreement shall be in writing and shall be deemed given to a party when: (a) delivered to the
appropriate address by hand or by nationally recognized overnight courier service (costs prepaid);
(b) sent by facsimile or e-mail with confirmation of transmission by the transmitting equipment; or
(c) received or rejected by the addressee, if sent by certified mail, return receipt requested, in
each case to the following addresses, facsimile numbers or e-mail addresses and marked to the
attention of the person (by name or title) designated below (or to such other address, facsimile
number, e-mail address or person as a party may designate by notice to the other party):




if to the Company, to it at:


Russ Berrie and Company, Inc.

1800 Valley Road

Oakland, New Jersey 07470

Attention: Corporate Secretary

Fax no.: 201-405-7377

E-mail address: mgoldfarb@russberrieij.com


if to the Grantee, to the Grantee at the address set forth on the signature page hereof.



Any notice given: (i) after 5:00 p.m. local time on any business day; or (ii) on a day that is not
a business day, will be deemed to have been given on the next following business day.



(b) Binding Effect; Benefits. This Agreement shall be binding upon and inure to the
benefit of the parties to this Agreement and their respective successors and assigns. Nothing in
this Agreement, express or implied, is intended or shall be construed to give any person other than
the parties to this Agreement or their respective successors or assigns any legal or equitable
right, remedy or claim under or in respect of any agreement or any provision contained herein.


 


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(c) Amendment. This Agreement may not be amended, modified or supplemented orally,
but only by a written instrument executed by the Grantee and the Company.



(d) Assignability. Neither this Agreement nor any right, remedy, obligation or
liability arising hereunder or by reason hereof shall be assignable by the Grantee without the
prior written consent of the Company.



(e) Applicable Law. To the extent the federal laws of the United Stated do not
otherwise control, this Agreement shall be governed by and construed in accordance with the law of
the State of New Jersey, regardless of conflicts of law principles thereof.



(f) Section and Other Headings. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or interpretation of
this Agreement.



(g) Counterparts; Facsimiles. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which together shall
constitute one and the same instrument. Signatures by facsimile (including in Adobe Acrobat
format) will be deemed to be original signatures for all purposes hereunder.



(h) Severability. In the event any provision of this Agreement shall be held illegal
or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of
this Agreement, and this Agreement shall be construed and enforced as if the illegal or invalid
provision had not been included.



(i) Section 409A. It is intended that any consideration payable under this Agreement
will comply with Section 409A of the Code, and regulations and guidance related thereto, or will be
a short term deferral which is not subject to Section 409A of the Code, so as not to subject the
Grantee to the payment of any interest or tax penalty which may be imposed under Section 409A of
the Code; provided, however, that the Company shall not be responsible for any such interest and
tax penalties. If any provision of this Agreement needs to be interpreted to comply with the
requirements of Section 409A of the Code, then such provision shall be deemed to be so interpreted,
to the extent and in the manner necessary to be interpreted in compliance with such requirements of
the Code, either generally or as applied to a particular circumstance.



(j) Share Certificates. All references to shares of Common Stock or certificates in
this Agreement shall refer to either shares represented by certificates or uncertificated shares,
and no such reference shall be construed to require certificated shares or to grant additional or
different rights or obligations as between the holders of certificated and uncertificated shares of
the Company.


 


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IN WITNESS WHEREOF, the Company and the Grantee have executed this Restricted Stock Unit
Agreement as of the date first above written.



	 	 	 	 	 	 	 
	 	 	RUSS BERRIE AND COMPANY, INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	 	 	Name:
	 	 	 	 	Title:
	 
	 	 	 	 	 	 
	 	 	GRANTEE
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Address of Grantee:
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Fax No.:	 	 
	 	 	E-Mail:







 


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