DWA EX 10.2 9.30.13






Exhibit 10.2


RESTRICTED STOCK UNIT AWARD AGREEMENT UNDER THE DREAMWORKS ANIMATION SKG, INC. AMENDED AND RESTATED 2008 OMNIBUS INCENTIVE COMPENSATION PLAN, dated as of «Month» «Day», «Year», between DreamWorks Animation SKG, Inc., a Delaware corporation (the “Company”), and «First» «Last».
This Restricted Stock Unit Award Agreement (this “Award Agreement”) sets forth the terms and conditions of an award of [●] performance-based restricted stock units (this “Award”) that are subject to certain restrictions and the terms and conditions specified herein (“RSUs”), and that are granted to you under the DreamWorks Animation SKG, Inc. Amended and Restated 2008 Omnibus Incentive Compensation Plan (the “Plan”).  This Award provides you with the opportunity to earn, subject to the terms of this Award Agreement, shares of the Company’s Class A Common Stock, $0.01 par value (“Share”), as set forth in Section 3 of this Award Agreement.
THIS AWARD IS SUBJECT TO ALL TERMS AND CONDITIONS OF THE PLAN AND THIS AWARD AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE DISPUTE RESOLUTION PROVISIONS SET FORTH IN SECTION 10.  BY SIGNING YOUR NAME BELOW, YOU WILL HAVE CONFIRMED YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AWARD AGREEMENT.
SECTION 1.  The Plan.  This Award is made pursuant to the Plan, all the terms of which are hereby incorporated in this Award Agreement, including but not limited to the provisions of Section 6(e) of the Plan.  In the event of any conflict between the terms of the Plan and the terms of this Award Agreement, the terms of this Award Agreement shall govern.  Except as explicitly set forth in this Award Agreement, in the event of any conflict between the terms of this Award Agreement and the terms of any individual employment agreement between you and the Company or any of its Affiliates (an “Employment Agreement”), this Award Agreement will govern.  Notwithstanding any provision of this Award Agreement to the contrary, in the event of any conflict between the terms of Section 6(e) of the Plan, on the one hand, and this Award Agreement or your Employment Agreement, on the other hand, the terms of Section 6(e) of the Plan shall govern except with respect to settlement of RSUs upon an event of termination of your employment by the Company without cause (as defined in your Employment Agreement) or by you for good reason (as defined in your Employment Agreement), which shall be governed by the terms Section 3(a)(iv) or Section 3(b) of this Award Agreement, as applicable.
SECTION 2.  Definitions.  Capitalized terms used in this Award Agreement that are not defined in this Award Agreement have the meanings as used or 









defined in the Plan.  As used in this Award Agreement, the following terms have the meanings set forth below:
“Business Day” means a day that is not a Saturday, a Sunday or a day on which banking institutions are legally permitted to be closed in the City of New York.
“Determination Date” means the date as soon as reasonably practicable following the Performance Period, but in no event later than March 15 of the year following the end of the Performance Period, as determined by the Committee, on which the Committee determines whether the Performance Goal has been achieved.
“Performance Goal” means the goal set forth on Schedule A, the achievement of which determines whether the RSUs shall be eligible to vest pursuant to this Award Agreement.
“Performance Period” means the year ending [End of performance period].
“Section 409A” means Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and other interpretive guidance promulgated thereunder, as in effect from time to time.
“Settlement Date” means the date on or as soon as reasonably practicable following the Vesting Date.  For the first portion of the RSUs, the Settlement Date will be no later than March 15 of the year following the Performance Period.  For all subsequent portions, the Settlement Date will be no later than thirty (30) days following the applicable Vesting Date.
“Vesting Date” means each of the dates specified in the table in Section 3(a)(i) of this Award Agreement.  On each such date, the vesting requirements with respect to the portion of the RSUs specified in such table is scheduled to be satisfied, provided that the Committee determines that the Performance Goal has been achieved.  
SECTION 3.  Vesting and Settlement.  (a)  Performance-Based Vesting.  (i)  On the Determination Date, the Committee shall determine whether the Performance Goal has been achieved and shall provide notice to you of such determination as soon as reasonably practicable following such determination in accordance with Section 11 of this Award Agreement.  Except as otherwise determined by the Committee in its sole discretion, which shall be subject to Section 6(e) of the Plan, or provided in your Employment Agreement or in Section 3 of this Award Agreement, the delivery of Shares with respect to the RSUs is contingent on the attainment of the Performance Goal as set forth on Schedule A.  Accordingly, unless otherwise determined by the Committee in its sole discretion in accordance with Section 6(e) of the Plan or provided in your Employment Agreement or in Section 3 of this Award Agreement, you will not become entitled to payment with respect to the RSUs unless the Committee determines that the Performance Goal has been achieved.  Upon a determination by the Committee that the 

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Performance Goal has been achieved, and subject to the provisions of the Plan and this Award Agreement, on each Vesting Date, if you remain employed by the Company, the RSUs subject to this Award Agreement will become fully vested and nonforfeitable as set forth below.
	
			
	Vesting Date
	Percentage of the RSUs Scheduled to Vest
	Number of the RSUs Scheduled to Vest

	Determination Date
	25%
	[●]

	«Vesting Date_2»
	25%
	[●]

	«Vesting Date_3»
	25%
	[●]

	«Vesting Date_4»
	25%
	[●]






On the Determination Date, the first portion of the RSUs, as indicated above, will vest and you shall have the right to payment in the form of Shares equal to that portion of the RSUs.  The subsequent portions of RSUs will then each vest on the applicable Vesting Date, as indicated above.  Shares will be provided to you as settlement of any vested RSUs on the applicable Settlement Date, as provided in this Award Agreement.  Furthermore, pursuant to Section 4 of this Award Agreement and except as otherwise determined by the Committee in its sole discretion in accordance with Section 6(e) of the Plan or provided in your Employment Agreement or in Section 3 of this Award Agreement, in order to be entitled to payment with respect to any RSUs, the Committee must determine that the Performance Goal has been achieved and you must be employed by the Company or an Affiliate on the applicable Vesting Date.
(ii)  In the event that, prior to the final Vesting Date, you commence an unpaid leave of absence in accordance with the Company’s policies as in effect from time to time, your RSUs will remain outstanding pursuant to the terms of this Section 3(a)(ii).  Solely for purposes of this Award Agreement, your employment with the Company and its Affiliates will be deemed to continue until the earlier of (A) the six-month anniversary of the date that your unpaid leave of absence began and (B) March 15 of the year following the year in which your unpaid leave of absence began (the earlier of such dates, the “Final Return Date”).  Therefore, in the event any RSUs are outstanding on the date your unpaid leave of absence began, such RSUs will remain outstanding until the Final Return Date and, if any portion of such RSUs would otherwise have vested and been settled during that period had you not been on a leave of absence, that portion will vest and be settled on the Settlement Date that such RSUs would have otherwise been settled.  If you return to active employment prior to the Final Return Date, any outstanding RSUs will remain outstanding following that date in accordance with their terms.  In the event that you do not return to active employment with the Company or its Affiliates prior to the Final Return Date, then except as set forth in your Employment Agreement or as otherwise determined by the Committee in its discretion or as otherwise set forth in Section 3 of this Award Agreement, your rights with respect to your outstanding RSUs for which the Vesting Date has not yet occurred will immediately terminate upon the Final 

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Return Date, and you will be entitled to no further payments or benefits with respect thereto. 
(iii)  In the event that your employment with the Company is subject to an Employment Agreement, and prior to the earlier of (x) the expiration or termination of such Employment Agreement and (y) the final Vesting Date, the Company determines that you shall no longer be required to perform services for the Company or its Affiliates as specified in your Employment Agreement even though your Employment Agreement will remain in effect until its scheduled expiration date, then provided that you continue to comply with the terms of your Employment Agreement (but, for the avoidance of doubt, excluding any terms requiring you to perform such services as the Company has determined you are no longer required to perform), solely for purposes of Sections 3 and 4 of this Award Agreement, you will be deemed to remain employed until the earlier of (A) the scheduled expiration date of your Employment Agreement and (B) March 15 of the year following the year in which you ceased to perform services for the Company and its Affiliates.  Upon the earlier of the events described in clauses (A) and (B) of the immediately preceding sentence, your employment with the Company and its Affiliates will be deemed to terminate, and your rights with respect to any outstanding RSUs for which the Vesting Date has not yet occurred will terminate, and you will be entitled to no further payments or benefits with respect thereto.  For the avoidance of doubt, except as otherwise set forth in your Employment Agreement, in no event will the scheduled expiration of your Employment Agreement, or termination of your employment for any reason thereafter, be deemed to be a termination of your employment that is subject to Section 3(a)(iv) or 3(a)(v) of this Award Agreement.
(iv)  In the event that your employment with the Company is terminated due to an involuntary termination by the Company without cause (as defined in your Employment Agreement) or a termination by you for good reason (as defined in your Employment Agreement), except as otherwise set forth in Section 3(b) of this Award Agreement, any then outstanding RSUs that you hold pursuant to this Agreement shall be treated as follows.  If such termination occurs prior to the Determination Date, the service requirements for all such outstanding RSUs shall be deemed to have been met.  On the Determination Date, if the Committee determines that the Performance Goal has been achieved, all outstanding RSUs shall immediately vest and be settled no later than March 15 of the year following the end of the Performance Period.  If the Committee determines that the Performance Goal has not been achieved, then all such RSUs shall be immediately forfeited in accordance with Section 4 of this Award Agreement.  If such termination occurs on or following the Determination Date, provided that the Committee has determined that the Performance Goal has been achieved, all outstanding RSUs will be treated as time-based awards pursuant to the relevant provision of your Employment Agreement.  Notwithstanding any provision of this Section 3(a)(iv) or Section 3(b) of this Award Agreement to the contrary, in the event of a change of control (as defined in your Employment Agreement) following a termination of employment without cause or for good reason, but prior to the Determination Date, any then outstanding RSUs will immediately vest and be settled within ten (10) days after the change of control. 

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(v)  In the event that your employment with the Company is terminated due to incapacity (as defined in your Employment Agreement) or death, regardless of whether such termination occurs prior to, on or after the Determination Date, then all outstanding RSUs shall be treated as time-based vesting awards and be subject to the relevant provision(s) of your Employment Agreement, provided that, in the event such termination occurs on or after the Determination Date, the Committee has determined that the Performance Goal has been achieved.  In the event of any termination pursuant to this Section 3(a)(v), any RSUs that do not vest pursuant to your Employment Agreement will be forfeited pursuant to Section 4 of this Award Agreement.
(b)  Settlement following a Change of Control.  In the event of a change of control (as defined in your Employment Agreement) prior to the Determination Date, the Performance Goal shall be deemed to have been achieved, but, except as explicitly set forth in this Section 3(b) or Sections 3(a)(iv) and 3(d) of this Award Agreement, all outstanding service requirements shall continue and each portion of the outstanding RSUs shall vest on the applicable Vesting Date and shall be settled on the applicable Settlement Date.  However, for purposes of the portion of the RSUs that was scheduled to vest on the Determination Date, the Vesting Date shall be deemed to be the later of the one-year anniversary of the date of this Award Agreement and the effective date of the change of control.  Notwithstanding the foregoing, and subject to the procedures set forth in your Employment Agreement, if, during the one-year period following a change of control, your employment is terminated by the Company without cause (as defined in your Employment Agreement) or you terminate your employment for good reason (as defined in your Employment Agreement), then all outstanding RSUs will immediately vest and will be settled not later than the tenth (10th) day following the date of termination of your employment.  For purposes of this Section 3(b), in the event that you are no longer subject to an Employment Agreement on the date your employment terminates due to its prior expiration, the terms “cause” and “good reason” shall have the meanings set forth in your Employment Agreement immediately prior to its expiration.  
(c)  Payment of Shares.  Payments made pursuant to this Award Agreement shall be payable in Shares.  The Company shall, except as set forth in your Employment Agreement and subject to Sections 3(a), 3(b), 3(d) and 7 of this Award Agreement, deliver to you or your legal representative the Shares due pursuant to this Award Agreement as soon as practicable following the date that the relevant RSUs become fully vested and nonforfeitable, whether on the Vesting Date or on such other date pursuant to Section 3 of this Award Agreement.
(d)  Failure to Assume or replace in a Change of Control.  In the event of a change of control prior to the final Settlement Date, unless provision is made in connection with such change of control for (i) assumption of outstanding RSUs or (ii) substitution for such RSUs of new time-based restricted stock units covering stock of a successor corporation or its “parent corporation” (as defined in Section 424(e) of the Code) or “subsidiary corporation” (as defined in Section 424(f) of the Code) with appropriate adjustments as to the number and kinds of shares that preserve the material 

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terms and conditions of such outstanding RSUs as in effect immediately prior to the change of control (including, without limitation, with respect to the vesting schedules, the intrinsic value of the RSUs as of the change of control and transferability of the Shares underlying such RSUs), all such RSUs shall vest as of immediately prior to such change of control, in which case all outstanding RSUs will be settled not later than the tenth (10th) day following the date of such change of control.  Notwithstanding the foregoing, in the event that payment of any amount that would otherwise be paid pursuant to the immediately preceding sentence would result in a violation of Section 409A, then your rights to payment of such amount will become vested pursuant to such sentence and the amount of such payment shall be determined as of the change of control, but such amount shall not be paid to you until the earliest time permitted under Section 409A.
SECTION 4.  Forfeiture of RSUs.  Unless the Committee determines otherwise, and except as otherwise provided in your Employment Agreement or in Section 3 of this Award Agreement, if your employment with the Company and its Affiliates terminates prior to the final Vesting Date, your rights with respect to all RSUs for which the relevant Vesting Date has not occurred shall immediately terminate, and you will be entitled to no further payments or benefits with respect thereto.  Furthermore, unless the Committee determines otherwise, and except as otherwise provided in your Employment Agreement or in Section 3 of this Award Agreement, if the Committee determines on the Determination Date that the Performance Goal has not been achieved, your rights with respect to all of the RSUs shall immediately terminate, and you will be entitled to no further payments or benefits with respect thereto.
SECTION 5.  No Rights as a Stockholder.  You shall not have any rights or privileges of a stockholder with respect to the RSUs subject to this Award Agreement unless and until certificates representing Shares are actually issued and delivered to you or your legal representative in settlement of this Award.
SECTION 6.  Non-Transferability of RSUs.  Unless otherwise provided by the Committee in its discretion, RSUs may not be sold, assigned, alienated, transferred, pledged, attached or otherwise encumbered except as provided in Section 9(a) of the Plan.  Any purported sale, assignment, alienation, transfer, pledge, attachment or other encumbrance of such RSUs in violation of the provisions of this Section 6 and Section 9(a) of the Plan shall be void.
SECTION 7.  Withholding, Consents and Legends.  (a)  Withholding.  The settlement of RSUs pursuant to Section 3(c) of this Award Agreement is conditioned on satisfaction of any applicable withholding taxes in accordance with this Section 7(a) and Section 9(d) of the Plan.  In the event that there is withholding tax liability in connection with the vesting of RSUs, you may satisfy, in whole or in part, any withholding tax liability by having the Company withhold from the number of Shares you would be entitled to receive upon settlement of the RSUs, a number of Shares having a Fair Market Value (which shall either have the meaning set forth in the Plan or shall have such other 

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meaning as determined by the Company in accordance with applicable withholding requirements) equal to such withholding tax liability.
(b)  Consents.  Your rights in respect of the RSUs are conditioned on the receipt to the full satisfaction of the Committee of any required consents that the Committee may determine to be necessary or advisable (including, without limitation, your consenting to the Company’s supplying to any third-party recordkeeper of the Plan such personal information as the Committee deems advisable to administer the Plan).
(c)  Legends.  The Company may affix to certificates for Shares issued pursuant to this Award Agreement any legend that the Committee determines to be necessary or advisable (including to reflect any restrictions to which you may be subject under any applicable securities laws).  The Company may advise the transfer agent to place a stop order against any legended Shares.
SECTION 8.  Successors and Assigns of the Company.  The terms and conditions of this Award Agreement shall be binding upon and shall inure to the benefit of the Company and its successors and assigns.
SECTION 9.  Committee Discretion.  Subject to the terms of the Plan, this Award Agreement and your Employment Agreement, the Committee shall have full and plenary discretion with respect to any actions to be taken or determinations to be made in connection with this Award Agreement, and its determinations shall be final, binding and conclusive.
SECTION 10.  Dispute Resolution.  (a)  Jurisdiction and Venue.  Notwithstanding any provision in your Employment Agreement, you and the Company irrevocably submit to the exclusive jurisdiction of (i) the United States District Court for the District of Delaware and (ii) the courts of the State of Delaware for the purposes of any suit, action or other proceeding arising out of this Award Agreement or the Plan.  You and the Company agree to commence any such action, suit or proceeding either in the United States District Court for the District of Delaware or, if such suit, action or other proceeding may not be brought in such court for jurisdictional reasons, in the courts of the State of Delaware.  You and the Company further agree that service of any process, summons, notice or document by U.S. registered mail to the other party’s address set forth below shall be effective service of process for any action, suit or proceeding in Delaware with respect to any matters to which you have submitted to jurisdiction in this Section 10(a).  You and the Company irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Award Agreement or the Plan in (A) the United States District Court for the District of Delaware or (B) the courts of the State of Delaware, and hereby and thereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

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(b)  Waiver of Jury Trial.  You and the Company hereby waive, to the fullest extent permitted by applicable law, any right either of you may have to a trial by jury in respect to any litigation directly or indirectly arising out of, under or in connection with this Award Agreement or the Plan.
(c)  Confidentiality.  You hereby agree to keep confidential the existence of, and any information concerning, a dispute described in Section 10 of this Award Agreement, except that you may disclose information concerning such dispute to the court that is considering such dispute or to your legal counsel (provided that such counsel agrees not to disclose any such information other than as necessary to the prosecution or defense of the dispute).
SECTION 11.  Notice.  All notices, requests, demands and other communications required or permitted to be given under the terms of this Award Agreement shall be in writing and shall be deemed to have been duly given when delivered by hand or overnight courier or three Business Days after they have been mailed by U.S. registered mail, return receipt requested, postage prepaid, addressed to the other party as set forth below:


	
		
	If to the Company:
	DreamWorks Animation SKG, Inc.  
1000 Flower Street
Glendale, CA  91201
Attention: General Counsel
Telecopy: (818) 695-6123

	If to you:
	At the address specified in the Company’s records






The parties may change the address to which notices under this Award Agreement shall be sent by providing written notice to the other in the manner specified above.
SECTION 12.  Headings.  Headings are given to the Sections and subsections of this Award Agreement solely as a convenience to facilitate reference.  Such headings shall not be deemed in any way material or relevant to the construction or interpretation of this Award Agreement or any provision thereof.
SECTION 13.  Amendment of this Award Agreement.  The Committee may waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate this Award Agreement prospectively or retroactively; provided, however, that, except as set forth in Section 14(d) of this Award Agreement,  any such waiver, amendment, alteration, suspension, discontinuance, cancelation or termination that would materially and adversely impair your rights under this Award Agreement shall not to that extent be effective without your consent (it being understood, notwithstanding the foregoing proviso, that this Award Agreement and the RSUs shall be subject to the provisions of Section 7(c) of the Plan).

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SECTION 14.  Section 409A.  (a)  It is intended that the provisions of this Award Agreement comply with Section 409A, and all provisions of this Award Agreement shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A.
(b)  Neither you nor any of your creditors or beneficiaries shall have the right to subject any deferred compensation (within the meaning of Section 409A) payable under this Award Agreement to any anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or garnishment.  Except as permitted under Section 409A, any deferred compensation (within the meaning of Section 409A) payable to you or for your benefit under this Award Agreement may not be reduced by, or offset against, any amount owing by you to the Company or any of its Affiliates.
(c)  If, at the time of your separation from service (within the meaning of Section 409A), (i) you shall be a specified employee (within the meaning of Section 409A and using the identification methodology selected by the Company from time to time) and (ii) the Company shall make a good faith determination that an amount payable hereunder constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required to be delayed pursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the Company shall not pay such amount on the otherwise scheduled payment date but shall instead pay it, without interest (except as otherwise provided in your Employment Agreement), on the first Business Day after such six-month period.
(d)  Notwithstanding any provision of this Award Agreement to the contrary, in light of the uncertainty with respect to the proper application of Section 409A, the Company reserves the right to make amendments to this Award Agreement as the Company deems necessary or desirable to avoid the imposition of taxes or penalties under Section 409A.  In any case, you shall be solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on you or for your account in connection with this Award Agreement (including any taxes and penalties under Section 409A), and neither the Company nor any of its Affiliates shall have any obligation to indemnify or otherwise hold you harmless from any or all of such taxes or penalties.
SECTION 15.  Counterparts.  This Award Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.  You and the Company hereby acknowledge and agree that signatures delivered by facsimile or electronic means (including by fax, email or “pdf”) shall be deemed effective for all purposes.



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


	
		
	DREAMWORKS ANIMATION SKG, INC.,

	by

	 
	 

	 
	Name:   

	 
	Title:   






	
		
	«First» «Last»

	 
	 









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SCHEDULE A


Performance Goal with respect to the RSUs
		
	1.
	The Performance Goal for the RSUs shall be achieved if [the Company realizes positive earnings before interest income (net) and taxes (“EBIT”) for the Performance Period, determined as described in this Schedule A.]  




		
	2.
	For the purpose of determining whether the Performance Goal has been achieved, the following items shall be excluded:  


		
	a.
	Share repurchases;


		
	b.
	Losses on the disposition or acquisition of a business;


		
	c.
	Expenses associated with changes in accounting principles, practices or interpretations;


		
	d.
	Losses on discontinued operations;


		
	e.
	Effects of the Tax Receivable Agreement, dated October 27, 2004, between the Company and DW Investment II, Inc., as may be amended or modified from time to time;


		
	f.
	Amount of film amortization expense that represents interest expense capitalized to films and other productions;


		
	g.
	[For acquisitions occurring prior to December 31, 2013 and which include contingent earnout payments, income or losses, and fair value adjustments of contingent earnout payments, from such acquisitions;]


		
	h.
	Any stock compensation expense associated with the RSUs and any similar awards made on the date of this Award Agreement;


		
	i.
	Expenses classified as provisions for a recapitalization; and


		
	j.
	Other expenses or losses that are disclosed as a special, one-time or extraordinary item in accordance with generally accepted accounting principles.




		
	3.
	In each instance, the above-referenced items must be determined in accordance with generally accepted accounting principles.




		
	4.
	The Committee may, in its sole discretion, include any of the items set forth in paragraph 2 above in its calculation of EBIT if the inclusion has the effect of decreasing the level of EBIT achieved, but in no event may such item or items be included if such inclusion would have the effect of increasing the amount of EBIT.




		
	5.
	Unless the Committee determines otherwise, and except as otherwise provided in your Employment Agreement or in Section 3 of this Award Agreement, if the Company’s EBIT was not positive for the Performance Period, the Performance Goal will not have been achieved, and you will not be entitled to payment with respect to any of the RSUs pursuant to this Award Agreement, and such RSUs will expire and be forfeited.