Common use of Earnout Consideration Clause in Contracts

Earnout Consideration. (a) From and after the Closing, at such times as provided in Exhibit G, Buyer shall (i) pay, or cause to be paid, to Sellers, cash by wire transfer of immediately available funds and/or (ii) direct Parent to issue, or cause to be issued, shares of DMS Class A Common Stock, to Sellers, in each case, as set forth in, and on and subject to the terms, conditions, contingencies, procedures and definitions set forth in, Exhibit G attached hereto (such cash or shares, collectively, the “Earnout Consideration”). (b) The Parties acknowledge, understand and agree that (i) the contingent right to receive any portion of the Earnout Consideration shall not be represented by any form of certificate or other instrument and such right is not transferable, except by operation of law, and does not solely constitute an equity or ownership interest in Parent, Buyer or any of their Affiliates, (ii) no Seller shall have any rights as a holder of the securities of Parent, Buyer or any of their Affiliates solely as a result of such Seller’s contingent right to receive any portion of the Earnout Consideration under this Section 2.6 and (iii) no interest shall be payable with respect to any portion of the Earnout Consideration. (c) Notwithstanding anything to the contrary contained herein, in the event a Parent Change in Control occurs during any applicable period for the payment of Earnout Consideration as set forth and in accordance with Exhibit G, then any and all amounts contemplated to be payable as Earnout Consideration pursuant to this Section 2.6 and Exhibit G shall automatically accelerate and be payable in full (for the avoidance of doubt, to the extent not previously paid or finally determined not to be payable in accordance herewith or with Exhibit G). (d) For the avoidance of doubt, the Parties acknowledge and agree that, from and after the Closing, Buyer shall have sole control with regard to operational matters relating to the operation of the Business and use of the Purchased Assets (from and after the Closing); provided that Buyer shall not take any action in bad faith for the purpose of avoiding or reducing any payment or issuance of the Earnout Consideration; provided, further, notwithstanding the foregoing, from and after the Closing, until the expiration of the periods applicable to the payment of the Earnout Consideration in accordance with Exhibit G, (i) Parent or Buyer shall not take action, directly or indirectly, which has the cause to delay, minimize or prevent payment of the Earnout Consideration, (ii) Parent and Buyer will act in good faith with respect to the operation of the Business and use of the Purchased Assets (from and after the Closing) and will use commercially reasonable efforts to generate profitability growth and operate in the ordinary course of business and consistent with past practices, except upon the prior written consent of Sellers (such consent shall not to be unreasonably withheld, conditioned or delayed) and (iii) Parent shall maintain separate books and records of Buyer, and Buyer shall be maintained as a separate entity and no management fees will be paid by Buyer to Parent or its Affiliates with respect to the Business or operation of the Purchased Assets (from and after the Closing).

Earnout Consideration. (a) From and after The Earnout Consideration will be the Closing, at such times as provided in Exhibit G, Buyer shall aggregate of the (i) pay, or cause to be paid, to Sellers, cash by wire transfer of immediately available funds and/or Revenue Earnout Payments and (ii) direct Parent to issue, or cause to be issued, shares of DMS Class A Common Stock, to Sellers, in each case, as set forth in, and on and subject to the terms, conditions, contingencies, procedures and definitions set forth in, Exhibit G attached hereto (such cash or shares, collectively, the “Funding Earnout Consideration”)Payment. (b) The Parties acknowledge, understand and agree that (i) the contingent right to receive any portion of the Earnout Consideration shall not be represented by any form of certificate or other instrument and such right is not transferable, except by operation of law, and does not solely constitute an equity or ownership interest in Parent, Buyer or any of their Affiliates, (ii) no Seller shall have any rights as a holder of the securities of Parent, Buyer or any of their Affiliates solely as a result of such Seller’s contingent right to receive any portion of the Earnout Consideration under this Section 2.6 and (iii) no interest shall be payable with respect to any portion of the Earnout Consideration. (c) Notwithstanding anything to the contrary contained herein, in the event a Parent Change in Control occurs during any applicable period for the payment of Earnout Consideration as set forth and in accordance with Exhibit G, then any and all amounts contemplated to be payable as Earnout Consideration pursuant to this Section 2.6 and Exhibit G shall automatically accelerate and be payable in full (for the avoidance of doubt, to the extent not previously paid or finally determined not to be payable in accordance herewith or with Exhibit G). (d) For the avoidance of doubt, each applicable Management Company Seller shall remain eligible to receive such Management Company Seller’s respective portion of any Earnout Consideration earned, and due and payable, hereunder regardless of whether such Management Company Seller (or any of such Management Company Seller’s equity holders, trustees, beneficiaries, Employees, or other Representatives) is (are) employed by, or otherwise providing services to, Buyer, Company, or any of their respective Affiliates at the time any Earnout Consideration becomes due and payable. (c) The Parties acknowledge and agree that, from and after notwithstanding any other provision of this Agreement or any other document or instrument referred to in, or executed or delivered in connection with, this Agreement (each a “Transaction Document” and, collectively, as applicable, the Closing, Buyer shall have sole control with regard to operational matters relating to the operation of the Business and use of the Purchased Assets (from and after the Closing); provided that Buyer shall not take any action in bad faith for the purpose of avoiding or reducing any payment or issuance of the Earnout Consideration; provided, further, notwithstanding the foregoing, from and after the Closing, until the expiration of the periods applicable to the payment of the Earnout Consideration in accordance with Exhibit G, “Transaction Documents”): (i) Parent or Buyer shall not take action, directly or indirectly, which has the cause to delay, minimize or prevent payment of the there is no assurance that any Earnout Consideration, Consideration will ultimately be earned and become due and payable hereunder; (ii) Parent none of Buyer nor any of its Affiliates, nor any of their respective Representatives, have promised that any, or any particular amount, of Earnout Consideration will be earned and Buyer will act in good faith with respect to the operation of the Business become due and use of the Purchased Assets (from and after the Closing) and will use commercially reasonable efforts to generate profitability growth and operate in the ordinary course of business and consistent with past practices, except upon the prior written consent of Sellers (such consent shall not to be unreasonably withheld, conditioned or delayed) payable; and (iii) Parent shall maintain separate books and records any prior estimates or projections of Buyerany Earnout Consideration by any Party, and Buyer shall be maintained as a separate entity and no management fees will be paid by Buyer to Parent or its Affiliates with respect or their respective Representatives were prepared for illustrative purposes only and shall not be considered in determining whether any Earnout Consideration is earned and becomes due and payable hereunder. (d) Unless otherwise required by Applicable Law, any payment made pursuant to Section 2.3 shall, for Tax purposes, be deemed to be an adjustment to the Business or operation of Aggregate Purchase Price payable to the Purchased Assets (from and after the Closing)Management Company Sellers.