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Digital Media Solutions, Inc. – ‘10-K/A’ for 12/31/22 – ‘EX-10.23’

On:  Wednesday, 4/5/23, at 4:46pm ET   ·   For:  12/31/22   ·   Accession #:  1628280-23-10860   ·   File #:  1-38393

Previous ‘10-K’:  ‘10-K’ on 3/31/23 for 12/31/22   ·   Next:  ‘10-K/A’ on 5/1/23 for 12/31/22   ·   Latest:  ‘10-K/A’ on 4/29/24 for 12/31/23   ·   25 References:   

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  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

 4/05/23  Digital Media Solutions, Inc.     10-K/A     12/31/22  112:146M                                   Workiva Inc Wde… FA01/FA

Amendment to Annual Report   —   Form 10-K

Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 10-K/A      Amendment to Annual Report                          HTML   2.24M 
 2: EX-4.5      Instrument Defining the Rights of Security Holders  HTML    158K 
 3: EX-4.6      Instrument Defining the Rights of Security Holders  HTML    151K 
 4: EX-4.7      Instrument Defining the Rights of Security Holders  HTML     97K 
 5: EX-10.20    Material Contract                                   HTML    405K 
 6: EX-10.21    Material Contract                                   HTML    625K 
 7: EX-10.22    Material Contract                                   HTML    103K 
 8: EX-10.23    Material Contract                                   HTML     36K 
 9: EX-31.1     Certification -- §302 - SOA'02                      HTML     33K 
10: EX-31.2     Certification -- §302 - SOA'02                      HTML     33K 
11: EX-32.1     Certification -- §906 - SOA'02                      HTML     30K 
12: EX-32.2     Certification -- §906 - SOA'02                      HTML     30K 
18: R1          Cover                                               HTML    103K 
19: R2          Audit Information                                   HTML     34K 
20: R3          Consolidated Balance Sheets                         HTML    161K 
21: R4          Consolidated Balance Sheets (Parenthetical)         HTML     58K 
22: R5          Consolidated Statements of Operations               HTML    121K 
23: R6          Consolidated Statements of Changes in Deficit       HTML    145K 
24: R7          Consolidated Statements of Changes in Deficit       HTML     36K 
                (Parenthetical)                                                  
25: R8          Consolidated Statements of Cash Flows               HTML    150K 
26: R9          Business, Basis of Presentation and Summary of      HTML    101K 
                Significant Accounting Policies                                  
27: R10         Business Combination                                HTML     40K 
28: R11         Revenue                                             HTML     67K 
29: R12         Reportable Segments                                 HTML     63K 
30: R13         Property and Equipment                              HTML     44K 
31: R14         Goodwill and Intangible Assets                      HTML     86K 
32: R15         Acquisitions                                        HTML    119K 
33: R16         Debt                                                HTML     55K 
34: R17         Leases                                              HTML     42K 
35: R18         Fair Value Measurements                             HTML     97K 
36: R19         Equity                                              HTML     84K 
37: R20         Related Party Transactions                          HTML     38K 
38: R21         Employee and Director Incentive Plans               HTML     78K 
39: R22         Income Taxes                                        HTML     88K 
40: R23         Earnings Per Share                                  HTML     51K 
41: R24         Commitments and Contingencies                       HTML     33K 
42: R25         Subsequent Events                                   HTML     38K 
43: R26         Schedule Ii - Valuation and Qualifying Accounts     HTML     40K 
                and Reserves                                                     
44: R27         Business, Basis of Presentation and Summary of      HTML    141K 
                Significant Accounting Policies (Policies)                       
45: R28         Revenue (Tables)                                    HTML     61K 
46: R29         Reportable Segments (Tables)                        HTML     59K 
47: R30         Property and Equipment (Tables)                     HTML     43K 
48: R31         Goodwill and Intangible Assets (Tables)             HTML     89K 
49: R32         Acquisitions (Tables)                               HTML    109K 
50: R33         Debt (Tables)                                       HTML     50K 
51: R34         Leases (Tables)                                     HTML     43K 
52: R35         Fair Value Measurements (Tables)                    HTML     97K 
53: R36         Equity (Tables)                                     HTML     60K 
54: R37         Employee and Director Incentive Plans (Tables)      HTML     70K 
55: R38         Income Taxes (Tables)                               HTML     83K 
56: R39         Earnings Per Share (Tables)                         HTML     48K 
57: R40         Business, Basis of Presentation and Summary of      HTML    112K 
                Significant Accounting Policies - Additional                     
                Information (Details)                                            
58: R41         Business Combination (Details)                      HTML     84K 
59: R42         Revenue - Narrative (Details)                       HTML     30K 
60: R43         Revenue - Disaggregation of Revenue (Details)       HTML     61K 
61: R44         Revenue - Additional Liabilities (Details)          HTML     39K 
62: R45         Reportable Segments (Details)                       HTML     80K 
63: R46         Property and Equipment - Classifications of         HTML     49K 
                Property and Equipment and the Related Useful                    
                Lives (Details)                                                  
64: R47         Property and Equipment - Additional Information     HTML     35K 
                (Details)                                                        
65: R48         Goodwill and Intangible Assets - Goodwill           HTML     47K 
                (Details)                                                        
66: R49         Goodwill and Intangible Assets - Additional         HTML     44K 
                Information (Details)                                            
67: R50         Goodwill and Intangible Assets - Finite-lived       HTML     60K 
                Intangible Assets (Details)                                      
68: R51         Goodwill and Intangible Assets - Amortization       HTML     40K 
                Expense (Details)                                                
69: R52         Acquisitions - Additional Information (Details)     HTML    132K 
70: R53         Acquisitions - Changes in Fair Value (Details)      HTML     64K 
71: R54         Acquisitions - Net Assets And Liabilities Acquired  HTML    108K 
                (Details)                                                        
72: R55         Acquisitions - Net Revenue and Net Income (Loss)    HTML     40K 
                Attributable to DMS (Details)                                    
73: R56         Acquisitions - Pro Forma Information (Details)      HTML     43K 
74: R57         Debt - Schedule of Debt (Details)                   HTML     46K 
75: R58         Debt - Additional Information (Details)             HTML     90K 
76: R59         Debt - Debt Maturity Schedule (Details)             HTML     43K 
77: R60         Leases - Operating Lease Maturity (Details)         HTML     41K 
78: R61         Leases - Narrative (Details)                        HTML     40K 
79: R62         Leases - Operating Leases Cost (Details)            HTML     37K 
80: R63         Leases - Operating??Right-Of-Use??Assets and Lease  HTML     39K 
                Liabilities (Details)                                            
81: R64         Leases - Operating Leases (Details)                 HTML     35K 
82: R65         Fair Value Measurements - Additional Information    HTML     33K 
                (Details)                                                        
83: R66         Fair Value Measurements - Inputs and Valuations     HTML     46K 
                (Details)                                                        
84: R67         Fair Value Measurements - Contingent Consideration  HTML     48K 
                Assumptions (Details)                                            
85: R68         Fair Value Measurements - Liabilities Measured on   HTML     77K 
                a Recurring Basis (Details)                                      
86: R69         Fair Value Measurements - Level 3 Reconciliation    HTML     44K 
                (Details)                                                        
87: R70         Equity - Additional Information (Details)           HTML     75K 
88: R71         Equity - Authorized Capitalization (Details)        HTML     40K 
89: R72         Equity - Noncontrolling Interest (Details)          HTML     44K 
90: R73         Equity - Summary of Changes in Ownership (Details)  HTML     72K 
91: R74         Related Party Transactions - Registration Rights    HTML     32K 
                (Details)                                                        
92: R75         Related Party Transactions - Amended Partnership    HTML     35K 
                Agreement (Details)                                              
93: R76         Related Party Transactions - Tax Receivable         HTML     30K 
                Agreement (Details)                                              
94: R77         Related Party Transactions - Prism Incentive        HTML     36K 
                Agreement (Details)                                              
95: R78         Related Party Transactions - DMSH Member Tax        HTML     30K 
                Distributions (Details)                                          
96: R79         Employee and Director Incentive Plans - Additional  HTML    105K 
                Information (Details)                                            
97: R80         Employee and Director Incentive Plans - RSU         HTML     59K 
                Activity (Details)                                               
98: R81         Employee and Director Incentive Plans - Stock       HTML     84K 
                Option Activity (Details)                                        
99: R82         Income Taxes - (Benefit) Provision for Income       HTML     54K 
                Taxes (Details)                                                  
100: R83         Income Taxes - Tax Rate Reconciliation (Details)    HTML     61K  
101: R84         Income Taxes - Additional Information (Details)     HTML     45K  
102: R85         Income Taxes - Deferred tax assets and Liabilities  HTML     65K  
                (Details)                                                        
103: R86         Earnings Per Share - Reconciliation (Details)       HTML     77K  
104: R87         Earnings Per Share - Additional Information         HTML     45K  
                (Details)                                                        
105: R88         Commitments and Contingencies - Narrative           HTML     30K  
                (Details)                                                        
106: R89         Subsequent Events (Details)                         HTML     70K  
107: R90         Schedule Ii - Valuation and Qualifying Accounts     HTML     37K  
                and Reserves (Details)                                           
110: XML         IDEA XML File -- Filing Summary                      XML    198K  
108: XML         XBRL Instance -- dms-20221231_htm                    XML   2.59M  
109: EXCEL       IDEA Workbook of Financial Reports                  XLSX    232K  
14: EX-101.CAL  XBRL Calculations -- dms-20221231_cal                XML    279K 
15: EX-101.DEF  XBRL Definitions -- dms-20221231_def                 XML   1.14M 
16: EX-101.LAB  XBRL Labels -- dms-20221231_lab                      XML   2.17M 
17: EX-101.PRE  XBRL Presentations -- dms-20221231_pre               XML   1.51M 
13: EX-101.SCH  XBRL Schema -- dms-20221231                          XSD    221K 
111: JSON        XBRL Instance as JSON Data -- MetaLinks              578±   885K  
112: ZIP         XBRL Zipped Folder -- 0001628280-23-010860-xbrl      Zip   1.06M

‘EX-10.23’   —   Material Contract

This Exhibit is an HTML Document rendered as filed.  [ Alternative Formats ]

 C: 
  a1023-dmshamendment2_2  
AMENDMENT NO. 2 TO THE AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF DIGITAL MEDIA SOLUTIONS HOLDINGS, LLC a Delaware limited liability company This Amendment No. 2 to Amended and Restated Limited Liability Company Agreement (this “Amendment”), is dated effective as of March 30, 2023. Each capitalized term used but not defined in this Amendment has the meaning given to it in the Amended and Restated Limited Liability Company Agreement of Digital Media Solutions Holdings, LLC (the “LLC Agreement”). WHEREAS, it is contemplated that Digital Media Solutions, Inc., a Delaware corporation (“DMS”) will enter into a Securities Purchase Agreement (the “Securities Purchase Agreement”) pursuant to which DMS will issue and sell shares of Series A Convertible Preferred Stock and the Series B Convertible Preferred Stock (collectively, the “Preferred Stock”) at a purchase price of $100.00 per Preferred Stock, and warrants to purchase 12,600,000 shares of Class A common stock of the Corporation, par value $0.0001, (the “Warrants” and together with the Preferred Stock, the “Securities”) at an exercise price of $0.6453 per share; WHEREAS, subsequent to the Securities Purchase Agreement, it is contemplated that DMS will contribute an amount up to the gross proceeds received from the Securities Purchase Agreement to the Company (the “Contribution”); and WHEREAS, in consideration of the Contribution, the Company desires to issue the Series A Preferred Units and Series B Preferred Units (each as defined herein) to DMS (as defined in the LLC Agreement). NOW, THEREFORE, the undersigned Members, being all of the Members of the Company, do hereby agree that the LLC Agreement be amended as follows: 1. Section 1.1 of the LLC Agreement is hereby amended by adding the following definitions: “Series A Preferred Units” means a Membership Interests designated as "Series A Preferred Units" in the Company having the economic rights, preferences and privileges set forth in Section 4.10(a). “Series B Preferred Unit” means a Membership Interests designated as "Series B Preferred Units" in the Company having the economic rights, preferences and privileges set forth in Section 4.10(b). 2. Section 4.2(a) of the LLC Agreement is hereby amended in its entirety to read as follows: “(a) Subject to Section 4.2(c), the Company is authorized to issue three (3) classes of Membership Interests: Common Units, each of which shall be identical, 80,000 Series A Preferred Units, which shall be converted to Common Units upon the Corporation’s Series A Convertible Redeemable Preferred Stock being converted to Common Shares and 60,000 Series B Preferred Units, which shall be converted to Common Units upon the Corporation’s Series A Convertible Redeemable Preferred Stock being converted to Common Shares. The name and address of, and

 
the class and number of Membership Interests held by, each Member from time to time shall be as set forth on Schedule I. Following the Closing Date, the Board of Managers shall amend Schedule I, without any further action by the Company or the Members, to reflect changes in the information intended to be reflected therein that occur pursuant to, and in accordance with, this Agreement. To the fullest extent permitted by applicable Law, and subject to Section 11.5, (i) Schedule I shall be the definitive record of the outstanding Membership Interests, the ownership of each outstanding Membership Interest and all relevant information with respect to each Member and each Assignee, (ii) any reference herein to Schedule I shall be deemed a reference to Schedule I, as amended and as in effect from time to time and (iii) the Company shall be entitled to recognize the exclusive right of a Person registered on Schedule I as the owner of the outstanding Membership Interests shown thereon for all purposes and shall not be bound to recognize any equitable or other claim to or interest in Membership Interests on the part of any other Person, whether or not it shall have express or other notice thereof. 3. The LLC Agreement is hereby amended to add Section 4.10 of the LLC Agreement is hereby amended by adding the follow provision: Section 4.10. Series A and Series B Preferred Units. (a) The Series A Preferred Units are intended to provide the holder there of with substantially identical economic rights, preferences and privileges identical to the Corporation’s Series A Convertible Redeemable Preferred Stock (“Corporation Series A Preferred Stock”) set forth in the Corporation’s Certificate of Designations of Preferences, Rights and Limitations of Series A Convertible Redeemable Preferred Stock filed with the Delaware Secretary of State on March ____, 2023, which terms are incorporated by reference herein. To the extent the Corporation is required or is permitted to make a distribution or payment in respect of the Corporation Series A Preferred Stock in cash, the Company shall make an equivalent distribution in cash on the Series A Preferred Units, and the Series A Preferred Units shall be cancelled or redeemed if the Corporation Series A Preferred Stock or so cancelled or redeemed. To the extent the Corporation is required or is permitted to make a distribution or payment in respect of the Corporation Series A Preferred Stock in Class A Shares, the Company shall make a distribution or payment on the Class A Preferred Units in an equivalent number of Common Units, and the Series A Preferred Units shall be cancelled or redeemed if the Corporation Series A Preferred Stock or so cancelled or redeemed. (b) The Series B Preferred Units are intended to provide the holder there of with substantially identical economic rights, preferences and privileges identical to the Corporation’s Series B Convertible Redeemable Preferred Stock (“Corporation Series B Preferred Stock”) set forth in the Corporation’s Certificate of Designations of Preferences, Rights and Limitations of Series A Convertible Redeemable Preferred Stock filed with the Delaware Secretary of State on March ____, 2023, which terms are incorporated by reference herein. To the extent the Corporation is required or is permitted to make a distribution or payment in respect of the Corporation Series B Preferred Stock in cash, the Company shall make an equivalent distribution in cash on the Series B Preferred Units, and the Series B Preferred Units shall be cancelled or redeemed if the Corporation Series A Preferred Stock or so cancelled or redeemed. To the extent the Corporation is required or is permitted to make a distribution or payment in respect of the Corporation Series B Preferred Stock in Class B Shares, the Company shall make a distribution or payment on the Class B Preferred Units in an equivalent number of Common Units, and the Series B Preferred Units shall be cancelled or redeemed if the Corporation Series B Preferred Stock or so cancelled or redeemed.

 
(c) Notwithstanding anything to the contrary herein, the Company shall always be permitted to elect to make any distribution or payment as provided in this Section 4.10 by payment in Common Units. [Signature Pages Follow]

 
IN WITNESS WHEREOF, the undersigned has duly executed this Amendment as of the date first written above. DIGITAL MEDIA SOLUTIONS HOLDINGS, LLC By: __________________ Name: Joseph Marinucci Title: Chief Executive Officer ACKNOWLEDGED AND AGREED: PRISM DATA, LLC, a Delaware limited liability company By: Name: Joseph Marinucci Title: Manager CEP V-A DMS AIV LIMITED PARTNERSHIP, a Delaware limited partnership By: Name: James H Miller Title: Corporate Secretary By: Name: Michael Wagman Title: President CEP V DMS US BLOCKER COMPANY, a Delaware corporation By: Name: James H Miller Title: Corporate Secretary By: Name: Michael Wagman Title: President

 
By: Name: Mathew Frary Title: Member By: Name: Stuart Butler Title: Member By: Name: Douglas Davis Title: Member By: Name: Beth Lazar Title: Member By: Name: Per Pettersen Title: Member By: Name: Nate Schaub Title: Member By: Name: Terra Matrix LLC Title: Member By: Name: Estalea I LP Title: Member Solely with respect to Section 4.4, Section 4.5, Section 4.6, Section 7.2, Section 7.3, Section 11.7 and Section 14.1(b):

 
DIGITAL MEDIA SOLUTIONS, INC., a Delaware corporation By: Name: Joseph Marinucci Title: Chief Executive Officer Solely with respect to Section 7.2(b) and Section 7.3(d): Joseph Marinucci Luis Ruelas / Fernando Borghese Matthew Goodman David Shteif Jonathan Katz

 

Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘10-K/A’ Filing    Date    Other Filings
Filed on:4/5/238-K
3/30/238-K
For Period end:12/31/2210-K
 List all Filings 

11 Subsequent Filings that Reference this Filing

  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

 4/18/24  Digital Media Solutions, Inc.     10-K       12/31/23  110:13M                                    Workiva Inc Wde… FA01/FA
11/14/23  Digital Media Solutions, Inc.     10-Q        9/30/23   75:9.7M                                   Workiva Inc Wde… FA01/FA
11/13/23  Digital Media Solutions, Inc.     424B3      11/09/23    1:323K                                   Workiva Inc Wde… FA01/FA
10/27/23  Lea Lyndon                        SC 13D/A               1:61K  Digital Media Solutions, Inc.     Donnelley … Solutions/FA
 9/06/23  Digital Media Solutions, Inc.     424B3                  1:333K                                   Workiva Inc Wde… FA01/FA
 8/23/23  Digital Media Solutions, Inc.     S-3/A                  4:432K                                   Workiva Inc Wde… FA01/FA
 8/18/23  Digital Media Solutions, Inc.     10-Q        6/30/23   74:109M                                   Workiva Inc Wde… FA01/FA
 5/17/23  Digital Media Solutions, Inc.     DEF 14C     5/16/23    1:414K                                   Broadridge Fin’l So… Inc
 5/15/23  Digital Media Solutions, Inc.     10-Q        3/31/23   73:8.6M                                   Workiva Inc Wde… FA01/FA
 5/02/23  Digital Media Solutions, Inc.     PRE 14C     5/01/23    1:342K                                   Broadridge Fin’l So… Inc
 5/01/23  Digital Media Solutions, Inc.     S-3                    5:446K                                   Workiva Inc Wde… FA01/FA

14 Previous Filings that this Filing References

  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

 3/31/23  Digital Media Solutions, Inc.     10-K       12/31/22  108:11M                                    Workiva Inc Wde… FA01/FA
 3/10/23  Digital Media Solutions, Inc.     8-K:1,8,9   3/10/23    3:36M                                    Workiva Inc Wde… FA01/FA
 8/09/22  Digital Media Solutions, Inc.     10-Q        6/30/22   69:15M                                    Workiva Inc Wde… FA01/FA
 7/05/22  Digital Media Solutions, Inc.     8-K:3,5,9   6/28/22   14:4.8M                                   Workiva Inc Wde… FA01/FA
 5/31/22  Digital Media Solutions, Inc.     8-K:5,9     5/26/22   12:3.1M                                   Workiva Inc Wde… FA01/FA
11/09/21  Digital Media Solutions, Inc.     10-Q        9/30/21   72:99M
 8/09/21  Digital Media Solutions, Inc.     10-Q        6/30/21   71:9.5M
 5/18/21  Digital Media Solutions, Inc.     10-K/A     12/31/20  107:12M
11/03/20  Digital Media Solutions, Inc.     8-K:5,9    10/28/20   15:400K
 7/20/20  Digital Media Solutions, Inc.     8-K12B/A:1, 7/15/20   20:2.9M                                   Donnelley … Solutions/FA
 7/16/20  Digital Media Solutions, Inc.     8-K12B:3,5, 7/15/20    5:233K                                   Donnelley … Solutions/FA
 7/02/20  Digital Media Solutions, Inc.     8-K:1,7,9   7/02/20    3:79K                                    Donnelley … Solutions/FA
 6/22/20  Digital Media Solutions, Inc.     8-K:1,9     6/22/20    2:55K                                    Donnelley … Solutions/FA
 4/24/20  Digital Media Solutions, Inc.     8-K/A:1,9   4/23/20    4:2.6M                                   Donnelley … Solutions/FA
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Filing Submission 0001628280-23-010860   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
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