Exhibit 10.1

ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement (this “ Agreement ”), dated as of February 13, 2019 (the “ Effective Date ”), is entered into between LUXEMARK CAPITAL LLC, a New York limited liability company (the “ Company ”), Avraham Zeines, an individual, Oskar Kowalski, an individual, Kamil Blaszczak, an individual (each a “ Seller Principal ” and, collectively, along with the Company, the “ Sellers ”), and LM CAPITAL SOLUTIONS, LLC, a New York limited liability company (the “ Buyer ”).

bACKGROUND

A.       The Company is engaged in, among other things, the business of: (i) facilitating and monitoring the provision of syndication capital, loans, lines of credit or other leverage to funding companies within the merchant cash advance space and; (ii) facilitating the connection of merchants seeking merchant cash advances to funding companies within the merchant cash advance space (the “ Business ”).

B.       The Seller Principals collectively own all of the membership interests in the Company.

C.       The Company wishes to sell to the Buyer, and the Buyer wishes to purchase from the Company, all right, title and interest in and to the Purchased Assets (as defined below), subject to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

Article 1

Purchase and Sale

1.1        Purchase and Sale of Purchased Assets . Subject to the terms and conditions set forth herein, as of the Effective Date, the Company hereby sells, assigns, transfers, conveys and delivers to the Buyer, and the Buyer hereby purchases from the Company, all of the Company’s right, title and interest in and to all of the assets, properties and rights of every kind and nature used or held for use in connection with the Business, including, without limitation, the name “Luxemark Capital LLC” and all related intellectual property and those assets listed on Schedule 1.1(a) attached hereto (such assets, collectively, the “ Purchased Assets ”), in each case free and clear of any mortgage, pledge, lien, charge, security interest, claim or other encumbrance (“ Encumbrance ”). Notwithstanding the foregoing, the Purchased Assets shall not include the assets set forth on Schedule 1.1(b) attached hereto, if any (collectively, the “ Excluded Assets ”).

1.2        Assignment and Assumption of Assumed Liabilities . Subject to the terms and conditions set forth herein, the Buyer shall assume and agree to pay, perform and discharge only the Liabilities (as defined below) specifically listed on Schedule 1.2 attached hereto, but only to the extent that such Liabilities do not relate to or arise out of any breach, default or violation by the Company or any of its affiliates on or prior to the Effective Date (collectively, the “ Assumed Liabilities ”). For the avoidance of doubt, the Buyer shall not assume any Liabilities other than the Assumed Liabilities. For purposes of this Agreement, “Liabilities” means liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, known or unknown, absolute or contingent, accrued or unaccrued, matured or unmatured or otherwise.

1.3        Excluded Liabilities . Notwithstanding anything to the contrary herein, the Company shall retain, and shall be responsible for paying, performing and discharging, when due, and the Buyer and its Affiliates shall not assume or have any responsibility for any Liabilities of the Company, including as set forth on Schedule 1.3 hereto (all excluded Liabilities collectively, “ Excluded Liabilities ”), other than the Assumed Liabilities.

1.4        Purchase Price . The aggregate purchase price payable by the Buyer for the Purchased Assets shall be the sum of: (a) the Initial Purchase Price (as defined below); (b) the Equity Consideration (as defined below); (c) the Initial Earn-Out (as defined below); and (d) the Performance Based Earn-Out (as defined below), payable as follows:

“ Distributable Net Income ” means the difference of (a) the sum of (i) net income actually realized, plus (ii) depreciation, plus (iii) non-cash stock compensation, minus (b) capital additions greater than $10,000, in each case of the Company or the Buyer, as applicable, as reported in its audited financial statements. Any review or dispute about the amount of the Distributable Net Income shall be determined in accordance with the procedures set forth in Section 1.5. For the avoidance of doubt, if the Initial Earn-Out is earned and the Buyer pays the Initial Earn-Out pursuant to Section 1.4(e) , the Buyer shall have no further payment or other obligations under this Section. Notwithstanding anything to the contrary herein, the maximum amount payable to the Company under this Section 1.4(c) is One Million Dollars ($1,000,000).

(a) if the Buyer achieves less than 100% but at least 75% of the Performance Target in such year, the Performance Based Earn-Out payable to the Company with respect to such year will be an amount equal to (1) the percentage of the Performance Target achieved in such year by the Buyer multiplied by (2) One Million Dollars ($1,000,000); and

(b) if the Buyer achieves less than 75% of the Performance Target in such year, the Performance Based Earn-Out payable to the Company with respect to such year shall equal Zero Dollars ($0.00).

a.        Distributable Net Income Determination.

(i)        As promptly as practicable following the completion of the routine independent third party audit of the financial statements of the Buyer for the year ending December 31, 2018, the Buyer shall submit to the Company in writing the proposed calculation of the Distributable Net Income of the Company or the Buyer (as applicable, the “ Distributable Net Income Calculation ”), together with supporting documentation reasonably necessary for the Sellers’ review of such proposed Distributable Net Income Calculation. This process will be repeated for each of the calendar years ending on December 31, 2019, December 31, 2020, December 31, 2021 and December 31, 2022.

(ii)        The Company shall have thirty (30) days following delivery by the Buyer of the proposed Distributable Net Income Calculation during which to notify the Buyer of any dispute of such proposed Distributable Net Income Calculation, which notice shall set forth in reasonable detail the basis for such dispute. If the Company does not notify the Buyer of any dispute within such thirty (30) day period, the Distributable Net Income Calculation provided by the Buyer pursuant to Section 1.5(a)(i) above shall be deemed to be final and binding on the parties. If the Company does notify the Buyer of any dispute within such fifteen (15) day period, the Buyer and the Company shall cooperate in good faith to resolve such dispute as promptly as possible, and upon such resolution, the Distributable Net Income shall be determined in accordance with the mutual written agreement of the Buyer and the Company. If the Buyer and the Company are unable to resolve any dispute regarding such Distributable Net Income Calculation within fifteen (15) days (or such longer period as the Buyer and the Company shall mutually agree in writing) of notice of a dispute, the dispute shall be resolved by a neutral arbitrator. The neutral arbitrator shall be mutually agreed upon by each of the Buyer and the Company and shall be appointed within ten (10) days after the expiration of the period to resolve the dispute. In the event the Buyer and the Company cannot agree upon the appointment of a neutral arbitrator within ten (10) days, the Company shall appoint one arbitrator and the Buyer shall appoint one arbitrator, and the appointed arbitrators shall select a third arbitrator to serve with them, with the decision(s) and resolution(s) of a majority of the arbitrators so selected to be controlling with respect to any decision(s) or resolution(s) required to be made by the arbitrator(s) under this Agreement. The resolution of the arbitrator(s) shall be final and binding on the parties. The arbitrator(s) shall use commercially reasonable efforts to complete its work within thirty (30) days of its engagement. The fees, costs and expenses of the arbitrator(s) (i) shall be borne by the Buyer in the proportion that the aggregate dollar amount of all such disputed items so submitted that are successfully disputed by the Sellers (as finally determined by the arbitrator) bears to the aggregate dollar amount of such items so submitted and (ii) shall be borne by the Sellers, on a joint and several basis, in the proportion that the aggregate dollar amount of such disputed items so submitted that are unsuccessfully disputed by the Sellers (as finally determined by the arbitrator) bears to the aggregate dollar amount of all such items so submitted. Within ten (10) business days after the final determination of Distributable Net Income pursuant to this Section 1.5 , the Buyer shall pay to the Company, by wire transfer or delivery of immediately available funds, the amount of the Initial Earn-Out (if any) or the Performance Based Earn-Out (if any) based on Distributable Net Income as finally determined.

b.        Performance Targets . The performance target which the Buyer must meet or exceed in the current year in order to earn the Performance Based Earn-Out (the “ Performance Target ”) with respect to the years ending on each of December 31, 2019, December 31, 2020, December 31, 2021 and December 31, 2022 are set forth in Schedule 1.5(b) attached hereto.

c.        Operating and Accounting Procedures of the Company .

(i)        Generally . The parties agree that the guidelines set forth in Schedule 1.5(c) shall be used in calculating Distributable Net Income. Additionally, nothing contained in this Agreement shall be construed to restrict in any way management of the Buyer and its affiliates from operating the Buyer in the manner which the Buyer’s management and board of managers reasonably deem most beneficial for the Buyer and the Buyer’s equity holders, subject to the provisions of the Buyer LLCA (as defined below); provided , that in no event shall Buyer take any action with the intent, or sole purpose of, avoiding the obligation to make the Initial Earn-Out or the Performance Based Earn-Out.

(ii)        Accounting Standards . All matters relating to the calculation of Distributable Net Income shall be calculated in a manner consistent with GAAP and pursuant to the methodology set forth in Schedule 1.5(c) .

1.6        Purchase Price Allocation . The Sellers and the Buyer agree to allocate the Purchase Price among the Purchased Assets for federal and, where applicable, state and local income tax purposes in accordance with the methodology set forth on Schedule 1.6 attached hereto. The Buyer and the Sellers shall file all tax returns (including amended returns and claims for refund) and information reports in a manner consistent with such allocation. The Buyer shall be entitled to deduct and withhold from the Purchase Price all taxes that the Buyer may be required to deduct and withhold under any applicable tax law. All such withheld amounts shall be treated as delivered to the Company hereunder.

Article 2
Closing

2.1        Closing . The closing of the transactions contemplated by this Agreement (the “ Closing ”) shall occur simultaneously with the execution of this Agreement on the Effective Date via remote exchange of electronic signature pages or scanned copies of original signature pages. The consummation of the transactions contemplated by this Agreement shall be deemed to occur at 12:01 a.m. Eastern Time on the Effective Date.

2.2        Closing Deliverables .

(a)       At the Closing, the Sellers shall deliver to the Buyer the following:

(i)       a bill of sale in a form mutually agreed by the Buyer and the Sellers (the “ Bill of Sale ”), duly executed by the Company;

(ii)       an assignment and assumption agreement in a form mutually agreed by the Buyer and the Sellers (the “ Assignment and Assumption Agreement ”), duly executed by the Company;

(iii)       an assignment in a form mutually agreed by the Buyer and the Sellers (the “ Intellectual Property Assignment ”), duly executed by the Company;

(iv)       a duly executed joinder to the Buyer Limited Liability Company Agreement (“ Buyer LLCA ”), in a in a form mutually agreed by the Buyer and the Sellers;

(v)       copies of the Company’s financial statements prepared in accordance with U.S. GAAP, consistently applied, covering the time period from the Company’s inception until its most recently completed fiscal year.

(vi)       a Restrictive Covenant Agreement in a form mutually agreed by the Buyer and the Sellers (a “ Restrictive Covenant Agreement ”), duly executed by the Company and each of the Seller Principals;

(vii)       copies of all consents, approvals, waivers and authorizations referred to in Schedule 3.2 attached hereto, if any;

(viii)       for each Investor, an executed copy of a commercial agreement with such Investor in a form mutually agreed by the Buyer and the Sellers, which the parties agree the Business will use as a form contract for investor agreements going forward;

(ix)       for each Funder, an executed copy of a commercial agreement with such Funder in a form mutually agreed by the Buyer and the Sellers, which the parties agree the Business will use as a form contract for funder agreements going forward;

(x)       an Employment Agreement between the Buyer and Adrian Miller in a form reasonably satisfactory to the Buyer (the “ Employment Agreement ”), duly executed by Adrian Miller;

(xi)       a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that the Company is not a foreign person within the meaning of Section 1445 of the Internal Revenue Code duly executed by the Company;

(xii)       a certificate of the Secretary or Assistant Secretary (or equivalent officer) of the Company certifying as to (A) the resolutions of the board of directors of the Company, duly adopted and in effect, which authorize the execution, delivery and performance of this Agreement and the transactions contemplated hereby, and (B) the names and signatures of the officers of the Company authorized to sign this Agreement and the documents to be delivered hereunder;

(xiii)       a pledge agreement pledging the Equity Consideration in favor of the Buyer and Holdings (the “ Pledge Agreement ”), duly executed by the Sellers;

(xiv)       consulting agreements in a form mutually agreed by the Buyer and the Sellers, duly executed by each of the Seller Principals (the “ Consulting Agreements ”); and

(xv)       such other instruments of transfer, assumption, filings or documents, in form and substance reasonably satisfactory to the Buyer, as may be required to give effect to this Agreement.

(b)       At the Closing, the Buyer shall deliver to the Sellers the following:

(i)       the Initial Purchase Price, payable in accordance with Section 1.3 ;

(ii)       the Equity Consideration;

(iii)       a Warrant, in a form satisfactory to the Buyer, granting the Company the right to purchase a number of shares of the common stock, par value $0.01 per share, of CCUR Holdings, Inc. (“ Holdings ”) equal to five percent (5%) of the fully diluted equity capitalization of Holdings as of the Effective Date (each such share, a “ Warrant Share ”) at a price per Warrant Share equal to the greater of (A) the fair market value of one Warrant Share at the close of trading on the Effective Date, and (B) $6.50 (the “ Holdings Warrant ”), duly executed by Holdings;

(iv)       each Restrictive Covenant Agreement, duly executed by the Buyer;

(v)       the Employment Agreement, duly executed by the Buyer;

(vi)       the Consulting Agreements, duly executed by the Buyer;

(vii)       the Master Promissory Note by and between Holdings and the Buyer, in a form mutually agreeable to Holdings and the Buyer, duly executed by Holdings and the Buyer; and

(viii)       a certificate of the Secretary or Assistant Secretary (or equivalent officer) of the Buyer certifying as to (A) the resolutions of the board of directors of the Buyer, duly adopted and in effect, which authorize the execution, delivery and performance of this Agreement and the transactions contemplated hereby, and (B) the names and signatures of the officers of the Buyer authorized to sign this Agreement and the documents to be delivered hereunder.

Article 3
Representations and warranties of The sellerS

Each of the Seller Principals and the Company, jointly and severally, represents and warrants to the Buyer that the statements contained in this Article III are true and correct as of the execution of this Agreement. For purposes of this Article III , “Company’s Knowledge” means the actual or constructive knowledge of each of the Seller Principals or any director or officer of the Company or such knowledge that such persons should have after conducting due inquiry into the matter at hand.

3.1        Organization and Authority of the Sellers; Enforceability . Except as set forth in Schedule 3.1 , the Company is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of New York. The Company has full limited liability company power and authority to enter into this Agreement and the documents to be delivered hereunder, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by the Company of this Agreement and the documents to be delivered hereunder and the consummation of the transactions contemplated hereby have been duly authorized by all requisite actions on the part of the Company. Each of the Seller Principals has all requisite right, capacity, power and authority to enter into this Agreement and the documents to be delivered hereunder, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. This Agreement and the documents to be delivered hereunder have been duly executed and delivered by each of the Seller Principals and the Company, and (assuming due authorization, execution and delivery by the Buyer) this Agreement and the documents to be delivered hereunder constitute legal, valid and binding obligations of each of the Seller Principals and the Company, enforceable against each in accordance with their respective terms.

3.2        No Conflicts; Consents . Except as set forth in Schedule 3.2 attached hereto, the execution, delivery and performance by the Sellers of this Agreement and the documents to be delivered hereunder, and the consummation of the transactions contemplated hereby, do not and will not: (a) violate or conflict with the certificate of incorporation, by-laws or other organizational documents of the Company; (b) violate or conflict with any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to any Seller or the Purchased Assets; (c) conflict with, or result in (with or without notice or lapse of time or both) any violation of, or default under, or give rise to a right of termination, acceleration or modification of any obligation or loss of any benefit under any contract or other instrument to which any Seller is a party or to which any of the Purchased Assets are subject; or (d) result in the creation or imposition of any Encumbrance on the Purchased Assets. Except as set forth in Schedule 3.2 attached hereto, no consent, approval, waiver or authorization is required to be obtained by any Seller from any person or entity (including any governmental authority) in connection with the execution, delivery and performance by such Seller of this Agreement and the consummation of the transactions contemplated hereby.

3.3        Title, Sufficiency and Condition of Purchased Assets; Inventory .

(a)       The Company owns and has good title to the Purchased Assets, free and clear of Liens. Upon the consummation of the transactions contemplated hereby, the Buyer will acquire sole ownership of all of the Purchased Assets, free and clear of all Liens (as defined below). All of the Purchased Assets of the Company are free and clear of any mortgage, pledge, lien, conditional sale agreement, security title, encumbrance, easement, right of way, charge or other title retention agreement of any kind or nature (a “ Lien ”). There are no breaches or defaults under, and no events or circumstances have occurred which, with or without notice or lapse of time or both, would constitute a breach of or a default under, any instrument, agreement or other document that creates, evidences or constitutes any Lien or that evidences, secures or governs the terms of any indebtedness or obligation secured by any Lien (any such instrument, agreement or other document is referred to herein as a “ Lien Instrument ”). The sale of the Purchased Assets by the Company to the Buyer will not: (i) constitute a breach or a default under any Lien Instrument; (ii) permit (with or without notice, lapse of time or both), cause or result in (A) the acceleration of any indebtedness or other obligation evidenced, secured or governed by a Lien Instrument, or (B) the foreclosure or other enforcement of any Lien; (iii) permit or cause the terms of any Lien Instrument to be renegotiated; or (iv) require the consent of any party to or holder of a Lien Instrument or of any third party.

(b)       The Purchased Assets, taken together with the services, assets and rights to be provided hereunder or under the documents to be delivered in connection with the Closing, constitute all of the assets necessary to operate the Business in substantially the manner immediately after the Closing as it is currently conducted by the Company or currently proposed to be conducted after the Closing. The tangible Purchased Assets are in good condition and are adequate for the uses to which they are currently being put, and none of such Purchased Assets are in need of maintenance or repairs except for ordinary, routine maintenance and repairs that are not material in nature or cost. All inventory, finished goods, raw materials, work in progress, packaging, supplies, parts and other inventories included in the Purchased Assets consist of a quality and quantity usable and saleable in the ordinary course of business.

(c)       No licenses or consents from, or payments to, any other person are or will be necessary for the Buyer to use any of the Purchased Assets in the same manner in which such Purchased Assets are currently used in the conduct of the Business prior to the Closing. No restrictions will exist on the Buyer’s right to use, sell, resell, license or exploit any of the Purchased Assets, nor will any restrictions be imposed on the Buyer as a consequence of the transactions contemplated by this Agreement.

(d)       Other than the Company, no other person or entity owns, uses, holds for use, possesses or controls, or has any right, title, or interest in or to, any Purchased Asset. None of the Excluded Assets are used in, held for use in, necessary for, or related to the use or enjoyment of the Purchased Assets following the Closing as currently used or enjoyed, or as currently contemplated by the Company to be used or enjoyed.

3.4        Relationship With Affiliates . Other than pursuant to the agreements set forth on Schedule 3.4 , neither any of the Sellers nor any affiliate or relative (by blood or marriage) of any of the Sellers provides or supplies assets, services or facilities or is party to any other agreements, contracts, arrangements or courses of dealing which are, individually or in the aggregate, material to the operations of the Company. The Company has not loaned funds to any of its employees or equity holders other than advances of expenses in the ordinary course of business.

3.5        Financial Statements; Absence of Changes .

(a)       Listed on Schedule 3.5(a) are (i) an unaudited balance sheet of the Company as of December 31, 2017 and the most recently closed month (not to be more than 62 days prior to the Closing Date) (the “ Base Balance Sheet ”, and such date, the “ Balance Sheet Date ”), (ii) unaudited statements of operations for the Business for the 12-month period ending December 31, 2017 and for the most recently closed year to date period (not to be more than 62 days prior to the Closing Date), and (iii) unaudited statements of cash flow for the Business for the 12-month period ending December 31, 2017 and for the most recently closed year to date period (not to be more than 62 days prior to the Closing Date) (such financial information referred to in clauses (i)-(iii) together are referred to herein as the “ Financial Statements ”). The Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the periods covered thereby, each of which has been prepared in accordance with the books and records of the Business, each fairly represents in all material respects the financial position and results of operations of the Business as of the dates and for the periods set forth therein.

(b)       Except as set forth in the Financial Statements from Balance Sheet Date to the date of this Agreement, (i) the Company has operated the Business in the ordinary course of business consistent with past practices and have used reasonable efforts to preserve the Purchased Assets and the Business intact and to preserve the goodwill of suppliers, customers, employees and others having business relations with the Company with respect to the Business, (ii) there has been no material adverse effect on the Business.

3.6        Real and Personal Property .

(a)        Leased Facilities . Schedule 3.6 contains a true and correct list of each parcel of real property used or occupied by the Company (each, a “ Facility ”) as the lessor or sublessor thereof. Prior to the Closing, each Facility listed on Schedule 3.6 (other than those denoted with an asterisk) was leased by the Company under a lease or sublease with a lessor or subleassor unaffiliated with any Seller (collectively, the “ Real Estate Leases ”). As of the Closing, the Company is not party to or bound by any contract related to any Facility except the Real Estate Leases. The Company has valid leasehold estates in the real properties leased by it free and clear of all encumbrances, but subject to the leases relating thereto, for the full term thereof. As of the date hereof, each of the Real Estate Leases is a legal, valid and binding agreement of the Company and of the lessor named therein, enforceable against the Company and the lessor named therein in accordance with its terms. Neither the Company nor any other party thereto is in default under any Real Estate Lease and to the Company’s Knowledge, no event has occurred which, after notice or lapse of time or both, would constitute a default under any Real Estate Lease.

(b)        Condition of Improvements . The improvements located at each Facility are in good condition and in good repair, ordinary wear and tear excepted, and, other than repairs or maintenance to be performed in the ordinary course of business. All utilities and similar systems which are required for the operation of the Business at all Facilities are installed and operating and are sufficient to enable all real property to continue to be used and operated in the manner currently being used and operated by the Company.

(c)        Ownership of Real Property . The Company does not own any real property (including without limitation any option or other right or obligation to purchase any real property or any interest therein).

3.7        Tangible Personal Property . Except as listed on Schedule 3.7 , the Company is in possession of and has good title to, or has valid leasehold interests in or valid rights under contract to use, all the tangible personal property used in the conduct of its business. Except as set forth on Schedule 3.7 , all such tangible personal property is free and clear of all Liens and is in all material respects in good condition, ordinary wear and tear excepted.

3.8        Intellectual Property. Schedule 3.8 contains a complete and accurate list and summary description of all of the following (“ Intellectual Property Assets ”): (a) U.S. and foreign registered, pending and common law (i) trade names, (ii) service marks, (iii) trademarks, and (iv) logos, (b) all U.S. and foreign issued and pending patents, (c) all U.S. and foreign copyrights, including computer software, whether or not registered, owned by the Company, and (d) all intellectual property, including computer software, licensed to the Company. The Company represents and warrants that the Company is the sole and exclusive owner of the entire right, title and interest in and to the Intellectual Property Assets, other than the rights of licensor under any license agreements, and has good and marketable title to the Intellectual Property Assets owned by the Company free and clear of all royalty obligations and other Liens. Except as set forth in Schedule 3.8 , neither the Company's use of the Intellectual Property Assets, nor any products or services produced or provided by the Company, conflicts with, infringes upon, misappropriates, or violates the intellectual property rights of any third party or any license and no such claim of infringement, misappropriation or violation has been threatened or asserted in writing or is pending against the Company, its end-user customers, licensees or licensors. Except as set forth in Schedule 3.8 , to the Company’s Knowledge, none of the foregoing claims or demands by any third party will be, or is likely to be made, and there is no fact or circumstance that could reasonably give rise to any such claim. The Company has not entered into any agreement, license, release, or order that restricts the right of the Company to use the Intellectual Property Assets in any way. The Intellectual Property Assets are valid and enforceable and the Company has taken all necessary steps to ensure the validity and enforceability of the Intellectual Property Assets. The Company has the right to use all Intellectual Property Assets used in, or necessary for, the operation of the Business as currently conducted. Each Intellectual Property Asset owned or used by the Company immediately prior to the Effective Date will be owned or available for use by the Buyer on identical terms and conditions immediately subsequent to the Effective Date hereunder.

3.9        Tax Matters .

(a)       The Sellers have prepared and timely filed all required federal and state Tax Returns related to the Business or the Purchased Assets and due on or before the Effective Date, and all such Tax Returns are true, correct and complete in all material respects and have been completed in accordance with all applicable U.S. federal, state, municipal or local or foreign laws, statutes, codes, orders, judgments, or any other legal requirements having the force or effect of law. The Sellers have paid all Taxes owed with respect to the Business or the Purchased Assets, and have no material liability for unpaid Taxes. There has been no audit, investigation, dispute with, or correspondence from any Tax authority to the Company related to the Business or the Purchased Assets. There are no accrued and unpaid Taxes of the Company related to the Business or the Purchased Assets which are due, whether or not assessed or disputed.

(b)       The Company has withheld with respect to employees and other third parties all Taxes required to have been withheld, and such withheld amounts have been timely paid over to the appropriate Tax authority.

(c)       There are no liens for Taxes upon any of the Purchased Assets, except for liens for Taxes not yet due and payable.

(d)       There is no Tax deficiency outstanding, assessed or proposed against or with respect to any Seller related to the Business or the Purchased Assets, nor has any outstanding waiver of any statute of limitations on or extension of the period for which the assessment or collection of any Tax of or with respect to any Seller related to the Business or the Purchased Assets been executed or requested.

(e)       No written claim has ever been made that any Seller is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns by virtue of the operation of the Business or ownership of the Purchased Assets.

(f)       For purposes of this Agreement, “ Tax ” or “ Taxes ” shall mean (i) any net income, alternative or add-on minimum tax, gross income, estimated, gross receipts, sales, use, ad valorem, value added, transfer, franchise, fringe benefit, capital stock, profits, license, registration, withholding, payroll, social security (or equivalent), employment, unemployment, disability, excise, severance, stamp, occupation, premium, property (real, tangible or intangible), environmental, escheat, unclaimed property, or windfall profit tax, custom duty or other tax, governmental fee or other like assessment or charge of any kind whatsoever, together with any interest or any penalty, addition to tax or additional amount (whether disputed or not) imposed by any governmental entity responsible for the imposition of any such tax, (ii) any Liability for the payment of any amounts of the type described in clause (i) of this sentence as a result of being (or ceasing to be) a member of an affiliated, consolidated, combined, unitary or aggregate group for any Taxable period, and (iii) any Liability for the payment of any amounts of the type described in clause (i) or (ii) of this sentence as a result of being a transferee of or successor to any person or as a result of any express or implied obligation to assume such Taxes or to indemnify any other person. For purposes of this Agreement, “ Tax Return ” shall mean any return, report or statement filed or required to be filed with respect to any Tax, including any information return, declaration of estimated tax, claim for refund, election, or voluntary disclosure agreement, and any schedule, addendum or attachment thereto, and any amendment thereof.

3.10        Assigned Contracts; Transferred Permits .

(a)        Assigned Contracts . Schedule 3.10(a) attached hereto lists: (i) each material contract to which the Company is a party and which relates to the Business and/or the Purchased Assets; and (ii) each contract that is necessary for the operation of the Business or is the source of any funds paid or payable to the Company in the connection with the Business (collectively, the “ Assigned Contracts ”). Each Assigned Contract is valid and binding on the Company in accordance with its terms and is in full force and effect. None of the Company or, to the Company’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Assigned Contract. No event or circumstance has occurred that, with or without notice or lapse of time or both, would constitute an event of default under any Assigned Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of benefit thereunder. The Company has made available to the Buyer true, complete and correct copies of each Assigned Contract. There are no disputes pending or threatened under any Assigned Contract.

(b)        Transferred Permits . Schedule 3.10(b) attached hereto lists all permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances and similar rights obtained from governmental authorities that are (i) necessary or advisable in connection with the operation of the Business; or (ii) included in the Purchased Assets (the “ Transferred Permits ”). The Transferred Permits are valid and in full force and effect and constitute all permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances and similar rights required to operate the Business and own, use or hold the Purchased Assets. All fees and charges with respect to such Transferred Permits as of the Effective Date have been paid in full. No event has occurred that, with or without notice or lapse of time or both, would reasonably be expected to result in the revocation, suspension, lapse or limitation of any Transferred Permit.

3.11        Compliance With Laws; Non-Foreign Status . The Company has complied, and is now complying, with all applicable federal, state, local and self-regulatory laws, rules, regulations, statutes, ordinances, declarations or other governing regimes applicable to ownership and use of the Purchased Assets or the Business. Except as listed on Schedule 3.11 (a) the Company has only conducted the Business in the state of New York, and (b) each Investor and each Funder is located in the state of New York. The Company has not received any written notice to the effect that the Company is not in compliance in all material respects with any such laws or orders. The Company is not a “foreign person” as that term is used in Treasury Regulations Section 1.1445-2.

3.12        Legal Proceedings . There is not currently, nor has there been during the last three (3) years, any claim, action, suit, proceeding or governmental investigation (“ Action ”) of any nature pending or threatened against or by any Seller: (a) relating to or affecting the Purchased Assets, the Assumed Liabilities or the Business; or (b) that challenges or seeks to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. There is not currently, nor has there been during the last three (3) years, any inquiry or investigation by any governmental authority pending or threatened against the Company (including any inquiry as to the qualification of the Company to hold or receive any license or permit of the Business). No event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such Action.

3.13        Books and Records . Without limiting any other provision of this Agreement, the Company has made available to the Buyer or its counsel complete and correct copies of (a) all documents identified on the Schedules, including all exhibits, schedules, amendments and the like, (b) the Company organizational documents, as currently in effect, (c) the minute books containing records of all proceedings, consents, actions and meetings of each of the boards of directors of the Company (including any committees thereof), and stockholders or members of the Company, as applicable, and (d) permits, orders and material consents issued by any regulatory agency with respect to any securities or assets of the Company and all applications for such permits, orders and consents. The minute books of the Company made available to the Buyer contain a complete and accurate summary of all meetings of directors and stockholders or actions by written consent since the time of incorporation of the Company through the date of this Agreement, and reflect all transactions referred to in such minutes accurately in all material respects. The books, records and accounts of the Company (i) are true, correct and complete in all material respects, (ii) have been maintained in accordance with reasonable business practices on a basis consistent with prior years, and (iii) accurately and fairly reflect the transactions and dispositions of the Purchased Assets.

3.14        Investors and Funders .

(a)        Schedule 3.14(a) sets forth (i) the names and addresses of each investor of funds in connection with the purchase of participation interests in merchant accounts receivable from Funders (as defined below) during the twelve (12) month-period prior to the date of this Agreement (collectively, the “ Investors ”), listed by the amounts invested by the Investors. The Company has not received any notice, and the Company does not have any reason to believe, that any Investor, intends to pull its investment in connection with the Business or otherwise act outside of the ordinary course of its current relationship with the Business. To the Company’s Knowledge, the transactions contemplated by this Agreement will not adversely affect the respective relationships between the Buyer and any Investors.

(b)        Schedule 3.14(b) sets forth the names and addresses of each funder who has worked with the Company to sell participation interests in purchases of merchant accounts receivable to Investors during the twelve (12) months prior to the date of this Agreement (collectively, the “ Funders ”), and the total amounts funded by each such Funder during such period as well any amounts funded by the Company as a funder. The Company has not received any notice, and the Company does not have any reason to believe, that any such Funder will terminate its service relationship with the Business after the Closing or otherwise act outside of the ordinary course of its current relationship to the Business. To the Company’s Knowledge, the transactions contemplated by this Agreement will not adversely affect the respective relationships between the Buyer and any Funders.

3.15        Brokers . Except as set forth on Schedule 3.15 , no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Company or the Seller Principals. Any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement payable by any of the Sellers has been paid in full by the Sellers.

3.16        Solvency . Assuming satisfaction of the conditions to this Agreement, and after giving effect to the transactions contemplated hereby, payment of all amounts required to be paid in connection with the consummation of the transactions contemplated hereby, and payment of all related fees and expenses, each Seller and its respective affiliates will not be insolvent as of the Closing and immediately after the consummation of the transactions contemplated hereby.

3.17        Absence of Undisclosed Liabilities . No Seller has any liability or obligation arising out of transactions entered into prior to the Closing, or any action or inaction prior to the Closing, or any state of facts existing prior to the Closing, other than: (a) liabilities reflected on the Financial Statements dated December 31, 2017; (b) liabilities which have arisen after the date of such Financial Statements in the ordinary course of business (none of which is a liability resulting from breach of contract, breach of warranty, tort, infringement, claim or lawsuit), and (c) other liabilities expressly disclosed in this Agreement.

3.18        Accredited Investor. Each of the Sellers represent and warrant to the Buyer that it is an “Accredited Investor,” as that term is defined in Rule 501(a) of Regulation D promulgated under the Securities Acts of 1933, as amended.

3.19        Independent Investigation. Each of the Sellers represent and warrant to the Buyer that in making its decision to enter into this Agreement and any ancillary agreements and to consummate the transactions contemplated hereby and thereby, other than reliance on the representations, warranties, covenants and obligations of the Buyer set forth in this Agreement, such Seller has relied solely on its own independent investigation, analysis and evaluation of the Buyer. Each of the Sellers confirm to the Buyer that such Seller is sophisticated and knowledgeable in the Business and is capable of evaluating the matters set forth above.

3.20        Full Disclosure . No representation or warranty by the Company in this Agreement and no statement contained in the schedules to this Agreement or any certificate or other document furnished or to be furnished to the Buyer pursuant to this Agreement contains any untrue statement of a material fact, or omits to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading. There is no fact that the Company has not disclosed to the Buyer and its counsel in writing and of which the Company (or any of them) is aware that is material to the Business or any of the Purchased Assets.

Article 4
Representations and warranties of The buyer

The Buyer represents and warrants to the Sellers that the statements contained in this Article IV are true and correct as of the execution of this Agreement. For purposes of this Article IV , “Buyer’s Knowledge” means the actual or constructive knowledge of any director or officer of the Buyer, after due inquiry.

4.1        Organization and Authority of Buyer; Enforceability . The Buyer is a limited liability company, duly organized, validly existing and in good standing under the laws of the state of Delaware. The Buyer has full limited liability company power and authority to enter into this Agreement and the documents to be delivered hereunder, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by the Buyer of this Agreement and the documents to be delivered hereunder and the consummation of the transactions contemplated hereby have been duly authorized by all requisite actions on the part of the Buyer. This Agreement and the documents to be delivered hereunder have been duly executed and delivered by the Buyer, and (assuming due authorization, execution and delivery by the Sellers) this Agreement and the documents to be delivered hereunder constitute legal, valid and binding obligations of the Buyer enforceable against the Buyer in accordance with their respective terms.

4.2        No Conflicts; Consents . The execution, delivery and performance by the Buyer of this Agreement and the documents to be delivered hereunder, and the consummation of the transactions contemplated hereby, do not and will not: (a) violate or conflict with the certificate of incorporation, by-laws or other organizational documents of the Buyer; or (b) violate or conflict with any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to the Buyer. No consent, approval, waiver or authorization is required to be obtained by the Buyer from any person or entity (including any governmental authority) in connection with the execution, delivery and performance by the Buyer of this Agreement and the consummation of the transactions contemplated hereby.

4.3        Legal Proceedings . There is no Action of any nature pending or, to the Buyer’s Knowledge, threatened against or by the Buyer that challenges or seeks to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement.

4.4        Brokers . No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Buyer.

4.5        Solvency . Assuming satisfaction of the conditions to this Agreement, and after giving effect to the transactions contemplated hereby, payment of all amounts required to be paid in connection with the consummation of the transactions contemplated hereby, and payment of all related fees and expenses, the Buyer and its respective affiliates will not be insolvent as of the Closing and immediately after the consummation of the transactions contemplated hereby.

Article 5
Covenants

5.1        Public Announcements . From and after the Closing, unless otherwise required by applicable law, the Sellers shall not make any public announcements or share any material information with any third party regarding this Agreement or the transactions contemplated hereby without the prior written consent of the Buyer.

5.2        Bulk Sales Laws . The parties hereby waive compliance with the provisions of any bulk sales, bulk transfer or similar laws of any jurisdiction that may otherwise be applicable with respect to the sale of any or all of the Purchased Assets to the Buyer.

5.3        Transfer Taxes . All Taxes incurred in connection with this Agreement and the documents to be delivered hereunder shall be borne and paid by the Company when due. The Company shall, and the Seller Principals shall cause the Company to, at its own expense, timely file any Tax Return or other document with respect to such Taxes (and the Buyer shall cooperate with respect thereto as necessary).

5.4        Name Change . Within five (5) business days following the Closing, the Company shall, and the Seller Principals shall cause the Company to, change its name and do such other things as shall be necessary to permit the Buyer to assume and use the name “Luxemark Capital” and derivations thereof and use all other names utilized by the Company in operating the Business as an ongoing concern. Without limiting the foregoing, the Company shall not, and the Seller Principals shall cause the Company not to, use the name “LuxeMark Capital” in commerce or otherwise following the Closing.

5.5        Post-Closing Company Operations . Promptly following the Closing, the Company shall, and the Seller Principals shall cause the Company to, cease all of its operations (whether or not related to the Business) with the following exceptions: (i) owning and maintaining all rights and obligations associated with the Equity Consideration; (ii) receiving, if any, Initial Earn-Out payments or Performance Based Earn-Out Payments; (iii) entering into a consulting agreement with Abraham Zeines; and (iv) filing and paying all such fees, franchise taxes and other costs associated with or ancillary to the biennial statement that the Company is required to file in the State of New York (along with any earlier filings with the State of New York that were not timely made). If, in the Buyer’s sole discretion, the Company is conducting any operations other than those explicitly set forth above, the Buyer maintains the right to require the Company to wind up its affairs in accordance with the law of the state of the Company’s organization (including, for the avoidance of doubt, establishing any reserves for Liabilities of the Company that are necessary or advisable under such state law) and dissolve its existence under such state law.

5.6        Biennial Statement . Within ten (10) business days following the Closing, the Seller Principals shall cause the Company to file the biennial statement that it is required to file with the State of New York and shall pay all such fees, franchise taxes and other costs associated with or ancillary to such filing and any earlier filings with the State of New York that were not timely made.

5.7        Further Assurances . From and after the Closing, each of the parties hereto shall execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement and the documents to be delivered hereunder. To the extent that the Company’s rights under any Assigned Contract that is an Assumed Liability or any Transferred Permit that is a Purchased Asset, or any other Purchased Asset, may not be assigned or transferred to the Buyer without the consent, authorization or waiver of another person or entity which has not been obtained, this Agreement shall not constitute an agreement to assign or transfer the same if an attempted assignment would constitute a breach thereof or be unlawful, and the Company shall reasonably cooperate, at the Company’s expense, in the Company’s obtaining any such required consent(s), authorization(s) or waiver(s) as promptly as possible. Notwithstanding the foregoing, except as required under applicable law (in which case, the Company shall be solely responsible for such payment), neither the Company nor the Buyer (or any of their respective affiliates) shall be required to pay any form of consideration to any third party to obtain any consent, authorization or waiver. Pending obtaining such consent, authorization or waiver, the Company and the Buyer shall use their commercially reasonable efforts to cooperate with each other to agree to any reasonable and lawful arrangements designed to provide to the Buyer the benefits such Purchased Asset or Assigned Contract that it would have obtained had the Purchased Asset or Assigned Contract been assigned and transferred to the Buyer at the Closing. Once the required consent, authorization or waiver is obtained, the Company shall, or shall cause its relevant affiliates to, assign and transfer such Purchased Asset or Assigned Contract to the Buyer at no additional cost to the Buyer. The Company shall hold in trust for and pay to the Buyer promptly upon receipt thereof, all income, proceeds and other monies received by the Company or any of its affiliates in connection with its use of any Purchased Asset or Assigned Contract (net of any income Taxes and any other costs imposed upon the Company) in connection with the arrangements under this Section 5.7 , and the Buyer shall be responsible for all economic liabilities incurred in the aforesaid use of such Purchased Asset or performance of such Assigned Contract (except to the extent arising out of any breach or violation of, or default under, any applicable law or contract by the Company or its affiliates).

Article 6
Indemnification

6.1        Survival . All representations, warranties, covenants and agreements contained herein and all related rights to indemnification shall survive the Closing.

6.2        Indemnification by the Sellers . The Sellers shall jointly and severally defend, indemnify and hold harmless the Buyer, its affiliates and their respective stockholders, directors, officers and employees (each a “ Buyer Indemnified Party ” ) from and against all claims, judgments, damages, liabilities, settlements, losses, costs and expenses, including attorneys’ fees and disbursements (each a “ Loss ”), sustained or incurred by the Buyer Indemnified Parties (or any of them) to the extent directly or indirectly resulting from, or arising out of, any of the following:

(a)       any breach or failure to be true of any representation or warranty of the Sellers contained herein or contained in any certificate or instrument of any officer of the Company required to be delivered pursuant to this Agreement;

(b)       any breach or non-fulfillment of any covenant or other agreement made or to be performed by any Seller contained herein or any ancillary agreement or any certificate or other instrument required to be delivered by any Seller pursuant to this Agreement;

(c)       any fraud, willful breach or intentional misrepresentation by any Seller (or any of its agents); and

(d)       any Excluded Liabilities.

6.3        Indemnification by the Buyer . The Buyer shall defend, indemnify and hold harmless each of the Sellers, its affiliates and their respective stockholders, directors, officers and employees (each a “ Seller Indemnified Party ” ) from and against all Losses sustained or incurred by the Seller Indemnified Parties (or any of them) to the extent directly or indirectly resulting from, or arising out of, any of the following:

(a)       any breach or failure to be true of any representation or warranty of the Buyer contained herein or contained in any certificate or instrument of any officer of the Buyer required to be delivered pursuant to this Agreement;

(b)       any breach or non-fulfillment of any covenant or other agreement made or to be performed by the Buyer contained herein or any ancillary agreement or any certificate or other instrument required to be delivered by the Buyer pursuant to this Agreement; and

(c)       any fraud, willful breach or intentional misrepresentation by the Buyer (or any of its agents).

6.4        Materiality and Knowledge Qualifiers . For the purposes of this Article VI , when determining the amount of Losses suffered by a Buyer Indemnified Party or a Seller Indemnified Party as a result of any breach, inaccuracy or failure, or the occurrence, determination or existence of such breach, inaccuracy or failure, of any representation, warranty, covenant or agreement given or made by any Seller or the Buyer, as applicable, that is qualified or limited in scope as to materiality or knowledge, such representation, warranty, covenant or agreement shall be deemed to be made or given without such qualification or limitation.

6.5        Indemnification Procedures . Whenever any claim shall arise for indemnification hereunder, the Seller Indemnified Party or the Buyer Indemnified Party shall promptly provide written notice of such claim to the other party (the “ Indemnifying Party ”). In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any Action by a person or entity who is not a party to this Agreement, the Seller Indemnified Party or the Buyer Indemnified Party, as applicable, may assume the defense of any such Action with counsel reasonably satisfactory to the Indemnifying Party. The Indemnifying Party shall be entitled to participate in the defense of any such Action, with its counsel and at its own cost and expense. If the Seller Indemnified Party or the Buyer Indemnified Party, as applicable, does not assume the defense of any such Action, the Indemnifying Party may do so, but only if and to the extent it defends against such Action vigorously and in good faith. The Indemnifying Party shall not settle any Action without the Indemnified Party’s prior written consent.

6.6        Right of Set-Off; Pledge Security. The Buyer or the Sellers may set-off any Losses for which a Buyer Indemnified Party or a Seller Indemnified Party is indemnified under this Agreement by the Sellers or the Buyer, as applicable, from any amounts payable to the Sellers or the Buyer pursuant this Agreement. For the avoidance of doubt, such set-off right of the Buyer shall include, but not limited to, the Earn-Out. Each of the Sellers acknowledge and agree that the Sellers’ indemnification obligations pursuant to this Article VI shall additionally be secured by the Equity Consideration and a pledge thereof pursuant to the Pledge Agreement.

6.7        Miscellaneous . All indemnification payments made by any party under this Agreement shall be treated by the parties as an adjustment to the Purchase Price for tax purposes, unless otherwise required by law. The Buyer’s right to indemnification or other remedy based on the representations, warranties, covenants and agreements of the Sellers contained herein will not be affected by any investigation conducted by the Buyer with respect to, or any knowledge acquired by the Buyer at any time, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or agreement. The rights and remedies provided in this Article VI are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.

Article 7
Miscellaneous

7.1        Expenses . All costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses.

7.2        Notices . All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the applicable address specified on the signature page to this Agreement.

7.3        Headings . The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

7.4        Severability . If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

7.5        Entire Agreement . This Agreement and the documents to be delivered hereunder constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement and the documents to be delivered hereunder and Schedules (other than an exception expressly set forth as such in the Schedules), the statements in the body of this Agreement will control.

7.6        Successors and Assigns . This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. None of the Sellers may assign its rights or obligations hereunder without the prior written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. No assignment shall relieve the assigning party of any of its obligations hereunder.

7.7        No Third-Party Beneficiaries . Except as provided in Article VI , this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

7.8        Amendment and Modification . This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto.

7.9        Waiver . No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

7.10        Governing Law . This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Delaware.

7.11        Submission to Jurisdiction . Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States of America or the courts of the State of Delaware in each case located in Wilmington, Delaware, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

7.12        Waiver of Jury Trial . Each party acknowledges and agrees that any controversy which may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

7.13        Specific Performance . The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.

7.14        Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

[Signature Page to Asset Purchase Agreement]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

[Signature Page to Asset Purchase Agreement]

Exhibit 10.2

EXECUTION VERSION

MANAGEMENT AGREEMENT 

BETWEEN 

CCUR HOLDINGS, INC. 

AND 

CIDM LLC

This management agreement, dated as of February 14, 2019 (this “ Agreement ”), is between CIDM LLC, a Delaware limited liability company (the “ Manager ”), and CCUR Holdings, Inc., a Delaware corporation (the “ Company ”).

WHEREAS, the Company’s business currently consists of real estate operations, identifying and acquiring fairly- to under-valued businesses that have growth potential, creating operating activities and businesses that will enhance stockholder value, as well as managing its cash and tax assets; and

WHEREAS, the Company desires to avail itself of the experience, sources of information, advice, assistance, and certain facilities available to the Manager and to have the Manager undertake the duties and responsibilities hereinafter set forth on behalf of and subject to the supervision of the Board of Directors of the Company (the “ Board ”) in furtherance of the Company businesses; and

WHEREAS, the Manager is willing to accept the duties and the responsibilities with respect to the Assets of the Company as provided hereunder.

NOW, THEREFORE, in consideration of the promises and mutual considerations provided in this Agreement, and intending to be legally bound, the Company and the Manager agree as follows:

1.        Appointment; Duties of the Manager .

(a)        Appointment . The Company hereby appoints the Manager to serve as its asset manager on the terms and conditions set forth below, and the Manager hereby accepts such appointment.

(b)        Duties of the Manager . The Manager shall advise the Company with respect to managing and administering, from time to time, the assets held from time to time by the Company and any assets owned by subsidiaries of the Company (such subsidiaries of the Company, “ Subsidiaries ”) (such assets of the Company and any of the Subsidiaries, collectively, the “ Assets ”), which Assets shall include, but not be limited to, operating businesses, real estate (owned and financed), other operating assets, liquid equity, debt, government and money market securities, tax assets, and such other tangible and intangible resources intended by the Company to produce value. Subject to the limitations set forth in this Agreement, including Section 4, and the continuing and exclusive authority of the Board over the management of the Company, the Manager shall perform the following duties:

(i)       serve as the Company’s asset manager and, when reasonably requested, provide the Board with reports in connection with the Assets and investment policies;

(ii)       assist the Company in the identification of potential business or entity acquisition candidates for the Company;

(iii)       assist the Company in the performance of due diligence and underwriting duties as reasonably requested by the Board in order to permit the Board to make reasonable business judgments as to the management, acquisition, and disposition of the Assets;

(iv)       assist the Company in connection with formulating and implementing short-term investment strategies to periodically invest capital in liquid securities;

(v)       monitor and evaluate the performance of the Assets;

(vi)       from time to time, or at any time reasonably requested by the Board, prepare and deliver reports to the Board of its performance of services to the Company, as applicable under this Agreement; and

(vii)       do all things reasonably necessary to assure its ability to render the services described in this Agreement.

2.        Assets; Approved Allocation Plans .

(a)        Assets . Subject to the terms and conditions of this Agreement, the appointment of the Manager in Section 1(a) above shall include (i) discretionary trading authority with respect to equity and debt securities traded on a National Exchange (as defined below) (individually, a “ Publicly Traded Security ,” and collectively, the “ Trading Portfolio ”) and (ii) advising the asset management committee of the Board (the “ Asset Management Committee ”) regarding the asset allocation strategy to be employed by the Company with respect to the Assets, taken as a whole ( i.e. , the percentage of Assets to be held in each of the Portfolios (as defined below)).

(b)        Portfolios . In addition to the Trading Portfolio, the Company may, from time to time, establish and maintain (i) one or more accounts at various financial institutions into which cash and cash equivalents may be deposited and from which they may be withdrawn (the “ Cash Portfolio ”) and (ii) one or more accounts to hold any securities (debt, equity, or hybrid) that are not Publicly Traded Securities (individually, “ Illiquid Securities ,” and collectively, the “ Illiquid Portfolio ,” and together with the Trading Portfolio, the Cash Portfolio, and the Subsidiaries, the “ Portfolios ”).

(c)        Approved Allocation Plans . The Manager’s initial allocation plan with respect to the allocation of Assets among the Portfolios shall be delivered by the Manager to the Company not later than March 31, 2019, which initial allocation plan shall be in form and substance satisfactory to the Asset Management Committee (as accepted by the Asset Management Committee, the “ Initial Approved Allocation Plan ”). At least ten (10) Business Days prior to the end of each calendar quarter, the Manager shall prepare and deliver to the Asset Management Committee for its review and approval a new allocation plan with respect to the Assets, which shall include (i) a description of the current holdings, NAV (as defined below), and allocation of Assets in each Portfolio and (ii) a proposal, if any, for a rebalancing of Assets in each Portfolio based on the proposed target NAV of each Portfolio (each, an “ Approved Subsequent Allocation Plan ,” and together with the Initial Approved Allocation Plan, the “ Approved Allocation Plans ”).

(d)       For purposes hereof, the “ NAV ” of the Assets (including any cash contributed) as of any date of determination means the fair market value of the Assets, less any liabilities of the Company and after reduction for all paid and accrued expenses (other than the accrued Management Fee and the accrued Performance Fee (if any)(as defined in Schedule A ) , each as calculated by the Manager as of such Business Day, provided that, for all purposes of this Agreement, until the Company disposes of an Illiquid Security, the NAV of such Illiquid Security shall be its cost basis, less any write-downs or write-offs, as of such date of determination. A “ Business Day ” shall mean any day other than a Saturday, Sunday, or other day on which commercial banks in New York, New York, are required or authorized by law to be closed for business.

(e)       The Manager shall manage the investment and reinvestment of the Trading Portfolio from time to time in accordance with the investment limitations and guidelines set forth in Company’s Statement of Investment Policy, as in effect on the date hereof and as amended by the Board from time to time (the “ Investment Policy ”) (a copy of which shall be provided to the Manager concurrently with the execution of this Agreement and promptly following any amendment by the Board). Subject to the terms hereof, the Manager undertakes to give to the Company the benefit of its best judgment, efforts, and facilities in the execution of its duties hereunder within the investment objectives, strategies, and restrictions set forth in the Investment Policy. The Company understands and acknowledges that there is no assurance that investment gains shall be achieved and that investment results may vary substantially over time.

(f)       For purposes hereof, “ National Exchange ” means any of the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market, the New York Stock Exchange, or the NYSE American, but excluding Pink Sheets. “ Pink Sheets ” means the daily publication compiled by the National Quotation Bureau with bid and ask prices of over-the-counter (OTC) stocks, including the market makers who trade them.

3.        Custody and Counterparties .

(a)        Custodians . The Assets constituting the Trading Portfolio, the Illiquid Portfolio, and the Cash Portfolio shall be held in one or more accounts established in the name of the Company from time to time with such custodians, prime brokers, clearing agents, or other financial institutions as may be selected by the Company (the “ Custodians ”). The Company will notify each Custodian of the Manager’s authority hereunder and take all steps necessary or advisable to vest in the Manager all applicable authorities to transact in the Portfolios as contemplated hereby. The Manager shall not cause or permit such Assets to be held by any person other than a Custodian or to be commingled with the assets of any person other than the Company.

(b)        Counterparties .

(i)       The Manager may select, in its discretion, any counterparties (including brokers and dealers through whom a transaction is effected and counterparties from whom and to whom securities are bought and sold, as the case may be) to execute transactions for and with the Company (the “ Counterparties ”). On or prior to the date of this Agreement, the Manager shall provide the Company with a list of the Counterparties and shall promptly notify the Company in the event of any change or proposed change to such list. During the term of this Agreement, the Company hereby authorizes the Counterparties to execute trades and transactions for the Company in accordance with the Manager’s instructions; provided , however , at any time by notice to the Manager, the Company may, in its discretion, revoke such authorization with respect to any individual Counterparty and require the Manager to remove such Counterparty from the list. For the avoidance of doubt, following any such removal notice from the Company, any pending but unsettled trades may proceed to settlement unaffected. In selecting a Counterparty to execute a particular transaction, the Manager shall exercise its reasonable discretion and take into consideration the prompt execution of orders at the most favorable prices obtainable, and in doing so shall consider a number of factors, including, without limitation, the overall direct net economic result to the Company, the financial strength and stability of the counterparty, the efficiency with which the transaction is effected, the ability to effect the transaction at all where a large block is involved, the availability of the counterparty to stand ready to execute possibly difficult transactions in the future, and quality and reliability of the brokerage and research services made available to the Manager for the direct benefit of the Company. No client commission (“ soft dollar ”) arrangement between the Manager and a Counterparty covering commissions generated by the Assets shall be allowed without the prior written consent of the Company and any such arrangement must comport with the safe harbor included in Section 28(e) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”) and Release No. 34-23170 promulgated thereunder. Each Counterparty, for all purposes of this Agreement, unless otherwise expressly authorized under this Agreement, has no authority to act for or represent the Company in any way or otherwise be deemed an agent of the Company.

(ii)       Neither the Manager nor any partner, principal, employee, or other affiliate of the Manager shall directly or indirectly act (or receive fees, commissions, compensation, or other payments for acting, either directly or indirectly, except for the Management Fees) as a broker, dealer, underwriter, or principal with respect to any transaction relating to the Assets. The prohibitions established in the preceding sentence shall include actions taken through any affiliate, related company, partnership, joint venture, and/or entity wherein the Manager or such partner, principal, employee, or other affiliate has an economic interest, and such prohibitions shall be construed in such a manner as to avoid any possibility of self-dealing or conflict of interest.

4.        Authority of the Manager . Subject to the terms of this Agreement and any other investment restrictions or guidelines that may from time to time be communicated in writing to the Manager by the Company or by the Company’s authorized agent, the Manager shall have full discretion and authority, without obtaining the Company’s prior approval, to manage the investment and trading of the Trading Portfolio. The authority granted under this Agreement shall remain in full force and effect until this Agreement is terminated in accordance with Section 15 , but any such revocation shall not affect any transaction consummated prior to receipt of such notice of revocation.

5.        Investment Limitations and Guidelines .

(a)        Investment Guidelines . Without the prior written consent of the Company (which may be given with respect to specific transactions or generic classes of transactions), the Manager shall not make any investment that would result in any limitations or investment restrictions set out in the Investment Guidelines being exceeded or breached. If any of the Investment Guidelines are exceeded or breached, the Manager shall promptly notify the Company and shall not make any investment that is likely to result in any Investment Guidelines being further exceeded or breached. The Manager shall consult with the Company as to the action, if any, to be taken by the Manager in light of any written change to the Investment Guidelines. An investment’s compliance with the Investment Guidelines shall be determined on the date of purchase only, based on the price and characteristics of the investment on the date of purchase compared to the NAV and the then-existing portfolio of Assets in the Portfolios as of the most recent valuation date, and the Manager shall not be deemed to have breached the Investment Guidelines or this Agreement by reason of changes in value of an investment following purchase or other events beyond the Manager’s control.

(b)        No Cross or Principal Trades . Without the prior written consent of the Company, no Assets shall be sold or otherwise directly or indirectly transferred to any other account managed or advised by the Manager or by any partner, principal, employee, or other affiliate of the Manager, or to any client of the Manager or of any partner, principal, employee, or other affiliate of the Manager, and no Assets shall be purchased or otherwise directly or indirectly acquired from, any account managed by the Manager or by any partner, principal, employee, or other affiliate of the Manager or any client of the Manager or of any partner, principal, employee, or other affiliate of the Manager. The prohibitions established in this paragraph shall include purchases or sales or transfers to or from any account or client managed or advised by any affiliate, related company, partnership, joint venture, or entity wherein the Manager or any partner, principal, employee, or other affiliate of the Manager has an economic interest.

(c)        Agreements . Without the prior written consent of the Company, the Manager shall not have the authority to make and execute, in the name and on behalf of the Company, any documents, including the opening of securities accounts or derivatives accounts (including ISDA and repurchase agreements). Furthermore, without the prior written consent of the Company, the Manager shall not have the authority to retain any sub-advisors for the Company or invest the Assets in any collective investment vehicle, other than mutual funds. For the avoidance of doubt, only the Company is authorized to execute any investment documents relating to the Illiquid Securities.

(d)        Proxies . The Manager shall vote all proxies in accordance with the written instructions of the Company as and when provided to the Manager; provided , that if the Company does not provide the Manager written instructions with respect to voting, the Manager shall vote all proxies in accordance with the best interests of the Company as determined by the Manager in its reasonable discretion. The Manager shall provide voting recommendations when and as reasonably requested by the Company. The Manager’s proxy policy shall be provided to the Company upon request. The Manager is authorized and directed to instruct the Custodian to (i) forward promptly to the Manager copies of all proxies and shareholder communications relating to securities held in the Portfolios and (ii) after the date hereof, provide one copy of all proxies and shareholder communications relating to securities held in the Portfolios to the Company and one copy of such materials to the Manager. Notwithstanding any provision herein to the contrary, without the Company’s prior written consent, the Manager shall not make any investment on behalf of the Company hereunder that would result in the Company (together with the Company’s Affiliates and such other persons or parties acting as a group together with the Company or any of the Company’s Affiliates) beneficially owning more than 4.9% of the then outstanding common stock of any entity that has a class of securities registered under Section 12 of the Securities Exchange Act or which is subject to Section 15(d) of the Securities Exchange Act. For purposes of this Section 5(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act and the rules and regulations promulgated thereunder.

(e)        Illiquid Investments .

(i)       The documentation for each Illiquid Investment shall be completed only by the Company, and the Manager shall have no authority to bind the Company whatsoever in respect of the Illiquid Portfolio.

(ii)       Any instruments and other investment documentation evidencing any investment in Illiquid Securities shall be held by the Custodian, with a copy provided to the Company.

(iii)       The Company shall have (A) sole authority to exercise all of the voting, approval, veto, and consent rights associated with the Illiquid Security (“ Voting Rights ”) and to sell or otherwise dispose of any Illiquid Securities and (B) the authority to execute and deliver, or instruct the Custodian to execute and deliver, any resolutions, consents, or other documentation reasonably necessary to reflect the exercise of any of such Voting Rights, and, in the event of a sale or other disposition, to execute and deliver any instruments or certificates of ownership to the purchaser thereof.

(iv)       In the event an Illiquid Security becomes a Publicly Traded Security, such investment shall be reclassified under this Agreement as an Asset in the Trading Portfolio and no longer an Illiquid Security.

6.        Fees and Expenses .

(a)       For the Manager’s services under this Agreement, the Company agrees to pay to the Manager the fees that the Portfolios shall bear or to reimburse the Manager for the expenses (such expenses to be payable out of the Assets of the Portfolios) stated in Schedule A . Expenses shall be due and payable from the Portfolios within thirty (30) calendar days after the Company’s receipt of the Manager’s invoice and documentation for the relevant expenses, subject to (i) the Company’s verification thereof to its reasonable satisfaction and (ii) the Company’s prompt receipt of documentation evidencing the expenses. In the event that the Company disputes any expense, it shall notify the Manager, and the two parties shall work together in good faith to determine reasonable expenses mutually acceptable to them. Notwithstanding any other provision of this Agreement, when the nature or amount of such expense is the subject of dispute between the parties, any expense that is not disputed shall be payable by the Company in accordance with the terms set forth herein, and the remainder, if any, shall be payable at the time that such dispute is resolved.

(b)       Except for the Illiquid Portfolio which shall be valued at cost (less write-downs and write-offs) and the Subsidiaries which shall be marked to market based on third party valuations, the Assets shall be valued by the Manager in accordance with the valuation policies of the Manager, which such policies shall be provided to the Company from time to time upon request.

(c)       All calculations of fees contemplated by this Agreement shall be performed by the Manager, and promptly following the end of each quarter in the case of Management Fees (as defined in Schedule A ), the Manager will deliver to the Company an invoice setting forth the Manager’s calculation of the amount of the relevant fee showing the methods and sources for determining such valuations and calculations and any work-sheets showing how the valuations and calculations were calculated. Fees shall be due and payable from the Portfolios within thirty (30) calendar days after receipt of the Manager’s invoice for the relevant quarter in the case of Management Fees, subject to (i) the Company’s verification thereof to its reasonable satisfaction and (ii) retention of reserves for contingencies related to the Portfolios reasonably determined by the Company to be appropriate until the contingency has been resolved. In the event that the Company or the Manager disputes any valuation or calculation, it shall notify the other party, and the two parties shall work together (with the Custodian) in good faith to determine a valuation or fee mutually acceptable to them. Notwithstanding any other provision of this Agreement, when the nature or amount of such fee is the subject of dispute between the parties, the lower fee calculated by either the Company or the Manager, as applicable, shall be payable by the Company in accordance with the terms set forth in herein, and the remainder, if any, shall be payable at the time that such dispute is resolved.

7.        Allocation of Opportunities .

(a)       The Manager will act in a fair and reasonable manner in allocating investment and trading opportunities among the Company and any other account managed by the Manager or any of its affiliates. In furtherance of the foregoing, the Manager will consider participation by the Company in all appropriate opportunities within the purpose and scope of the Company’s objectives that are under consideration for the accounts of other clients of the Manager or any of its affiliates, and the Manager will evaluate such factors as it considers relevant in determining whether a particular situation or strategy is suitable and feasible for the Company.

(b)       When the Manager determines that it would be appropriate for the Company to participate in an investment opportunity, the Manager will execute orders on a basis that is equitable. In such situations, the Manager will use reasonable efforts to place orders for the Company and each such other managed account simultaneously and if all such orders are not filled at the same price, the Manager will cause the Company to pay or receive a price that is no less favorable than the average of the prices at which the orders were filled for the Company, all managed accounts and its own proprietary capital. If all such orders cannot be fully executed under prevailing market conditions, the Manager will allocate, in an equitable manner among the Company and such other accounts, the orders that are capable of being executed. The Manager shall not be prohibited from co-investing in any investment opportunities it presents to the Company.

8.        Access to Information .

(a)        Other Information . The Manager shall furnish information as the Company may reasonably request to monitor compliance with the requirements of this Agreement.

(b)        Records . The Manager shall retain, for a period of at least seven (7) years, copies (including electronic copies) of any documents generated or received by the Manager in the ordinary course of business pertaining to the financial condition of the Company or to the compensation payable to the Manager. At the request of the Company, which request shall be made at least five (5) Business Days in advance, the Manager shall allow the Company or the Company’s independent auditors reasonable access to such documents during customary business hours and shall permit the Company or the Company’s auditors to make copies thereof or extracts therefrom at the expense of the Company.

(c)        Investment Adviser Assignment . The Manager shall not make an “assignment” of this Agreement, as such term is defined in Section 202(a)(1) of the Advisers Act, unless such assignment is permitted under the Advisers Act and the Company has consented thereto in accordance with Section 23 .

(d)        Taxes . Upon the request of the Company, the Manager shall provide such information or documentation as is reasonably available to the Manager and relevant to the Company’s application for a refund or an exemption of any taxes imposed by any taxing authority with respect to income generated by the Company.

(e)        Performance . Within forty-five (45) days following the end of each quarter, the Manager will provide the Company with a written report, substantially similar in form and substance to the investor letter the Manager currently delivers to its other advisory clients, summarizing drivers of portfolio performance for the Company.

(f)        Due Diligence . The Manager agrees that the Company shall have the right to conduct a yearly on-site back office review of the Manager’s administration and operations relating to the Company and that the Manager shall cooperate with and fulfill such documentary and other due diligence and verifications as are made by the Manager during such reviews and on an ongoing basis between such reviews.

9.        Scope of Liabilities; Indemnification .

(a)       The Manager shall indemnify and hold harmless the Company and its affiliates and the respective trustees, affiliates, officers, agents, and employees of any of them, from and against any and all losses, claims, demands, actions, or liability of any nature, including but not limited to reasonable attorneys’ fees, expenses, and court costs, directly arising or resulting from any act or omission constituting bad faith, fraud, willful misconduct, negligence, breach of this Agreement, breach of applicable fiduciary duty, or violation of applicable Law (as defined in Section 11(b) ) by any of the Manager, its affiliates, and any of their respective partners, members, shareholders, directors, officers, employees, or agents of any of them.

(b)       The Company shall indemnify and hold harmless the Manager from all liabilities, obligations, losses, damages, suits, and expenses which may be incurred by or asserted against the Manager resulting from the Company’s material breach of this Agreement.

(c)       The availability to a party of the indemnification provided in this Section 9 shall not preclude the exercise of any other rights, at law or in equity, which such party may have against the other party.

10.        Independent Contractor . For all purposes of this Agreement, the Manager shall be an independent contractor and not an employee or dependent agent of the Company, nor shall anything herein be construed as making the Company a partner or co-venturer with the Manager or any of its affiliates or other clients. Except as provided in this Agreement, the Manager shall not have any authority to bind, obligate, or represent the Company.

11.        Representations of the Manager . The Manager hereby represents and warrants to the Company as follows, which representations and warranties shall be deemed repeated at and as of all times during the term of this Agreement including without limitation in connection with each call for a capital contribution by the Company:

(a)        Organization and Authority . The Manager is a limited liability company duly organized, validly existing, and in good standing under the laws of Delaware and has full power and authority to carry on its business as it has been and is conducted. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby are within the power and authority of the Manager and have been duly authorized by all necessary corporate and other action, and constitute legal, valid, and binding obligations enforceable against the Manager in accordance with their respective terms.

(b)        No Breach . Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated herein will (i) violate any agreement to which the Manager is a party or by which it is bound, or any law, statute, regulation, rule, vote, order, injunction, or approval of any government or political subdivision or any agency, central bank or other instrumentality of either, or any court, tribunal, arbitrator, or self-regulatory organization, in each case whether domestic, foreign, or international (any of such being defined herein as “ Law ”) or (ii) any provision of the Manager’s organizational documents, or any indenture, agreement, or instrument to which the Manager is a party or by which any of its assets or properties is bound, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement, or instrument.

(c)        Investigations . None of the Manager or, to the Manager’s actual knowledge, any of its officers, partners, members, managers, directors, employees, or affiliates are the subject of any formal investigation for violation of any applicable law, rule, or regulation or subject to a prohibition or suspension of trading privileges or other determination of an arbitrator on any securities exchange, board of trade, or other organized market, court, or other government authority applicable or binding upon any such entity or person that the Company has not previously been made aware of.

(d)        No Violation of Law . None of the Manager, any of its principals or, to the Manager’s actual knowledge, any of its employees is, or has ever been, (i) a party to (A) any proceeding (including an arrest, indictment, or formal investigation) brought by a governmental agency, regulatory authority, or self-regulatory organization, or (B) any litigation or arbitration brought by any third person, that (in the case of clause (A) or (B)) alleges the Manager or employee(s) is or was (w) acting in a manner that constitutes fraud, gross negligence, or a breach of fiduciary duty, (x) failing to act where action would have been required to avoid fraud, gross negligence, or a breach of fiduciary duty, (y) committing a felony or material securities or commodities regulation violation, or (z) committing employment discrimination or sexual harassment under applicable law or engaging in any other disreputable conduct, or (ii) to the Manager’s or Julian Singer’s (the “ Key Person ”) actual knowledge, the object of any claim alleging any of the foregoing acts set forth in this subsection (d).

(e)        License, Approvals, etc . The Manager has and will maintain all necessary governmental and regulatory licenses, approvals, and exemptions to provide the services contemplated herein and such memberships in self-regulatory organizations as may be required by applicable law. None of the Manager or any of its officers, employees, or agents has paid or agreed to pay any referral or solicitation fees to anyone in connection with this Agreement.

(f)        Insurance . The Manager has in place errors and omissions insurance adequate in light of its obligations and potential liabilities under this Agreement. All such policies or binders of insurance are valid and enforceable in accordance with their terms and are in full force and effect, and provide professional liability limits of at least five million dollars (US$5 million) per occurrence. There has been no impairment of limits under any such policy or binder, and the Manager has not received notice of cancellation or non-renewal of any such policy or binder. The Manager will, upon request, provide the Company with a list and brief description of the nature, amount, and name(s) of carrier(s) of all such insurance or with copies of such insurance policies or other additional information as may be appropriate. The Manager will promptly notify the Company in the event that any such coverage is modified, canceled, or otherwise terminated.

(g)        Accuracy of Documents . Each representation or warranty contained in this Agreement and each certificate or document furnished or to be furnished to the Company by or on behalf of the Manager pursuant to this Agreement is or will be, as the case may be, true, accurate, and complete.

(h)        Capacity . The person or persons executing and delivering this Agreement on behalf of the Manager have all requisite power, authority, and capacity to so execute and deliver them.

(i)        No Material Adverse Change . Since December 31, 2017, there has not been, occurred, or arisen any material adverse change in the financial condition or in the business of the Manager or any event, condition, or state of facts which materially and adversely affects, or to its knowledge threatens to materially affect, the business or financial condition of the Manager.

(j)        Compliance . The Manager is in compliance with all applicable laws, rules, and regulations, including, without limitation, the Advisers Act, applicable state investment advisers statutes, and all other applicable laws, rules, and regulations related to investments or which seek to prohibit or limit business activities which pose the potential for supporting or advancing terrorist related activities, particularly business activities in sanctioned or sensitive foreign countries (as identified by the U.S. federal government, the Department of Treasury, or the Securities and Exchange Commission).

(k)        Anti-Corruption . Each of the Manager and, to the Manager’s actual knowledge, any of its officers, partners, members, managers, directors, employees, or affiliates of the Manager (i) has used funds for lawful purposes, (ii) has not violated applicable anticorruption laws, including without limitation the Foreign Corrupt Practices Act (“ FCPA ”), the United Kingdom Bribery Act of 2010 (“ UK Bribery Act ”), and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (“ OECD Convention ”), (iii) has not, directly or indirectly, given or offered anything of value, including without limitation cash, contributions, gifts, or entertainment, to foreign or domestic government officials or to any private commercial person or entity for the purpose of gaining an improper business advantage in violation of any such applicable anticorruption laws, and (iv) has established sufficient internal controls and procedures to ensure compliance with applicable anticorruption laws, including, without limitation, the FCPA, the UK Bribery Act, and the OECD Convention.

(l)        No Litigation . No litigation, proceeding, or formal investigation of or before any court, arbitrator, or government authority, including without limitation the Financial Conduct Authority of the United Kingdom, the Securities Commission, or any state securities regulatory authority is, to the Manager’s actual knowledge, pending (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any transactions contemplated by this Agreement, (iii) seeking any determination or ruling that would reasonably be expected to have an adverse effect on the ability of the Manager to perform its obligations under this Agreement, or (iv) claiming or alleging the violation of any law, rule, or regulation or the breach of applicable fiduciary duties (a “ Material Action ”) by the Manager or any of its officers, partners, members, managers, directors, employees, or affiliates and none of the Manager nor any of its officers, partners, members, managers, directors, employees, or affiliates has been convicted or found guilty in connection with any Material Action.

The Manager shall promptly notify the Company if any of the foregoing representations or warranties cease to be true.

12.        Representations and Warranties of the Company . The Company hereby represents and warrants to the Manager as follows, which representations and warranties shall be deemed repeated at and as of all times during the terms of this Agreement:

(a)        Organization and Authority . The Company is a corporation duly organized, validly existing, and in good standing under the laws of Delaware and has full power and authority to carry on its business as it has been and is conducted. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby are within the power and authority of the Company have been duly authorized by all necessary corporate and other action and constitute legal, valid, and binding obligations enforceable against the Company in accordance with their respective terms.

(b)        No Breach . Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated herein will (i) violate any agreement to which the Company is a party or by which it is bound, Law, any provision of the Company’s organizational documents, or any indenture, agreement or instrument to which the Company is a party or by which any of its assets or properties is bound or (ii) conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement, or instrument.

(c)        Capacity . The person or persons executing and delivering this Agreement on behalf of the Company have all requisite power, authority, and capacity to so execute and deliver them.

(d)        Compliance . Neither the Company nor any affiliate of the Company is included on either of the following lists:

(x)       the U.S. Office of Foreign Assets Control list of foreign nations, organizations, and individuals subject to economic and trade sanctions, based on U.S. foreign policy and national security goals (as such list is amended from time to time) (currently found at http://www.treas.gov.ofac ); or

(y)       the list of individuals and groups with whom U.S. persons are prohibited from doing business because such persons have been identified as terrorists or persons who support terrorism pursuant to U.S. Executive Order 13224 (as such list is amended from time to time) (currently found at www.treas.gov/terrorism.html ); and

the Company represents and warrants that: (i) it is acting for its own account, risk, and beneficial interest; (ii) in its activities with the Manager, it will not employ the services of a bank (a) with no physical presence in any country, (b) operating under a license that prohibits it from conducting a banking business with the citizens of the licensing country or in the currency of that country, or (c) operating under a license issued by a “Non-Cooperative Country,” as determined by the Financial Action Task Force; (iii) to the best of the Company’s knowledge and belief, the funds the Company intends to transmit to the Portfolios are not derived from any criminal enterprise or activity; and (iv) the Company agrees to provide the Manager with such information as it determines to be reasonably necessary and appropriate to verify compliance with anti-money laundering, anti-terrorism, or similar regulations of any applicable jurisdiction or to respond to requests for information concerning the Company’s identity from any governmental authority, self-regulatory organization, or financial institution in connection with its anti-money laundering, anti-terrorism, or similar compliance procedures, and to update such information as necessary.

13.        Covenants of the Manager . The Manager covenants with the Company as follows:

(a)        Compliance with Laws . The Manager:

(i)       shall comply and cause each of its officers, partners, members, managers, directors, employees, fiduciaries, independent contractors, representatives, agents, and affiliates to comply, with all governmental, regulatory, and exchange licenses, registrations, and approvals required by law as may be necessary to perform its obligations under this Agreement and to perform such acts throughout the term of this Agreement;

(ii)       shall comply with all Laws applicable to it in its performance of this Agreement, including, without limitation, the Advisers Act and applicable state investment advisers statutes;

(iii)       shall ensure that it will be in compliance with all applicable United States federal anti-terrorism and anti-terrorist financing laws and regulations related to investments, including, if applicable, the Uniting and Strengthening of America by Providing the Appropriate Tools Required to Intercept and Obstruct Terrorist Act of 2001, as amended;

(iv)       shall, and shall cause each of its officers, partners, members, managers, directors, employees, or affiliates to, (A) use funds for lawful purposes, (B) not violate applicable anticorruption laws, including without limitation the FCPA, the UK Bribery Act, and the OECD Convention, (C) not, directly or indirectly, give or offer anything of value, including, but not limited to, cash, contributions, gifts, or entertainment, to foreign or domestic government officials or to any private commercial person or entity for the purpose of gaining an improper business advantage in violation of any such applicable anticorruption laws, and (D) establish sufficient internal controls and procedures to ensure compliance with applicable anticorruption laws, including, but not limited to, the FCPA, the UK Bribery Act, and the OECD Convention;

(v)       shall comply with all applicable federal laws and regulations related to investments, directly or through either a domestic or foreign affiliate, in countries outside of the United States of America, related to laws and regulations which seek to prohibit or limit business activities which pose the potential for supporting or advancing terrorist related activities, particularly business activities in sanctioned or sensitive foreign countries (as identified by the U.S. federal government, the Department of Treasury, or the Securities and Exchange Commission).

(b)        Duty of Care . The Manager acknowledges that it is a fiduciary with respect to the Company and the management of the Portfolios under this Agreement and shall act with the care, skill, prudence, and diligence then prevailing that a prudent expert, acting in like capacity and familiar with such matters, would use in the conduct of investing a portfolio of securities with like objectives.

(c)        Use of Name, etc . Without the prior written consent of the Company, the Manager and its affiliates shall not use the name of the Company, or any of its affiliates, or any name derivative thereof, in any offering material, press release, brochure, notice, publication, or marketing presentation, including any written communication made in connection with the offering of interests in any fund, account, or other investment vehicle, except as may be required by applicable Law or a judicial order.

(d)        Examinations, etc . If the Manager is subject to any non-routine examination or inspection, excluding sweeps and other general requests for information, which involves or relates to the investment advisory activities of any of the Manager, its affiliates, principals, partners, or employees, by any regulatory authority, including without limitation the Securities and Exchange Commission, to the extent not prohibited by applicable law or regulatory instruction, the Manager shall promptly notify the Company and shall provide to the Company a description of (i) the subject matter of such examination or inspection and (ii) the key legal issues of such examination or inspection.

(e)        Notice of Material Action . The Manager shall promptly notify the Company of any Material Action being instituted against it or any of its officers, partners, members, managers, directors, employees, or affiliates, and will furnish the Company with a reasonably detailed written explanation of such Material Action.

(f)        Filings and Registrations . The Manager shall maintain during the term of this Agreement, all filings and registrations with governmental and regulatory authorities necessary or required in order to perform its obligation hereunder.

(g)        Required Reports . The Manager shall cause to be prepared and timely filed, with appropriate federal and state regulatory and administrative authorities, all securities law reports required to be filed by the Company due to securities positions taken in the Portfolios with those authorities under then current applicable laws, rules, and regulations.

(h)        Change in Management . The Manager shall promptly notify the Company of any change or proposed change in the identity of any of the individuals principally responsible for the management of the Portfolios.

(i)        Investment Guidelines . If the Manager invests the Assets in violation of the Investment Guidelines, or the Investment Guidelines are violated in any other way, the Manager will promptly notify the Company of such deviation or breach.

(j)        Most Favored Nation . Neither the Manager nor any of its affiliates has entered into any side letter, investment management agreement, or similar written agreement (collectively, “ Separate Agreements ”) with any other investor or prospective investor investing an amount less than or equal to the capital commitment of the Company (“ Capital Commitment ”) in an account managed by the Manager (a “ Manager Account ”) on or prior to the date hereof, except as provided to the Company prior to the date of this Agreement. If the Manager or any of its affiliates shall in the future enter into any Separate Agreement with a proposed or existing investor investing in a Manager Account an amount less than or equal to the Capital Commitment, the Manager shall promptly furnish the Company with a summary of such Separate Agreement. The Manager agrees that it shall offer all of such terms and rights in such existing and future Separate Agreements, to the extent applicable, to the Company, and if the Company elects within sixty (60) days of receipt of such summary of Separate Agreements to be subject to such terms and rights, the Company shall become subject to the same conditions to obtain such applicable terms and rights as are required of such other investor. Notwithstanding any of the foregoing provisions of this clause (j), the Company acknowledges that it shall not (i) receive any rights or benefits established in favor of another investor by reason of the fact that such other investor is subject to any laws, rules, regulations, or policies to which the Company is not also subject, or (ii) receive any rights or benefits established in favor of another investor based solely on the place of organization, or headquarters of, organizational form of, or other particular restriction applicable to such other investor (unless such characteristics apply equally to the Company). The Manager may in its sole discretion exclude any identifying information, including, without limitation, the name and address of the other investors, from any summaries of the applicable Separate Agreements provided to the Company pursuant to this clause (j).

(k)        Material Adverse Change . The Manager shall give the Company prompt (but no more than two (2) Business Days) written notice of any adverse change in the Manager’s condition, financial, or otherwise, or in its business, or any other change which the Manager reasonably believes is likely to have a materially adverse effect on the Manager or the Portfolios.

(l)        Bankruptcy Event . The Manager shall give the Company prompt (but no more than two (2) Business Days) written notice of any actual Bankruptcy Event. A “ Bankruptcy Event ” will be deemed to occur with respect to the Manager if: (i) the Manager or a Key Person, pursuant to or within the meaning of the applicable bankruptcy law (A) commences a voluntary case; (B) consents to the entry of an order for relief against it in an involuntary case; (C) consents to the appointment of a custodian of it or for all or substantially all of its property; (D) makes a general assignment for the benefit of its creditors; or (E) is insolvent; or (ii) if a court of competent jurisdiction enters an order or decree under the applicable bankruptcy law that: (A) is for relief against the Manager or a Key Person; (B) appoints a custodian of the Manager or a Key Person or for all or substantially all of the property of the Manager or a Key Person; or (C) orders the liquidation of the Manager; and the order or decree remains unstayed and in effect for thirty (30) days.

(m)        Intentionally Omitted .

(n)        Failure of Counterparty . The Manager shall give the Company prompt (but no more than two (2) Business Days after the event) written notice and take whatever actions as are reasonably requested by the Company if any Counterparty fails, within such reasonable period as the Manager may decide (but in no event more than ten (10) Business Days after the required settlement date), to deliver any security or necessary documents or, as the case may be, to pay any amount due.

(o)        Intentionally Omitted .

(p)        Joint Defense . The Manager shall, upon written request by the Company, enter in good faith into an agreement on terms reasonably acceptable to the Company to cooperate in the defense of, and keep confidential all materials and information related to, any dispute, claim, lawsuit, action, or other proceeding against the Company relating to any transaction, agreement, undertaking, obligation, liability, or other event or circumstance contemplated by, resulting from, or related to this Agreement or the transactions contemplated hereby.

14.        Time Devotion .

(a)       The Key Person shall devote as much time and attention to the Portfolios as is sufficient to ensure their proper and successful operation and performance.

(b)       The Manager shall notify the Company within two (2) Business Days in the event of (i) the reduction by the Key Person of his ownership interest in the Manager from its level as of the date of this Agreement (including, without limitation, any involuntary reductions thereof, such as those resulting from divorce or by operation of law) or (ii) the departure, death, or incapacity of the Key Person or any other circumstances under which the Key Person is no longer devoting his full time to the Manager and as much time and attention to the Portfolios as is sufficient to ensure their proper and successful operation and performance, or if he ceases to have a senior management role with respect to the Manager (each such event described in clauses (i) and (ii), a “ Key Person Event ”).

15.        Termination .

(a)       This Agreement shall commence as of the date first set forth above and shall continue in full force and effect until the date this Agreement is terminated pursuant to one or more of the following provisions of this Section 15 :

(i)       This Agreement shall be subject to immediate termination for Cause at any time by written notice by the Company. “ Cause ” means: (A) a material violation of applicable securities law or regulation by the Manager; (B) any act or omission by the Manager or any of its principals or employees that constitutes fraud, material misrepresentation, negligence, breach of fiduciary duty, or willful misconduct; (C) the commission by the Manager or any of its principals of employment discrimination, sexual harassment, pornography, drug or arms trafficking, child molestation, or any felonious conduct that a reasonable person would find offensive, reprehensible, or reasonably likely to cause embarrassment or reputational harm to the Company were this Agreement not terminated; (D) a material breach of this Agreement, including, without limitation, a failure to timely provide the information required pursuant to Section 8 ; (E) a Key Person Event; (F) transfer of twenty (20%) or more ownership of economic or voting interests in the Manager to a third party who is not an affiliate of the Manager or an employee of the Manager; (G) the commencement by the Manager of a lawsuit or administrative proceeding against Company, Company’s affiliates, or any of their affiliates, excluding a lawsuit or proceeding whose sole claim is for nonpayment of fees when due; (H) the Company’s investment program as outlined in the Investment Guidelines undergoes a material change, during any rolling 12-month period, which change is not approved by Company in writing.

(ii)       This Agreement may be terminated by either party upon ninety (90) days’ prior written notice.

(iii)       Any notice of termination described in this Section 15(a) , shall constitute a “ Notice of Termination ” for purposes of this Agreement.

(b)       Upon the effectiveness of either party’s Notice of Termination of this Agreement, the Manager shall, as and if directed by the Company, (i) solely in respect of a termination by the Company for Cause or a termination by the Manager, immediately cease to perform any and all of its investment management duties under this Agreement (including refraining from liquidating the Publicly Traded Securities) and (ii) use its best efforts to liquidate positions in an orderly fashion, including by such date the Company may set forth in a written notice to the Manager, if the Agreement was terminated by the Company for Cause or by the Manager (the relevant completion date described in clauses (i) and (ii), the “ Cessation of Services Date ”). Upon termination of this Agreement, the Manager shall be entitled to the undisputed amount of any Management Fees accrued through the Cessation of Services Date. Notwithstanding any provision to the contrary in this Agreement, the Manager shall be entitled to payment without prejudice of all outstanding or accrued Management Fees in the event of any termination of this Agreement, and the payment of such Management Fees after termination of this Agreement shall otherwise be made in accordance with Section 6 , this Section 15 , and Schedule A in the same manner and based on the same calculations as would have been made in the absence of such termination; provided, however , that if this Agreement is terminated for Cause or the Company otherwise has initiated a claim based on a breach of this Agreement, the Company shall be entitled to withhold and offset against the fees otherwise payable hereunder the amount the Company is entitled to recover from the Manager in accordance with this Agreement as a result of the actions constituting such Cause for termination or such breach of this Agreement. A termination shall neither nullify obligations already incurred for performance or failure to perform as of the date of termination nor affect any provision of this Agreement expressly intended to survive termination, including Section 9 .

(c)       Promptly following delivery or receipt, as applicable, of a Notice of Termination, the Manager shall furnish to the Company a copy of all relevant documentation in the Manager’s possession concerning rights, privileges, and obligations relating to any open Portfolio positions at the time of such notice of termination.

(d)       Notwithstanding termination of this Agreement, (i) except as otherwise expressly provided in this Agreement, the provisions of this Agreement shall remain in effect for as long as any positions remain in the Portfolios for disposition by the Manager and at the Company’s request and (ii) the provisions of Sections 6 , 9 , 10 , 13(c) , 13(d) , 15 , 17(a) , 22 , 23 , 25 , 26 , 27 , 28 , 30 , and 31 hereof shall survive such termination and disposition of all Portfolio positions.

16.        Change in Control of the Manager .

(a)       The Manager shall notify the Company of any change or proposed change in the (i) identity of any of the persons constituting a partner or principal of the Manager, or any successor thereto (including, without limitation, the departure of any partner or principal of the Manager or any successor thereto) or (ii) identity of any of the persons principally responsible for the management of the Portfolios or the amount of time any such person is devoting to the management of the Portfolios promptly upon the Manager’s learning of such change or proposed change.

(b)       The Manager shall immediately notify the Company in writing of any sale or other disposition (“ Sale ”) or proposed Sale of any portion of the ownership interest in the Manager or any successor thereto to a person unaffiliated with the Manager promptly upon the Manager’s learning of such Sale or proposed Sale.

17.        Confidentiality; Information Barriers .

(a)       Except as disclosure may be required by applicable law, the Manager shall maintain the strictest confidence regarding the Portfolios and the business affairs of the Company.

(b)       It is the intention of the parties that the Manager will provide discretionary investment management and non-discretionary advisory services to the Company, upon the terms and subject to the conditions set forth in this Agreement, and that the Manager will do so without reliance upon any information from the Company or any other affiliate of the Company as to the desirability of any investment. Specifically, it is possible that the Company (or any of its affiliates) may from time to time obtain non-public information, including by way of example information regarding corporate developments, earnings, or prospects regarding the issuers of certain securities or other investments in the Manager’s universe of possible investments for the Portfolios. In order to enable the Manager to invest without restriction as a result of the Company’s (or any of the Company’s affiliate’s) obtaining any such information, the Manager agrees that:

(i)       neither the Manager nor any of the Manager’s employees or agents will at any time discuss with employees or agents of the Company or any other affiliate of the Company any material non-public information in respect of the issuer of any securities which the Manager may from time to time consider for investment or disposition on behalf of the Company at any time in accordance with advice or services provided by the Manager pursuant to this Agreement. In the event that the Company or any other affiliate of the Company should at any time obtain any such material non-public information directly or indirectly from the Manager, the Company will inform the Manager of such fact, and shall not take any action in respect of any investment to which it relates without the prior consent of the Manager;

(ii)       neither the Company nor any of its employees or agents will at any time discuss with employees or agents of the Manager any material non-public information in respect of the issuer of any securities. In the event that the Manager should at any time obtain any such material non-public information directly or indirectly from the Company (or any of its affiliates) the Manager will inform the Company (or such person as the Company may from time to time designate for this purpose), and shall not take any action in respect of any investment to which it relates without the prior consent of the Company; and

(iii)       the Manager will act otherwise in accordance with such specifications as the Company may from time to time provide to the Manager in this regard.

(c)       Notwithstanding any provision to the contrary herein, the Company shall be permitted to disclose position-level information about the Portfolios to service providers performing risk analytics and similar services; provided , that any such service providers receiving position-level information shall be subject to industry standard confidentiality restrictions.

18.        Material Non Public Information . The Manager acknowledges that it is aware, and agrees to advise its employees, representatives, and advisors who are informed as to the matters that are the subject of this Agreement, that the United States securities laws prohibit any person who has received from an issuer material, non-public information concerning the issuer or other matters which may be the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.

19.        Standstill . The Manager further agrees that neither it nor any of its Affiliates (defined below) nor any other person acting at its or its Affiliates’ direct or indirect instruction will, directly or indirectly, alone, jointly, or in concert with any other person, for a period of twelve (12) months after the date of this Agreement, without the prior written consent of the Board:

(i)       acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any: (x) of the issued and outstanding capital stock, equity securities, debt securities or indebtedness of the Company or any of its subsidiaries (“ Securities ”), or (y) direct or indirect rights, options, or derivative interests with respect to any Securities or any of the issued and outstanding capital stock, equity securities, debt securities, or indebtedness of any person in control of the Company, or (z) assets or property of the Company or its subsidiaries, in each case in an amount in excess of the Securities held by the Manager and its Affiliates on the date set forth above;

(ii)       (A) make any statement or proposal, whether written or oral, to the Board or to any Company director or officer, or make any public announcement or proposal whatsoever with respect to, or publicly support, a merger or other business combination, tender, or exchange offer, sale, or transfer of assets or properties, recapitalization, reorganization, dividend, share repurchase, liquidation, or other extraordinary corporate transaction with the Company or its subsidiaries or any other transaction which could result in a change of control of the Company or (B) solicit or encourage any other person to make any such statement or proposal;

(iii)       make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are defined in Rule 14a-1 under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”)) to vote or deliver a written consent with respect to any Securities, seek to advise, encourage, or influence any person or entity with respect to the voting of any Securities or the delivery of a written consent with respect to any Securities, initiate or propose any stockholder proposal or induce or attempt to induce any other person to initiate any stockholder proposal, or execute any written consent, provided that this clause (iii) shall not prohibit the execution and delivery by the Manager or any of the Manager’s representatives of a revocable proxy or consent in response to a public proxy contest or consent solicitation made generally to all holders of Securities pursuant to, and in accordance with, the applicable rules and regulations under the Exchange Act;

(iv)       otherwise act, alone or in concert with others, to seek or propose to control or influence the management, the Board, or policies or affairs of the Company or any of its subsidiaries;

(v)       form, join, or in any way participate in any “group” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) with respect to any Securities in connection with any of the foregoing;

(vi)       submit a proposal (including any precatory proposal) to be considered by the stockholders of the Company, or take any action to nominate any person for membership on the Board, or take any action to remove any director from the Board or to change the size or composition of the Board;

(vii)       take any action that could reasonably be expected to require the Company to make a public announcement regarding the possibility of a transaction with the Manager or any of the Manager’s Affiliates or any of the other events described in this Section;

(viii)       take any action challenging the validity or enforceability of this Section;

(ix)       advise, assist, encourage, instruct, or direct any other person to do any of the foregoing;

(x)       make a public request to the Company or its stockholders to take any action in respect of the foregoing matters or request that the Company amend or waive any provision of this Section 19; or

(xi)       publicly disclose any intention, plan, or arrangement inconsistent with the foregoing.

Notwithstanding the foregoing, the Manager shall be permitted to take any action expressly permitted pursuant to any definitive written agreement with the Company. As used in this Agreement, “ Affiliates ” means (1) with respect to the Manager, those persons who are included in the Schedule 13D or Schedule 13G, as applicable, filed with the SEC and from time to time with respect to the Manager’s beneficial ownership of the Company’s securities and (2) with respect to the Manager or any other person or entity, any other person or entity that directly or indirectly controls, is controlled by, or is under common control with, the Manager or the Company (as applicable), where “ control ” means (A) the possession, directly or indirectly, of the power to vote fifty percent (50%) or more of the voting equity interests of an entity, (B) the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of a person or entity, or (C) being a director, officer, executor, trustee, or fiduciary (or their equivalents) thereof. The Manager shall be permitted to vote any shares it owns in any manner it deems appropriate.

20.        Information .

(a)       Notwithstanding any other provision in this Agreement, except as may be required by law or to the extent the information becomes generally available to the public other than as a result of disclosure in breach of this Agreement, the Manager and its Affiliates, employees, agents, and representatives (the “ Manager Parties ”) shall maintain the confidentiality of all confidential or proprietary information of the Company (including the information delivered by the Company to the Manager pursuant to this Agreement) and agrees not to disclose to any third party (other than its directors, officers, managers, employees, and advisors) any such confidential or proprietary information without the prior consent of the Company.

(b)       The Manager acknowledges that information disclosed to it under this Agreement may be non-public or inside information and agrees that it shall, and shall cause the other Manager Parties to, comply with the requirements of any applicable laws, rules, and regulations in relation to any dealings by any Manager Party in the Company’s securities.

(c)       In the event that the Manager becomes aware that it or another Manager Party may reasonably expect to be required legally to publish non-public information provided to it or them pursuant to this Agreement, the Manager shall give the Company prompt notice thereof and shall consult with the Company, which shall engage promptly with the Manager to discuss. If, following such consultation, the Manager determines, acting reasonably, it is required legally to publish such non-public information, the applicable Manager Party may publish only such non-public information necessary to comply with such legal requirements and (to the extent legally permitted) shall, upon request from the Company, delay such publication until after the Company has published such non-public information.

21.        MNPI Cleansing . Any time after the expiration or termination of the Agreement, the Company hereby agrees that promptly (and, in any event, not later than sixty (60) days) upon the reasonable request of the Manager, the Company shall issue a public press release or file with the Securities and Exchange Commission a Current Report on Form 8-K, an Annual Report on Form 10-K (or an amendment thereto), or a Quarterly Report on Form 10-Q (or an amendment thereto) containing any material non-public confidential information, if any, that has been disclosed to Manager. Notwithstanding the foregoing, the Company shall not be obligated to issue any such public press release or file with the Securities and Exchange Commission a Current Report on Form 8-K, an Annual Report on Form 10-K (or an amendment thereto), or a Quarterly Report on Form 10-Q (or an amendment thereto), if the Board determines that doing so would not be in the best interest of the Company.

22.        Tax Giveback . If at any time during the term or following termination of this Agreement, the Company is required to make a payment to satisfy any tax obligation incurred as a result of trading for the Portfolios, the Company may recall from the Manager (and if so recalled, the Manager shall pay the Company) an amount equal to the excess of the total Performance Fee actually received by the Manager over the Performance Fee that would have been received if the tax obligation had been paid during the Performance Period in which such tax obligation first accrued.

23.        Notices . All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effective on the date of receipt. Any communications or notices provided for in this Agreement shall be sent to the Manager, the Company, or the Custodian, respectively, in writing to the following addresses, or to such other addresses as the parties may direct by written notice (for the avoidance of doubt, any notices or communications delivered via email shall be considered to be “in writing”):

If to the Manager:

CIDM LLC

2200 Fletcher Avenue

Suite 5021

Fort Lee, NJ 07024

Attn: Managing Member

Telephone:

If to the Company:

CCUR Holdings, Inc.

4375 River Green Parkway

Suite 201

Duluth, GA 30096

Attn: Wayne Barr, Jr.

Telephone: (770) 305-6435

If to the Custodian:

At such addresses as are provided by the Company to the Manager from time to time.

24.        Assignment . This Agreement may not be assigned, nor may any obligations under this Agreement be transferred or delegated, by either party without the prior written consent of the other, except that, without the prior written consent of the Manager, the Company may assign all or a portion of its rights and obligations under this Agreement to any of the Company’s Affiliates.

25.        Titles and Subtitles . The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.

26.        Amendment; Modification; Waiver . No amendment of this Agreement will be effective unless it is in writing and signed by the parties. No waiver of satisfaction of a condition or nonperformance of an obligation under this Agreement will be effective unless it is in writing and signed by the party granting the waiver, and no such waiver will constitute a waiver of satisfaction of any other condition or nonperformance of any other obligation.

27.        Governing Law . The laws of the State of Georgia, without giving effect to principles of conflict of laws, govern all matters arising under this Agreement.

28.        Consent to Jurisdiction . The parties hereto agree that any action or proceeding arising directly or indirectly in connection with, out of, or related to or from this Agreement, any breach hereof, or any transaction covered in this Agreement shall be resolved, whether by arbitration or otherwise, within the State of Georgia. Accordingly, the parties consent and submit to the jurisdiction of the federal and state courts and any applicable arbitral body located within the State of Georgia. The parties further agree that any such action or proceeding brought by either party to enforce any right, assert any claim, or obtain any relief whatsoever in connection with this Agreement shall be brought by such party exclusively in federal or state courts, or if appropriate before any applicable arbitral body, located within the State of Georgia.

29.        Severability . If any provision of this Agreement is held to be unenforceable, then in construing this Agreement, such provision is to be either modified to the minimum extent necessary to make it enforceable (if permitted by law) or disregarded (if not). If an unenforceable provision is modified or disregarded in accordance with this Section 29 , the rest of this Agreement is to remain in effect as written, and the unenforceable provision is to remain as written in any circumstances other than those in which the provision is held to be unenforceable.

30.        Counterparts . This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including PDF), or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

31.        Delays or Omissions . No delay or omission to exercise any right, power, or remedy accruing to any party under this Agreement upon any breach or default of any other party under this Agreement shall impair any such right, power or remedy of such non-breaching or non-defaulting party, nor shall it be construed to be a waiver of or acquiescence to any such breach or default, or to any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. All remedies, whether under this Agreement or by applicable law or otherwise afforded to any party, shall be cumulative and not exclusive.

32.        Entire Agreement . This Agreement (including any schedules and exhibits hereto) constitutes the entire agreement of the parties relating to the subject matter of this Agreement and supersedes all other oral or written agreements thereto.

The parties are signing this Agreement on the date stated in the introductory clause.

CCUR Holdings, Inc.

CIDM LLC

SCHEDULE A

FEE SCHEDULE

Management Fee.

For services rendered to the Company, the Manager shall be entitled to an annual management fee equal to two percent (2%) of the fair market value of the Assets (the “ Management Fee ”). The Management Fee shall be payable quarterly in arrears. If additional capital is contributed to the Portfolios, or the Portfolios are funded, or capital is withdrawn, after the beginning of a quarter, the amount of the Management Fee attributable to such capital for that quarter shall be prorated on a time-weighted basis.

Performance Fee.

Subject to the provisions of this Agreement, the Company shall pay (or cause to be paid) to the Manager an incentive-based fee (the “ Performance Fee ”) with respect to the Portfolios. The Performance Fee shall be calculated as of the end of each Performance Period (as defined below) and payable quarterly in arrears.

The Performance Fee in respect of each Performance Period shall be equal to twenty percent (20%) of the appreciation of end of year NAV, as calculated pursuant to the 2019 CCUR Bonus Plan.

Performance Period.

“ Performance Period ” means, with respect to all of the Assets, the period initially commencing on the date hereof and ending on the earliest of (x) December 31 of each year or (y) any termination of this Agreement by either party. A new Performance Period shall be deemed to commence on the day immediately following the last day of the preceding Performance Period, except in the instance of a termination of this Agreement.

Expenses.

The Company shall be responsible for all custodial fees, brokerage commissions, clearing fees, interest, expenses related to proxies, withholding or transfer taxes, or other fees, costs, or expenses of whatever nature incurred in connection with the Company or any of its Portfolios.

The Manager shall be responsible for all of its operating expenses, including, without limitation, its rent, salaries of its employees, utilities, and any travel and related expenses incurred in connection with its performance of services under this Agreement, including any of the Manager’s legal fees in connection with the negotiation, drafting, or monitoring of this Agreement. For the avoidance of doubt, such expenses of the Manager include specific expenses incurred in obtaining systems, research, and other information utilized for portfolio management purposes that facilitate valuations and accounting, including the costs of statistics and pricing services, service contracts for quotations equipment, and related hardware and software.

Method of Payment.

The Company shall pay any amounts payable to the Manager hereunder, including without limitation the Performance Fee, the Management Fee and reimbursement of any expenses of the Manager subject to reimbursement hereunder, via a grant of stock appreciation rights in the form attached as Exhibit A hereto (“ SAR Grant ”). The cash value of a SAR Grant for the purpose of determining the amount by which it reduces the fees payable under this Agreement shall equal the Base Price (as defined in the SAR Grant) multiplied by the number of Appreciation Rights (as defined in the SAR Grant) granted in such SAR Grant.

SCHEDULE B

OPERATIONS AND REPORTING SCHEDULE

(a)       Accounting: Portfolio accounting should be computed using the “average cost” method.

(b)       Holdings and Net Asset Value Verification: It is expected that the Manager will provide a data file or manual listing of Portfolio holdings (including cash and accruals), market values and realized gains and losses to the Custodian on or before noon Eastern Time on the fourth (4 ^th ) Business Day after each month end, and in such case, the Custodian will be responsible for reporting all differences back to the Manager and all values will be reconciled and agreed upon no later than the close of business on the ninth (9 ^th ) Business Day after each month end. The Manager shall provide to the Company this same file updated with all current values as of the sixth (6 ^th ) Business Day after month end and again when all values are finalized with the Custodian.

(c)       Performance Verification: The Manager shall provide to the Company a report containing total return calculated on a time weighted basis, both gross and net of Management Fees and Performance Fees, to be emailed to the Company Chief Financial Officer. Email delivery should occur no later than one business day following the Manager’s receipt from the Company of its reported total assets for the prior month end, which will typically occur between 5 and 7 days following each month end.  Returns should be provided for the current month; rolling three (3) months; fiscal year-to-date ( i.e. , July 1 through the current month end); calendar year-to-date; annualized performance for the prior thirty-six (36) months; and annualized performance from inception to the current month end.

(d)       Trade Errors: The Manager shall provide a report not later than the tenth (10 ^th ) Business Day following each month-end listing all trade errors that occurred with respect to the Portfolios during the prior month, including the incorrect ticker, the intended ticker, the amount of the loss or gain resulting from such trade error, an indication as to whether such trade error has been corrected as of such month-end, and an indication of whether any outstanding trade errors from prior months have been corrected as of such month-end.

EXHIBIT A

FORM OF SAR GRANT

(see attached)

CCUR HOLDINGS, INC.
STOCK APPRECIATION RIGHTS AGREEMENT

This Agreement (the “ Agreement ”) is made as of [●] (the “ Date of Grant ”) by and between CCUR Holdings, Inc., a Delaware corporation (the “ Company ”) and [●] (the “ Grantee ”).

1.        Grant of Appreciation Rights. The Company hereby grants to the Grantee as of the Date of Grant [●] appreciation rights (“ Appreciation Rights ”), which grant gives the Grantee the right to receive in cash, on the date of exercise of each Appreciation Right, an amount equal to 100% of the “ Spread ”. The “ Spread ” means the excess of (a) the Market Value per Share on the date of exercise over (b) the Base Price. The “ Base Price ” means $[●] ^[1] . “ Market Value per Share ” means, as of any particular date, (i) the closing sale price per Common Share as reported on the exchange on which Common Shares are then trading, if any, or, if there are no sales on such day, on the next preceding trading day during which a sale occurred, or (ii) if clause (i) does not apply, the fair market value of the Common Shares as determined by the Company’s board of directors. “ Common Shares ” means the Company’s currently authorized common stock, $0.01 par value, and stock of any other class or other consideration into which such currently authorized capital stock may hereafter have been changed.

2.        Exercise of Appreciation Rights .

(a)        Unless and until terminated as hereinafter provided, the Appreciation Rights will become exercisable upon the occurrence or achievement of the following conditions or milestones set forth in Table I below:

TABLE I

(b)        Definitions .

(i)       “ Affiliate ” has the meaning given such term under Rule 12b-2 of the General Rules and Regulations under the Exchange Act.

(ii)       “ Beneficial Owner ” has the meaning given such term under Rule 13d-3 of the General Rules and Regulations under the Exchange Act.

(iii)       “ Change in Control ” means:

(a)       the acquisition, directly or indirectly, by any “person” or “group” (as those terms are defined in Sections 3(a)(9), 13(d), and 14(d) of the Exchange Act and the rules thereunder, including, without limitation, Rule 13d-5(b)) of “beneficial ownership” (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors (“ voting securities ”) of the Company that represent 50% or more of the combined voting power of the Company’s then outstanding voting securities, other than: 

^] Note to Draft : Insert Market Value per Share on the Date of Grant as the Base Price.

(i)       an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or

(ii)       an acquisition of voting securities by the Company or a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or 

(iii)       an acquisition of voting securities pursuant to a transaction described in clause (c) below that would not be a Change of Control under clause (c);

(b)       the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company’s assets or (z) the acquisition of assets or stock of another entity, in each case, other than in a transaction

(i)       that results in the Company’s voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to the business of the Company (the Company or such person, the “ Successor Entity ”)) directly or indirectly, at least 50% of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction, and

(ii)       after which more than 50% of the members of the board of directors of the Successor Entity were members of the Board at the time of the Board’s approval of the agreement providing for the transaction or other action of the Board approving the transaction (or whose election or nomination was approved by a vote of at least two-thirds of the members who were members of the Board at that time), and

(iii)       after which no person or group beneficially owns voting securities representing 50% or more of the combined voting power of the Successor Entity, unless the Board determines in its discretion that beneficial ownership by a person or group of voting securities representing 50% or more of the combined voting power of the Successor Entity shall not be deemed a Change of Control; or

(c)       a liquidation or dissolution of the Company;

; provided , that any transaction described in clause (a) or (b) above that results in the Grantee or any of the Grantee’s Affiliates, taken together as a whole, having beneficial ownership of voting securities representing 50% or more of the combined voting power of the Company or a Successor Entity, as applicable, a Change of Control shall be deemed not to have occurred.

(iv)       “ Exchange Act ” means the Securities Exchange Act of 1934 and the rules and regulations thereunder, as such law, rules and regulations may be amended from time to time.

(v)       “ Group ” means persons and entities that act in concert as described in Section 14(d)(2) of the Exchange Act (other than the Company or any Subsidiary thereof and other than any profit-sharing, employee stock ownership or any other employee benefit plan of the Company or such Subsidiary, or any trustee of or fiduciary with respect to any such plan when acting in such capacity and other than any executive officer of the Company).

(vi)       “ Person ” means and includes any individual, corporation, partnership or other person or entity and any Group and all Affiliates and Associates of any such individual, corporation, partnership, or other person or entity or Group.

(vii)       “ Subsidiary ” means a corporation, company or other entity in which the Company has a direct or indirect ownership or other equity interest.

3.        Forfeiture of Appreciation Rights. An Appreciation Right shall be forfeited (to the extent it has not become exercisable pursuant to Section 2) if the Grantee’s service relationship with the Company has been terminated.

4.        Term of Appreciation Rights . The Appreciation Rights will terminate on the date that is ten years from the Date of Grant (i.e., [●]).

5.        Adjustments. In the event of a stock split, combination of shares, recapitalization, merger, consolidation, separation or reorganization or any other change in the capital structure of the Company that results in a change in the number or value of a Common Share, an equivalent change shall be made in the number or value of Appreciation Rights.

6.        No Voting and Other Rights. The Appreciation Rights granted under this Agreement shall not entitle the Grantee to any voting or similar rights of a stockholder and nothing in this grant shall be construed as creating any interest in or right to receive any Common Shares.

7.        Award Non-transferable. Except with the consent of the Company, the Appreciation Rights may not be sold, exchanged, assigned, transferred, pledged, encumbered or otherwise disposed of by the Grantee. Any purported transfer or encumbrance in violation of the provisions of this Section 7 shall be void, and the other party to any such purported transaction shall not obtain any rights to or interest in such Appreciation Rights.

8.        No Service Contract. Nothing contained in this Agreement shall confer upon the Grantee any right with respect to the establishment or continuance of employment or any other service relationship by the Company and its Subsidiaries, nor limit or affect in any manner the right of the Company and its Subsidiaries to terminate the Company’s or any of its Subsidiaries’ respective rights to terminate any employment or service relationship or adjust the compensation of the Grantee.

9.        Taxes and Withholding. To the extent that the Company shall be required to withhold any federal, state, local or other taxes in connection with cash obtained upon the exercise of the Appreciation Rights, and the amounts available to the Company for such withholding are insufficient, it shall be a condition to payment that the Grantee shall pay such taxes or make provisions that are satisfactory to the Company for the payment thereof. The Grantee may elect to satisfy all or any part of any such withholding obligation by surrendering to the Company a portion of the payments due to the Grantee upon the exercise of the Appreciation Rights.

10.        Amendments. The Company may modify this Agreement upon written notice to the Grantee; provided , that no modification or amendment to this Agreement that has an adverse impact on the material rights of the Grantee shall be binding on the Grantee unless such modification or amendment is executed by the Company and the Grantee. Any waiver of any term or condition or breach of this Agreement shall not be a waiver of any other term or condition or of the same term or condition.

11.        Severability. In the event that one or more of the provisions of this Agreement shall be invalidated for any reason by a court of competent jurisdiction, any provision so invalidated shall be deemed to be separable from the other provisions hereof, and the remaining provisions hereof shall continue to be valid and fully enforceable.

12.        Successors and Assigns. Without limiting Section 7 hereof, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the successors, administrators, heirs, legal representatives and assigns of the Grantee, and the successors and assigns of the Company.

13.        Notices. Any notice to the Company provided for herein shall be in writing to the Company and any notice to the Grantee shall be addressed to the Grantee at his or her address on file with the Company. Except as otherwise provided herein, any written notice shall be deemed to be duly given if and when delivered personally or deposited in the United States mail, first class certified or registered mail, postage and fees prepaid, return receipt requested, and addressed as aforesaid. Any party may change the address to which notices are to be given hereunder by written notice to the other party as herein specified (provided that for this purpose any mailed notice shall be deemed given on the third business day following deposit of the same in the United States mail).

[ Signature Page Follows ]

IN WITNESS WHEREOF, the Company has caused this Agreement to be executed on its behalf by its duly authorized officer and the Grantee has also executed this Agreement in duplicate, as of the day and year first above written.

The undersigned hereby acknowledges receipt of an executed original of this Agreement and accepts the award of the Appreciation Rights granted thereunder on the terms and conditions set forth herein.

[Signature Page to Stock Appreciation Rights Agreement]

Exhibit 10.3

EMPLOYMENT AGREEMENT

EMPLOYMENT AGREEMENT, made and entered effective as of the 1st day of March, 2019 (the “ Effective Date ”) by and between CCUR HOLDINGS, INC., a Delaware corporation (“ CCUR ” or the “ Company ”), and WAYNE BARR, JR. (the “ Employee ”).

W I T N E S S E T H :

WHEREAS, the Company desires to employ the Employee and the Employee desires to accept such employment with the Company;

NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable consideration, the parties agree as follows:

1.        Employment

The Company hereby employs the Employee and the Employee hereby accepts employment with the Company for the term set forth in Section 2 below, in the position and with the duties and responsibilities set forth in Section 2 below, and upon other terms and conditions hereinafter stated.

2.        Position; Duties; Responsibilities

2.1       The term of employment hereunder shall commence on the date hereof and continue until such employment ceases as provided in Section 4.1, 4.2, 4.3, 4.4, 4.5, 4.6 or 4.7 (such period, the “Term”). It is intended that at all times during the Term of employment hereunder, the Employee shall serve as the Chief Executive Officer of the Company. The Employee agrees to perform such senior executive officer and managerial services customary to such position as are necessary to the operations of the Company and as may be assigned to him from time to time by the Company’s Board of Directors (“ Board of Directors ”).

2.2       Throughout the Term of employment hereunder, the Employee shall devote his full time and undivided attention to the business and affairs of the Company, as appropriate to his responsibilities and duties hereunder. Nothing in this Agreement shall preclude the Employee from devoting reasonable periods required for serving as a director or member of any advisory committee of not more than two (at any time) “for profit” organizations, outside of service on the Board of Directors, involving no conflict of interest with the interests of the Company (subject to approval by the Board of Directors, which approval shall not be unreasonably withheld), or from engaging in charitable and community activities, or from managing his personal investments, provided such activities do not interfere with the performance of his duties and responsibilities under this Agreement.

3.        Compensation

3.1        Salary

For services rendered by the Employee during the Term of employment hereunder, the Employee shall be paid a salary, payable in accordance with the then existing applicable payroll policy of the Company, at an annualized rate of $300,000, less applicable deductions and withholdings, such salary to be reviewed annually in accordance with the Company’s regular salary review schedule.

3.2        Annual Bonus Opportunity

During the Term of employment hereunder, the Employee will be eligible for a bonus opportunity under the Company’s annual bonus program (the “ NAV Program "), which currently provides an annual bonus opportunity related to the net value increase in the Company’s assets during the annual bonus period. The Employee shall be eligible to receive a target amount of thirty-five percent (35%) of the eligible bonus pool, to be reviewed annually in accordance with the Company’s regular bonus review schedule. The targets and objectives for each year and other terms and conditions of the bonus opportunity shall be established each year by the Compensation Committee of the Board of Directors.

3.3        Employee Benefit Plans

During the Term of employment hereunder, the Employee will be eligible to participate in all employee benefit programs of the Company made available to senior executives, in accordance with the provisions thereof. Additionally, the Employee shall be entitled to vacation time at the rate of four (4) weeks per calendar year or such greater amount as may be provided by Company policies in effect from time to time.

3.4        Restricted Stock; Long Term Incentive Plan

The Compensation Committee of the Board of Directors will grant to the Employee an award of 40,000 shares of restricted stock of the Company (the “ Restricted Stock ”) as soon as practicable after the effective date of this Agreement. The terms of the award shall provide that the restrictions on the Restricted Stock will lapse in equal installments on the anniversary of the grant date over a three-year period, provided that the Employee is employed with the Company on the applicable date. The Restricted Stock award shall be subject to and governed by the terms and conditions of the CCUR Holdings, Inc. Amended and Restated 2011 Stock Incentive Plan (“ Incentive Plan ”) and the award document. Notwithstanding the foregoing, such Restricted Stock shall become 100% vested in the event the Employee’s employment is terminated because of death or Continuing Disability as provided in Section 4.2.

During the Term of employment hereunder, the Employee will be eligible to participate in long term incentive programs of the Company now or hereafter made available to senior executives, in accordance with the provisions thereof as in effect from time to time, and as deemed appropriate by the Compensation Committee to be applicable to this position.

3.5        Business Expense Reimbursements

During the Term of employment hereunder, the Employee will be entitled to receive reimbursement by the Company for all reasonable out-of-pocket expenses incurred by him (in accordance with the policies and procedures established by the Company for its senior executives), in connection with his performing services hereunder. Reimbursements shall be made in accordance with Employer’s normal expense reimbursement policies and procedures for its senior executives (including timing), and such reimbursement will be made no later than the last day of the Employee’s taxable year following the taxable year in which the expense was incurred. The expenses paid by Employer during any taxable year of the Employee will not affect the expenses paid by Employer in another taxable year. This right to reimbursement is not subject to liquidation or exchange for another benefit.

4.        Consequences of Termination of Employment

4.1        Death

In the event of the death of the Employee during the Term of employment hereunder, the estate or other legal representatives of the Employee shall be entitled to salary and bonus accrued and due through the period ending on the date of his death and any other vested rights and benefits he may have under the employee benefit plans and programs of the Company will be determined in accordance with the terms and provisions of such plans and programs.

4.2        Continuing Disability

Notwithstanding anything in this Agreement to the contrary, the Company is hereby given the option to terminate the Employee’s employment in the event of the Employee’s Continuing Disability. The Company can exercise this option by giving notice to the Employee of the Company’s intention to terminate his employment due to Continuing Disability not earlier than 15 days from the Employee’s receipt of such notice.

In the event of the termination of the Employee’s employment due to Continuing Disability, the Employee shall be entitled to salary and bonus accrued and due through the period ending on the date of his termination and any other vested rights and benefits he may have under the employee benefit plans and programs of the Company will be determined in accordance with the terms and provisions of such plans and programs.

For purposes hereof, “ Continuing Disability ” shall mean the inability to perform the essential functions connected with the Employee’s duties hereunder, with or without reasonable accommodation, which inability shall have existed or shall reasonably be expected to exist for a period of 180 days, even though not consecutive, in any 24 month period. In the event the Employee does not agree with the Company that his inability to perform the essential functions connected with the Employee’s duties may reasonably be expected to exist for such period, the opinion of a qualified medical doctor selected by the Employee and reasonably satisfactory to the Company shall be determinative.

4.3        Termination by the Company for Due Cause

Nothing herein shall prevent the Company from terminating the employment of the Employee for Due Cause. If the Employee is terminated by the Company for Due Cause, he shall be entitled to salary and bonus accrued and due through the period ending on the date of his termination, the bonus, if any, earned but not paid for the fiscal year ending prior to his termination and any other vested rights and benefits he may have under the employee benefit plans and programs of the Company which shall be determined in accordance with the terms of such plans and programs. The term “ Due Cause ”, as used herein, shall mean that (a) the Employee has committed a willful serious act, such as (but not limited to) embezzlement, against the Company intended to enrich himself at the expense of the Company or has been convicted of a felony or misdemeanor involving moral turpitude; (b) the Employee has willfully or grossly neglected his duties hereunder or intentionally failed to observe specific lawful directives or policies of the Board of Directors, which directives or policies were consistent with his positions, duties and responsibilities hereunder, and which failure had, or continuing failure will have, a material adverse effect on the Company; (c) the Employee’s undertaking to provide any chief executive officer certification required under the Sarbanes-Oxley Act of 2002 (“ Sarbanes-Oxley Act ”) without taking reasonable and appropriate steps as outlined by the Company’s audit committee to determine whether the certification was accurate; (d) the Employee’s failure to fulfill any of his duties under, or violation of any provision of, the Sarbanes-Oxley Act, including, but not limited to, failure to establish and administer effectively systems and controls as outlined by the Company’s audit committee necessary for compliance with the Sarbanes-Oxley Act; or (e) the Employee has committed a material violation of the Company’s policies or procedures, or a material breach of this Agreement. Prior to any such termination, the Employee shall be given written notice by the Board of Directors that the Company intends to terminate his employment for Due Cause under this Section 4.3, which written notice shall specify the particular acts or omissions on the basis of which the Company intends to so terminate the Employee’s employment, and the Employee (with his counsel, if he so chooses) shall be given the opportunity, within 15 days of his receipt of such notice, to have a meeting with the Board of Directors to discuss such acts or omissions and given reasonable time to remedy the situation, if it is deemed by the Board of Directors, in their good faith business judgment, to be remediable. In the event of such termination, the Employee shall be promptly furnished written specification of the basis therefor in reasonable detail.

4.4        Termination by the Company other than for Due Cause

The foregoing notwithstanding, the Company may terminate the Employee’s employment for whatever reason it deems appropriate; provided, however, that in the event such termination is not based on death or Continuing Disability as provided in Sections 4.1 or 4.2, above, or on Due Cause as provided in Section 4.3 above, the Employee will be entitled to receive Severance Compensation (as defined below); provided that within thirty (30) days following the date of the Employee’s termination of employment, the Employee executes a release in a form acceptable to the Company and such release has become irrevocable.

For purposes of the foregoing, “Severance Compensation” shall consist of (a) salary continuation payments for a period of 12 months from the date of such termination (the “ Salary Continuation Period ”), at the salary in effect, pursuant to Section 3.1 above, immediately prior to such termination, (b) the amount, if any, paid as an annual bonus in the year preceding the Employee’s termination of employment, and (c) COBRA continuation coverage under the Company’s hospitalization and medical plan (the “ Health Plan ”) for Employee and his eligible dependents who were covered under the Health Plan at the time of his termination as required by Section 4980B of the Internal Revenue Code of 1986, as amended (the “ Code ”), but during the Salary Continuation Period, Employee shall be eligible to continue such coverage at the same premium charged to active employees during such period. The payments pursuant to Section 4.4(a) and (b) above shall be made in substantially equal installments on each regularly scheduled pay date (each a “ Pay Date ”), beginning with the first Pay Date following the thirtieth (30th) day after the date of the Employee’s “separation from service” (“ Separation from Service ”) (within the meaning of Section 409A of the Code and the regulations, rulings and other guidance issued thereunder (collectively, “ Section 409A ”)), but with the first payment being a lump sum payment covering all payment periods from the date of the Employee’s Separation from Service through the date of such first payment.

Notwithstanding the foregoing, if at the time of the Employee’s Separation from Service, the Employee is a “specified employee” within the meaning of Section 409A, then, to the extent any payment that the Employee becomes entitled to under this Agreement on account of Separation from Service would be considered deferred compensation subject to Section 409A (after excluding to the maximum extent possible any payments that may be excluded pursuant to Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral), such payment shall not be payable until the date that is the earlier of (i) six (6) months and one (1) day after the Employee’s Separation from Service, or (ii) the Employee’s death (the “ Delay Period ”). Upon the first business day following the expiration of the Delay Period, all payments deferred pursuant to this subsection shall be paid in a single lump sum to the Employee (without interest), and any remaining payments due under this Agreement shall be paid as otherwise provided herein.

Except as specifically set forth in this Section 4.4, the Employee shall not be entitled to any other compensation or benefits following a termination of employment by the Company as provided in this Section 4.4, other than with respect to any vested benefits to which the Employee is entitled pursuant to any employee benefit plan maintained by the Company.

4.5        Termination Following Change of Control

If there is a “change of control” (as defined in the Incentive Plan), and within one year after such “change of control” (i) the Employee’s employment is terminated by the Company (other than for Due Cause, death or Continuing Disability), or (ii) the Employee has a constructive termination of employment without Due Cause pursuant to Section 4.6 below, subject to executing a release in a form acceptable to the Company and such release becoming irrevocable, the Employee will be entitled to receive (a) salary continuation payments for a period of 12 months from the date of such termination, at the salary in effect, pursuant to Section 3.1 above, immediately prior to such termination, (b) the amount, if any, paid as an annual bonus in the year preceding the Employee’s termination of employment, and (c) COBRA continuation coverage under the Company’s Health Plan for Employee and his eligible dependents who were covered under the Health Plan at the time of his termination, but during the 12 month period following Employee’s termination, Employee shall be eligible to continue such coverage at the same premium charged to active employees during such period. The salary continuation payments pursuant to Section 4.5(a) and (b) above shall be made in substantially equal installments on each regularly scheduled Pay Date, beginning with the first Pay Date following the thirtieth (30th) day after the date of the Employee’s Separation from Service, but with the first payment being a lump sum payment covering all payment periods from the date of the Employee’s Separation from Service through the date of such first payment. To the extent applicable, such payments shall be subject to the payment restrictions set forth in the third paragraph of Section 4.4.

4.6        Constructive Termination of Employment by the Company without Due Cause

Anything herein to the contrary notwithstanding, if the Company:

(i)       demotes or otherwise elects or appoints the Employee to a lesser office than set forth in Section 2.1, or

(ii)       causes a material change in the nature or scope of the authorities, duties or responsibilities attached to the Employee’s position as described in Section 2.1, or

(iii)       materially decreases the Employee’s salary or annual bonus opportunity below the most recent levels provided for by the terms of Sections 3.1 and 3.2, or

(iv)       commits any other material breach of this Agreement,

then such action (or inaction) by the Company, unless consented to in writing by the Employee, shall constitute a constructive termination of the Employee’s employment. If, within thirty (30) days of learning of the action (or inaction) described herein as a basis for a constructive termination of employment, the Employee (unless he has given written consent thereto) notifies the Company in writing that he wishes to effect a constructive termination of his employment pursuant to this Section 4.6, and such action (or inaction) is not reversed or otherwise remedied by the Company within 30 days following receipt by the Company of such written notice, then effective at the end of such second 30 day period, the employment of the Employee hereunder shall be deemed to have terminated by the Company other than for Due Cause pursuant to Section 4.4 above, and the Employee shall (subject to the terms and conditions set forth in such section, including executing a release in a form acceptable to the Company, and such release becoming irrevocable) be entitled to Severance Compensation in accordance with Section 4.4.

4.7        Voluntary Termination by the Employee

In the event the Employee terminates his employment of his own volition (other than as provided in Section 4.6 above), such termination shall constitute a voluntary termination and in such event the Employee shall be limited to the same rights and benefits as provided in connection with termination for Due Cause under the second sentence of Section 4.3 above. For the purposes hereof, a decision by the Employee to voluntarily retire shall constitute a voluntary termination.

4.8        Other Resignations

In the event the Employee’s employment with the Company is terminated (either by the Company or by the Employee), the Employee acknowledges and agrees that he will resign from any and all other positions that the Employee then holds as an employee, officer or director of the Company and its subsidiaries and affiliates.

5.        Protective Agreement

Concurrently with entering into this Agreement, the Employee will enter into a Protective Agreement in favor of the Company substantially in the form attached as Exhibit A hereto (the “ Protective Agreement ”).

6.        Successors and Assigns

6.1        Assignment by the Company

This Agreement shall be binding upon and inure to the benefit of the Company or any corporation or other entity to which the Company may transfer all or substantially all its assets and business and to which the Company may assign this Agreement, in which case “Company” as used herein shall mean such corporation or other entity.

6.2        Assignment by the Employee

The Employee may not assign this Agreement or any part thereof without the prior written consent of the Company, which consent may be withheld by the Company for any reason it deems appropriate.

7.        Arbitration

Except as provided below, any disputes or claims of any kind or nature, including as to arbitrability under this Agreement, between the Employee and the Company arising out of, related to, or in connection with any aspect of the Employee’s employment with the Company or its termination, including all claims arising out of this Agreement and claims for alleged discrimination, harassment, or retaliation in violation of Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, 42 U.S.C. § 1981, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, the Family and Medical Leave Act of 1993, the Fair Labor Standards Act, the Employee Retirement Income Security Act of 1974, or any other federal, state, or local law, shall be settled by final and binding arbitration in Fulton County, Georgia. Either party may file a written demand for arbitration with the American Arbitration Association pursuant to its National Rules for the Resolution of Employment Disputes. The arbitration shall be conducted by a single neutral arbitrator who is a member of the Bar of the State of Georgia, has been actively engaged in the practice of law for at least fifteen (15) years, and has substantial experience in connection with business transactions and interpretation of contracts. In considering the relevancy, materiality, discoverability, and admissibility of evidence, the arbitrator shall take into account, among other things, applicable principles of legal privilege, including the attorney-client privilege, the work product doctrine, and appropriate protection of the Company’s Trade Secrets and Confidential Information. Upon the request of either party, the arbitrator’s award shall be written and include findings of fact and conclusions of law. Judgment on the award rendered by the arbitrator may be entered by any court having jurisdiction. Any arbitration of any claim by the Employee may not be joined or consolidated with any other arbitration(s) by or against the Company, including through class or collective arbitration. The prevailing party in any such arbitration, or in any action to enforce this Section or any arbitration award hereunder, shall be entitled to recover that party’s attendant attorneys’ fees and related expenses from the other party to the maximum extent permitted by law. The Company shall be responsible for payment of all mediation and arbitration filing and administrative fees, and all fees and expenses of the mediator or arbitrators, irrespective of the outcome, as to any federal statutory claims by the Employee or as may otherwise be required by law for this Agreement to be enforceable. Notwithstanding any other provision of this Agreement, the Company may seek temporary, preliminary, or permanent injunctive relief against the Employee at any time without resorting to arbitration. The parties agree that this Agreement involves interstate commerce and that this arbitration provision is therefore subject to and governed by the Federal Arbitration Act. The parties confirm their agreement by initialing below:

8.        Governing Law

This Agreement shall be deemed a contract made under, and for all purposes shall be construed in accordance with, the laws of the State of Georgia (without reference to the principles of conflicts of law).

9.        Entire Agreement

This Agreement, including the Protective Agreement, contains all the understandings and representations between the parties hereto pertaining to the subject matter hereof and supersedes all undertakings and agreements, whether oral or in writing, if any there be, previously entered into by them with respect thereto.

10.        Amendment or Modification; Waiver

No provision in this Agreement may be amended or waived unless such amendment or waiver is agreed to in writing, signed by the Employee and an officer of the Company thereunto duly authorized. Except as otherwise specifically provided in this Agreement, no waiver by any party hereto of any breach by another party hereto of any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of a similar or dissimilar provision or condition at the same or any prior or subsequent time.

11.        Notices

Any notice to be given hereunder shall be in writing and delivered personally or sent by certified mail, postage prepaid, return receipt requested, addressed to the party concerned at the address indicated below or to such other address as such party may subsequently give notice of hereunder in writing:

4375 River Green Parkway
Suite 210
Duluth, GA 30096
Attn: General Counsel

12.        Severability

In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, the remaining provisions or portions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by law.

13.        Withholding

Anything to the contrary notwithstanding, all payments required to be made by the Company hereunder to the Employee or his estate or beneficiaries, shall be subject to withholding of such amounts relating to taxes as the Company may reasonably determine it should withhold pursuant to any applicable law or regulation. In lieu of withholding such amounts, in whole or in part, the Company may, in its sole discretion, accept other provision for payment of taxes as required by law, provided it is satisfied that all requirements of law affecting its responsibilities to withhold such taxes have been satisfied.

14.        Survivorship

The respective rights and obligations of the parties hereunder shall survive any termination of this Agreement to the extent necessary to the intended preservation of such rights and obligations.

15.        References

References in this Agreement to the Employee shall be deemed, where appropriate, to refer to his legal representatives.

16.        Titles

Titles to the sections in this Agreement are intended solely for convenience and no provision of this Agreement is to be construed by reference to the title of any section.

17.        Counterparts

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

18.        Section 409A

Payments pursuant to this Agreement are intended to comply with or be exempt from Section 409A and accompanying regulations and other binding guidance promulgated thereunder, and the provisions of this Agreement will be administered, interpreted and construed accordingly. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, each installment payment provided under this Agreement shall be treated as a separate payment. Whenever a payment under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company, and in no event may the Employee, directly or indirectly, designate the calendar year of any payment to be made under this Agreement, to the extent such payment is subject to Section 409A. Any payments to be made under this Agreement upon a termination of employment shall only be made upon a Separation from Service under Section 409A. The Company makes no representation or warranty and shall have no liability to the Employee or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A but do not satisfy an exemption from, or the conditions of, Section 409A.

19.        Claw-Back Policy

Any incentive based compensation, or any other compensation, paid or payable to the Employee pursuant to this Agreement or any other agreement or arrangement with the Company, which is subject to recovery under any law, government regulation, order or stock exchange listing requirement, will be subject to such deductions and clawback (recovery) as may be required to be made pursuant to law, government regulation, order, stock exchange listing requirement (or any policy of the Company adopted pursuant to any such law, government regulation, order or stock exchange listing requirement). The Employee specifically authorizes the Company to withhold from future wages any amounts that may become due under this provision; provided, however, nothing in this provision is intended to permit a change in the terms of payment of any deferred compensation subject to Section 409A in any manner that would violate or create a plan failure under Section 409A. This Section 19 shall survive the termination of this Agreement for a period of three (3) years.

[Signature Page Follows]

.

CCUR HOLDINGS, INC.

By:

/s/ Steven Singer

Steven Singer, Compensation Committee Chairman

EMPLOYEE

By:

/s/ Wayne Barr, Jr.

Wayne Barr, Jr.

Signature Page to Employment Agreement

Exhibit A

PROTECTIVE AGREEMENT

I, the undersigned, in consideration of and as a condition to my employment by CCUR Holdings, Inc. (the “ Company ”) effective March 1, 2019, do hereby agree with the Company as follows:

1.        Noncompete and Nonsolicitation of Customers or Employees . During my employment by the Company, I will devote my full time and best efforts to the business of the Company and I will not, directly or indirectly, alone or as a partner, officer, director, employee or holder of more than 5% of the common stock of any other organization, engage in any business activity which competes directly or indirectly with the products or services being developed, manufactured or sold by the Company and its subsidiaries. I also agree that, following any termination of such employment, I will not, directly or indirectly, for any period in which I receive severance payments from the Company, plus one (1) year, (a) engage in or provide any services substantially similar to the services that I provided to the Company or its subsidiaries at any time during the last twelve (12) months of my employment to or on behalf of any person or entity that competes with the businesses in which the Company or its subsidiaries are engaged at the time of termination of my employment anywhere in the continental United States, which I acknowledge and agree is the primary geographic area in which the Company and its subsidiaries compete in these businesses and thus, by virtue of my senior executive position and responsibilities with the Company, also the primary geographic area of my employment with the Company, (b) solicit or attempt to solicit, for the purpose of competing with the businesses in which the Company or any of its subsidiaries is engaged at the time of termination of my employment, any customers or active prospects of the Company or its subsidiaries with which I had any material business contact for or on behalf of the Company or its subsidiaries at any time during the last twelve (12) months of my employment, or (c) recruit or otherwise seek to induce any employees of the Company or its subsidiaries to terminate their employment or violate any agreement with the Company or its subsidiaries.

2.        Trade Secrets and Other Confidential Information . Except as may be required in the performance of my duties with the Company, or as may be required by law, I will not, whether during or after termination of my employment with the Company, reveal to any person or entity or use any of the trade secrets of the Company for as long as they remain trade secrets. I also agree to these same restrictions, during my employment with the Company and for a period of three (3) years thereafter, with respect to all other confidential information of the Company, including its technical, financial and business information, unless such confidential information becomes publicly available through no fault of mine or unless it is disclosed by the Company to third parties without similar restrictions.

Further, I agree that any and all documents, disks, databases, notes, or memoranda prepared by me or others and containing trade secrets or confidential information of the Company shall be and remain the sole and exclusive property of the Company, and that upon termination of my employment or prior request of the Company I will immediately deliver all of such documents, disks, databases, notes or memoranda, including all copies, to the Company at its main office.

Further, I agree that all Company property, such as, but not limited to cell phone(s), personal computer, software, PDAs, etc., shall be and remain the sole and exclusive property of the Company, and that upon termination of my employment or prior request of the Company I will immediately return all such property, to the Company.

3.        Inventions and Copyrights . If at any time or times during my employment (or within six (6) months thereafter if based on trade secrets or confidential information within the meaning of Paragraph 2 above), I make or discover, either alone or with others, any invention, modification, development, improvement, process or secret, whether or not patented or patentable (collectively, “ inventions ”) in the field of computer science or instrumentation, I will disclose in reasonable detail the nature of such invention to the Company in writing, and if it relates to the business of the Company or any of the products or services being developed, manufactured or sold by the Company, such invention and the benefits thereof shall immediately become the sole and absolute property of the Company provided the Company notifies me in reasonable detail within ninety (90) days after receipt of my disclosure of such invention that it believes such invention relates to the business of the Company or any of the products or services being developed, manufactured or sold by the Company. I also agree to transfer such inventions and benefits and rights resulting from such inventions to the Company without compensation and will communicate without cost, delay or prior publications all available information relating to the inventions to the Company. At the Company’s expense I will also, whether before or after termination of my employment, sign all documents (including patent applications) and do all acts and things that the Company may deem necessary or desirable to effect the full assignment to the Company of my right and title to the inventions or necessary to defend any opposition thereto. I also agree to assign to the Company all copyrights and reproduction rights to any materials prepared by me in connection with my employment.

4.        Conflicting Agreements . I represent that I have attached to this Agreement a copy of any written agreement, or a summary of any oral agreement, which presently affects my ability to comply with the terms of this Agreement, and that to the best of my knowledge my employment with the Company will not conflict with any agreement to which I am subject. I have returned all documents and materials belonging to any of my former employers. I will not disclose to the Company or induce any of the Company’s employees to use trade secrets or confidential information of any of my former employers.

5.        Protected Rights; Defend Trade Secrets Act . Nothing contained in this Agreement limits my ability to file a charge or complaint with the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other federal, state or local governmental agency or commission (collectively, “ Government Agencies ”), or prevents me from providing truthful testimony in response to a lawfully issued subpoena or court order.  Further, this Agreement does not limit my ability to communicate with any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information, without notice to the Company. I understand that under the Defend Trade Secrets Act: (a) no individual will be held criminally or civilly liable under federal or state trade secret law for disclosure of a trade secret (as defined in the Economic Espionage Act) that is (i) made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and made solely for the purpose of reporting or investigating a suspected violation of law; or (ii) made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal so that it is not made public; and (b) an individual who pursues a lawsuit for retaliation by an employer for reporting a suspected violation of the law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal, and does not disclose the trade secret, except as permitted by court order.

6.        Miscellaneous .

(a)       I hereby give the Company permission to use photographs of me, during my employment, with or without using my name, for any reasonable business purposes the Company deems necessary or desirable.

(b)       The Company shall have, in addition to any and all remedies of law, the right to an injunction, specific performance and other equitable relief as may be appropriate to prevent the violation of my obligations hereunder.

(c)       I understand that this Agreement does not create an obligation on the Company or any other person to continue my employment for any period of time.

(d)       This Agreement shall be construed in accordance with the laws of the State of Georgia. I agree that each provision of this Agreement shall be treated as a separate and independent clause, and the unenforceability of any clause shall in no way impair the enforceability of any of the other clauses. Moreover, if one or more of the provisions contained in this Agreement shall for any reason be held to be extensively broad as to scope, activity, time, geographical area or subject so as to be unenforceable at law, such provision or provisions shall be construed by the appropriate judicial body by limiting and reducing it or them so as to be enforceable to the maximum extent compatible with applicable law as it shall then appear.

(e)       My obligations under this Agreement shall survive the termination of my employment regardless of the manner of such termination for the time periods set forth in this Agreement, and shall be binding upon my heirs, executors and administrators.

(f)       The term “Company” as used in this Agreement includes Concurrent Computer Corporation and any of its subdivisions or affiliates. The Company shall have the right to assign this Agreement to its successors and assigns.

(g)       The foregoing is the entire agreement between the Company and me with regard to its subject matter, and may not be amended or supplemented except by a written instrument signed by both the Company and me. The section headings are inserted for convenience only, and are not intended to affect the meaning of this Agreement.

/s/ Wayne Barr, Jr.

Wayne Barr, Jr.