Exhibit 10.1

FORM OF

SECURITIES PURCHASE AGREEMENT

SECURITIES PURCHASE AGREEMENT (this “ Agreement ”), dated as of July 24, 2017 by and between SITO MOBILE, LTD. , a Delaware corporation (the “ Company ”), and the Investor set forth on the signature page affixed hereto (the “ Investor ”). Capitalized terms used herein and not otherwise defined herein are defined in Section 6 hereof.

WHEREAS: Subject to the terms and conditions set forth in this Agreement, the Company wishes to sell to the Investor, and the Investor wishes to buy from the Company, the number of units set forth on the signature page affixed hereto (the “ Units ”), with each Unit consisting of one share of the Company’s common stock, par value $0.001 per share (the “ Common Stock ”) and one warrant to purchase 0.25 shares of Common Stock (subject to adjustment) (each a “ Warrant Share ” and collectively, the “ Warrant Shares ”) at an exercise price of $6.25 per share (subject to adjustment) in the form attached hereto as Exhibit A (each a “ Warrant ” and collectively with the Common Stock, the “ Securities ”).

NOW THEREFORE , the Company and the Investor hereby agree as follows:

1.       PURCHASE OF SECURITIES.

Subject to the terms and conditions set forth in this Agreement, the Company and the Investor agree that the Company shall sell to the Investor, and the Investor shall purchase from the Company, the Units (with each Unit consisting of one share of Common Stock and one Warrant), and the Investor shall pay to the Company as the purchase price therefor, via wire transfer, the sum in cash set forth on the signature page hereto. The Common Stock, upon issuance and payment therefor as provided herein, shall be validly issued and fully paid and non-assessable. Upon the due exercise of the Warrants, the Warrant Shares will be validly issued, fully paid and non-assessable. The Company shall pay any and all transfer, stamp or similar taxes that may be payable with respect to the issuance and delivery of any Securities to the Investor under this Agreement. Unless otherwise mutually agreed between the Company and the Investor, the purchase of Securities shall be pursuant to a take-down off the Shelf Registration Statement (as defined in Section 4(a) hereto).

The obligations of the Company and the Investor hereunder are expressly conditioned upon the approval by the Board of Directors of the Company of the Transaction Documents and the offer and sale of Securities hereunder (the “ Board Approval ”). At any time prior to the Board Approval, the Investor may cancel and revoke this Agreement by notice to the Company and have no further obligations hereunder. If Board Approval has not occurred prior to August 1, 2017, the parties shall be released of all further obligations under this Agreement and this Agreement shall be of no further effect.

2.         INVESTOR’S REPRESENTATIONS AND WARRANTIES.

The Investor represents and warrants to the Company that as of the date hereof:

a.        Organization and Existence . The Investor, if the Investor is an entity, is a validly existing corporation, limited partnership or limited liability company and has all requisite corporate, partnership or limited liability company power and authority, and if the Investor is a natural person, all requisite power and authority, to invest in the Securities pursuant to this Agreement.

b.        Authorization . The execution, delivery and performance by the Investor of the Transaction Documents to which the Investor is a party have been duly authorized and each will constitute the valid and legally binding obligation of the Investor, enforceable against the Investor in accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability, relating to or affecting creditors’ rights generally.

c.        Purchase Entirely for Own Account . The Securities to be received by the Investor hereunder will be acquired for the Investor’s own account, not as nominee or agent, and not with a view to the resale or distribution of any part thereof in violation of the 1933 Act, and the Investor has no present intention of selling, granting any participation in, or otherwise distributing the same in violation of the 1933 Act without prejudice, however, to the Investor’s right at all times to sell or otherwise dispose of all or any part of such Securities in compliance with applicable federal and state securities laws . Nothing contained herein shall be deemed a representation or warranty by the Investor to hold the Securities for any period of time. Neither the Investor nor any Affiliate of the Investor is a broker-dealer registered with the SEC under the 1934 Act or an entity engaged in a business that would require it to be so registered.

d.        Investment Experience . The Investor acknowledges that it can bear the economic risk and complete loss of its investment in the Securities and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment contemplated hereby.

e.        Disclosure of Information . The Investor has had an opportunity to receive all information related to the Company requested by it and to ask questions of and receive answers from the Company regarding the Company, its business and the terms and conditions of the offering of the Securities. The Investor acknowledges the availability the Company’s most recent Annual Report on Form 10-K for the fiscal year ended December 31, 2016 (the “ 10-K ”), and all other reports filed by the Company pursuant to the 1934 Act since the filing of the 10-K and prior to the date hereof (collectively, the “ SEC Filings ”) on the SEC’s website at www.sec.gov. Neither such inquiries nor any other due diligence investigation conducted by the Investor shall modify, limit or otherwise affect the Investor’s right to rely on the Company’s representations and warranties contained in this Agreement.

f.        Accredited Investor . The Investor is, and on the date the Investor exercises any of its Warrants it will be, an accredited investor as defined in Rule 501(a) of Regulation D, as amended, under the 1933 Act, as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act.

g.        No General Solicitation . The Investor did not learn of the investment in the Securities as a result of any general solicitation or general advertising.

h.        Brokers and Finders . No Person will have, as a result of the transactions contemplated by the Transaction Documents, any valid right, interest or claim against or upon the Company, any Subsidiary or the Investor for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of the Investor.

i.         Trading Price . The Investor acknowledges that while the per share purchase price has been determined through negotiations with third-party unaffiliated investors, the Company’s stock is thinly traded, and accordingly the trading price of the Company’s stock may not accurately reflect the current value of the Company.

3.         REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company represents and warrants to the Investor that as of the date hereof:

a.        Organization, Good Standing and Qualification . Each of the Company and its Subsidiaries is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all requisite corporate power and authority to carry on its business as now conducted and to own or lease its properties. Each of the Company and its Subsidiaries is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property makes such qualification or leasing necessary unless the failure to be in good standing or so qualify has not had and could not reasonably be expected to have a Material Adverse Effect.

b.        Authorization . Upon the Board Approval, the Company will have all corporate power and authority and will have taken all requisite action on the part of the Company, its officers, directors and stockholders necessary for (i) the authorization, execution and delivery of the Transaction Documents, (ii) the authorization of the performance of all obligations of the Company hereunder or thereunder, and (iii) the authorization, issuance (or reservation for issuance) and delivery of the Securities Upon the Board Approval, this Agreement will constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability, relating to or affecting creditors’ rights generally and to general equitable principles.

c.        Valid Issuance . The shares of Common Stock have been duly and validly authorized and, when issued and paid for pursuant to this Agreement, will be validly issued, fully paid and nonassessable, and shall be free and clear of all encumbrances and restrictions (other than those created by the Investor or similar investors), except for restrictions on transfer set forth in the Transaction Documents or imposed by applicable securities laws. The Warrants have been duly and validly authorized. Upon the due exercise of the Warrants, the Warrant Shares will be validly issued, fully paid and non-assessable free and clear of all encumbrances and restrictions, except for restrictions on transfer set forth in the Transaction Documents or imposed by applicable securities laws and except for those created by the Investor or similar investors in the Offering. The Company has reserved a sufficient number of shares of Common Stock for issuance upon the exercise of the Warrants.

d.        Consents . Upon the Board Approval, the execution, delivery and performance by the Company of the Transaction Documents and the offer, issuance and sale of the Securities will require no consent of, action by or in respect of, or filing with, any Person, governmental body, agency, or official other than filings that have been made pursuant to applicable state securities laws and Principal Market listing requirements and post-sale filings pursuant to applicable state and federal securities laws that the Company undertakes to file within the applicable time periods. Subject to the accuracy of the representations and warranties of the Investor set forth in Section 5 hereof, the Company has taken all action necessary to exempt (i) the issuance and sale of the Securities, (ii)  issuance of the Warrant Shares upon due exercise of the Warrants, and (iii) the other transactions contemplated by the Transaction Documents from the provisions of any stockholder rights plan or other “poison pill” arrangement, any anti-takeover, business combination or control share law or statute binding on the Company or to which the Company or any of its assets and properties may be subject and any provision of the Company’s Certificate of Incorporation or Bylaws that is or could reasonably be expected to become applicable to the Investor as a result of the transactions contemplated hereby, including without limitation, the issuance of the Securities and the ownership, disposition or voting of the Securities by the Investor or the exercise of any right granted to the Investor pursuant to this Agreement or the other Transaction Documents.

e.        SEC Filings; Financial Statements . The SEC Filings are the only filings required of the Company pursuant to the 1934 Act for such period. At the time of filing thereof, the SEC Filings complied as to form in all material respects with the requirements of the 1934 Act and did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The financial statements included in each SEC Filing comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing (or to the extent corrected by a subsequent restatement) and present fairly, in all material respects, the consolidated financial position of the Company as of the dates shown and its consolidated results of operations and cash flows for the periods shown, and such financial statements have been prepared in conformity with United States generally accepted accounting principles applied on a consistent basis (except as may be disclosed therein or in the notes thereto, and, in the case of quarterly financial statements, except for normal year-end audit adjustments and as otherwise as permitted by Form 10-Q under the 1934 Act).

f.        No Conflict, Breach, Violation or Default . The execution, delivery and performance of the Transaction Documents by the Company and the issuance and sale of the Securities will not (i) conflict with or result in a breach or violation of (a) any of the terms and provisions of, or constitute a default under the Company’s Certificate of Incorporation or the Company’s Bylaws, both as in effect on the date hereof (true and complete copies of which have been made available to the Investor through the EDGAR system), or (b) any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company, any Subsidiary or any of their respective assets or properties, except as which have not had and could not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any lien, encumbrance or other adverse claim upon any of the properties or assets of the Company or any Subsidiary or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any Material Contract, except as which have not had and could not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate.

g.        Litigation . Except as described in the SEC Filings or in the Prospectus, there are no pending actions, suits or proceedings against or affecting the Company, its Subsidiaries or any of its or their properties; which pending actions, suits or proceedings has had or could reasonably be expected to have a Material Adverse Effect, individually or in the aggregate and to the Company’s Knowledge, no such actions, suits or proceedings are threatened.

h.        Registration Statement . The Shelf Registration Statement has been declared effective by the SEC, and no stop order has been issued or is pending or, to the Company’s Knowledge, threatened by the SEC with respect thereto. As of the date hereof, the Company has a dollar amount of securities registered and unsold under the Shelf Registration Statement, which is not less than the amount necessary to register the Securities on the date hereof.

4.         COVENANTS.

a.        Filing of Form 8-Ks and Prospectus Supplements . The Company agrees that it shall, within the time required under the 1934 Act, file any Current Report on Form 8-K disclosing this Agreement and the transaction contemplated hereby. The Company shall file within two (2) Business Days from the date hereof a prospectus supplement to the Company’s existing shelf registration statement on Form S-3 (File No. 333-213221, the “ Shelf Registration Statement ”) covering the sale of the Units (the “ Prospectus Supplement ”). The Shelf Registration Statement (including any amendments or supplements thereto and prospectuses or prospectus supplements, including the Prospectus Supplement, contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.

b.        Blue Sky . The Company shall take such action, if any, as is reasonably necessary in order to obtain an exemption for or to qualify (i) the sale of the Securities to the Investor under this Agreement and (ii) any subsequent sale of the Securities by the Investor, in each case, under applicable securities or “Blue Sky” laws of the states of the United States in such states as is reasonably requested by the Investor from time to time, and shall provide evidence of any such action so taken to the Investor.

c.        Listing . The Company shall promptly secure the listing of all of the shares of Common Stock and Warrant Shares upon each national securities exchange and automated quotation system that requires an application by the Company for listing, if any, upon which shares of Common Stock are then listed (subject to official notice of issuance) and shall maintain such listing, so long as any other shares of Common Stock shall be so listed. The Company shall pay all fees and expenses in connection with satisfying its obligations under this Section.

5.         TRANSFER AGENT INSTRUCTIONS.

All of the Common Stock to be issued under this Agreement shall be issued without any restrictive legend. The Company shall issue irrevocable instructions to the Transfer Agent, and any subsequent transfer agent, to issue Common Stock in the name of the Investor for the Securities (the “ Irrevocable Transfer Agent Instructions” ). The Company warrants to the Investor that no instruction other than the Irrevocable Transfer Agent Instructions referred to in this Section 5, will be given by the Company to the Transfer Agent with respect to the Common Stock and the Common Stock shall otherwise be freely transferable on the books and records of the Company as and to the extent provided in this Agreement.

6.         CERTAIN DEFINED TERMS.

For purposes of this Agreement, the following terms shall have the following meanings:

“ 1933 Act ” means the Securities Act of 1933, as amended.

“ 1934 Act ” means the Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated thereunder.

“ Affiliate ” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries Controls, is controlled by, or is under common control with, such Person.

“ Business Day ” means any day on which the Principal Market is open for trading during normal trading hours (i.e., 9:30 a.m. to 4:00 p.m. Eastern Time), including any day on which the Principal Market is open for trading for a period of time less than the customary time.

“ Company’s Knowledge ” means the actual knowledge of the executive officers (as defined in Rule 405 under the 1933 Act) of the Company, after due inquiry.

“ Material Adverse Effect ” means a material adverse effect on (i) the assets, liabilities, results of operations, condition (financial or otherwise) or business of the Company and its Subsidiaries taken as a whole, or (ii) the ability of the Company to perform its obligations under the Transaction Documents.

“ Material Contract ” means any contract, instrument or other agreement to which the Company or any Subsidiary is a party or by which it is bound that is material to the business of the Company and its Subsidiaries, taken as a whole, including those that have been filed or were required to have been filed as an exhibit to the SEC Filings pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K.

“ Person ” means an individual or entity including any limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

“ Principal Market ” means the NASDAQ Capital Market.

“ SEC ” means the United States Securities and Exchange Commission.

“ Subsidiary ” of any Person means another Person, an amount of the voting securities, other voting ownership or voting partnership interests of which is sufficient to elect at least a majority of its Board of Directors or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of which) is owned directly or indirectly by such first Person.

“ Transaction Documents ” means this Agreement and the Warrants.

“ Transfer Agent ” means the transfer agent of the Company or such other person who is then serving as the transfer agent for the Company in respect of the Common Stock.

7 .          MISCELLANEOUS.

(a)       Governing Law; Jurisdiction; Jury Trial . This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to the choice of law principles thereof. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the courts of the State of New York located in New York County and the United States District Court for the Southern District of New York for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby. Service of process in connection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the parties hereto irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.

(b)       Counterparts . This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party; provided that a facsimile or pdf (or other electronic reproduction) signature shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original, not a facsimile or pdf (or other electronic reproduction) signature.

(c)       Headings . The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement.

(d)       Severability . If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any provision of this Agreement in any other jurisdiction.

(e)       Entire Agreement . This Agreement supersedes all other prior oral or written agreements between the Investor, the Company, their affiliates and persons acting on their behalf with respect to the matters discussed herein, and this Agreement and the documents and instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the Investor makes any representation, warranty, covenant or undertaking with respect to such matters. The Company acknowledges and agrees that is has not relied on, in any manner whatsoever, any representations or statements, written or oral, other than as expressly set forth in this Agreement.

(f)        Notices . Any notices, consents or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); (iii) upon receipt, when sent by electronic message (provided the recipient responds to the message and confirmation of both electronic messages are kept on file by the sending party); or (iv) one (1) Business Day after timely deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers for such communications shall be:

If to the Company:  

SITO Mobile, Ltd.

The Newport Corporate Center, 100 Town

Square Place, Suite 204

Jersey City, NJ 07310

Attention: Chief Financial Officer

E-mail: mark.delpriore@sitomobile.com

With a copy (which shall not constitute notice) to:

Pepper Hamilton LLP

620 Eighth Avenue, 37 ^th Floor

New York, New York 10018-1405

Attention: Andrew Hulsh

E-mail: hulsha@pepperlaw.com

If to the Investor: to the addresses set forth on the signature pages hereto.

or at such other address and/or facsimile number and/or to the attention of such other person as the recipient party has specified by written notice given to each other party one (1) Business Day prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of such notice, consent or other communication, (B) mechanically or electronically generated by the sender’s facsimile machine containing the time, date, and recipient facsimile number, (C) electronically generated by the sender’s electronic mail containing the time, date and recipient email address or (D) provided by a nationally recognized overnight delivery service, shall be rebuttable evidence of receipt in accordance with clause (i), (ii), (iii) or (iv) above, respectively.

(g)       Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. The Company shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Investor, including by merger or consolidation. The Investor may not assign their rights or obligations under this Agreement.

(h)       No Third Party Beneficiaries . This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.

(i)        Publicity . The Investor shall have the right to approve before issuance any press release, SEC filing or any other public disclosure made by or on behalf of the Company whatsoever with respect to, in any manner, the Investor, their purchases hereunder or any aspect of this Agreement or the transaction contemplated hereby; provided, however, that the Company shall be entitled, without the prior approval of the Investor, to make any press release or other public disclosure (including any filings with the SEC) with respect to such transactions as is required by applicable law and regulations so long as the Company and its counsel consult with the Investor in connection with any such press release or other public disclosure at least one (1) Business Day prior to its release. The Investor must be provided with a copy thereof at least one (1) Business Day prior to any release or use by the Company thereof.

(j)        Further Assurances . Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transaction contemplated hereby.

(k)       Survival . The representations and warranties of the Company and the Investor contained in Sections 2, 3 and 5 hereof, and the agreements and covenants set forth in Sections 4 and 7 hereof, shall survive the execution of this Agreement and the transaction contemplated herein or any termination of this Agreement.

(l)        No Strict Construction . The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.

(m)      Failure or Indulgence Not Waiver . No failure or delay in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege.

* * * * *

IN WITNESS WHEREOF, the Investor and the Company have caused this Securities Purchase Agreement to be duly executed as of the date first written above.

[ Signature Page to Securities Purchase Agreement ]

INVESTOR:

Any necessary wire/delivery instructions (please consult your broker or financial advisor):

[ Signature Page to Securities Purchase Agreement ] 

Exhibit 10.2

EMPLOYMENT AGREEMENT

EMPLOYMENT AGREEMENT (the “ Agreement ”) dated as of July 24, 2017 (the “ Effective Date ”) by and between SITO MOBILE, LTD., a Delaware corporation (the “ Company ”) and MARK DEL PRIORE (the “ Executive ”). The Company and Executive are sometimes hereinafter referred to individually as a “ party ” and collectively as the “ parties .”

RECITALS

A. Executive is currently employed as the Company’s Chief Financial Officer.

B. The Company and Executive wish to memorialize their understanding and agreement with respect to their employment relationship, upon the terms and subject to the conditions set forth in this Agreement.

Accordingly, in consideration of the foregoing and the mutual covenants herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:

1.  Duration of Agreement . This Agreement is effective as of the Effective Date and has no specific expiration date. Unless terminated by agreement of the parties, this Agreement will govern Executive’s employment by the Company until that employment ceases.

2.  Title; Duties . Executive will be employed as the Company’s Chief Financial Officer, and shall report to the Company’s Chief Executive Officer. Executive’s employment by the Company shall be full-time and exclusive, and Executive shall devote all of his business time, attention and services to the Company and its subsidiaries and affiliates (collectively, the “ Company Group ”) and shall perform such duties as may be customarily incident to his position as Chief Operating Officer and as may reasonably be assigned to him by the Company’s Chief Executive Officer from time to time. Executive will not, in any capacity, engage in other business activities or perform services for any other individual, firm or corporation without the prior written consent of the Company; provided that without such consent, Executive may engage in charitable, non-profit and public service activities and manage his passive personal and family investments, so long as such activities do not in any respect interfere or conflict with Executive’s duties and obligations to the Company hereunder or violate any restrictive covenants to which Executive has agreed.

3.  Place of Performance . Executive will perform his services hereunder at the principal executive offices of the Company, which are presently located in Jersey City, New Jersey, (or the location of any other principal executive offices of the Company that may be established during the term of Executive’s employment hereunder) or by telecommuting when Executive is not physically located in Jersey City, New Jersey (or such other location where the Company’s principal executive offices may hereafter be located); provided that Executive will be required to travel from time to time for business purposes.

4.  Compensation and Benefits .

4.1.  Base Salary . Executive’s annual salary will be $225,000 (the “ Base Salary ”), paid in accordance with the Company’s payroll practices as in effect from time to time. The Base Salary will be reviewed annually by the Compensation Committee (the “ Compensation Committee ”) of the Company’s Board of Directors (the “ Board ”) and may be increased, but not decreased.

4.2.  Annual Bonuses .

4.2.1. For each fiscal year ending during his employment, Executive will be eligible to earn an annual cash bonus (the “ Cash Bonus ”).

4.2.2. For the fiscal year ending December 31, 2017, the Cash Bonus shall be based on a percentage of the Base Salary and determined as follows:

For example , if (i) the Company’s total revenues for the six-month period ending December 31, 2017 are equal to or greater than 22.5 million and (ii) the Company executes three Data Deals during the six-month period beginning July 1, 2017 and ending December 31, 2017, Executive shall be paid a Cash Bonus of an aggregate of 100% of his Base Salary, or $225,000. In this Section 4.2 , the term “ Data Deal ” shall means either the sourcing of new data or data models which are not generally available in the data brokerage ecosystem and which are then available for inclusion in the Company’s data analytics, included in the Company’s sales packages and solutions for clients, or used to create new avenues of the Company’s analytic results for client leverage; or the packaging of the Company’s data models, analytics, and insights for direct inclusion in sales and solutions to clients.  Additionally, the multi-year licensing of the Company’s data assets to third parties for inclusion in their data and marketing assets and for which the Company’s receives periodic licensing revenue and for which the Company must provide periodic data updates shall constitute a Data Deal.

While there is no monetary value specificity assigned to Data Deals as they may be folded into a larger transaction, a Data Deal must represent a recognizable accretion of the Company’s sales value within the transaction, or key purpose for the transaction, or source and value of data because of the data inclusion.

4.2.3. Commencing January 1, 2018, the targets for a Cash Bonus and the amount of the actual Cash Bonus payable with respect to a particular year will be determined by the Compensation Committee, based on the achievement of corporate and/or individual performance objectives to be established by the Compensation Committee in consultation with Executive. Any Cash Bonus payable under this Section 4.2 will be paid commensurate with the Company’s normal policies pertaining to the payment of bonuses; provided that such payments shall be made in full as soon as practicable following completion of the Company’s audit for the most recently-completed fiscal year and the filing of the Company’s annual report on Form 10-K relating to such fiscal year, but in no event after the first six months of the calendar year immediately following the fiscal year in respect of which the performance thresholds relating to such Cash Bonus have been satisfied and, except as otherwise specifically provided in this Agreement, will only be paid if Executive remains continuously employed by the Company through the actual Cash Bonus payment date.

4.2.4. For purposes of determining any Cash Bonus payable to Executive with respect to periods after December 31, 2017, the measurement of corporate and individual performance will be performed by the Compensation Committee in good faith. From time to time, the Compensation Committee may, in its sole discretion, make adjustments to corporate or individual performance goals, so that required departures from the Company’s operating budget, changes in accounting principles, acquisitions, dispositions, mergers, consolidations and other corporate transactions, and other factors influencing the achievement or calculation of such goals do not affect the operation of this provision in a manner inconsistent with its intended purposes.

4.3.  Equity Incentive Awards .

4.3.1. Executive shall be eligible to receive equity-based compensation commensurate with his position in connection with any annual equity-based awards made to senior executives of the Company. Such awards shall be made in the sole discretion of the Compensation Committee and shall be subject to the terms and conditions set forth in, as applicable, the Company’s 2008 Stock Option Plan or 2010 Stock Plan (collectively, the “ Equity Incentive Plans ”) (or other applicable equity incentive or compensation plan) and award agreements, and in all cases shall be as determined by the Compensation Committee.

4.3.2. As soon as practicable following the Effective Date, Executive will be granted the following awards (the “ Initial Grants ”) under and subject to the Equity Incentive Plans (including, without limitation, the extent to which the shares underlying the RSU Award and the Option Award (as such terms are defined in Section 4.3(a) and Section 4.3(b) , respectively) are available under the Equity Incentive Plans:

(a) a restricted stock unit award (the “ RSU Award ”) to receive up to an aggregate of 225,468 shares (the “ RSU Shares ”) of the Company’s common stock, par value $0.001 per share (“ Common Stock ”), based on the closing price of the Common Stock on NASDAQ (or any other exchange on which the Common Stock may then be traded) for a period of at least 65 consecutive trading days, determined as follows:

(b) an option to purchase an aggregate of 100,000 shares of Common Stock (the “ Option Award ”) at a per share exercise price equal to the closing price of the Common Stock on NASDAQ on the date of grant). Subject to Executive’s continued employment with the Company, 25% of the Option Award will vest on the first anniversary of the Effective Date and the remainder will vest in substantially equal quarterly installments during the three-year period commencing on the first anniversary of the Effective Date.

The RSU Award and Option Award will otherwise be subject to the terms and conditions of the Equity Compensation Plans and award agreements evidencing such grants.

4.4.  Employee Benefits . During Executive’s employment, Executive and Executive’s spouse and dependents, to the extent they are eligible, will be entitled to participate in all employee benefit plans and programs made available by the Company from time to time to employees generally, subject to applicable plan terms and policies. The Company periodically reviews its benefits, policies, benefits providers and practices and may terminate, alter or change them at its discretion from time to time.

4.5.  Reimbursement of Expenses . Executive will be reimbursed by the Company for all reasonable business expenses incurred by Executive in accordance with the Company’s customary expense reimbursement policies as in effect from time to time. Notwithstanding anything herein to the contrary, to the extent any expense, reimbursement or in-kind benefit provided to Executive constitutes a “deferral of compensation” within the meaning of Section 409A of the Internal Revenue Code (the “ Code ”) (i) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive must be incurred during Executive’s term of employment; (ii) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in any other calendar year, (iii) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred and (iv) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit.

5.  Termination . Either party may terminate Executive’s employment with the Company at any time and for any reason; provided that in the case of a resignation by Executive, Executive will provide at least thirty (30) days advance written notice of any such resignation; and provided further that following receipt of Executive’s advance notice of resignation, the Company may waive all or any portion of the remaining notice period and accept Executive’s resignation immediately. Upon any cessation of his employment with the Company, Executive will be entitled only to such compensation and benefits as described in this Section 5 . Upon any cessation of his employment for any reason, unless otherwise requested by the Company, Executive agrees to resign immediately from all officer and director positions he then holds with the Company or any of its affiliates.

5.1.  Termination by the Company without Cause or Termination by Executive for Good Reason . If Executive’s employment by the Company ceases due to a termination by the Company without Cause (as defined below) or a resignation by Executive for Good Reason (as defined below), Executive will be entitled to receive, subject to the execution and delivery by Executive of a Release (as defined below):

5.1.1. continuation of Executive’s Base Salary for a period equal to twelve months following the effective date of the termination of Executive by the Company without Cause or the resignation by Executive for Good Reason (the “ Involuntary Termination Date ”), payable in accordance with the Company’s standard payroll practices;

5.1.2. an amount equal to a cash bonus equal to 100% of Executive’s Base Salary prevailing on the Involuntary Termination Date, which amount shall be paid in the year following employment termination at the time annual bonuses are paid to the Company’s other senior executives;

5.1.3. accelerated vesting of 100% of the Option Award;

5.1.4. except as provided in Section 5.2 , accelerated vesting of the portion of the RSU Award that has not issued (the “ Unissued RSU Award ”) as of the Involuntary Termination Date, as follows:

(a) If the Involuntary Termination Date occurs on or before the first anniversary of the Effective Date, then 25% of the Unissued RSU Award shall accelerate and vest;

(b) If the Involuntary Termination Date occurs after the first anniversary of the Effective Date, but on or before the second anniversary of the Effective Date, then 50% of the Unissued RSU Award shall accelerate and vest;

(c) If the Involuntary Termination Date occurs after the second anniversary of the Effective Date, but on or before the third anniversary of the Effective Date, then 75% of the Unissued RSU Award shall accelerate and vest; and

(d) If the Involuntary Termination Date occurs after the third anniversary of the Effective Date, but on or before the fourth anniversary of the Effective Date, then 100% of the Unissued RSU Award shall accelerate and vest.

5.1.5. waiver of the applicable premium otherwise payable for COBRA continuation coverage for Executive (and, to the extent covered immediately prior to the date of such cessation, his spouse and eligible dependents) for a period equal to twelve months. The amounts specified in Sections 5.1.1 , 5.1.2 , 5.1.3 , 5.1.4 and 5.1.5 are referred to herein as the “ Severance Benefits .”

Except as otherwise provided in this Section 5.1 , and except for payment of (i) all accrued and unpaid Base Salary through the date of such termination or cessation, (ii) any expense reimbursements to be paid in accordance with the Company’s policies and Section 4.5 ; and (iii) payments for any accrued but unused paid time off in accordance with the Company’s policies and applicable law (the amounts specified in the foregoing subparagraphs (i)-(iii) of this paragraph are referred to herein as the “ Accrued Obligations ”), all compensation and benefits will cease at the time of such cessation and the Company will have no further liability or obligation by reason of such cessation. The payments and benefits described in this Section 5.1 are in lieu of, and not in addition to, any other severance arrangement maintained by the Company. Notwithstanding any provision of this Agreement, the payments and benefits described in Section 5.1 are conditioned on: (a) Executive’s execution and delivery to the Company and the expiration of all applicable statutory revocation periods, by the 45 ^th day following the effective date of his cessation of employment, of a general release of claims against the Company and its affiliates (other than a release of claims under this Agreement) in a form reasonably prescribed by the Company (the “ Release ”); and (b) Executive’s continued compliance with the Restrictive Covenants (as defined below). Subject to Section 5.4 , below, the benefits described in Section 5.1 will be paid or provided (or begin to be paid or provided) as soon as administratively practicable (or determinable in the case of the benefits described in Section 5.1.1 , if later) after the Release becomes irrevocable, provided that if the 45-day period described above begins in one taxable year and ends in a second taxable year such payments or benefits shall not commence until the second taxable year.

5.2.  Termination Following a Change in Control . Notwithstanding Section 5.1.4 , If Executive’s employment by the Company ceases due to a termination by the Company without Cause or a resignation by Executive for Good Reason during the twelve (12) month period immediately following the occurrence of a Change in Control (as defined below), (a) all unvested restricted stock, stock options and other equity incentives awarded to Executive by the Company will become immediately and automatically fully vested and exercisable (as applicable); provided that in the event the Change of Control involves a merger, consolidation or other transaction, the RSU Shares shall be issued to Executive based on the price or value ascribed to each share of Common Stock in such transaction, without regard to whether such price or value is maintained for a period of 65 days or any other period of time, and, subject to the foregoing, the Company will be required to pay Executive the Severance Benefits and the Accrued Obligations. In the event that RSU Shares may be issued under Section 5.1.4 or this Section 5.2 , Executive shall have the ability to elect to receive the greater number of RSU Shares under either of such Sections. For example , if (i) Executive is terminated without Cause on a date that is six months following a Change of Control of the Company; (ii) such Change of Control involves the acquisition of more than 50% of the outstanding Common Stock for a price of $7.50 per share; (iii) such termination occurs 13 months after the Effective Date; and (iv) prior to the time of such Change of Control, no RSU Shares have been granted to Executive, then a total of 56,367 RSU Shares, or 25% of the RSU Award, would be available for grant to Executive under Section 5.1.4 , and a total of 45,093.6 RSU Shares would be available for grant to Executive under this Section 5.2 , in which case the Executive would have the ability to receive the higher of such amount, or 56,367 RSU Shares.

5.3.  Termination for any other Reason . If Executive’s employment by the Company ceases for any reason other than as described in Section 5.1 above (including, but not limited to, termination (a) by the Company for Cause, (b) by Executive other than for Good Reason, (c) as a result of Executive’s death, or (d) as a result of Executive’s Disability (as defined in Section 5.9.3 )), then the Company’s obligation to Executive will be limited solely to the Accrued Obligations. All compensation and benefits will cease at the time of such termination and, except as otherwise provided by COBRA, the Company will have no further liability or obligation by reason of such termination.

5.4.  No Limitation of Certain Claims for Payment or Reimbursement . The foregoing will not be construed to limit Executive’s right to payment or reimbursement for claims incurred prior to the date of such termination under any insurance contract funding an employee benefit plan, policy or arrangement of the Company in accordance with the terms of such insurance contract.

5.5.  Compliance with Section 409A . If the termination giving rise to the payments described in Section 5.1 is not a “Separation from Service” within the meaning of Treas. Reg. § 1.409A-1(h)(1) (or any successor provision), then the amounts otherwise payable pursuant to that section will instead be deferred without interest and will not be paid until Executive experiences a Separation from Service. To the maximum extent permitted under Section 409A of the Code and its corresponding regulations, the cash severance benefits payable under this Agreement are intended to meet the requirements of the short-term deferral exemption under Section 409A of the Code and the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii). To the extent compliance with the requirements of Treas. Reg. § 1.409A-3(i)(2) (or any successor provision) is necessary to avoid the application of an additional tax under Section 409A of the Internal Revenue Code to payments due to Executive upon or following his Separation from Service, then notwithstanding any other provision of this Agreement (or any otherwise applicable plan, policy, agreement or arrangement), any such payments that are otherwise due within six months following Executive’s Separation from Service (taking into account the preceding sentence of this paragraph) will be deferred without interest and paid to Executive in a lump sum immediately following that six month period. For purposes of the application of Treas. Reg. § 1.409A-1(b)(4) (or any successor provision), each payment in a series of payments will be deemed a separate payment. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.

5.6.  PPACA . Notwithstanding anything in this Agreement to the contrary, the waiver in respect of COBRA premiums pursuant to this Agreement shall cease to the extent required to avoid adverse consequences to the Company under the Patient Protection and Affordable Care Act of 2010 and regulations thereunder.

5.7.  Section 280G . If any payment or distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement or the lapse or termination of any restriction on or the vesting or exercisability of any payment or benefit (each a “ Payment ”), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law (such tax or taxes are hereafter collectively referred to as the “ Excise Tax ”), then the aggregate amount of Payments payable to Executive shall be reduced to the aggregate amount of Payments that may be made to Executive without incurring an excise tax (the “ Safe-Harbor Amount ”) in accordance with the immediately following sentence; provided that such reduction shall only be imposed if the aggregate after-tax value of the Payments retained by Executive (after giving effect to such reduction) is equal to or greater than the aggregate after-tax value (after giving effect to the Excise Tax) of the Payments to Executive without any such reduction. Any such reduction shall be made in the following order: (i) first, any future cash payments (if any) shall be reduced (if necessary, to zero); (ii) second, any current cash payments shall be reduced (if necessary, to zero); (iii) third, all non-cash payments (other than equity or equity derivative related payments) shall be reduced (if necessary, to zero); and (iv) fourth, all equity or equity derivative payments shall be reduced.

5.8.  Return of Company Property . Not later than seven (7) days following the effective date of any cessation of Executive’s employment, Executive will return all property of the Company Group in Executive’s possession or control, including, but not limited to, all Company-owned computer equipment (hardware and software), telephones, tablet computers and other electronic devices, credit cards, office keys, security access cards, badges, identification cards and all documentation, materials or information (however stored) relating to the business of the Company Group or any of their customers or prospective customers. In doing this, Executive will make a diligent search of his personal computers and other devices and of his personal email and cloud storage accounts for any Company property or Proprietary Information (as defined in Section 6.4.3 ). If these devices or accounts contain Company property or Proprietary Information, then Executive will transmit those files to the Company or its designee and permanently delete those files from his devices and accounts, without retaining copies or excerpts.

5.9.  Definitions . For purposes of this Agreement:

5.9.1. “ Cause ” means (a) alcohol abuse or the use of controlled drugs (other than in accordance with a physician’s orders); (b) Executive’s repeated or substantial refusal, failure, or inability to perform (other than due to illness or disability), or gross negligence or willful misconduct in the performance of , his duties; (c) material breach of any agreement with or duty owed to the Company or its affiliates, which breach (if curable) remains uncured thirty (30) days after receipt of written notice thereof; (d) conduct of Executive involving dishonesty adversely affecting the Company or any of its affiliates, including fraud, embezzlement, theft or other misuse of property; (e) any commission of or entrance of a plea of guilty or nolo contendere to a felony, any crime of moral turpitude or any other crime that materially and adversely affects the operations, financial performance or customer relationships of the Company or its affiliates, or (f) a material violation of any written policy of the Company or its affiliates in effect from time to time, including, without limitation, policies relating to discrimination, harassment, fraternization and nepotism.

5.9.2. “ Change in Control ” means, unless such term or an equivalent term is otherwise defined with respect to the RSU Award or the Option Award in the grant agreement between the Company and Executive, the occurrence of any of the following events:

(a) any “person” or “group,” (as such terms are defined and applied in Section 13(d) of the Securities Exchange Act of 1934 (the “ Exchange Act ”)) becomes (directly or indirectly) the “beneficial owner” (within the meaning of Rule 13d-3 promulgated under the Exchange Act), of the voting securities of the Company representing more than 50% of the total issued and outstanding voting securities of the Company; provided that the following acquisitions shall not constitute a Change in Control:

(i) an acquisition by any such person or group who on the Effective Date is the beneficial owner of more than fifty percent (50%) of such voting power;

(ii) any acquisition directly from the Company, including, without limitation, a public offering of securities;

(iii) any acquisition by the Company; or

(iv) any acquisition by an entity owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the voting securities of the Company; or

(b) an Ownership Change Event or series of related Ownership Change Events (collectively, a “ Transaction ”) in which the stockholders of the Company immediately before the Transaction do not retain immediately after the Transaction direct or indirect beneficial ownership of more than fifty percent (50%) of the total combined voting power of the outstanding securities entitled to vote generally in the election of Directors or, in the case of an Ownership Change Event described in clause (iii) of the definition thereof, the entity to which the assets of the Company were transferred, as the case may be; or

(c) a majority of the Board consists of individuals other than “Incumbent Directors,” which term means the members of the Board on the Effective Date; provided that any individual becoming a director subsequent to such date whose election or nomination for election was supported by two-thirds of the directors who then comprised the Incumbent Directors shall be considered to be an Incumbent Director; or

(d) the Board adopts any plan for the liquidation or dissolution of all or substantially all of the Company’s assets or business, or liquidation or dissolution of the Company which is not pursuant to a plan adopted by the Board; or

(e) all or substantially all of the assets or business of the Company is disposed of pursuant to a merger, consolidation or other transaction (unless the stockholders of the Company immediately prior to such merger, consolidation or other transaction beneficially own, directly or indirectly, in substantially the same proportion as they owned the voting securities of the Company, all of the voting securities or other ownership interests of the entity or entities, if any, that succeed to the business of the Company); or

(f) the Company combines with another company and is the surviving corporation but, immediately after the combination, the holders of voting securities of the Company immediately prior to the combination hold, directly or indirectly, 50% or less of the voting securities (measured by number of votes entitled to be cast) of the combined company (there being excluded from the number of shares held by such stockholders, but not from the voting securities of the combined company, any shares received by affiliates of such other company in exchange for stock of such other company).

5.9.3. “ Disability ” means a condition entitling Executive to benefits under the Company’s long term disability plan, policy or arrangement; provided that if no such plan, policy or arrangement is then maintained by the Company and applicable to Executive, “ Disability ” will mean Executive’s inability to perform his duties under this Agreement due to a mental or physical condition that can be expected to result in death or that can be expected to last (or has already lasted) for a continuous period of 90 days or more, or for 120 days in any 180 consecutive day period. Termination as a result of a Disability will not be construed as a termination by the Company “without Cause.”

5.9.4. “ Good Reason ” means any of the following, without Executive’s prior consent: (a) a constructive termination involving a material diminution of Executive’s duties or authority with the Company, reporting relationships or the assignment of duties and responsibilities inconsistent with Executive’s position with the Company; (b) a reduction in, or failure to pay when due, Base Salary; or (c) the Company requires a physical transfer or relocation of Executive to a location fifty (50) miles or more from Executive’s work location as it existed on the Effective Date in order for Executive to continue to perform his duties and responsibilities under this Agreement. However, none of the foregoing events or conditions will constitute Good Reason unless Executive provides the Company with written objection to the event or condition within 30 days following the occurrence thereof, the Company does not reverse or otherwise cure the event or condition within 30 days of receiving that written objection, and Executive resigns Executive’s employment within 30 days following the expiration of that cure period. Notwithstanding the foregoing and for the avoidance of doubt, a diminution of Executive’s title, alone, as a result of Change in Control shall not constitute Good Reason.

5.9.5. “ Ownership Change Event ” means the occurrence of any of the following with respect to the Company: (i) the direct or indirect sale or exchange in a single or series of related transactions by the stockholders of the Company of more than fifty percent (50%) of the voting stock of the Company; (ii) a merger or consolidation in which the Company is a party; or (iii) the sale, exchange, or transfer of all or substantially all of the assets of the Company (other than a sale, exchange or transfer to one or more subsidiaries of the Company).

6.  Restrictive Covenants . To induce the Company to enter into this Agreement and in recognition of the compensation to be paid to Executive pursuant to Sections 3 and 5 of this Agreement, Executive agrees to be bound by the provisions of this Section 6 (the “ Restrictive Covenants ”). These Restrictive Covenants will apply without regard to whether any termination or cessation of Executive’s employment is initiated by the Company or Executive, and without regard to the reason for that termination or cessation.

6.1.  Covenant Not to Compete . Executive covenants that, during his employment by the Company and for a period of twelve months following the termination of such employment (the “ Restricted Period ”), Executive will not (except in his capacity as an employee or director of the Company) do any of the following, directly or indirectly:

6.1.1. engage or participate in any Competing Business (as defined below) wherever the Company or its affiliates do business, do or plan to do business or sell or market their products or services;

6.1.2. become interested in (as owner, stockholder, lender, partner, co-venturer, director, officer, employee, agent or consultant) any person, firm, corporation, association or other entity engaged in a Competing Business, other than the Company. Notwithstanding the foregoing, Executive may hold up to 3% of the outstanding securities of any class of any publicly-traded securities of any company;

6.1.3. solicit or attempt to solicit any employee, consultant, supplier, licensor, licensee, contractor, agent, strategic partner, distributor, customer or other person with whom Executive had contact during the one-year period prior to the time of Executive’s employment with the Company has terminated, or intentionally influence any such person to modify any written or oral agreement, arrangement or course of dealing with the Company or any of its affiliates; or

6.1.4. solicit for employment or retention as an independent contractor (or arrange to have any other person or entity solicit for employment or retention) any person employed or retained by the Company or any of its affiliates.

6.2.  Confidentiality . Executive recognizes and acknowledges that the Proprietary Information (as defined in below) is a valuable, special and unique asset of the business of the Company and its affiliates. As a result, both during the Term and thereafter, Executive will not, without the prior written consent of the Company, for any reason divulge to any third-party or use for his own benefit, or for any purpose other than the exclusive benefit of the Company and its affiliates, any Proprietary Information. Notwithstanding the foregoing, nothing in this Agreement prohibits Executive from initiating communications directly with, responding to any inquiries from, providing testimony before, providing confidential information to, reporting possible violations of law or regulation to, or from filing a claim or assisting with an investigation directly with a self-regulatory authority or a government agency or entity, including the U.S. Equal Employment Opportunity Commission, the Department of Labor, the National Labor Relations Board, the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General (collectively, the “ Regulators ”), or from making other disclosures that are protected under the whistleblower provisions of state or federal law or regulation. In connection with any such activity, Executive must identify any information that is confidential and ask the Regulator for confidential treatment of such information. Despite the foregoing, Executive is not permitted to reveal to any third party, including any governmental, law enforcement, or regulatory authority, information employee came to learn during the course of Executive’s employment with the Company that is protected from disclosure by any applicable privilege, including but not limited to the attorney-client privilege, attorney work product doctrine and/or other applicable legal privileges. The Company and its affiliates do not waive any applicable privileges or the right to continue to protect its privileged attorney-client information, attorney work product, and other privileged information. Notwithstanding any other provisions of this Agreement, pursuant to 18 USC Section 1833(b), Executive shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of the Company’s or its affiliate’s trade secret that is made: (a) confidentially to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (b) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. If Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Executive may disclose a trade secret to Executive’s attorney and use the trade secret information in related court proceedings, provided that Executive files any document containing the trade secret information under seal and does not disclose the trade secret, except pursuant to court order.

6.3.  Property of the Company .

6.3.1.  Proprietary Information . All right, title and interest in and to Proprietary Information will be and remain the sole and exclusive property of the Company and its affiliates. Executive will not remove from the Company’s or its affiliates’ offices or premises any documents, records, notebooks, files, correspondence, reports, memoranda or similar materials of or containing Proprietary Information, or other materials or property of any kind belonging to the Company or its affiliates unless necessary or appropriate in the performance of his duties to the Company and its affiliates. If Executive removes such materials or property in the performance of his duties, he will return such materials or property promptly after the removal has served its purpose. Executive will not make, retain, remove and/or distribute any copies of any such materials or property, or divulge to any third person the nature of and/or contents of such materials or property, except to the extent necessary to satisfy contractual obligations of the Company or its affiliates, to perform his duties on behalf of the Company and its affiliates or pursuant to the exceptions set forth in Section 6.2 . Upon termination of Executive’s employment with the Company, he will leave with the Company and its affiliates or promptly return to the Company and its affiliates all originals and copies of such materials or property then in his possession.

6.3.2.  Intellectual Property . Executive agrees that all the Intellectual Property (as defined below) will be considered “works made for hire” as that term is defined in Section 101 of the Copyright Act (17 U.S.C. § 101) and that all right, title and interest in such Intellectual Property will be the sole and exclusive property of the Company and its affiliates. To the extent that any of the Intellectual Property may not by law be considered a work made for hire, or to the extent that, notwithstanding the foregoing, Executive retains any interest in the Intellectual Property, Executive hereby irrevocably assigns and transfers to the Company and its affiliates any and all right, title, or interest that Executive may now or in the future have in the Intellectual Property under patent, copyright, trade secret, trademark or other law, in perpetuity or for the longest period otherwise permitted by law, without the necessity of further consideration. The Company and its affiliates will be entitled to obtain and hold in its own name all copyrights, patents, trade secrets, trademarks and other similar registrations with respect to such Intellectual Property. Executive further agrees to execute any and all documents and provide any further cooperation or assistance reasonably required by the Company, at the Company’s expense, to perfect, maintain or otherwise protect its rights in the Intellectual Property. If the Company or its affiliates, as applicable, are unable after reasonable efforts to secure Executive’s signature, cooperation or assistance in accordance with the preceding sentence, whether because of Executive’s incapacity or any other reason whatsoever, Executive hereby designates and appoints the Company, the appropriate affiliate, or their respective designee as Executive’s agent and attorney-in-fact, to act on his behalf, to execute and file documents and to do all other lawfully permitted acts necessary or desirable to perfect, maintain or otherwise protect the Company’s or its affiliates’ rights in the Intellectual Property. Executive acknowledges and agrees that such appointment is coupled with an interest and is therefore irrevocable.

6.4.  Definitions . For purposes of this Agreement:

6.4.1. “ Competing Business ” means any person, firm, corporation, partnership, association or other entity in North America that uses a mobile location-based media platform for marketers to create location-based advertising content that directly competes with a product, services or product offerings developed, manufactured, marketed, distributed or sold by the Company.

6.4.2. “ Intellectual Property ” means (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents and patent applications claiming such inventions, (b) all trademarks, service marks, trade dress, logos, trade names, fictitious names, brand names, brand marks and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (c) all copyrightable works, all copyrights, and all applications, registrations, and renewals in connection therewith, (d) all mask works and all applications, registrations, and renewals in connection therewith, (e) all trade secrets (including research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, methodologies, technical data, designs, drawings and specifications), (f) all computer software (including data, source and object codes and related documentation), (g) all other proprietary rights, (h) all copies and tangible embodiments thereof (in whatever form or medium), or (i) similar intangible personal property which have been or are developed or created in whole or in part by Executive (1) at any time and at any place while Executive is employed by Company and which, in the case of any or all of the foregoing, are related to and used in connection with the business of the Company or its affiliates, or (2) as a result of tasks assigned to Executive by the Company or its affiliates.

6.4.3. “ Proprietary Information ” means any and all proprietary and non-public information developed or acquired by the Company or any of its subsidiaries or affiliates that has not been specifically authorized to be disclosed. Such Proprietary Information shall include, but shall not be limited to, the following items and information relating to the following items: (a) all intellectual property and proprietary rights of the Company (including, without limitation, the Intellectual Property), (b) computer codes and instructions, processing systems and techniques, inputs and outputs (regardless of the media on which stored or located) and hardware and software configurations, designs, architecture and interfaces, (c) business research, studies, procedures and costs, (d) financial data, (e) distribution methods, (f) marketing data, methods, plans and efforts, (g) the identities of actual and prospective suppliers, (h) the terms of contracts and agreements with, the needs and requirements of, and the Company’s or its affiliates’ course of dealing with, actual or prospective suppliers, (i) customer and vendor credit information and (j) information received from third parties subject to obligations of non-disclosure or non-use. Failure by the Company or its affiliates to mark any of the Proprietary Information as confidential or proprietary shall not affect its status as Proprietary Information. Proprietary Information shall not include information that is or comes into the public domain through no fault of Executive’s, or that Executive can demonstrate was in his possession before receipt of such information from the Company.

6.5.  Acknowledgements . Executive acknowledges that the Restrictive Covenants are reasonable and necessary to protect the legitimate interests of the Company and its affiliates, that the duration and geographic scope of the Restrictive Covenants are reasonable given the nature of this Agreement and the position Executive holds within the Company, and that the Company would not enter into this Agreement or otherwise employ Executive unless Executive agrees to be bound by the Restrictive Covenants set forth in this Section 6 .

6.6.  Remedies and Enforcement Upon Breach .

6.6.1.  Specific Enforcement . Executive acknowledges that any breach by him, willfully or otherwise, of the Restrictive Covenants will cause continuing and irreparable injury to the Company or its affiliates for which monetary damages would not be an adequate remedy. Executive shall not, in any action or proceeding to enforce any of the provisions of this Agreement, assert the claim or defense that such an adequate remedy at law exists. In the event of any such breach or threatened breach by Executive of any of the Restrictive Covenants, the Company or its affiliates, as applicable, shall be entitled to injunctive or other similar equitable relief in any court, without any requirement that a bond or other security be posted, and this Agreement shall not in any way limit remedies of law or in equity otherwise available to the Company and its affiliates.

6.6.2.  Judicial Modification . If any court determines that any of the Restrictive Covenants, or any part thereof, is unenforceable because of the duration or geographical scope of such provision, such court shall have the power to modify such provision and, in its modified form, such provision shall then be enforceable.

6.6.3.  Enforceability . If any court holds the Restrictive Covenants unenforceable by reason of their breadth or scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the right of the Company and its affiliates to the relief provided above in the courts of any other jurisdiction within the geographic scope of such Restrictive Covenants.

6.6.4.  Disclosure of Restrictive Covenants . Executive agrees to disclose the existence and terms of the Restrictive Covenants to any employer that Executive may work for during the Restricted Period.

6.6.5.  Extension of Restricted Period . If Executive breaches Section 6.1 in any respect, the restrictions contained in that section will be extended for a period equal to the period that Executive was in breach.

7.  Miscellaneous .

7.1.  Other Agreements . Executive represents and warrants to the Company that there are no restrictions, agreements or understandings whatsoever to which he is a party that would prevent or make unlawful his execution of this Agreement, that would be inconsistent or in conflict with this Agreement or Executive’s obligations hereunder, or that would otherwise prevent, limit or impair the performance by Executive of his duties under this Agreement.

7.2.  Successors and Assigns . The Company may assign this Agreement to any successor to its assets and business by means of liquidation, dissolution, sale of assets or otherwise. The duties of Executive hereunder are personal to Executive and may not be assigned by him.

7.3.  Governing Law, Dispute Resolution and Jurisdiction .

7.3.1. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to the principles of conflicts of laws. disputes, claims and controversies between the parties hereto concerning the validity, interpretation, performance, termination or breach of this Agreement, which cannot be resolved by the parties within sixty (60) days after such dispute, claim or controversy arises shall, at the option of either party, be referred to and finally settled by arbitration (an “ Arbitration ”) provided, that either party may apply to a court of competent jurisdiction seeking equitable relief prior to Arbitration. Such Arbitration shall be initiated by the initiating party giving notice (the “ Arbitration Notice ”) to the other party (the “ Respondent ”) that it intends to submit such dispute, claim or controversy to Arbitration. Each party shall, within thirty (30) days of the date the Arbitration Notice is received by the Respondent, designate a person to act as an arbitrator. If either party fails to designate a person to act as an arbitrator within the time specified herein the Arbitration shall be conducted by the sole designated arbitrator. The two arbitrators appointed by the parties shall, within thirty (30) days after their designation appoint a third arbitrator who shall act as presiding arbitrator (the “ Presiding Arbitrator ” and, together with the other two arbitrators, the “ Arbitration Panel ”). If the two arbitrators designated by the parties are unable to appoint a Presiding Arbitrator, the Presiding Arbitrator shall be appointed according to the rules of the American Arbitration Association as in effect on the date the notice of submission to arbitration is given (the “ Rules ”).

7.3.2. The Arbitration shall be conducted in accordance with the Rules, pursuant to the United States Arbitration Act, 9 U.S.C., Section 1 et seq., and shall be held in the Borough of Manhattan, in the City of New York and the State of New York. Executive and the Company hereby consent to the personal and exclusive jurisdiction of New York for such Arbitration and hereby waive any objection(s) that they may have to personal jurisdiction, the laying of venue of any such Arbitration proceeding and any claim or defense of inconvenient forum. All Arbitration proceedings shall be confidential, and neither the parties nor the members of the Arbitration Panel may disclose the content or results of any Arbitration hereunder without the prior written consent of all parties to the dispute.  The Arbitration proceedings shall be governed by federal arbitration law and by the Rules, without reference to state arbitration law, unless the parties stipulate to the contrary.  Any provisional remedy (including preliminary or permanent injunctive relief) that would be available from a court of law shall be available from the Arbitration Panel pending completion of the arbitration.  The benefited party of such provisional remedy shall be entitled to enforce such remedy in court immediately, even though a final arbitration award has not yet been rendered.  Within thirty (30) days after the appointment of all arbitrators to the Arbitration Panel, or within such longer period mutually agreed upon by the parties, the Arbitration Panel shall hear and decide the dispute submitted to Arbitration hereunder and shall promptly prepare a written decision on the merits of the matters in dispute, which decision shall state the facts and law relied upon and the reasons for the Arbitration Panel’s decision.  The award or decision of the Arbitration Panel, which may include an order of specific performance, injunction, or other equitable relief, shall be final and binding on all parties, and judgment thereon may be rendered by any court having jurisdiction thereof, or application may be made to such court for the judicial acceptance of the award and an order of enforcement, as the case may be. There shall be no right of appeal, except as contained under applicable laws.  During the pendency of any arbitration process, the parties shall equally share the cost of the arbitrator, and each party to any arbitration shall bear its own expenses, including but not limited to such party’s attorneys’ fees, if any.

7.3.3. Executive understands that nothing in this Section 7.3 modifies Executive’s at-will employment status. Either Executive or the Company may terminate the employment relationship between Executive and the Company at any time, with or without Cause, upon the terms and subject to the conditions of this Agreement.

7.3.4. EXECUTIVE HAS READ AND UNDERSTANDS THIS SECTION 7.3, WHICH DISCUSSES ARBITRATION. EXECUTIVE UNDERSTANDS THAT SUBMITTING ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION THEREOF TO BINDING ARBITRATION, CONSTITUTES A WAIVER OF EXECUTIVE’S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE EMPLOYER/EXECUTIVE RELATIONSHIP, INCLUDING BUT NOT LIMITED TO, THE FOLLOWING CLAIMS:

(a) ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT; BREACH OF CONTRACT, BOTH EXPRESS AND IMPLIED; BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING, BOTH EXPRESS AND IMPLIED; NEGLIGENT OR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT OR INTENTIONAL MISREPRESENTATION; NEGLIGENT OR INTENTIONAL INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC ADVANTAGE; AND DEFAMATION.

(b) ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL STATE OR MUNICIPAL STATUTE, INCLUDING, BUT NOT LIMITED TO, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE CIVIL RIGHTS ACT OF 1991, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE AMERICANS WITH DISABILITIES ACT OF 1990, AND THE FAIR LABOR STANDARDS ACT; 

(c) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.

7.4.  Waivers . The waiver by either party of any right hereunder or of any breach by the other party will not be deemed a waiver of any other right hereunder or of any other breach by the other party. No waiver will be deemed to have occurred unless set forth in a writing. No waiver will constitute a continuing waiver unless specifically stated, and any waiver will operate only as to the specific term or condition waived.

7.5.  Indemnification . In the event Executive is made, or threatened to be made, a party to any legal action or proceeding, by reason of the fact that Executive is or was an employee, director or officer of the Company or serves or served any other entity in any capacity at the Company’s request, Executive shall be indemnified by the Company, and the Company shall pay Executive’s related expenses when and as incurred, including but not limited to attorney fees, all to the fullest extent permitted by law. This Section 7.5 shall survive termination of Executive’s employment and this Agreement.

7.6.  Defend Trade Secrets Act Compliance . Executive will not be held criminally or civilly liable under any federal or state trade secret law for Executive’s disclosure of a trade secret that is made in confidence to federal, state or local government official or to an attorney, provided that such disclosure is: (a) solely for the purpose of reporting or investigating a suspected violation of law; or (b) made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. If Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Executive may disclose the trade secret to Executive’s attorney and use the trade secret information in related court proceedings, provided that Executive files any document containing the trade secret information under seal and does not disclose the trade secret, except pursuant to court order.

7.7.  Assistance in Litigation . Executive shall reasonably cooperate with the Company in the defense or prosecution of any claims or actions now in existence or that may be brought in the future against or on behalf of the Company that relate to events or occurrences that transpired while Executive was employed by the Company. Executive's cooperation in connection with such claims or actions shall include, but not be limited to, being available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of the Company at mutually convenient times. Executive also shall cooperate fully with the Company in connection with any investigation or review by any federal, state, or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while Executive was employed by the Company. The Company will pay Executive a reasonable hourly rate for Executive's cooperation pursuant to this Section 7.7 . The Company will reimburse Executive for reasonable attorney's fees and costs incurred as a result of his compliance with this Section 7.7 . Nothing in this Agreement shall be deemed to limit Executive's rights under any indemnification or other agreement to which Executive may be a party or any other applicable agreement or insurance policy.

7.8.  Severability . Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law. However, if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provision, and this Agreement will be reformed, construed and enforced as though the invalid, illegal or unenforceable provision had never been herein contained.

7.9.  Survival . This Agreement will survive the cessation of Executive’s employment to the extent necessary to fulfill the purposes and intent the Agreement.

7.10.  Notices . Any notice or communication required or permitted under this Agreement will be made in writing and (a) sent by overnight courier, (b) mailed by overnight U.S. express mail, return receipt requested or (c) sent by telecopier. Any notice or communication to Executive will be sent to the address contained in his personnel file. Any notice or communication to the Company will be sent to:

SITO Mobile, Ltd. 

100 Town Square Place 

Suite 204 

Jersey City, NJ 07310

with a copy to (which shall not constitute Notice):

Andrew Hulsh 

Partner 

Pepper Hamilton LP 

The New York Times Building 

620 Eighth Avenue—37 ^th Floor 

New York, NY 10018

Notwithstanding the foregoing, either party may change the address for notices or communications hereunder by providing written notice to the other in the manner specified in this paragraph.

7.11.  Entire Agreement; Amendments . This Agreement contains the entire agreement and understanding of the parties hereto relating to the subject matter hereof, and merges and supersedes all prior and contemporaneous discussions, agreements and understandings of every nature relating to that subject matter. This Agreement may not be changed or modified, except by an agreement in writing signed by each of the parties hereto.

7.12.  Withholding . All payments (or transfers of property) to Executive will be subject to tax withholding to the extent required by applicable law.

7.13.  Section Headings . The headings of sections and paragraphs of this Agreement are inserted for convenience only and will not in any way affect the meaning or construction of any provision of this Agreement.

7.14.  Counterparts; Facsimile . This Agreement may be executed in multiple counterparts (including by facsimile signature), each of which will be deemed to be an original, but all of which together will constitute but 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.

[remainder of page intentionally left blank; signature page follows]

IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer, and Executive has executed this Agreement, on the date(s) indicated below. 

Signature Page to Employment Agreement

Exhibit 10.3

EMPLOYMENT AGREEMENT

EMPLOYMENT AGREEMENT (the “ Agreement ”) dated as of July 24, 2017 (the “ Effective Date ”) by and between SITO MOBILE, LTD., a Delaware corporation (the “ Company ”) and WILLIAM A. SEAGRAVE (the “ Executive ”). The Company and Executive are sometimes hereinafter referred to individually as a “ party ” and collectively as the “ parties .”  

RECITALS

A. Executive is currently employed as the Company’s Chief Operating Officer. 

B. The Company and Executive wish to memorialize their understanding and agreement with respect to their employment relationship, upon the terms and subject to the conditions set forth in this Agreement.

Accordingly, in consideration of the foregoing and the mutual covenants herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:

1.  Duration of Agreement . This Agreement is effective as of the Effective Date and has no specific expiration date. Unless terminated by agreement of the parties, this Agreement will govern Executive’s employment by the Company until that employment ceases.

2 . Title; Duties . Executive will be employed as the Company’s Chief Operating Officer, and shall report to the Company’s Chief Executive Officer. Executive’s employment by the Company shall be full-time and exclusive, and Executive shall devote all of his business time, attention and services to the Company and its subsidiaries and affiliates (collectively, the “ Company Group ”) and shall perform such duties as may be customarily incident to his position as Chief Operating Officer and as may reasonably be assigned to him by the Company’s Chief Executive Officer from time to time. Executive will not, in any capacity, engage in other business activities or perform services for any other individual, firm or corporation without the prior written consent of the Company; provided that without such consent, Executive may engage in charitable, non-profit and public service activities and manage his passive personal and family investments, so long as such activities do not in any respect interfere or conflict with Executive’s duties and obligations to the Company hereunder or violate any restrictive covenants to which Executive has agreed.  

3.  Place of Performance . Executive will perform his services hereunder at the principal executive offices of the Company, which are presently located in Jersey City, New Jersey, (or the location of any other principal executive offices of the Company that may be established during the term of Executive’s employment hereunder) or by telecommuting when Executive is not physically located in Jersey City, New Jersey (or such other location where the Company’s principal executive offices may hereafter be located); provided that Executive will be required to travel from time to time for business purposes.

4.  Compensation and Benefits .

4 .1. Base Salary . Executive’s annual salary will be $300,000 (the “ Base Salary ”), paid in accordance with the Company’s payroll practices as in effect from time to time. The Base Salary will be reviewed annually by the Compensation Committee (the “ Compensation Committee ”) of the Company’s Board of Directors (the “ Board ”) and may be increased, but not decreased. 

4.2.  Annual Bonuses .

4.2.1. For each fiscal year ending during his employment, Executive will be eligible to earn an annual cash bonus (the “ Cash Bonus ”).

4.2.2. For the fiscal year ending December 31, 2017, the Cash Bonus shall be based on a percentage of the Base Salary and determined as follows:

For example , if (i) the Company’s total revenues for the six-month period ending December 31, 2017 are equal to or greater than 22.5 million and (ii) the Company executes three Data Deals during the six-month period beginning July 1, 2017 and ending December 31, 2017, Executive shall be paid a Cash Bonus of an aggregate of 100% of his Base Salary, or $300,000. In this Section 4.2 , the term “ Data Deal ” shall means either the sourcing of new data or data models which are not generally available in the data brokerage ecosystem and which are then available for inclusion in the Company’s data analytics, included in the Company’s sales packages and solutions for clients, or used to create new avenues of the Company’s analytic results for client leverage; or the packaging of the Company’s data models, analytics, and insights for direct inclusion in sales and solutions to clients.  Additionally, the multi-year licensing of the Company’s data assets to third parties for inclusion in their data and marketing assets and for which the Company’s receives periodic licensing revenue and for which the Company must provide periodic data updates shall constitute a Data Deal. 

While there is no monetary value specificity assigned to Data Deals as they may be folded into a larger transaction, a Data Deal must represent a recognizable accretion of the Company’s sales value within the transaction, or key purpose for the transaction, or source and value of data because of the data inclusion.

4.2.3. Commencing January 1, 2018, the targets for a Cash Bonus and the amount of the actual Cash Bonus payable with respect to a particular year will be determined by the Compensation Committee, based on the achievement of corporate and/or individual performance objectives to be established by the Compensation Committee in consultation with Executive. Any Cash Bonus payable under this Section 4.2 will be paid commensurate with the Company’s normal policies pertaining to the payment of bonuses; provided that such payments shall be made in full as soon as practicable following completion of the Company’s audit for the most recently-completed fiscal year and the filing of the Company’s annual report on Form 10-K relating to such fiscal year, but in no event after the first six months of the calendar year immediately following the fiscal year in respect of which the performance thresholds relating to such Cash Bonus have been satisfied and, except as otherwise specifically provided in this Agreement, will only be paid if Executive remains continuously employed by the Company through the actual Cash Bonus payment date.

4.2.4. For purposes of determining any Cash Bonus payable to Executive with respect to periods after December 31, 2017, the measurement of corporate and individual performance will be performed by the Compensation Committee in good faith. From time to time, the Compensation Committee may, in its sole discretion, make adjustments to corporate or individual performance goals, so that required departures from the Company’s operating budget, changes in accounting principles, acquisitions, dispositions, mergers, consolidations and other corporate transactions, and other factors influencing the achievement or calculation of such goals do not affect the operation of this provision in a manner inconsistent with its intended purposes.

4.3.  Equity Incentive Awards .

4.3.1. Executive shall be eligible to receive equity-based compensation commensurate with his position in connection with any annual equity-based awards made to senior executives of the Company. Such awards shall be made in the sole discretion of the Compensation Committee and shall be subject to the terms and conditions set forth in, as applicable, the Company’s 2008 Stock Option Plan or 2010 Stock Plan (collectively, the “ Equity Incentive Plans ”) (or other applicable equity incentive or compensation plan) and award agreements, and in all cases shall be as determined by the Compensation Committee.

4.3.2. As soon as practicable following the Effective Date, Executive will be granted the following awards (the “ Initial Grants ”) under and subject to the Equity Incentive Plans (including, without limitation, the extent to which the shares underlying the RSU Award and the Option Award (as such terms are defined in Section 4.3(a) and Section 4.3(b) , respectively) are available under the Equity Incentive Plans:

(a) a restricted stock unit award (the “ RSU Award ”) to receive up to an aggregate of 225,468 shares (the “ RSU Shares ”) of the Company’s common stock, par value $0.001 per share (“ Common Stock ”), based on the closing price of the Common Stock on NASDAQ (or any other exchange on which the Common Stock may then be traded) for a period of at least 65 consecutive trading days, determined as follows:

(b) an option to purchase an aggregate of 100,000 shares of Common Stock (the “ Option Award ”) at a per share exercise price equal to the closing price of the Common Stock on NASDAQ on the date of grant). Subject to Executive’s continued employment with the Company, 25% of the Option Award will vest on the first anniversary of the Effective Date and the remainder will vest in substantially equal quarterly installments during the three-year period commencing on the first anniversary of the Effective Date.

The RSU Award and Option Award will otherwise be subject to the terms and conditions of the Equity Compensation Plans and award agreements evidencing such grants.

4.4.  Employee Benefits . During Executive’s employment, Executive and Executive’s spouse and dependents, to the extent they are eligible, will be entitled to participate in all employee benefit plans and programs made available by the Company from time to time to employees generally, subject to applicable plan terms and policies. The Company periodically reviews its benefits, policies, benefits providers and practices and may terminate, alter or change them at its discretion from time to time.

4.5.  Reimbursement of Expenses . Executive will be reimbursed by the Company for all reasonable business expenses incurred by Executive in accordance with the Company’s customary expense reimbursement policies as in effect from time to time. Notwithstanding anything herein to the contrary, to the extent any expense, reimbursement or in-kind benefit provided to Executive constitutes a “deferral of compensation” within the meaning of Section 409A of the Internal Revenue Code (the “ Code ”) (i) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive must be incurred during Executive’s term of employment; (ii) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in any other calendar year, (iii) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred and (iv) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit.

5.  Termination . Either party may terminate Executive’s employment with the Company at any time and for any reason; provided that in the case of a resignation by Executive, Executive will provide at least thirty (30) days advance written notice of any such resignation; and provided further that following receipt of Executive’s advance notice of resignation, the Company may waive all or any portion of the remaining notice period and accept Executive’s resignation immediately. Upon any cessation of his employment with the Company, Executive will be entitled only to such compensation and benefits as described in this Section 5 . Upon any cessation of his employment for any reason, unless otherwise requested by the Company, Executive agrees to resign immediately from all officer and director positions he then holds with the Company or any of its affiliates.

5.1.  Termination by the Company without Cause or Termination by Executive for Good Reason . If Executive’s employment by the Company ceases due to a termination by the Company without Cause (as defined below) or a resignation by Executive for Good Reason (as defined below), Executive will be entitled to receive, subject to the execution and delivery by Executive of a Release (as defined below):

5.1.1. continuation of Executive’s Base Salary for a period equal to twelve months following the effective date of the termination of Executive by the Company without Cause or the resignation by Executive for Good Reason (the “ Involuntary Termination Date ”), payable in accordance with the Company’s standard payroll practices;

5.1.2. an amount equal to a cash bonus equal to 100% of Executive’s Base Salary prevailing on the Involuntary Termination Date, which amount shall be paid in the year following employment termination at the time annual bonuses are paid to the Company’s other senior executives;

5.1.3. accelerated vesting of 100% of the Option Award;

5.1.4. except as provided in Section 5.2 , accelerated vesting of the portion of the RSU Award that has not issued (the “ Unissued RSU Award ”) as of the Involuntary Termination Date, as follows:

(a) If the Involuntary Termination Date occurs on or before the first anniversary of the Effective Date, then 25% of the Unissued RSU Award shall accelerate and vest;

(b) If the Involuntary Termination Date occurs after the first anniversary of the Effective Date, but on or before the second anniversary of the Effective Date, then 50% of the Unissued RSU Award shall accelerate and vest;

(c) If the Involuntary Termination Date occurs after the second anniversary of the Effective Date, but on or before the third anniversary of the Effective Date, then 75% of the Unissued RSU Award shall accelerate and vest; and

(d) If the Involuntary Termination Date occurs after the third anniversary of the Effective Date, but on or before the fourth anniversary of the Effective Date, then 100% of the Unissued RSU Award shall accelerate and vest.

5.1.5. waiver of the applicable premium otherwise payable for COBRA continuation coverage for Executive (and, to the extent covered immediately prior to the date of such cessation, his spouse and eligible dependents) for a period equal to twelve months. The amounts specified in Sections 5.1.1 , 5.1.2 , 5.1.3 , 5.1.4 and 5.1.5 are referred to herein as the “ Severance Benefits .”

Except as otherwise provided in this Section 5.1 , and except for payment of (i) all accrued and unpaid Base Salary through the date of such termination or cessation, (ii) any expense reimbursements to be paid in accordance with the Company’s policies and Section 4.5 ; and (iii) payments for any accrued but unused paid time off in accordance with the Company’s policies and applicable law (the amounts specified in the foregoing subparagraphs (i)-(iii) of this paragraph are referred to herein as the “ Accrued Obligations ”), all compensation and benefits will cease at the time of such cessation and the Company will have no further liability or obligation by reason of such cessation. The payments and benefits described in this Section 5.1 are in lieu of, and not in addition to, any other severance arrangement maintained by the Company. Notwithstanding any provision of this Agreement, the payments and benefits described in Section 5.1 are conditioned on: (a) Executive’s execution and delivery to the Company and the expiration of all applicable statutory revocation periods, by the 45 ^th day following the effective date of his cessation of employment, of a general release of claims against the Company and its affiliates (other than a release of claims under this Agreement) in a form reasonably prescribed by the Company (the “ Release ”); and (b) Executive’s continued compliance with the Restrictive Covenants (as defined below). Subject to Section 5.4 , below, the benefits described in Section 5.1 will be paid or provided (or begin to be paid or provided) as soon as administratively practicable (or determinable in the case of the benefits described in Section 5.1.1 , if later) after the Release becomes irrevocable, provided that if the 45-day period described above begins in one taxable year and ends in a second taxable year such payments or benefits shall not commence until the second taxable year.

5.2.  Termination Following a Change in Control . Notwithstanding Section 5.1.4 , If Executive’s employment by the Company ceases due to a termination by the Company without Cause or a resignation by Executive for Good Reason during the twelve (12) month period immediately following the occurrence of a Change in Control (as defined below), (a) all unvested restricted stock, stock options and other equity incentives awarded to Executive by the Company will become immediately and automatically fully vested and exercisable (as applicable); provided that in the event the Change of Control involves a merger, consolidation or other transaction, the RSU Shares shall be issued to Executive based on the price or value ascribed to each share of Common Stock in such transaction, without regard to whether such price or value is maintained for a period of 65 days or any other period of time, and, subject to the foregoing, the Company will be required to pay Executive the Severance Benefits and the Accrued Obligations. In the event that RSU Shares may be issued under Section 5.1.4 or this Section 5.2 , Executive shall have the ability to elect to receive the greater number of RSU Shares under either of such Sections. For example , if (i) Executive is terminated without Cause on a date that is six months following a Change of Control of the Company; (ii) such Change of Control involves the acquisition of more than 50% of the outstanding Common Stock for a price of $7.50 per share; (iii) such termination occurs 13 months after the Effective Date; and (iv) prior to the time of such Change of Control, no RSU Shares have been granted to Executive, then a total of 56,367 RSU Shares, or 25% of the RSU Award, would be available for grant to Executive under Section 5.1.4 , and a total of 45,093.6 RSU Shares would be available for grant to Executive under this Section 5.2 , in which case the Executive would have the ability to receive the higher of such amount, or 56,367 RSU Shares.

5.3.  Termination for any other Reason . If Executive’s employment by the Company ceases for any reason other than as described in Section 5.1 above (including, but not limited to, termination (a) by the Company for Cause, (b) by Executive other than for Good Reason, (c) as a result of Executive’s death, or (d) as a result of Executive’s Disability (as defined in Section 5.9.3 )), then the Company’s obligation to Executive will be limited solely to the Accrued Obligations. All compensation and benefits will cease at the time of such termination and, except as otherwise provided by COBRA, the Company will have no further liability or obligation by reason of such termination.

5.4.  No Limitation of Certain Claims for Payment or Reimbursement . The foregoing will not be construed to limit Executive’s right to payment or reimbursement for claims incurred prior to the date of such termination under any insurance contract funding an employee benefit plan, policy or arrangement of the Company in accordance with the terms of such insurance contract.

5.5.  Compliance with Section 409A . If the termination giving rise to the payments described in Section 5.1 is not a “Separation from Service” within the meaning of Treas. Reg. § 1.409A-1(h)(1) (or any successor provision), then the amounts otherwise payable pursuant to that section will instead be deferred without interest and will not be paid until Executive experiences a Separation from Service. To the maximum extent permitted under Section 409A of the Code and its corresponding regulations, the cash severance benefits payable under this Agreement are intended to meet the requirements of the short-term deferral exemption under Section 409A of the Code and the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii). To the extent compliance with the requirements of Treas. Reg. § 1.409A-3(i)(2) (or any successor provision) is necessary to avoid the application of an additional tax under Section 409A of the Internal Revenue Code to payments due to Executive upon or following his Separation from Service, then notwithstanding any other provision of this Agreement (or any otherwise applicable plan, policy, agreement or arrangement), any such payments that are otherwise due within six months following Executive’s Separation from Service (taking into account the preceding sentence of this paragraph) will be deferred without interest and paid to Executive in a lump sum immediately following that six month period. For purposes of the application of Treas. Reg. § 1.409A-1(b)(4) (or any successor provision), each payment in a series of payments will be deemed a separate payment. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.

5.6.  PPACA . Notwithstanding anything in this Agreement to the contrary, the waiver in respect of COBRA premiums pursuant to this Agreement shall cease to the extent required to avoid adverse consequences to the Company under the Patient Protection and Affordable Care Act of 2010 and regulations thereunder.

5.7.  Section 280G . If any payment or distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement or the lapse or termination of any restriction on or the vesting or exercisability of any payment or benefit (each a “ Payment ”), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law (such tax or taxes are hereafter collectively referred to as the “ Excise Tax ”), then the aggregate amount of Payments payable to Executive shall be reduced to the aggregate amount of Payments that may be made to Executive without incurring an excise tax (the “ Safe-Harbor Amount ”) in accordance with the immediately following sentence; provided that such reduction shall only be imposed if the aggregate after-tax value of the Payments retained by Executive (after giving effect to such reduction) is equal to or greater than the aggregate after-tax value (after giving effect to the Excise Tax) of the Payments to Executive without any such reduction. Any such reduction shall be made in the following order: (i) first, any future cash payments (if any) shall be reduced (if necessary, to zero); (ii) second, any current cash payments shall be reduced (if necessary, to zero); (iii) third, all non-cash payments (other than equity or equity derivative related payments) shall be reduced (if necessary, to zero); and (iv) fourth, all equity or equity derivative payments shall be reduced.

5.8.  Return of Company Property . Not later than seven (7) days following the effective date of any cessation of Executive’s employment, Executive will return all property of the Company Group in Executive’s possession or control, including, but not limited to, all Company-owned computer equipment (hardware and software), telephones, tablet computers and other electronic devices, credit cards, office keys, security access cards, badges, identification cards and all documentation, materials or information (however stored) relating to the business of the Company Group or any of their customers or prospective customers. In doing this, Executive will make a diligent search of his personal computers and other devices and of his personal email and cloud storage accounts for any Company property or Proprietary Information (as defined in Section 6.4.3 ). If these devices or accounts contain Company property or Proprietary Information, then Executive will transmit those files to the Company or its designee and permanently delete those files from his devices and accounts, without retaining copies or excerpts.

5.9.  Definitions . For purposes of this Agreement:

5.9.1. “ Cause ” means (a) alcohol abuse or the use of controlled drugs (other than in accordance with a physician’s orders); (b) Executive’s repeated or substantial refusal, failure, or inability to perform (other than due to illness or disability), or gross negligence or willful misconduct in the performance of , his duties; (c) material breach of any agreement with or duty owed to the Company or its affiliates, which breach (if curable) remains uncured thirty (30) days after receipt of written notice thereof; (d) conduct of Executive involving dishonesty adversely affecting the Company or any of its affiliates, including fraud, embezzlement, theft or other misuse of property; (e) any commission of or entrance of a plea of guilty or nolo contendere to a felony, any crime of moral turpitude or any other crime that materially and adversely affects the operations, financial performance or customer relationships of the Company or its affiliates, or (f) a material violation of any written policy of the Company or its affiliates in effect from time to time, including, without limitation, policies relating to discrimination, harassment, fraternization and nepotism.

5.9.2. “ Change in Control ” means, unless such term or an equivalent term is otherwise defined with respect to the RSU Award or the Option Award in the grant agreement between the Company and Executive, the occurrence of any of the following events:

(a) any “person” or “group,” (as such terms are defined and applied in Section 13(d) of the Securities Exchange Act of 1934 (the “ Exchange Act ”)) becomes (directly or indirectly) the “beneficial owner” (within the meaning of Rule 13d-3 promulgated under the Exchange Act), of the voting securities of the Company representing more than 50% of the total issued and outstanding voting securities of the Company; provided that the following acquisitions shall not constitute a Change in Control:

(i) an acquisition by any such person or group who on the Effective Date is the beneficial owner of more than fifty percent (50%) of such voting power;

(ii) any acquisition directly from the Company, including, without limitation, a public offering of securities;

(iii) any acquisition by the Company; or

(iv) any acquisition by an entity owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the voting securities of the Company; or

(b) an Ownership Change Event or series of related Ownership Change Events (collectively, a “ Transaction ”) in which the stockholders of the Company immediately before the Transaction do not retain immediately after the Transaction direct or indirect beneficial ownership of more than fifty percent (50%) of the total combined voting power of the outstanding securities entitled to vote generally in the election of Directors or, in the case of an Ownership Change Event described in clause (iii) of the definition thereof, the entity to which the assets of the Company were transferred, as the case may be; or

(c) a majority of the Board consists of individuals other than “Incumbent Directors,” which term means the members of the Board on the Effective Date; provided that any individual becoming a director subsequent to such date whose election or nomination for election was supported by two-thirds of the directors who then comprised the Incumbent Directors shall be considered to be an Incumbent Director; or

(d) the Board adopts any plan for the liquidation or dissolution of all or substantially all of the Company’s assets or business, or liquidation or dissolution of the Company which is not pursuant to a plan adopted by the Board; or

(e) all or substantially all of the assets or business of the Company is disposed of pursuant to a merger, consolidation or other transaction (unless the stockholders of the Company immediately prior to such merger, consolidation or other transaction beneficially own, directly or indirectly, in substantially the same proportion as they owned the voting securities of the Company, all of the voting securities or other ownership interests of the entity or entities, if any, that succeed to the business of the Company); or

(f) the Company combines with another company and is the surviving corporation but, immediately after the combination, the holders of voting securities of the Company immediately prior to the combination hold, directly or indirectly, 50% or less of the voting securities (measured by number of votes entitled to be cast) of the combined company (there being excluded from the number of shares held by such stockholders, but not from the voting securities of the combined company, any shares received by affiliates of such other company in exchange for stock of such other company).

5.9.3. “ Disability ” means a condition entitling Executive to benefits under the Company’s long term disability plan, policy or arrangement; provided that if no such plan, policy or arrangement is then maintained by the Company and applicable to Executive, “ Disability ” will mean Executive’s inability to perform his duties under this Agreement due to a mental or physical condition that can be expected to result in death or that can be expected to last (or has already lasted) for a continuous period of 90 days or more, or for 120 days in any 180 consecutive day period. Termination as a result of a Disability will not be construed as a termination by the Company “without Cause.”

5.9.4. “ Good Reason ” means any of the following, without Executive’s prior consent: (a) a constructive termination involving a material diminution of Executive’s duties or authority with the Company, reporting relationships or the assignment of duties and responsibilities inconsistent with Executive’s position with the Company; (b) a reduction in, or failure to pay when due, Base Salary; or (c) the Company requires a physical transfer or relocation of Executive to a location fifty (50) miles or more from Executive’s work location as it existed on the Effective Date in order for Executive to continue to perform his duties and responsibilities under this Agreement. However, none of the foregoing events or conditions will constitute Good Reason unless Executive provides the Company with written objection to the event or condition within 30 days following the occurrence thereof, the Company does not reverse or otherwise cure the event or condition within 30 days of receiving that written objection, and Executive resigns Executive’s employment within 30 days following the expiration of that cure period. Notwithstanding the foregoing and for the avoidance of doubt, a diminution of Executive’s title, alone, as a result of Change in Control shall not constitute Good Reason.

5.9.5. “ Ownership Change Event ” means the occurrence of any of the following with respect to the Company: (i) the direct or indirect sale or exchange in a single or series of related transactions by the stockholders of the Company of more than fifty percent (50%) of the voting stock of the Company; (ii) a merger or consolidation in which the Company is a party; or (iii) the sale, exchange, or transfer of all or substantially all of the assets of the Company (other than a sale, exchange or transfer to one or more subsidiaries of the Company).

6.  Restrictive Covenants . To induce the Company to enter into this Agreement and in recognition of the compensation to be paid to Executive pursuant to Sections 3 and 5 of this Agreement, Executive agrees to be bound by the provisions of this Section 6 (the “ Restrictive Covenants ”). These Restrictive Covenants will apply without regard to whether any termination or cessation of Executive’s employment is initiated by the Company or Executive, and without regard to the reason for that termination or cessation.

6.1.  Covenant Not to Compete . Executive covenants that, during his employment by the Company and for a period of twelve months following the termination of such employment (the “ Restricted Period ”), Executive will not (except in his capacity as an employee or director of the Company) do any of the following, directly or indirectly:

6.1.1. engage or participate in any Competing Business (as defined below) wherever the Company or its affiliates do business, do or plan to do business or sell or market their products or services;

6.1.2. become interested in (as owner, stockholder, lender, partner, co-venturer, director, officer, employee, agent or consultant) any person, firm, corporation, association or other entity engaged in a Competing Business, other than the Company. Notwithstanding the foregoing, Executive may hold up to 3% of the outstanding securities of any class of any publicly-traded securities of any company;

6.1.3. solicit or attempt to solicit any employee, consultant, supplier, licensor, licensee, contractor, agent, strategic partner, distributor, customer or other person with whom Executive had contact during the one-year period prior to the time of Executive’s employment with the Company has terminated, or intentionally influence any such person to modify any written or oral agreement, arrangement or course of dealing with the Company or any of its affiliates; or

6.1.4. solicit for employment or retention as an independent contractor (or arrange to have any other person or entity solicit for employment or retention) any person employed or retained by the Company or any of its affiliates.

6.2.  Confidentiality . Executive recognizes and acknowledges that the Proprietary Information (as defined in below) is a valuable, special and unique asset of the business of the Company and its affiliates. As a result, both during the Term and thereafter, Executive will not, without the prior written consent of the Company, for any reason divulge to any third-party or use for his own benefit, or for any purpose other than the exclusive benefit of the Company and its affiliates, any Proprietary Information. Notwithstanding the foregoing, nothing in this Agreement prohibits Executive from initiating communications directly with, responding to any inquiries from, providing testimony before, providing confidential information to, reporting possible violations of law or regulation to, or from filing a claim or assisting with an investigation directly with a self-regulatory authority or a government agency or entity, including the U.S. Equal Employment Opportunity Commission, the Department of Labor, the National Labor Relations Board, the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General (collectively, the “ Regulators ”), or from making other disclosures that are protected under the whistleblower provisions of state or federal law or regulation. In connection with any such activity, Executive must identify any information that is confidential and ask the Regulator for confidential treatment of such information. Despite the foregoing, Executive is not permitted to reveal to any third party, including any governmental, law enforcement, or regulatory authority, information employee came to learn during the course of Executive’s employment with the Company that is protected from disclosure by any applicable privilege, including but not limited to the attorney-client privilege, attorney work product doctrine and/or other applicable legal privileges. The Company and its affiliates do not waive any applicable privileges or the right to continue to protect its privileged attorney-client information, attorney work product, and other privileged information. Notwithstanding any other provisions of this Agreement, pursuant to 18 USC Section 1833(b), Executive shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of the Company’s or its affiliate’s trade secret that is made: (a) confidentially to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (b) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. If Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Executive may disclose a trade secret to Executive’s attorney and use the trade secret information in related court proceedings, provided that Executive files any document containing the trade secret information under seal and does not disclose the trade secret, except pursuant to court order.

6.3.  Property of the Company .

6.3.1.  Proprietary Information . All right, title and interest in and to Proprietary Information will be and remain the sole and exclusive property of the Company and its affiliates. Executive will not remove from the Company’s or its affiliates’ offices or premises any documents, records, notebooks, files, correspondence, reports, memoranda or similar materials of or containing Proprietary Information, or other materials or property of any kind belonging to the Company or its affiliates unless necessary or appropriate in the performance of his duties to the Company and its affiliates. If Executive removes such materials or property in the performance of his duties, he will return such materials or property promptly after the removal has served its purpose. Executive will not make, retain, remove and/or distribute any copies of any such materials or property, or divulge to any third person the nature of and/or contents of such materials or property, except to the extent necessary to satisfy contractual obligations of the Company or its affiliates, to perform his duties on behalf of the Company and its affiliates or pursuant to the exceptions set forth in Section 6.2 . Upon termination of Executive’s employment with the Company, he will leave with the Company and its affiliates or promptly return to the Company and its affiliates all originals and copies of such materials or property then in his possession.

6.3.2.  Intellectual Property . Executive agrees that all the Intellectual Property (as defined below) will be considered “works made for hire” as that term is defined in Section 101 of the Copyright Act (17 U.S.C. § 101) and that all right, title and interest in such Intellectual Property will be the sole and exclusive property of the Company and its affiliates. To the extent that any of the Intellectual Property may not by law be considered a work made for hire, or to the extent that, notwithstanding the foregoing, Executive retains any interest in the Intellectual Property, Executive hereby irrevocably assigns and transfers to the Company and its affiliates any and all right, title, or interest that Executive may now or in the future have in the Intellectual Property under patent, copyright, trade secret, trademark or other law, in perpetuity or for the longest period otherwise permitted by law, without the necessity of further consideration. The Company and its affiliates will be entitled to obtain and hold in its own name all copyrights, patents, trade secrets, trademarks and other similar registrations with respect to such Intellectual Property. Executive further agrees to execute any and all documents and provide any further cooperation or assistance reasonably required by the Company, at the Company’s expense, to perfect, maintain or otherwise protect its rights in the Intellectual Property. If the Company or its affiliates, as applicable, are unable after reasonable efforts to secure Executive’s signature, cooperation or assistance in accordance with the preceding sentence, whether because of Executive’s incapacity or any other reason whatsoever, Executive hereby designates and appoints the Company, the appropriate affiliate, or their respective designee as Executive’s agent and attorney-in-fact, to act on his behalf, to execute and file documents and to do all other lawfully permitted acts necessary or desirable to perfect, maintain or otherwise protect the Company’s or its affiliates’ rights in the Intellectual Property. Executive acknowledges and agrees that such appointment is coupled with an interest and is therefore irrevocable.

6.4.  Definitions . For purposes of this Agreement:

6.4.1. “ Competing Business ” means any person, firm, corporation, partnership, association or other entity in North America that uses a mobile location-based media platform for marketers to create location-based advertising content that directly competes with a product, services or product offerings developed, manufactured, marketed, distributed or sold by the Company.

6.4.2. “ Intellectual Property ” means (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents and patent applications claiming such inventions, (b) all trademarks, service marks, trade dress, logos, trade names, fictitious names, brand names, brand marks and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (c) all copyrightable works, all copyrights, and all applications, registrations, and renewals in connection therewith, (d) all mask works and all applications, registrations, and renewals in connection therewith, (e) all trade secrets (including research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, methodologies, technical data, designs, drawings and specifications), (f) all computer software (including data, source and object codes and related documentation), (g) all other proprietary rights, (h) all copies and tangible embodiments thereof (in whatever form or medium), or (i) similar intangible personal property which have been or are developed or created in whole or in part by Executive (1) at any time and at any place while Executive is employed by Company and which, in the case of any or all of the foregoing, are related to and used in connection with the business of the Company or its affiliates, or (2) as a result of tasks assigned to Executive by the Company or its affiliates.

6.4.3. “ Proprietary Information ” means any and all proprietary and non-public information developed or acquired by the Company or any of its subsidiaries or affiliates that has not been specifically authorized to be disclosed. Such Proprietary Information shall include, but shall not be limited to, the following items and information relating to the following items: (a) all intellectual property and proprietary rights of the Company (including, without limitation, the Intellectual Property), (b) computer codes and instructions, processing systems and techniques, inputs and outputs (regardless of the media on which stored or located) and hardware and software configurations, designs, architecture and interfaces, (c) business research, studies, procedures and costs, (d) financial data, (e) distribution methods, (f) marketing data, methods, plans and efforts, (g) the identities of actual and prospective suppliers, (h) the terms of contracts and agreements with, the needs and requirements of, and the Company’s or its affiliates’ course of dealing with, actual or prospective suppliers, (i) customer and vendor credit information and (j) information received from third parties subject to obligations of non-disclosure or non-use. Failure by the Company or its affiliates to mark any of the Proprietary Information as confidential or proprietary shall not affect its status as Proprietary Information. Proprietary Information shall not include information that is or comes into the public domain through no fault of Executive’s, or that Executive can demonstrate was in his possession before receipt of such information from the Company.

6.5.  Acknowledgements . Executive acknowledges that the Restrictive Covenants are reasonable and necessary to protect the legitimate interests of the Company and its affiliates, that the duration and geographic scope of the Restrictive Covenants are reasonable given the nature of this Agreement and the position Executive holds within the Company, and that the Company would not enter into this Agreement or otherwise employ Executive unless Executive agrees to be bound by the Restrictive Covenants set forth in this Section 6 .

6.6.  Remedies and Enforcement Upon Breach .

6.6.1.  Specific Enforcement . Executive acknowledges that any breach by him, willfully or otherwise, of the Restrictive Covenants will cause continuing and irreparable injury to the Company or its affiliates for which monetary damages would not be an adequate remedy. Executive shall not, in any action or proceeding to enforce any of the provisions of this Agreement, assert the claim or defense that such an adequate remedy at law exists. In the event of any such breach or threatened breach by Executive of any of the Restrictive Covenants, the Company or its affiliates, as applicable, shall be entitled to injunctive or other similar equitable relief in any court, without any requirement that a bond or other security be posted, and this Agreement shall not in any way limit remedies of law or in equity otherwise available to the Company and its affiliates.

6.6.2.  Judicial Modification . If any court determines that any of the Restrictive Covenants, or any part thereof, is unenforceable because of the duration or geographical scope of such provision, such court shall have the power to modify such provision and, in its modified form, such provision shall then be enforceable.

6.6.3.  Enforceability . If any court holds the Restrictive Covenants unenforceable by reason of their breadth or scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the right of the Company and its affiliates to the relief provided above in the courts of any other jurisdiction within the geographic scope of such Restrictive Covenants.

6.6.4.  Disclosure of Restrictive Covenants . Executive agrees to disclose the existence and terms of the Restrictive Covenants to any employer that Executive may work for during the Restricted Period.

6.6.5.  Extension of Restricted Period . If Executive breaches Section 6.1 in any respect, the restrictions contained in that section will be extended for a period equal to the period that Executive was in breach.

7.  Miscellaneous .

7.1.  Other Agreements . Executive represents and warrants to the Company that there are no restrictions, agreements or understandings whatsoever to which he is a party that would prevent or make unlawful his execution of this Agreement, that would be inconsistent or in conflict with this Agreement or Executive’s obligations hereunder, or that would otherwise prevent, limit or impair the performance by Executive of his duties under this Agreement.

7.2.  Successors and Assigns . The Company may assign this Agreement to any successor to its assets and business by means of liquidation, dissolution, sale of assets or otherwise. The duties of Executive hereunder are personal to Executive and may not be assigned by him.

7.3.  Governing Law, Dispute Resolution and Jurisdiction .

7.3.1. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to the principles of conflicts of laws. disputes, claims and controversies between the parties hereto concerning the validity, interpretation, performance, termination or breach of this Agreement, which cannot be resolved by the parties within sixty (60) days after such dispute, claim or controversy arises shall, at the option of either party, be referred to and finally settled by arbitration (an “ Arbitration ”) provided, that either party may apply to a court of competent jurisdiction seeking equitable relief prior to Arbitration. Such Arbitration shall be initiated by the initiating party giving notice (the “ Arbitration Notice ”) to the other party (the “ Respondent ”) that it intends to submit such dispute, claim or controversy to Arbitration. Each party shall, within thirty (30) days of the date the Arbitration Notice is received by the Respondent, designate a person to act as an arbitrator. If either party fails to designate a person to act as an arbitrator within the time specified herein the Arbitration shall be conducted by the sole designated arbitrator. The two arbitrators appointed by the parties shall, within thirty (30) days after their designation appoint a third arbitrator who shall act as presiding arbitrator (the “ Presiding Arbitrator ” and, together with the other two arbitrators, the “ Arbitration Panel ”). If the two arbitrators designated by the parties are unable to appoint a Presiding Arbitrator, the Presiding Arbitrator shall be appointed according to the rules of the American Arbitration Association as in effect on the date the notice of submission to arbitration is given (the “ Rules ”).

7.3.2. The Arbitration shall be conducted in accordance with the Rules, pursuant to the United States Arbitration Act, 9 U.S.C., Section 1 et seq., and shall be held in the Borough of Manhattan, in the City of New York and the State of New York. Executive and the Company hereby consent to the personal and exclusive jurisdiction of New York for such Arbitration and hereby waive any objection(s) that they may have to personal jurisdiction, the laying of venue of any such Arbitration proceeding and any claim or defense of inconvenient forum. All Arbitration proceedings shall be confidential, and neither the parties nor the members of the Arbitration Panel may disclose the content or results of any Arbitration hereunder without the prior written consent of all parties to the dispute.  The Arbitration proceedings shall be governed by federal arbitration law and by the Rules, without reference to state arbitration law, unless the parties stipulate to the contrary.  Any provisional remedy (including preliminary or permanent injunctive relief) that would be available from a court of law shall be available from the Arbitration Panel pending completion of the arbitration.  The benefited party of such provisional remedy shall be entitled to enforce such remedy in court immediately, even though a final arbitration award has not yet been rendered.  Within thirty (30) days after the appointment of all arbitrators to the Arbitration Panel, or within such longer period mutually agreed upon by the parties, the Arbitration Panel shall hear and decide the dispute submitted to Arbitration hereunder and shall promptly prepare a written decision on the merits of the matters in dispute, which decision shall state the facts and law relied upon and the reasons for the Arbitration Panel’s decision.  The award or decision of the Arbitration Panel, which may include an order of specific performance, injunction, or other equitable relief, shall be final and binding on all parties, and judgment thereon may be rendered by any court having jurisdiction thereof, or application may be made to such court for the judicial acceptance of the award and an order of enforcement, as the case may be. There shall be no right of appeal, except as contained under applicable laws.  During the pendency of any arbitration process, the parties shall equally share the cost of the arbitrator, and each party to any arbitration shall bear its own expenses, including but not limited to such party’s attorneys’ fees, if any.

7.3.3. Executive understands that nothing in this Section 7.3 modifies Executive’s at-will employment status. Either Executive or the Company may terminate the employment relationship between Executive and the Company at any time, with or without Cause, upon the terms and subject to the conditions of this Agreement.

7.3.4. EXECUTIVE HAS READ AND UNDERSTANDS THIS SECTION 7.3, WHICH DISCUSSES ARBITRATION. EXECUTIVE UNDERSTANDS THAT SUBMITTING ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION THEREOF TO BINDING ARBITRATION, CONSTITUTES A WAIVER OF EXECUTIVE’S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE EMPLOYER/EXECUTIVE RELATIONSHIP, INCLUDING BUT NOT LIMITED TO, THE FOLLOWING CLAIMS:

(a) ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT; BREACH OF CONTRACT, BOTH EXPRESS AND IMPLIED; BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING, BOTH EXPRESS AND IMPLIED; NEGLIGENT OR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT OR INTENTIONAL MISREPRESENTATION; NEGLIGENT OR INTENTIONAL INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC ADVANTAGE; AND DEFAMATION.

(b) ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL STATE OR MUNICIPAL STATUTE, INCLUDING, BUT NOT LIMITED TO, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE CIVIL RIGHTS ACT OF 1991, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE AMERICANS WITH DISABILITIES ACT OF 1990, AND THE FAIR LABOR STANDARDS ACT; 

(c) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.

7.4.  Waivers . The waiver by either party of any right hereunder or of any breach by the other party will not be deemed a waiver of any other right hereunder or of any other breach by the other party. No waiver will be deemed to have occurred unless set forth in a writing. No waiver will constitute a continuing waiver unless specifically stated, and any waiver will operate only as to the specific term or condition waived.

7.5.  Indemnification . In the event Executive is made, or threatened to be made, a party to any legal action or proceeding, by reason of the fact that Executive is or was an employee, director or officer of the Company or serves or served any other entity in any capacity at the Company’s request, Executive shall be indemnified by the Company, and the Company shall pay Executive’s related expenses when and as incurred, including but not limited to attorney fees, all to the fullest extent permitted by law. This Section 7.5 shall survive termination of Executive’s employment and this Agreement.

7.6.  Defend Trade Secrets Act Compliance . Executive will not be held criminally or civilly liable under any federal or state trade secret law for Executive’s disclosure of a trade secret that is made in confidence to federal, state or local government official or to an attorney, provided that such disclosure is: (a) solely for the purpose of reporting or investigating a suspected violation of law; or (b) made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. If Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Executive may disclose the trade secret to Executive’s attorney and use the trade secret information in related court proceedings, provided that Executive files any document containing the trade secret information under seal and does not disclose the trade secret, except pursuant to court order.

7.7.  Assistance in Litigation . Executive shall reasonably cooperate with the Company in the defense or prosecution of any claims or actions now in existence or that may be brought in the future against or on behalf of the Company that relate to events or occurrences that transpired while Executive was employed by the Company. Executive's cooperation in connection with such claims or actions shall include, but not be limited to, being available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of the Company at mutually convenient times. Executive also shall cooperate fully with the Company in connection with any investigation or review by any federal, state, or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while Executive was employed by the Company. The Company will pay Executive a reasonable hourly rate for Executive's cooperation pursuant to this Section 7.7 . The Company will reimburse Executive for reasonable attorney's fees and costs incurred as a result of his compliance with this Section 7.7 . Nothing in this Agreement shall be deemed to limit Executive's rights under any indemnification or other agreement to which Executive may be a party or any other applicable agreement or insurance policy.

7.8.  Severability . Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law. However, if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provision, and this Agreement will be reformed, construed and enforced as though the invalid, illegal or unenforceable provision had never been herein contained.

7.9.  Survival . This Agreement will survive the cessation of Executive’s employment to the extent necessary to fulfill the purposes and intent the Agreement.

7.10.  Notices . Any notice or communication required or permitted under this Agreement will be made in writing and (a) sent by overnight courier, (b) mailed by overnight U.S. express mail, return receipt requested or (c) sent by telecopier. Any notice or communication to Executive will be sent to the address contained in his personnel file. Any notice or communication to the Company will be sent to:

SITO Mobile, Ltd. 

100 Town Square Place 

Suite 204 

Jersey City, NJ 07310

with a copy to (which shall not constitute Notice):

Andrew Hulsh 

Partner 

Pepper Hamilton LP 

The New York Times Building 

620 Eighth Avenue—37 ^th Floor 

New York, NY 10018

Notwithstanding the foregoing, either party may change the address for notices or communications hereunder by providing written notice to the other in the manner specified in this paragraph.

7.11.  Entire Agreement; Amendments . This Agreement contains the entire agreement and understanding of the parties hereto relating to the subject matter hereof, and merges and supersedes all prior and contemporaneous discussions, agreements and understandings of every nature relating to that subject matter. This Agreement may not be changed or modified, except by an agreement in writing signed by each of the parties hereto.

7.12.  Withholding . All payments (or transfers of property) to Executive will be subject to tax withholding to the extent required by applicable law.

7.13.  Section Headings . The headings of sections and paragraphs of this Agreement are inserted for convenience only and will not in any way affect the meaning or construction of any provision of this Agreement.

7.14.  Counterparts; Facsimile . This Agreement may be executed in multiple counterparts (including by facsimile signature), each of which will be deemed to be an original, but all of which together will constitute but 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.

[remainder of page intentionally left blank; signature page follows]

IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer, and Executive has executed this Agreement, on the date(s) indicated below. 

Signature Page to Employment Agreement

Exhibit 10.4

EMPLOYMENT AGREEMENT

EMPLOYMENT AGREEMENT (the “ Agreement ”) dated as of July 24, 2017 (the “ Effective Date ”) by and between SITO MOBILE, LTD., a Delaware corporation (the “ Company ”) and THOMAS J. PALLACK (the “ Executive ”). The Company and Executive are sometimes hereinafter referred to individually as a “ party ” and collectively as the “ parties .”

RECITALS

A. Executive is currently employed as the Company’s Chief Executive Officer.

B. The Company and Executive wish to memorialize their understanding and agreement with respect to their employment relationship, upon the terms and subject to the conditions set forth in this Agreement.

Accordingly, in consideration of the foregoing and the mutual covenants herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:

1.  Duration of Agreement . This Agreement is effective as of the Effective Date and has no specific expiration date. Unless terminated by agreement of the parties, this Agreement will govern Executive’s employment by the Company until that employment ceases.

2.  Title; Duties . Executive will be employed as the Company’s Chief Executive Officer, and shall report to the Company’s Board of Directors (the “ Board ”). Executive’s employment by the Company shall be full-time and exclusive, and Executive shall devote all of his business time, attention and services to the Company and its subsidiaries and affiliates (collectively, the “ Company Group ”) and shall perform such duties as may be customarily incident to his position as Chief Executive Officer and as may reasonably be assigned to him by the Board from time to time. Executive will not, in any capacity, engage in other business activities or perform services for any other individual, firm or corporation without the prior written consent of the Company; provided that without such consent, Executive may engage in charitable, non-profit and public service activities and manage his passive personal and family investments, so long as such activities do not in any respect interfere or conflict with Executive’s duties and obligations to the Company hereunder or violate any restrictive covenants to which Executive has agreed.

3.  Place of Performance . Executive will perform his services hereunder at the principal executive offices of the Company, which are presently located in Jersey City, New Jersey, (or the location of any other principal executive offices of the Company that may be established during the term of Executive’s employment hereunder) or by telecommuting when Executive is not physically located in Jersey City, New Jersey (or such other location where the Company’s principal executive offices may hereafter be located); provided that Executive will be required to travel from time to time for business purposes.

4.  Compensation and Benefits .

4.1.  Base Salary . Executive’s annual salary will be $350,000 (the “ Base Salary ”), paid in accordance with the Company’s payroll practices as in effect from time to time. The Base Salary will be reviewed annually by the Compensation Committee of the Company’s Board (the “ Compensation Committee ”) and may be increased, but not decreased.

4.2.  Annual Bonuses .

4.2.1.  For each fiscal year ending during his employment, Executive will be eligible to earn an annual cash bonus (the “ Cash Bonus ”).

4.2.2.  For the fiscal year ending December 31, 2017, the Cash Bonus shall be based on a percentage of the Base Salary and determined as follows:

For example , if (i) the Company’s total revenues for the six-month period ending December 31, 2017 are equal to or greater than 22.5 million and (ii) the Company executes three Data Deals during the six-month period beginning July 1, 2017 and ending December 31, 2017, Executive shall be paid a Cash Bonus of an aggregate of 100% of his Base Salary, or $350,000. In this Section 4.2 , the term “ Data Deal ” shall means either the sourcing of new data or data models which are not generally available in the data brokerage ecosystem and which are then available for inclusion in the Company’s data analytics, included in the Company’s sales packages and solutions for clients, or used to create new avenues of the Company’s analytic results for client leverage; or the packaging of the Company’s data models, analytics, and insights for direct inclusion in sales and solutions to clients.  Additionally, the multi-year licensing of the Company’s data assets to third parties for inclusion in their data and marketing assets and for which the Company’s receives periodic licensing revenue and for which the Company must provide periodic data updates shall constitute a Data Deal.

While there is no monetary value specificity assigned to Data Deals as they may be folded into a larger transaction, a Data Deal must represent a recognizable accretion of the Company’s sales value within the transaction, or key purpose for the transaction, or source and value of data because of the data inclusion.

4.2.3.  Commencing January 1, 2018, the targets for a Cash Bonus and the amount of the actual Cash Bonus payable with respect to a particular year will be determined by the Compensation Committee, based on the achievement of corporate and/or individual performance objectives to be established by the Compensation Committee in consultation with Executive. Any Cash Bonus payable under this Section 4.2 will be paid commensurate with the Company’s normal policies pertaining to the payment of bonuses; provided that such payments shall be made in full as soon as practicable following completion of the Company’s audit for the most recently-completed fiscal year and the filing of the Company’s annual report on Form 10-K relating to such fiscal year, but in no event after the first six months of the calendar year immediately following the fiscal year in respect of which the performance thresholds relating to such Cash Bonus have been satisfied and, except as otherwise specifically provided in this Agreement, will only be paid if Executive remains continuously employed by the Company through the actual Cash Bonus payment date.

4.2.4.  For purposes of determining any Cash Bonus payable to Executive with respect to periods after December 31, 2017, the measurement of corporate and individual performance will be performed by the Compensation Committee in good faith. From time to time, the Compensation Committee may, in its sole discretion, make adjustments to corporate or individual performance goals, so that required departures from the Company’s operating budget, changes in accounting principles, acquisitions, dispositions, mergers, consolidations and other corporate transactions, and other factors influencing the achievement or calculation of such goals do not affect the operation of this provision in a manner inconsistent with its intended purposes.

4.3.  Equity Incentive Awards .

4.3.1.  Executive shall be eligible to receive equity-based compensation commensurate with his position in connection with any annual equity-based awards made to senior executives of the Company. Such awards shall be made in the sole discretion of the Compensation Committee and shall be subject to the terms and conditions set forth in, as applicable, the Company’s 2008 Stock Option Plan or 2010 Stock Plan (collectively, the “ Equity Incentive Plans ”) (or other applicable equity incentive or compensation plan) and award agreements, and in all cases shall be as determined by the Compensation Committee.

4.3.2.  As soon as practicable following the Effective Date, Executive will be granted the following awards (the “ Initial Grants ”) under and subject to the Equity Incentive Plans (including, without limitation, the extent to which the shares underlying the RSU Award and the Option Award (as such terms are defined in Section 4.3(a) and Section 4.3(b) , respectively) are available under the Equity Incentive Plans:

(a)  a restricted stock unit award (the “ RSU Award ”) to receive up to an aggregate of 1,028,050 shares (the “ RSU Shares ”) of the Company’s common stock, par value $0.001 per share (“ Common Stock ”), based on the closing price of the Common Stock on NASDAQ (or any other exchange on which the Common Stock may then be traded) for a period of at least 65 consecutive trading days, determined as follows:

(b)  an option to purchase an aggregate of 400,000 shares of Common Stock (the “ Option Award ”) at a per share exercise price equal to the closing price of the Common Stock on NASDAQ on the date of grant). Subject to Executive’s continued employment with the Company, 25% of the Option Award will vest on the first anniversary of the Effective Date and the remainder will vest in substantially equal quarterly installments during the three-year period commencing on the first anniversary of the Effective Date.

The RSU Award and Option Award will otherwise be subject to the terms and conditions of the Equity Compensation Plans and award agreements evidencing such grants.

4.4.  Employee Benefits . During Executive’s employment, Executive and Executive’s spouse and dependents, to the extent they are eligible, will be entitled to participate in all employee benefit plans and programs made available by the Company from time to time to employees generally, subject to applicable plan terms and policies. The Company periodically reviews its benefits, policies, benefits providers and practices and may terminate, alter or change them at its discretion from time to time.

4.5.  Reimbursement of Expenses . Executive will be reimbursed by the Company for all reasonable business expenses incurred by Executive in accordance with the Company’s customary expense reimbursement policies as in effect from time to time. Notwithstanding anything herein to the contrary, to the extent any expense, reimbursement or in-kind benefit provided to Executive constitutes a “deferral of compensation” within the meaning of Section 409A of the Internal Revenue Code (the “ Code ”) (i) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive must be incurred during Executive’s term of employment; (ii) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in any other calendar year, (iii) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred and (iv) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit.

5.  Termination . Either party may terminate Executive’s employment with the Company at any time and for any reason; provided that in the case of a resignation by Executive, Executive will provide at least thirty (30) days advance written notice of any such resignation; and provided further that following receipt of Executive’s advance notice of resignation, the Company may waive all or any portion of the remaining notice period and accept Executive’s resignation immediately. Upon any cessation of his employment with the Company, Executive will be entitled only to such compensation and benefits as described in this Section 5 . Upon any cessation of his employment for any reason, unless otherwise requested by the Company, Executive agrees to resign immediately from all officer and director positions he then holds with the Company or any of its affiliates.

5.1.  Termination by the Company without Cause or Termination by Executive for Good Reason . If Executive’s employment by the Company ceases due to a termination by the Company without Cause (as defined below) or a resignation by Executive for Good Reason (as defined below), Executive will be entitled to receive, subject to the execution and delivery by Executive of a Release (as defined below):

5.1.1.  continuation of Executive’s Base Salary for a period equal to twelve months following the effective date of the termination of Executive by the Company without Cause or the resignation by Executive for Good Reason (the “ Involuntary Termination Date ”), payable in accordance with the Company’s standard payroll practices;

5.1.2.  an amount equal to a cash bonus equal to 100% of Executive’s Base Salary prevailing on the Involuntary Termination Date, which amount shall be paid in the year following employment termination at the time annual bonuses are paid to the Company’s other senior executives;

5.1.3.  accelerated vesting of 100% of the Option Award;

5.1.4.  except as provided in Section 5.2 , accelerated vesting of the portion of the RSU Award that has not issued (the “ Unissued RSU Award ”) as of the Involuntary Termination Date, as follows:

(a)  If the Involuntary Termination Date occurs on or before the first anniversary of the Effective Date, then 25% of the Unissued RSU Award shall accelerate and vest;

(b)  If the Involuntary Termination Date occurs after the first anniversary of the Effective Date, but on or before the second anniversary of the Effective Date, then 50% of the Unissued RSU Award shall accelerate and vest;

(c)  If the Involuntary Termination Date occurs after the second anniversary of the Effective Date, but on or before the third anniversary of the Effective Date, then 75% of the Unissued RSU Award shall accelerate and vest; and

(d)  If the Involuntary Termination Date occurs after the third anniversary of the Effective Date, but on or before the fourth anniversary of the Effective Date, then 100% of the Unissued RSU Award shall accelerate and vest.

5.1.5.  waiver of the applicable premium otherwise payable for COBRA continuation coverage for Executive (and, to the extent covered immediately prior to the date of such cessation, his spouse and eligible dependents) for a period equal to twelve months. The amounts specified in Sections 5.1.1 , 5.1.2 , 5.1.3 , 5.1.4 and 5.1.5 are referred to herein as the “ Severance Benefits .”

Except as otherwise provided in this Section 5.1 , and except for payment of (i) all accrued and unpaid Base Salary through the date of such termination or cessation, (ii) any expense reimbursements to be paid in accordance with the Company’s policies and Section 4.5 ; and (iii) payments for any accrued but unused paid time off in accordance with the Company’s policies and applicable law (the amounts specified in the foregoing subparagraphs (i)-(iii) of this paragraph are referred to herein as the “ Accrued Obligations ”), all compensation and benefits will cease at the time of such cessation and the Company will have no further liability or obligation by reason of such cessation. The payments and benefits described in this Section 5.1 are in lieu of, and not in addition to, any other severance arrangement maintained by the Company. Notwithstanding any provision of this Agreement, the payments and benefits described in Section 5.1 are conditioned on: (a) Executive’s execution and delivery to the Company and the expiration of all applicable statutory revocation periods, by the 45 ^th day following the effective date of his cessation of employment, of a general release of claims against the Company and its affiliates (other than a release of claims under this Agreement) in a form reasonably prescribed by the Company (the “ Release ”); and (b) Executive’s continued compliance with the Restrictive Covenants (as defined below). Subject to Section 5.4 , below, the benefits described in Section 5.1 will be paid or provided (or begin to be paid or provided) as soon as administratively practicable (or determinable in the case of the benefits described in Section 5.1.1 , if later) after the Release becomes irrevocable, provided that if the 45-day period described above begins in one taxable year and ends in a second taxable year such payments or benefits shall not commence until the second taxable year.

5.2.  Termination Following a Change in Control . Notwithstanding Section 5.1.4 , If Executive’s employment by the Company ceases due to a termination by the Company without Cause or a resignation by Executive for Good Reason during the twelve (12) month period immediately following the occurrence of a Change in Control (as defined below), (a) all unvested restricted stock, stock options and other equity incentives awarded to Executive by the Company will become immediately and automatically fully vested and exercisable (as applicable); provided that in the event the Change of Control involves a merger, consolidation or other transaction, the RSU Shares shall be issued to Executive based on the price or value ascribed to each share of Common Stock in such transaction, without regard to whether such price or value is maintained for a period of 65 days or any other period of time, and, subject to the foregoing, the Company will be required to pay Executive the Severance Benefits and the Accrued Obligations. In the event that RSU Shares may be issued under Section 5.1.4 or this Section 5.2 , Executive shall have the ability to elect to receive the greater number of RSU Shares under either of such Sections. For example , if (i) Executive is terminated without Cause on a date that is six months following a Change of Control of the Company; (ii) such Change of Control involves the acquisition of more than 50% of the outstanding Common Stock for a price of $7.50 per share; (iii) such termination occurs 13 months after the Effective Date; and (iv) prior to the time of such Change of Control, no RSU Shares have been granted to Executive, then a total of 257,012 RSU Shares, or 25% of the RSU Award, would be available for grant to Executive under Section 5.1.4 , and a total of 205,610 RSU Shares would be available for grant to Executive under this Section 5.2 , in which case the Executive would have the ability to receive the higher of such amount, or 257,012 RSU Shares.

5.3.  Termination for any other Reason . If Executive’s employment by the Company ceases for any reason other than as described in Section 5.1 above (including, but not limited to, termination (a) by the Company for Cause, (b) by Executive other than for Good Reason, (c) as a result of Executive’s death, or (d) as a result of Executive’s Disability (as defined in Section 5.9.3 )), then the Company’s obligation to Executive will be limited solely to the Accrued Obligations. All compensation and benefits will cease at the time of such termination and, except as otherwise provided by COBRA, the Company will have no further liability or obligation by reason of such termination.

5.4.  No Limitation of Certain Claims for Payment or Reimbursement . The foregoing will not be construed to limit Executive’s right to payment or reimbursement for claims incurred prior to the date of such termination under any insurance contract funding an employee benefit plan, policy or arrangement of the Company in accordance with the terms of such insurance contract.

5.5.  Compliance with Section 409A . If the termination giving rise to the payments described in Section 5.1 is not a “Separation from Service” within the meaning of Treas. Reg. § 1.409A-1(h)(1) (or any successor provision), then the amounts otherwise payable pursuant to that section will instead be deferred without interest and will not be paid until Executive experiences a Separation from Service. To the maximum extent permitted under Section 409A of the Code and its corresponding regulations, the cash severance benefits payable under this Agreement are intended to meet the requirements of the short-term deferral exemption under Section 409A of the Code and the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii). To the extent compliance with the requirements of Treas. Reg. § 1.409A-3(i)(2) (or any successor provision) is necessary to avoid the application of an additional tax under Section 409A of the Internal Revenue Code to payments due to Executive upon or following his Separation from Service, then notwithstanding any other provision of this Agreement (or any otherwise applicable plan, policy, agreement or arrangement), any such payments that are otherwise due within six months following Executive’s Separation from Service (taking into account the preceding sentence of this paragraph) will be deferred without interest and paid to Executive in a lump sum immediately following that six month period. For purposes of the application of Treas. Reg. § 1.409A-1(b)(4) (or any successor provision), each payment in a series of payments will be deemed a separate payment. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.

5.6.  PPACA . Notwithstanding anything in this Agreement to the contrary, the waiver in respect of COBRA premiums pursuant to this Agreement shall cease to the extent required to avoid adverse consequences to the Company under the Patient Protection and Affordable Care Act of 2010 and regulations thereunder.

5.7.  Section 280G . If any payment or distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement or the lapse or termination of any restriction on or the vesting or exercisability of any payment or benefit (each a “ Payment ”), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law (such tax or taxes are hereafter collectively referred to as the “ Excise Tax ”), then the aggregate amount of Payments payable to Executive shall be reduced to the aggregate amount of Payments that may be made to Executive without incurring an excise tax (the “ Safe-Harbor Amount ”) in accordance with the immediately following sentence; provided that such reduction shall only be imposed if the aggregate after-tax value of the Payments retained by Executive (after giving effect to such reduction) is equal to or greater than the aggregate after-tax value (after giving effect to the Excise Tax) of the Payments to Executive without any such reduction. Any such reduction shall be made in the following order: (i) first, any future cash payments (if any) shall be reduced (if necessary, to zero); (ii) second, any current cash payments shall be reduced (if necessary, to zero); (iii) third, all non-cash payments (other than equity or equity derivative related payments) shall be reduced (if necessary, to zero); and (iv) fourth, all equity or equity derivative payments shall be reduced.

5.8.  Return of Company Property . Not later than seven (7) days following the effective date of any cessation of Executive’s employment, Executive will return all property of the Company Group in Executive’s possession or control, including, but not limited to, all Company-owned computer equipment (hardware and software), telephones, tablet computers and other electronic devices, credit cards, office keys, security access cards, badges, identification cards and all documentation, materials or information (however stored) relating to the business of the Company Group or any of their customers or prospective customers. In doing this, Executive will make a diligent search of his personal computers and other devices and of his personal email and cloud storage accounts for any Company property or Proprietary Information (as defined in Section 6.4.3 ). If these devices or accounts contain Company property or Proprietary Information, then Executive will transmit those files to the Company or its designee and permanently delete those files from his devices and accounts, without retaining copies or excerpts.

5.9.  Definitions . For purposes of this Agreement:

5.9.1.  “ Cause ” means (a) alcohol abuse or the use of controlled drugs (other than in accordance with a physician’s orders); (b) Executive’s repeated or substantial refusal, failure, or inability to perform (other than due to illness or disability), or gross negligence or willful misconduct in the performance of , his duties; (c) material breach of any agreement with or duty owed to the Company or its affiliates, which breach (if curable) remains uncured thirty (30) days after receipt of written notice thereof; (d) conduct of Executive involving dishonesty adversely affecting the Company or any of its affiliates, including fraud, embezzlement, theft or other misuse of property; (e) any commission of or entrance of a plea of guilty or nolo contendere to a felony, any crime of moral turpitude or any other crime that materially and adversely affects the operations, financial performance or customer relationships of the Company or its affiliates, or (f) a material violation of any written policy of the Company or its affiliates in effect from time to time, including, without limitation, policies relating to discrimination, harassment, fraternization and nepotism.

5.9.2.  “ Change in Control ” means, unless such term or an equivalent term is otherwise defined with respect to the RSU Award or the Option Award in the grant agreement between the Company and Executive, the occurrence of any of the following events:

(a)  any “person” or “group,” (as such terms are defined and applied in Section 13(d) of the Securities Exchange Act of 1934 (the “ Exchange Act ”)) becomes (directly or indirectly) the “beneficial owner” (within the meaning of Rule 13d-3 promulgated under the Exchange Act), of the voting securities of the Company representing more than 50% of the total issued and outstanding voting securities of the Company; provided that the following acquisitions shall not constitute a Change in Control:

(i)  an acquisition by any such person or group who on the Effective Date is the beneficial owner of more than fifty percent (50%) of such voting power;

(ii)  any acquisition directly from the Company, including, without limitation, a public offering of securities;

(iii)  any acquisition by the Company; or

(iv)  any acquisition by an entity owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the voting securities of the Company; or

(b)  an Ownership Change Event or series of related Ownership Change Events (collectively, a “ Transaction ”) in which the stockholders of the Company immediately before the Transaction do not retain immediately after the Transaction direct or indirect beneficial ownership of more than fifty percent (50%) of the total combined voting power of the outstanding securities entitled to vote generally in the election of Directors or, in the case of an Ownership Change Event described in clause (iii) of the definition thereof, the entity to which the assets of the Company were transferred, as the case may be; or

(c)  a majority of the Board consists of individuals other than “Incumbent Directors,” which term means the members of the Board on the Effective Date; provided that any individual becoming a director subsequent to such date whose election or nomination for election was supported by two-thirds of the directors who then comprised the Incumbent Directors shall be considered to be an Incumbent Director; or

(d)  the Board adopts any plan for the liquidation or dissolution of all or substantially all of the Company’s assets or business, or liquidation or dissolution of the Company which is not pursuant to a plan adopted by the Board; or

(e)  all or substantially all of the assets or business of the Company is disposed of pursuant to a merger, consolidation or other transaction (unless the stockholders of the Company immediately prior to such merger, consolidation or other transaction beneficially own, directly or indirectly, in substantially the same proportion as they owned the voting securities of the Company, all of the voting securities or other ownership interests of the entity or entities, if any, that succeed to the business of the Company); or

(f)  the Company combines with another company and is the surviving corporation but, immediately after the combination, the holders of voting securities of the Company immediately prior to the combination hold, directly or indirectly, 50% or less of the voting securities (measured by number of votes entitled to be cast) of the combined company (there being excluded from the number of shares held by such stockholders, but not from the voting securities of the combined company, any shares received by affiliates of such other company in exchange for stock of such other company).

5.9.3.  “ Disability ” means a condition entitling Executive to benefits under the Company’s long term disability plan, policy or arrangement; provided that if no such plan, policy or arrangement is then maintained by the Company and applicable to Executive, “ Disability ” will mean Executive’s inability to perform his duties under this Agreement due to a mental or physical condition that can be expected to result in death or that can be expected to last (or has already lasted) for a continuous period of 90 days or more, or for 120 days in any 180 consecutive day period. Termination as a result of a Disability will not be construed as a termination by the Company “without Cause.”

5.9.4.  “ Good Reason ” means any of the following, without Executive’s prior consent: (a) a constructive termination involving a material diminution of Executive’s duties or authority with the Company, reporting relationships or the assignment of duties and responsibilities inconsistent with Executive’s position with the Company; (b) a reduction in, or failure to pay when due, Base Salary; or (c) the Company requires a physical transfer or relocation of Executive to a location fifty (50) miles or more from Executive’s work location as it existed on the Effective Date in order for Executive to continue to perform his duties and responsibilities under this Agreement. However, none of the foregoing events or conditions will constitute Good Reason unless Executive provides the Company with written objection to the event or condition within 30 days following the occurrence thereof, the Company does not reverse or otherwise cure the event or condition within 30 days of receiving that written objection, and Executive resigns Executive’s employment within 30 days following the expiration of that cure period. Notwithstanding the foregoing and for the avoidance of doubt, a diminution of Executive’s title, alone, as a result of Change in Control shall not constitute Good Reason.

5.9.5.  “ Ownership Change Event ” means the occurrence of any of the following with respect to the Company: (i) the direct or indirect sale or exchange in a single or series of related transactions by the stockholders of the Company of more than fifty percent (50%) of the voting stock of the Company; (ii) a merger or consolidation in which the Company is a party; or (iii) the sale, exchange, or transfer of all or substantially all of the assets of the Company (other than a sale, exchange or transfer to one or more subsidiaries of the Company).

6.  Restrictive Covenants . To induce the Company to enter into this Agreement and in recognition of the compensation to be paid to Executive pursuant to Sections 3 and 5 of this Agreement, Executive agrees to be bound by the provisions of this Section 6 (the “ Restrictive Covenants ”). These Restrictive Covenants will apply without regard to whether any termination or cessation of Executive’s employment is initiated by the Company or Executive, and without regard to the reason for that termination or cessation.

6.1.  Covenant Not to Compete . Executive covenants that, during his employment by the Company and for a period of twelve months following the termination of such employment (the “ Restricted Period ”), Executive will not (except in his capacity as an employee or director of the Company) do any of the following, directly or indirectly:

6.1.1.  engage or participate in any Competing Business (as defined below) wherever the Company or its affiliates do business, do or plan to do business or sell or market their products or services;

6.1.2.  become interested in (as owner, stockholder, lender, partner, co-venturer, director, officer, employee, agent or consultant) any person, firm, corporation, association or other entity engaged in a Competing Business, other than the Company. Notwithstanding the foregoing, Executive may hold up to 3% of the outstanding securities of any class of any publicly-traded securities of any company;

6.1.3.  solicit or attempt to solicit any employee, consultant, supplier, licensor, licensee, contractor, agent, strategic partner, distributor, customer or other person with whom Executive had contact during the one-year period prior to the time of Executive’s employment with the Company has terminated, or intentionally influence any such person to modify any written or oral agreement, arrangement or course of dealing with the Company or any of its affiliates; or

6.1.4.  solicit for employment or retention as an independent contractor (or arrange to have any other person or entity solicit for employment or retention) any person employed or retained by the Company or any of its affiliates.

6.2.  Confidentiality . Executive recognizes and acknowledges that the Proprietary Information (as defined in below) is a valuable, special and unique asset of the business of the Company and its affiliates. As a result, both during the Term and thereafter, Executive will not, without the prior written consent of the Company, for any reason divulge to any third-party or use for his own benefit, or for any purpose other than the exclusive benefit of the Company and its affiliates, any Proprietary Information. Notwithstanding the foregoing, nothing in this Agreement prohibits Executive from initiating communications directly with, responding to any inquiries from, providing testimony before, providing confidential information to, reporting possible violations of law or regulation to, or from filing a claim or assisting with an investigation directly with a self-regulatory authority or a government agency or entity, including the U.S. Equal Employment Opportunity Commission, the Department of Labor, the National Labor Relations Board, the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General (collectively, the “ Regulators ”), or from making other disclosures that are protected under the whistleblower provisions of state or federal law or regulation. In connection with any such activity, Executive must identify any information that is confidential and ask the Regulator for confidential treatment of such information. Despite the foregoing, Executive is not permitted to reveal to any third party, including any governmental, law enforcement, or regulatory authority, information employee came to learn during the course of Executive’s employment with the Company that is protected from disclosure by any applicable privilege, including but not limited to the attorney-client privilege, attorney work product doctrine and/or other applicable legal privileges. The Company and its affiliates do not waive any applicable privileges or the right to continue to protect its privileged attorney-client information, attorney work product, and other privileged information. Notwithstanding any other provisions of this Agreement, pursuant to 18 USC Section 1833(b), Executive shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of the Company’s or its affiliate’s trade secret that is made: (a) confidentially to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (b) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. If Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Executive may disclose a trade secret to Executive’s attorney and use the trade secret information in related court proceedings, provided that Executive files any document containing the trade secret information under seal and does not disclose the trade secret, except pursuant to court order.

6.3.  Property of the Company .

6.3.1.  Proprietary Information . All right, title and interest in and to Proprietary Information will be and remain the sole and exclusive property of the Company and its affiliates. Executive will not remove from the Company’s or its affiliates’ offices or premises any documents, records, notebooks, files, correspondence, reports, memoranda or similar materials of or containing Proprietary Information, or other materials or property of any kind belonging to the Company or its affiliates unless necessary or appropriate in the performance of his duties to the Company and its affiliates. If Executive removes such materials or property in the performance of his duties, he will return such materials or property promptly after the removal has served its purpose. Executive will not make, retain, remove and/or distribute any copies of any such materials or property, or divulge to any third person the nature of and/or contents of such materials or property, except to the extent necessary to satisfy contractual obligations of the Company or its affiliates, to perform his duties on behalf of the Company and its affiliates or pursuant to the exceptions set forth in Section 6.2 . Upon termination of Executive’s employment with the Company, he will leave with the Company and its affiliates or promptly return to the Company and its affiliates all originals and copies of such materials or property then in his possession.

6.3.2.  Intellectual Property . Executive agrees that all the Intellectual Property (as defined below) will be considered “works made for hire” as that term is defined in Section 101 of the Copyright Act (17 U.S.C. § 101) and that all right, title and interest in such Intellectual Property will be the sole and exclusive property of the Company and its affiliates. To the extent that any of the Intellectual Property may not by law be considered a work made for hire, or to the extent that, notwithstanding the foregoing, Executive retains any interest in the Intellectual Property, Executive hereby irrevocably assigns and transfers to the Company and its affiliates any and all right, title, or interest that Executive may now or in the future have in the Intellectual Property under patent, copyright, trade secret, trademark or other law, in perpetuity or for the longest period otherwise permitted by law, without the necessity of further consideration. The Company and its affiliates will be entitled to obtain and hold in its own name all copyrights, patents, trade secrets, trademarks and other similar registrations with respect to such Intellectual Property. Executive further agrees to execute any and all documents and provide any further cooperation or assistance reasonably required by the Company, at the Company’s expense, to perfect, maintain or otherwise protect its rights in the Intellectual Property. If the Company or its affiliates, as applicable, are unable after reasonable efforts to secure Executive’s signature, cooperation or assistance in accordance with the preceding sentence, whether because of Executive’s incapacity or any other reason whatsoever, Executive hereby designates and appoints the Company, the appropriate affiliate, or their respective designee as Executive’s agent and attorney-in-fact, to act on his behalf, to execute and file documents and to do all other lawfully permitted acts necessary or desirable to perfect, maintain or otherwise protect the Company’s or its affiliates’ rights in the Intellectual Property. Executive acknowledges and agrees that such appointment is coupled with an interest and is therefore irrevocable.

6.4.  Definitions . For purposes of this Agreement:

6.4.1.  “ Competing Business ” means any person, firm, corporation, partnership, association or other entity in North America that uses a mobile location-based media platform for marketers to create location-based advertising content that directly competes with a product, services or product offerings developed, manufactured, marketed, distributed or sold by the Company.

6.4.2.  “ Intellectual Property ” means (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents and patent applications claiming such inventions, (b) all trademarks, service marks, trade dress, logos, trade names, fictitious names, brand names, brand marks and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (c) all copyrightable works, all copyrights, and all applications, registrations, and renewals in connection therewith, (d) all mask works and all applications, registrations, and renewals in connection therewith, (e) all trade secrets (including research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, methodologies, technical data, designs, drawings and specifications), (f) all computer software (including data, source and object codes and related documentation), (g) all other proprietary rights, (h) all copies and tangible embodiments thereof (in whatever form or medium), or (i) similar intangible personal property which have been or are developed or created in whole or in part by Executive (1) at any time and at any place while Executive is employed by Company and which, in the case of any or all of the foregoing, are related to and used in connection with the business of the Company or its affiliates, or (2) as a result of tasks assigned to Executive by the Company or its affiliates.

6.4.3.  “ Proprietary Information ” means any and all proprietary and non-public information developed or acquired by the Company or any of its subsidiaries or affiliates that has not been specifically authorized to be disclosed. Such Proprietary Information shall include, but shall not be limited to, the following items and information relating to the following items: (a) all intellectual property and proprietary rights of the Company (including, without limitation, the Intellectual Property), (b) computer codes and instructions, processing systems and techniques, inputs and outputs (regardless of the media on which stored or located) and hardware and software configurations, designs, architecture and interfaces, (c) business research, studies, procedures and costs, (d) financial data, (e) distribution methods, (f) marketing data, methods, plans and efforts, (g) the identities of actual and prospective suppliers, (h) the terms of contracts and agreements with, the needs and requirements of, and the Company’s or its affiliates’ course of dealing with, actual or prospective suppliers, (i) customer and vendor credit information and (j) information received from third parties subject to obligations of non-disclosure or non-use. Failure by the Company or its affiliates to mark any of the Proprietary Information as confidential or proprietary shall not affect its status as Proprietary Information. Proprietary Information shall not include information that is or comes into the public domain through no fault of Executive’s, or that Executive can demonstrate was in his possession before receipt of such information from the Company.

6.5.  Acknowledgements . Executive acknowledges that the Restrictive Covenants are reasonable and necessary to protect the legitimate interests of the Company and its affiliates, that the duration and geographic scope of the Restrictive Covenants are reasonable given the nature of this Agreement and the position Executive holds within the Company, and that the Company would not enter into this Agreement or otherwise employ Executive unless Executive agrees to be bound by the Restrictive Covenants set forth in this Section 6 .

6.6.  Remedies and Enforcement Upon Breach .

6.6.1.  Specific Enforcement . Executive acknowledges that any breach by him, willfully or otherwise, of the Restrictive Covenants will cause continuing and irreparable injury to the Company or its affiliates for which monetary damages would not be an adequate remedy. Executive shall not, in any action or proceeding to enforce any of the provisions of this Agreement, assert the claim or defense that such an adequate remedy at law exists. In the event of any such breach or threatened breach by Executive of any of the Restrictive Covenants, the Company or its affiliates, as applicable, shall be entitled to injunctive or other similar equitable relief in any court, without any requirement that a bond or other security be posted, and this Agreement shall not in any way limit remedies of law or in equity otherwise available to the Company and its affiliates.

6.6.2.  Judicial Modification . If any court determines that any of the Restrictive Covenants, or any part thereof, is unenforceable because of the duration or geographical scope of such provision, such court shall have the power to modify such provision and, in its modified form, such provision shall then be enforceable.

6.6.3.  Enforceability . If any court holds the Restrictive Covenants unenforceable by reason of their breadth or scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the right of the Company and its affiliates to the relief provided above in the courts of any other jurisdiction within the geographic scope of such Restrictive Covenants.

6.6.4.  Disclosure of Restrictive Covenants . Executive agrees to disclose the existence and terms of the Restrictive Covenants to any employer that Executive may work for during the Restricted Period.

6.6.5.  Extension of Restricted Period . If Executive breaches Section 6.1 in any respect, the restrictions contained in that section will be extended for a period equal to the period that Executive was in breach.

7.  Miscellaneous .

7.1.  Other Agreements . Executive represents and warrants to the Company that there are no restrictions, agreements or understandings whatsoever to which he is a party that would prevent or make unlawful his execution of this Agreement, that would be inconsistent or in conflict with this Agreement or Executive’s obligations hereunder, or that would otherwise prevent, limit or impair the performance by Executive of his duties under this Agreement.

7.2.  Successors and Assigns . The Company may assign this Agreement to any successor to its assets and business by means of liquidation, dissolution, sale of assets or otherwise. The duties of Executive hereunder are personal to Executive and may not be assigned by him.

7.3.  Governing Law, Dispute Resolution and Jurisdiction .

7.3.1.  This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to the principles of conflicts of laws. disputes, claims and controversies between the parties hereto concerning the validity, interpretation, performance, termination or breach of this Agreement, which cannot be resolved by the parties within sixty (60) days after such dispute, claim or controversy arises shall, at the option of either party, be referred to and finally settled by arbitration (an “ Arbitration ”) provided, that either party may apply to a court of competent jurisdiction seeking equitable relief prior to Arbitration. Such Arbitration shall be initiated by the initiating party giving notice (the “ Arbitration Notice ”) to the other party (the “ Respondent ”) that it intends to submit such dispute, claim or controversy to Arbitration. Each party shall, within thirty (30) days of the date the Arbitration Notice is received by the Respondent, designate a person to act as an arbitrator. If either party fails to designate a person to act as an arbitrator within the time specified herein the Arbitration shall be conducted by the sole designated arbitrator. The two arbitrators appointed by the parties shall, within thirty (30) days after their designation appoint a third arbitrator who shall act as presiding arbitrator (the “ Presiding Arbitrator ” and, together with the other two arbitrators, the “ Arbitration Panel ”). If the two arbitrators designated by the parties are unable to appoint a Presiding Arbitrator, the Presiding Arbitrator shall be appointed according to the rules of the American Arbitration Association as in effect on the date the notice of submission to arbitration is given (the “ Rules ”).

7.3.2.  The Arbitration shall be conducted in accordance with the Rules, pursuant to the United States Arbitration Act, 9 U.S.C., Section 1 et seq., and shall be held in the Borough of Manhattan, in the City of New York and the State of New York. Executive and the Company hereby consent to the personal and exclusive jurisdiction of New York for such Arbitration and hereby waive any objection(s) that they may have to personal jurisdiction, the laying of venue of any such Arbitration proceeding and any claim or defense of inconvenient forum. All Arbitration proceedings shall be confidential, and neither the parties nor the members of the Arbitration Panel may disclose the content or results of any Arbitration hereunder without the prior written consent of all parties to the dispute.  The Arbitration proceedings shall be governed by federal arbitration law and by the Rules, without reference to state arbitration law, unless the parties stipulate to the contrary.  Any provisional remedy (including preliminary or permanent injunctive relief) that would be available from a court of law shall be available from the Arbitration Panel pending completion of the arbitration.  The benefited party of such provisional remedy shall be entitled to enforce such remedy in court immediately, even though a final arbitration award has not yet been rendered.  Within thirty (30) days after the appointment of all arbitrators to the Arbitration Panel, or within such longer period mutually agreed upon by the parties, the Arbitration Panel shall hear and decide the dispute submitted to Arbitration hereunder and shall promptly prepare a written decision on the merits of the matters in dispute, which decision shall state the facts and law relied upon and the reasons for the Arbitration Panel’s decision.  The award or decision of the Arbitration Panel, which may include an order of specific performance, injunction, or other equitable relief, shall be final and binding on all parties, and judgment thereon may be rendered by any court having jurisdiction thereof, or application may be made to such court for the judicial acceptance of the award and an order of enforcement, as the case may be. There shall be no right of appeal, except as contained under applicable laws.  During the pendency of any arbitration process, the parties shall equally share the cost of the arbitrator, and each party to any arbitration shall bear its own expenses, including but not limited to such party’s attorneys’ fees, if any.

7.3.3.  Executive understands that nothing in this Section 7.3 modifies Executive’s at-will employment status. Either Executive or the Company may terminate the employment relationship between Executive and the Company at any time, with or without Cause, upon the terms and subject to the conditions of this Agreement.

7.3.4.  EXECUTIVE HAS READ AND UNDERSTANDS THIS SECTION 7.3, WHICH DISCUSSES ARBITRATION. EXECUTIVE UNDERSTANDS THAT SUBMITTING ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION THEREOF TO BINDING ARBITRATION, CONSTITUTES A WAIVER OF EXECUTIVE’S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE EMPLOYER/EXECUTIVE RELATIONSHIP, INCLUDING BUT NOT LIMITED TO, THE FOLLOWING CLAIMS:

(a)  ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT; BREACH OF CONTRACT, BOTH EXPRESS AND IMPLIED; BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING, BOTH EXPRESS AND IMPLIED; NEGLIGENT OR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT OR INTENTIONAL MISREPRESENTATION; NEGLIGENT OR INTENTIONAL INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC ADVANTAGE; AND DEFAMATION.

(b)  ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL STATE OR MUNICIPAL STATUTE, INCLUDING, BUT NOT LIMITED TO, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE CIVIL RIGHTS ACT OF 1991, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE AMERICANS WITH DISABILITIES ACT OF 1990, AND THE FAIR LABOR STANDARDS ACT;

(c)  ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.

7.4.  Waivers . The waiver by either party of any right hereunder or of any breach by the other party will not be deemed a waiver of any other right hereunder or of any other breach by the other party. No waiver will be deemed to have occurred unless set forth in a writing. No waiver will constitute a continuing waiver unless specifically stated, and any waiver will operate only as to the specific term or condition waived.

7.5.  Indemnification . In the event Executive is made, or threatened to be made, a party to any legal action or proceeding, by reason of the fact that Executive is or was an employee, director or officer of the Company or serves or served any other entity in any capacity at the Company’s request, Executive shall be indemnified by the Company, and the Company shall pay Executive’s related expenses when and as incurred, including but not limited to attorney fees, all to the fullest extent permitted by law. This Section 7.5 shall survive termination of Executive’s employment and this Agreement.

7.6.  Defend Trade Secrets Act Compliance . Executive will not be held criminally or civilly liable under any federal or state trade secret law for Executive’s disclosure of a trade secret that is made in confidence to federal, state or local government official or to an attorney, provided that such disclosure is: (a) solely for the purpose of reporting or investigating a suspected violation of law; or (b) made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. If Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Executive may disclose the trade secret to Executive’s attorney and use the trade secret information in related court proceedings, provided that Executive files any document containing the trade secret information under seal and does not disclose the trade secret, except pursuant to court order.

7.7.  Assistance in Litigation . Executive shall reasonably cooperate with the Company in the defense or prosecution of any claims or actions now in existence or that may be brought in the future against or on behalf of the Company that relate to events or occurrences that transpired while Executive was employed by the Company. Executive's cooperation in connection with such claims or actions shall include, but not be limited to, being available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of the Company at mutually convenient times. Executive also shall cooperate fully with the Company in connection with any investigation or review by any federal, state, or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while Executive was employed by the Company. The Company will pay Executive a reasonable hourly rate for Executive's cooperation pursuant to this Section 7.7 . The Company will reimburse Executive for reasonable attorney's fees and costs incurred as a result of his compliance with this Section 7.7 . Nothing in this Agreement shall be deemed to limit Executive's rights under any indemnification or other agreement to which Executive may be a party or any other applicable agreement or insurance policy.

7.8.  Severability . Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law. However, if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provision, and this Agreement will be reformed, construed and enforced as though the invalid, illegal or unenforceable provision had never been herein contained.

7.9.  Survival . This Agreement will survive the cessation of Executive’s employment to the extent necessary to fulfill the purposes and intent the Agreement.

7.10.  Notices . Any notice or communication required or permitted under this Agreement will be made in writing and (a) sent by overnight courier, (b) mailed by overnight U.S. express mail, return receipt requested or (c) sent by telecopier. Any notice or communication to Executive will be sent to the address contained in his personnel file. Any notice or communication to the Company will be sent to:

SITO Mobile, Ltd.

100 Town Square Place

Suite 204

Jersey City, NJ 07310

with a copy to (which shall not constitute Notice):

Andrew Hulsh

Partner

Pepper Hamilton LP

The New York Times Building

620 Eighth Avenue—37 ^th Floor

New York, NY 10018

Notwithstanding the foregoing, either party may change the address for notices or communications hereunder by providing written notice to the other in the manner specified in this paragraph.

7.11.  Entire Agreement; Amendments . This Agreement contains the entire agreement and understanding of the parties hereto relating to the subject matter hereof, and merges and supersedes all prior and contemporaneous discussions, agreements and understandings of every nature relating to that subject matter. This Agreement may not be changed or modified, except by an agreement in writing signed by each of the parties hereto.

7.12.  Withholding . All payments (or transfers of property) to Executive will be subject to tax withholding to the extent required by applicable law.

7.13.  Section Headings . The headings of sections and paragraphs of this Agreement are inserted for convenience only and will not in any way affect the meaning or construction of any provision of this Agreement.

7.14.  Counterparts; Facsimile . This Agreement may be executed in multiple counterparts (including by facsimile signature), each of which will be deemed to be an original, but all of which together will constitute but 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.

[remainder of page intentionally left blank; signature page follows]

IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer, and Executive has executed this Agreement, on the date(s) indicated below.

Signature Page to Employment Agreement

Exhibit 10.5

SITO Mobile, LTD.

(formerly known as Single Touch Systems Inc.)

2010 Stock Plan

NOTICE OF STOCK OPTION GRANT

You have been granted an option to purchase Common Stock of SITO Mobile, Ltd. (formerly known as Single Touch Systems Inc. ) (the “ Company ”) as follows:

By your signature and the signature of the Company’s representative below, you and the Company agree that this option is granted under and governed by the terms and conditions of the Company’s 2010 Stock Plan and the Stock Option Agreement, both of which are attached and made a part of this document. Accordingly, separate execution and delivery of the Stock Option Agreement is not required.

In addition, you agree and acknowledge that your rights to any Shares underlying the Option will be earned only as you provide services to the Company over time, that the grant of the Option is not as consideration for services you rendered to the Company before your Vesting Commencement Date, and that nothing in this Notice or the attached documents confers upon you any right to continue your employment or consulting relationship with the Company for any period of time, nor does it interfere in any way with your right or the Company’s right to terminate that relationship at any time, for any reason, with or without Cause.

The per share “Exercise Price” is intended to be at least equal to the fair market value of the Company’s Common Stock at the date of grant. The Company has attempted in good faith to make the fair market value determination in compliance with applicable tax law although there can be no certainty that the IRS will agree. If the IRS does not agree and asserts the fair market value at the time of grant is higher than the Exercise Price, the IRS could seek to impose greater taxes on you, including interest and penalties under Internal Revenue Code Section 409A. While the Company thinks this is an unlikely event, the Company cannot provide absolute assurance and you may want to consult your own tax adviser with any questions.

______________________________________

IRS Circular 230 Disclosure : To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication (including any attachments) (i) was not intended or written to be used, and cannot be used, for the purpose of avoiding any tax penalty and (ii) was not written to promote, market or recommend the transaction or matter addressed in the communication. Each taxpayer should seek advice based on the taxpayer’s particular circumstances from an independent tax advisor.

SITO Mobile, LTD.

(formerly known as Single Touch Systems Inc.)

2010 Stock Plan

STOCK OPTION AGREEMENT

1. Grant of Option . SITO Mobile, Ltd., a Delaware corporation (the “ Compan y”), hereby grants to  (“ Optionee ”), an option (the “ Option ”) to purchase the total number of shares of Common Stock (the “ Shares ”) set forth in the Notice of Stock Option Grant (the “ Notice ”), at the exercise price per Share set forth in the Notice (the “ Exercise Price ”) subject to the terms, definitions and provisions of the Company’s 2010 Stock Plan (the “ Plan ”) adopted by the Company, which is incorporated in this Agreement by reference (“stock-settled Option”); provided, however , that to the extent insufficient shares of the Company’s Common Stock remain under the Plan to fully satisfy delivery of Shares covered by a properly exercised Option, then the Company shall pay to the Optionee an amount in cash equal to the excess of the Fair Market Value of a share of Common Stock on the date of exercise over the Exercise Price multiplied by the number of Shares that are unavailable under the Plan to be delivered in satisfaction of such exercised Option, net of any taxes (“cash-settled Option”). “Option” shall refer to both stock-settled Options and cash-settled Options. Unless otherwise defined in this Agreement, the terms used in this Agreement shall have the meanings defined in the Plan or in the Notice.

2. Designation of Option . This Option is intended to be an Incentive Stock Option as defined in Section 422 of the Code only to the extent so designated in the Notice, and to the extent it is not so designated or to the extent the Option does not qualify as an Incentive Stock Option under Applicable Laws, then it is intended to be and will be treated as a Nonstatutory Stock Option. “ Applicable Laws ” means the legal requirements relating to the administration of stock option and restricted stock purchase plans, including under applicable U.S. state corporate laws, U.S. federal and applicable state securities laws, other U.S. federal and state laws, the Code, any stock exchange rules or regulations and the applicable laws, rules and regulations of any other country or jurisdiction where Options or other Awards are granted under the Plan, as such laws, rules, regulations and requirements shall be in place from time to time.

Notwithstanding the above, if designated as an Incentive Stock Option, in the event that the Shares subject to this Option (and all other Incentive Stock Options granted to Optionee by the Company or any Affiliate, including under other plans of the Company) that first become exercisable in any calendar year have an aggregate fair market value (determined for each Share as of the date of grant of the option covering such Share) in excess of $100,000, the Shares in excess of $100,000 shall be treated as subject to a Nonstatutory Stock Option, in accordance with Section 5(c) of the Plan.

3. Exercise of Option . This Option shall be exercisable during its term in accordance with the Vesting/Exercise Schedule set out in the Notice and with the provisions of the Plan, including Section 9 thereof, and of this Agreement, including Section 5 hereof, as follows:

(a) Right to Exercise .

(i) This Option may not be exercised for a fraction of a share.

(ii) In the event of Optionee’s death, disability or other termination of employment, the exercisability of the Option is governed by Section 5 below, subject to the limitations contained in this Section 3.

(iii) In no event may this Option be exercised after the Expiration Date of the Option as set forth in the Notice.

(b) Method of Exercise .

(i) This Option shall be exercisable by execution and delivery of the Exercise Notice and Stock Purchase Agreement attached hereto as Exhibit A (the “ Exercise Agreement ”) or of any other form of written notice approved for such purpose by the Company which shall state Optionee’s election to exercise the Option, the number of Shares in respect of which the Option is being exercised, and such other representations and agreements as to the holder’s investment intent with respect to such Shares as may be required by the Company pursuant to the provisions of the Plan. Such written notice shall be signed by Optionee and shall be delivered to the Company by such means as are determined by the Administrator in its discretion to constitute adequate delivery. The written notice shall be accompanied by payment of the Exercise Price. This Option shall be deemed to be exercised upon receipt by the Company of such written notice accompanied by the Exercise Price.

(ii) As a condition to the exercise of this Option and (to the extent Section 11(a) of the Plan is applicable) as further set forth in Section 11(a) of the Plan, Optionee agrees to make such arrangements as the Administrator may require for the satisfaction of all federal, state or other tax withholding obligations, if any, which arise upon the vesting or exercise of the Option, or disposition of Shares, whether by withholding, direct payment to the Company, or otherwise, as the Administrator may in its discretion determine.

(iii) The Company is not obligated, and will have no liability for failure, to issue or deliver any Shares upon exercise of the Option unless such issuance or delivery would comply with the Applicable Laws, with such compliance determined by the Company in consultation with its legal counsel.   As a condition to the exercise of this Option, the Company may require Optionee to make any representation and warranty to the Company as may be required by the Applicable Laws. Assuming such compliance, for income tax purposes the Shares shall be considered transferred to Optionee on the date on which the Option is exercised with respect to such Shares.

4. Method of Payment . Payment of the Exercise Price shall be by any of the following, or a combination of the following, at the election of Optionee:

(a) cash or check; or

(b) if the Company (in its sole discretion, at the time) is at such time permitting “same day sale” cashless brokered exercises, delivery of a properly executed exercise notice together with irrevocable instructions to a broker participating in such cashless brokered exercise program to deliver promptly to the Company the amount required to pay the exercise price (and applicable withholding taxes); or

(c) if the Notice expressly authorizes Optionee to use the net-exercise method, delivery of a properly executed net-exercise notice on a form provided by the Company.

5. Termination of Relationship; Early Termination of Option . Following the date of cessation of Optionee’s Continuous Service Status for any reason (the “ Termination Date ”), Optionee may exercise the Option only as set forth in the Notice and this Section 5. To the extent that Optionee is not entitled to exercise this Option as of the Termination Date, or if Optionee is not allowed to exercise this Option during the Termination Period set forth in the Notice, or if Optionee does not exercise this Option within the Termination Period set forth in the Notice or the termination periods set forth below, the Option shall terminate in its entirety. In no event may any Option be exercised after the Expiration Date of the Option as set forth in   the Notice.

(a) Termination . In the event of termination of Optionee’s Continuous Service Status other than as a result of (i) Optionee’s disability, (ii) Optionee’s death, (iii) for Cause (as defined in the Plan), or (iv) by virtue of resignation without Good Reason (i.e., reason such as would constitute constructive discharge), Optionee may, to the extent Optionee is vested in the Option Shares at the Termination Date, exercise this Option during the Termination Period set forth in the Notice.

(b) Other Terminations of Relationship . In connection with any termination other than a termination covered by Section 5(a), Optionee may exercise the Option only as described below:

(i) Termination upon Disability of Optionee . In the event of termination of Optionee’s Continuous Service Status as a result of Optionee’s disability, Optionee may, but only within twelve   months from the Termination Date, exercise this Option to the extent Optionee was vested in the Option Shares as of such Termination Date.

(ii) Death of Optionee . In   the event of the death of Optionee (a) during the term of this Option and while an employee (including officers) or Outside Director of, or consultant or advisor to, either the Company or an Affiliate and having been in Continuous Service Status since the date of grant of the Option, or (b) within three months after Optionee’s Termination Date, the Option may be exercised at any time within twelve months following the date of death by Optionee’s estate or by a person who acquired the right to exercise the Option by bequest or inheritance, but only to the extent Optionee was vested in the Option as of the Termination Date.

(iii) Termination for Cause; Resignation in the Absence of Good Reason . In the event Optionee’s Continuous Service Status is terminated for Cause or by virtue of resignation in the absence of Good Reason, Optionee may, but only within three months from the Termination Date, exercise this Option to the extent Optionee was vested in the Option Shares as of such Termination Date.

(c) Termination of Option . This Option may terminate before its Expiration Date and before the dates specified under Section 5(a) and (b) above under certain circumstances as set forth in Section 13 of the Plan.

6. Non-Transferability of Option . Except as otherwise set forth in the Notice,   this Option may not be transferred in any manner otherwise than by will or by the laws of descent or distribution and may be exercised during the lifetime of Optionee only by him or her. The terms of this Option shall be binding upon the executors, administrators, heirs, successors and assigns of Optionee.

7. Tax Consequences . The Company has not provided any tax advice with respect to this Option or the disposition of the Shares. Optionee should obtain advice from an appropriate independent professional adviser with respect to the taxation implications of the grant, exercise, assignment, release, cancellation or any other disposal of this Option (each, a “ Trigger Event ”) and on any subsequent sale or disposition of the Shares. Optionee should also take advice in respect of the taxation indemnity provisions under Section 8 below. The per share Exercise Price of the Option is intended to be at least equal to the fair market value of the Company’s Common Stock at the date of grant. The Company has attempted in good faith to make the fair market value determination in compliance with applicable tax law although there can be no certainty that the IRS will agree. If the IRS does not agree and asserts the fair market value at the time of grant is higher than the Exercise Price, the IRS could seek to impose greater taxes on Optionee, including interest and penalties under Internal Revenue Code Section 409A; but Optionee absolves and releases the Company and its directors from any claims should there be any such taxes, interest or penalties.

8. Optionee’s Taxation Indemnity .

(a) To the extent permitted by law, Optionee hereby agrees to indemnify and keep indemnified the Company and the Company as trustee for and on behalf of any affiliate entity, in respect of any liability or obligation of the Company and/or any affiliate entity to account for income tax or any other taxation provisions under the laws of Optionee’s country or citizenship and/or residence to the extent arising from a Trigger Event or arising out of the acquisition, retention and disposal of the Shares.

(b) The Company shall not be obliged to allot and issue any of the Shares or any interest in the Shares unless and until Optionee has paid to the Company such sum as is, in the opinion of the Company, sufficient to indemnify the Company in full against any liability the Company has for any amount of, or representing, income tax or any other tax arising from a Trigger Event (the “ Option Tax Liability ”), or Optionee has made such other arrangement as in the opinion of the Company will ensure that the full amount of any Option Tax Liability will be recovered from Optionee within such period as the Company may then determine.

9. Data Protection .

(a) To facilitate the administration of the Plan and this Agreement, it will be necessary for the Company (or its payroll administrators) to collect, hold and process certain personal information about Optionee and to transfer this data to certain third parties such as brokers with whom Optionee may elect to deposit any share capital under the Plan. Optionee consents to the Company (or its payroll administrators) collecting, holding and processing Optionee’s personal data and transferring this data to the Company or any other third parties insofar as is reasonably necessary to implement, administer and manage the Plan.

(b) Optionee understands that Optionee may, at any time, view Optionee’s personal data, require any necessary corrections to it or withdraw the consents herein in writing by contacting the Company, but acknowledges that without the use of such data it may not be practicable for the Company to administer Optionee’s involvement in the Plan in a timely fashion or at all and this may be detrimental to Optionee.

10. Governing Law . This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of   Delaware, without giving effect to principles of conflicts of law.

12. Effect of Agreement . Optionee acknowledges receipt of a copy of the Plan and represents that he or she is familiar with the terms and provisions thereof (and has had an opportunity to consult counsel regarding the Option terms), and hereby accepts this Option and agrees to be bound by its contractual terms as set forth herein and in the Plan. Optionee hereby agrees to accept as binding, conclusive and final all decisions and interpretations of the Administrator regarding any questions relating to the Option. In the event of a conflict between the terms and provisions of the Plan and the terms and provisions of the Notice and this Agreement, the Plan terms and provisions shall prevail. The Option, including the Plan, constitutes the entire agreement between Optionee and the Company on the subject matter hereof and supersedes all proposals, written or oral, and all other communications between the parties relating to such subject matter.

5

Exhibit 10.6

SITO MOBILE LTD.

2008 STOCK OPTION PLAN

Restricted Stock Unit Grant Schedule

SITO MOBILE, LTD.

2008 STOCK OPTION PLAN

AWARD AGREEMENT FOR RESTRICTED STOCK UNITS

THIS AWARD AGREEMENT FOR RESTRICTED STOCK UNITS (this “ Agreement ”) is made by SITO Mobile, Ltd. (the “ Company ”) to the participant named on the grant schedule attached hereto (the “ Grantee ”), dated as of the date set forth on the grant schedule attached hereto (the “ Grant Date ”).

RECITALS

WHEREAS, the Company desires to award Restricted Stock in the form of restricted stock units (hereinafter “ RSUs ”) to the Grantee under the SITO Mobile, Ltd. 2008 Stock Option Plan, as amended (the “ Plan ”), pursuant to the terms of this Agreement.

NOW, THEREFORE, in consideration of these premises and the agreements set forth herein, the parties, intending to be legally bound hereby, agree as follows:

1.        Grant Schedule .  Certain terms of the grant of RSUs are set forth on the grant schedule (the “ Grant Schedule ”) that is attached to, and is a part of, this Agreement.

2.        Grant of Restricted Stock Units .  As of the Grant Date, pursuant to the Plan, the Company hereby awards to the Grantee the number of restricted stock units set forth on the Grant Schedule (the “ Award ”), subject to the restrictions and on the terms and conditions set forth in this Agreement and the Plan. The terms of the Plan are hereby incorporated into this Agreement by this reference, as though fully set forth herein. Capitalized terms used but not defined herein, including the Grant Schedule, will have the same meaning as defined in the Plan.

3.        Grant Date .  The Grant Date of the RSUs is set forth on the Grant Schedule.

4.        Vesting . Subject to the further provisions of this Agreement, the RSUs will vest as set forth on the Grant Schedule (the date on which RSUs vest being referred to as the “ Vesting Date ”).

5.        Transferability . The RSUs are not transferable or assignable otherwise than by will or by the laws of descent and distribution. Any attempt to transfer RSUs, whether by transfer, pledge, hypothecation or otherwise and whether voluntary or involuntary, by operation of law or otherwise, will not vest the transferee with any interest or right in or with respect to such RSUs.

6.        Issuance of Shares; Payment of Cash.

a.       Within ten (10) business days following the Vesting Date, the Company shall issue to the Grantee, as determined in the sole discretion of the Committee: (i) by book-entry registration or issuance of a stock certificate or certificates, a number of shares of Company Stock equal to the number of RSUs granted hereunder that have vested as of such date; or (ii) to the extent that insufficient shares of Company Stock remain under the Plan to fully satisfy delivery of Company Stock in respect of the vested RSUs, an amount in cash equal to the Fair Market Value of each share of Company Stock that is unavailable under the Plan to be delivered in satisfaction of the vested RSUs.

b.       The Grantee will not be deemed for any purpose to be, or have rights as, a stockholder of the Company by virtue of the grant of RSUs, if and until shares of Company Stock are issued in settlement of such RSUs pursuant to Section 6(a) hereof. Upon the issuance of a stock certificate or the making of an appropriate book entry on the books of the transfer agent, the Grantee will have all of the rights of a stockholder.

7.        Securities Matters . The Committee may from time to time impose any conditions on the shares of Company Stock issuable with respect to RSUs as it deems necessary or advisable to ensure that the Plan satisfies the conditions of Rule 16b-3, and that Company Stock is issued and resold in compliance with the Securities Act of 1933, as amended.

8.        Electronic Delivery of Documents . The Grantee hereby authorizes the Company to deliver electronically any prospectuses or other documentation related to this Award, the Plan and any other compensation or benefit plan or arrangement in effect from time to time (including, without limitation, reports, proxy statements or other documents that are required to be delivered to participants in such plans or arrangements pursuant to federal or state laws, rules or regulations). For this purpose, electronic delivery will include, without limitation, delivery by means of e-mail or e-mail notification that such documentation is available on the Company’s Intranet site. Upon written request, the Company will provide to the Grantee a paper copy of any document also delivered to the Grantee electronically.

9.        Delays or Omissions .  No delay or omission to exercise any right, power or remedy accruing to any party hereto upon any breach or default of any party under this Agreement, will impair any such right, power or remedy of such party, nor will it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring, nor will any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring.  Any waiver, permit, consent or approval of any kind or character by the of any breach or default under this Agreement, or any waiver on the part of any party or any provisions or conditions of this Agreement, must be in a writing signed by such party and will be effective only to the extent specifically set forth in such writing.

10.        Right of Discharge Preserved . The grant of RSUs hereunder will not confer upon the Grantee any right to continue in service with the Company or any of its subsidiaries or Affiliates.

11.        The Plan . By accepting this Award, the Grantee acknowledges that the Grantee has received a copy of the Plan, has read the Plan and is familiar with its terms, and accepts the RSUs subject to all of the terms and provisions of the Plan, as amended from time to time. Pursuant to the Plan, the Board or its Committee is authorized to interpret the Plan and to adopt rules and regulations not inconsistent with the Plan as it deems appropriate. By accepting this Award, the Grantee acknowledges and agrees to accept as binding, conclusive and final all decisions or interpretations of the Board or its Committee upon any questions arising under the Plan.

12.        Governing Law .  This Agreement and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter this Agreement) shall be governed by, and enforced in accordance with, the laws of the State of Delaware, without regard to the application of the principles of conflicts of laws.

The Award is made by the Company as of the date stated in the introductory paragraph.

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