Exhibit 10.1

TRANSITION SERVICES AGREEMENT

This TRANSITION SERVICES AGREEMENT (this “Agreement”) is made as of August 31, 2018 by and between Inpixon, a Nevada corporation (“Parent”) and Sysorex, Inc., a Nevada corporation (“Company”), each of which is sometimes referred to as a “party” and collectively as the “parties.”

WHEREAS, Parent and Company have entered into a Separation and Distribution Agreement dated as of August 7, 2018 (the “Separation Agreement”) which contemplates (i) the separation of the Company (the “Separation”) and (ii) the distribution to Parent’s stockholders of all of the outstanding Parent Shares and Other Parent Securities, each as defined in the Separation Agreement (the “Distribution”); and

WHEREAS, in order to ensure an orderly transition under the Separation Agreement it will be necessary for Parent to provide to Company, or for Company to provide to Parent, the services described herein during the term of this Agreement.

NOW, THEREFORE, in consideration of the above premises and the mutual covenants contained herein, it is agreed by and between the parties as follows:

ARTICLE I

FEES AND TERM

1.1 Company Price/Payment. Following the Separation and Distribution, as consideration for the services to be provided to Company by Parent pursuant to Section 2.1 of this Agreement, Company shall pay to Parent a fee (the “Company Services Fee”) in accordance with Schedule 2.1. The Company Services Fee shall be payable by Company to Parent in arrears 15 days after the close of each month (prorated for any partial month) during the term of this Agreement. Any services provided by Parent to Company beyond the services covered by the Company Services Fee shall be billed to Company at negotiated rates, no less favorable to the Company than if Company had received the service from an independent third party, or on such other basis as the parties may agree from time to time. The Company Services Fee shall be reviewed and reduced from time to time in accordance with Section 2.3.

1.2 Parent Price/Payment. Following the Separation and Distribution, as consideration for the services to be provided to Parent by Company pursuant to Section 3.1 of this Agreement, Parent shall pay to Company a fee (the “Parent Services Fee”) in accordance with Schedule 3.1. The Parent Services Fee shall be payable by Parent to Company in arrears 15 days after the close of each month (prorated for any partial month) during the term of this Agreement. Any services provided by Company to Parent beyond the services covered by the Parent Services Fee shall be billed to Parent at negotiated rates, no less favorable to the Parent than if Parent had received the service from an independent third party, or on such other basis as the parties may agree from time to time. The Parent Services Fee shall be reviewed and reduced from time to time in accordance with Section 3.3.

1.3 Term. The term of this Agreement (the “Term”) shall commence on the date hereof and shall expire one year after the effective date of the Distribution; provided, however, that either party shall have the right to terminate any or all of the services such party is to receive hereunder and cease paying the services fee associated with the terminated services which such party would otherwise be required to pay therefor upon 30 days written notice to the other party, and provided, further, that at the end of the one-year term, if the parties have not terminated this Agreement earlier, either party may renew or extend the term of this Agreement with respect to the provision of any services that have not been terminated in exchange for services fees mutually agreed to by the parties.

1.4 Additional Services. At any time during the Term, if either party identifies any service that is needed to assure a smooth and orderly transition of the businesses and operations in connection with the Separation and the Distribution, and that is not otherwise governed by the provisions of this Agreement, the Separation Agreement or any other agreement between the parties, then the parties shall cooperate in determining whether there is a mutually acceptable arm’s-length basis on which one party will provide such service to the other party in exchange for a fee.

ARTICLE II

SERVICES TO BE PROVIDED BY PARENT TO COMPANY

2.1 Services. Parent agrees to provide the services set forth on Schedule 2.1 (subject to such modification or adjustment as may be mutually agreed upon by the parties) to Company during the Term.

2.2 Details of Performance. Reasonable details of Parent’s performance of services hereunder may be specified in one or more memoranda signed by the parties and such memoranda shall be deemed incorporated in this Agreement by reference as if recited herein in their entirety.

2.3 Phase Out of Services; Reduction of Company Services Fee. The parties hereby acknowledge that Company will promptly take all steps to internalize the services to be provided herein by acquiring its own staff or outsourcing to third parties. The parties agree to periodically review the level of services being utilized by Company, and from time to time to reduce the Company Services Fee proportionately to account for reductions in the level of services being provided hereunder.

ARTICLE III

SERVICES TO BE PROVIDED BY COMPANY TO PARENT

3.1 Services. Company agrees to provide the services set forth on Schedule 3.1 (subject to such modification or adjustment as may be mutually agreed upon by the parties) to Parent during the Term.

3.2 Details of Performance. Reasonable details of Company’s performance of services hereunder may be specified in one or more memoranda signed by the parties and such memoranda shall be deemed incorporated in this Agreement by reference as if recited herein in their entirety.

3.3 Phase Out of Services; Reduction of Parent Services Fees. The parties hereby acknowledge that Parent will promptly take all steps to internalize the services to be provided herein by acquiring its own staff or outsourcing to third parties. The parties agree to periodically review the level of services being utilized by Parent, and from time to time to reduce the Parent Services Fee proportionately to account for reductions in the level of services being provided hereunder.

ARTICLE IV

MISCELLANEOUS

4.1 Confidentiality. Neither party hereto shall use or disclose to any other person at any time, any confidential or proprietary information or trade secrets of the other party, including, without limitation, its customer lists, programs, pricing and strategies except to those of its employees and those other persons who need to know such information to fulfill such party’s obligations hereunder, provided that such party shall require that such other persons agree to keep confidential such confidential or proprietary information or trade secrets. Both parties shall provide to the other party semi-annually upon such other party’s written request, a list of all employees whose duties have required access to confidential or proprietary information or trade secrets, and any other employees or other persons who, to the actual knowledge of that party’s officers, have had access to such information during the preceding 6 month period, in each case, designating whether such persons are in the employ of such party as of the date such list is provided. Both parties agree that all drawings, specifications, data, memoranda, calculations, notes and other materials, including, without limitation, any materials containing confidential or proprietary information or trade secrets of the other party, furnished in connection with this Agreement and any copies thereof are and shall remain the sole and exclusive property of that other party and shall be delivered to that party upon its request.

4.2 No Agency. Both parties shall perform their respective services under this Agreement as an independent contractor. Each party acknowledges and agrees that it is not granted any express or implied authority to assume or create any obligation or responsibility on behalf of the other party, or to bind the other party with regard to third parties in any manner.

4.3 Notices. Any notices required or permitted to be provided pursuant to this Agreement shall be provided in writing via e-mail, certified mail, hand-delivery, telecopier with confirmation or normal mail service, addressed to the recipient party at its e-mail or standard mailing address set forth on the signature page.

4.4 Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of governmental authority, epidemic, destruction of production facilities, insurrection, inability to procure materials, labor, equipment, transportation or energy sufficient to meet manufacturing needs, or any other cause beyond the reasonable control of the party invoking this provision, and if such party shall have used its best efforts to avoid such occurrence and minimize its duration and has given prompt written notice to the other party, then the affected party’s performance for the period of delay or inability to perform due to such occurrence shall be suspended. Should either party fail to perform hereunder and shall have provided proper notice to the other party that it is unable to perform on account of one or more reasons set forth in this section, such party may obtain replacement services from a third party for the duration of such delay or inability to perform, or for such longer period as such party shall be reasonably required to commit to in order to obtain such replacement services and the services fee payable by such party shall be reduced accordingly.

ARTICLE V

GENERAL PROVISIONS

5.1 Entire Agreement. This Agreement embodies the entire agreement and understanding of the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements and understandings relative to said subject matter.

5.2 Binding Effect. This Agreement shall be binding upon, and shall inure to the benefit of Parent, Company and their respective successors and assigns.

5.3 Assignment. Neither this Agreement nor any rights or obligations hereunder shall be assignable by either party without the prior written consent of the other party hereto, which consent shall not be unreasonably withheld.

5.4 Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State of Nevada applicable to contracts to be performed entirely in that State.

5.5 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one and the same instrument.

5.6 Headings. The headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.

(Signatures Appear On Next Page)

IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the date first above written.

Schedule 2.1

Parent Services

Active Directory (authentication, access control, audit control, security) - $180/month

O365 E3 Licenses (email, office, sharepoint) - $600/month

Quotewerks, RDP, GP, UNANET servers - $1,400/month

Helpdesk/support - $1,500/month

Approximate total - $3,680/month

Schedule 3.1

Company Services

To be mutually agreed upon by Parent and the Company prior to the Separation and Distribution or from time-to-time thereafter during the Term. At such time, this Schedule may be amended by the parties.

  Exhibit 10.2

TAX MATTERS AGREEMENT

by and between

Inpixon

and

Sysorex, Inc.

Dated as of August 31, 2018

TAX MATTERS AGREEMENT

THIS TAX MATTERS AGREEMENT (this “Agreement”), dated as of August 31, 2018 is by and among Inpixon, a Nevada corporation (“Inpixon”), and Sysorex, Inc., a Nevada corporation (“Sysorex”). Each of Inpixon and Sysorex is sometimes referred to herein as a “Party” and, collectively, as the “Parties.”

WHEREAS, Inpixon, acting through itself and its Subsidiaries, currently conducts its businesses of providing indoor positioning and data analytics (the “IPA Business”) and providing data analytics to commercial and government customers worldwide (the “VAR Business”);

WHEREAS, the board of directors of Inpixon (“Inpixon Board”) has determined that it is appropriate, desirable and in the best interests of Inpixon and its stockholders to separate the IPA Business from the VAR Business, and to divest the VAR Business in the manner contemplated by that certain Separation and Distribution Agreement dated as of August 7, 2018 (the “Separation Agreement”);

WHEREAS, Inpixon and Sysorex have entered into the Separation Agreement pursuant to which (a) the IPA Business will be separated from the VAR Business, (b) (i) Inpixon will, and will cause its Subsidiaries to, transfer certain assets, liabilities and subsidiaries of the VAR Business to Sysorex and its Subsidiaries, and (ii) Sysorex will, and/or will cause one or more of its Subsidiaries to transfer certain assets, liabilities, subsidiaries and/or businesses to Inpixon and its Subsidiaries, as a result of which Sysorex will own directly, and indirectly through its Subsidiaries, the VAR Business and will not own directly, or indirectly through its Subsidiaries, any of the IPA Business (collectively, the “Restructuring”), and (c) Inpixon will distribute, on a pro rata basis, all of the issued and outstanding Sysorex Shares, as defined in the Separation Agreement, owned by Inpixon to the holders of Parent Shares and Other Parent Securities, each as defined in the Separation Agreement (the “Distribution”);

WHEREAS, the Parties wish to provide for the payment of Tax liabilities and entitlement to refunds thereof, allocate responsibility for, and cooperation in, the filing of Tax Returns, and provide for certain other matters relating to Taxes;

NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements contained herein, and intending to be legally bound hereby, the Parties agree as follows:

ARTICLE I

DEFINITIONS

Section 1.01 General. As used in this Agreement, the following terms shall have the following meanings:

“Accounting Firm” has the meaning set forth in Section 7.01.

“Adjustment” means an adjustment of any item of income, gain, loss, deduction, credit or any other item affecting Taxes of a taxpayer pursuant to a Final Determination.

“Agreement” has the meaning set forth in the preamble to this Agreement.

“Ancillary Agreement” has the meaning set forth in the Separation Agreement.

“Carryback” has the meaning set forth in Section 4.02.

“Code” means the Internal Revenue Code of 1986, as amended.

“Common Parent” means the “common parent corporation” of an “affiliated group” (in each case, within the meaning of Section 1504 of the Code) filing a U.S. federal consolidated Income Tax Return.

“Distribution” has the meaning set forth in the recitals to this Agreement.

“Distribution Date” means the date on which the Distribution is paid.

“Due Date” means (a) with respect to a Tax Return, the date (taking into account all valid extensions) on which such Tax Return is required to be filed under applicable Law and (b) with respect to a payment of Taxes, the date on which such payment is required to be made to the applicable Taxing Authority to avoid the incurrence of interest, penalties and/or additions to Tax.

“Employee Matters Agreement” means the Employee Matters Agreement by and between the Parties dated as of the date hereof.

“Extraordinary Transaction” means any action that is not in the Ordinary Course of Business, but shall not include (a) any action described in or contemplated by the Separation Agreement or any Ancillary Agreement, (b) any action that is undertaken pursuant to the Restructuring or the Distribution, or (c) any compensatory payment or compensatory transfer in respect of services made as a result of, or in connection with, the Restructuring or the Distribution (which shall be treated as paid immediately before the Distribution on the Distribution Date).

“Final Determination” means the final resolution of liability for any Tax for any taxable period, by or as a result of (a) a final decision, judgment, decree or other order by any court of competent jurisdiction that can no longer be appealed to a court other than the Supreme Court of the United States, (b) a final settlement with the IRS, a closing agreement or accepted offer in compromise under Sections 7121 or 7122 of the Code, or a comparable agreement under the Laws of other jurisdictions, which resolves the entire Tax liability for any taxable period, (c) any allowance of a refund or credit in respect of an overpayment of Tax, but only after the expiration of all periods during which such refund or credit may be recovered by the jurisdiction imposing the Tax, or (d) any other final resolution, including by reason of the expiration of the applicable statute of limitations or the execution of a pre-filing agreement with the IRS or other Taxing Authority.

“Group” of which a Person is a member means (i) the Inpixon Group, if the Person is a member of the Parent Group and (ii) the Sysorex Group, if the Person is a member of the Sysorex Group.

“Income Tax Return” means any Tax Return on which Income Taxes are reflected or reported.

“Income Taxes” means any net income, net receipts, net profits, excess net profits or similar Taxes based upon, measured by, or calculated with respect to net income.

“Indemnified Party” means the Party which is entitled to seek indemnification from the other Party pursuant to the provisions of Article III.

“Indemnifying Party” means the Party from which the other Party is entitled to seek indemnification pursuant to the provisions of Article III.

“Information” has the meaning set forth in Section 6.01(a).

“Inpixon” has the meaning set forth in the preamble to this Agreement.

“Inpixon Consolidated Return” means the U.S. federal Income Tax Return required to be filed by Inpixon as the Common Parent.

“Inpixon Consolidated Taxes” means any U.S. federal Income Taxes attributable to any Inpixon Consolidated Return.

“Inpixon Entity” means any Subsidiary of Inpixon immediately after the Distribution.

“Inpixon Group” means, individually or collectively, as the case may be, Inpixon and any Inpixon Entity, excluding any member of the Sysorex Group.

“Inpixon Taxes” means, without duplication, (a) any Inpixon Consolidated Taxes, (b) any Taxes imposed on Sysorex or any member of the Sysorex Group under Treasury Regulations Section 1.1502-6 (or any similar provision of other Law) as a result of Sysorex or any such member being or having been included as part of an Inpixon Consolidated Return (or similar consolidated or combined Tax Return under any other provision of Law), (c) any Taxes of the Inpixon Group and any former Subsidiary of Inpixon (excluding any member of the Sysorex Group) for any Pre-Closing Period, (d) any Inpixon Transaction Taxes, and (e) any Transfer Taxes, in each case (x) other than Sysorex Taxes and (y) including any Taxes resulting from an Adjustment.

“Inpixon Transaction Taxes” means any Taxes (a) imposed on or by reason of the Restructuring or the Distribution and (b) payable by reason of the distribution of cash or other property from Sysorex to Inpixon (in each case including Transfer Taxes imposed on such transactions described in (a) and (b)). For the avoidance of doubt, Inpixon Transaction Taxes include, without limitation, Taxes payable by reason of deferred intercompany transactions or excess loss accounts triggered by the Distribution.

“IPA Business” has the meaning set forth in the Recitals.

“IRS” means the U.S. Internal Revenue Service.

“Law” means any U.S. or non-U.S. federal, national, supranational, state, provincial, local or similar statute, law, ordinance, regulation, rule, code, administrative pronouncement, order, requirement or rule of law (including common law).

“Mixed Business Income Tax Return” means any Mixed Business Tax Return on which Income Taxes are reflected or reported.

“Mixed Business Tax Return” means any Tax Return (other than an Inpixon Consolidated Return), including any consolidated, combined or unitary Tax Return, that reflects or reports Taxes that relate to at least one asset or activity that is part of the IPA Business, on the one hand, and at least one asset or activity that is part of the VAR Business, on the other hand.

“Ordinary Course of Business” means an action taken by a Person only if such action is taken in the ordinary course of the normal operations of such Person.

“Party” and “Parties” have the meaning set forth in the preamble to this Agreement.

“Past Practice” means past practices, accounting methods, elections and conventions.

“Person” has the meaning set forth in the Separation Agreement.

“Post-Closing Period” means any taxable period (or portion thereof) beginning after the Distribution Date, including for the avoidance of doubt, the portion of any Straddle Period beginning on the day after the Distribution Date.

“Pre-Closing Period” means any taxable period (or portion thereof) ending on or before the Distribution Date, including for the avoidance of doubt, the portion of any Straddle Period ending at the end of the day on the Distribution Date.

“Preparing Party” has the meaning set forth in Section 2.04(a)(ii).

“Privilege” means any privilege that may be asserted under applicable Law, including any privilege arising under or relating to the attorney-client relationship (including the attorney-client and work product privileges), the accountant-client privilege and any privilege relating to internal evaluation processes.

“Refund” means any refund (or credit in lieu thereof) of Taxes (including any overpayment of Taxes that can be refunded or, alternatively, applied to other Taxes payable), including any interest paid on or with respect to such refund of Taxes; provided, however, that for purposes of this Agreement, the amount of any Refund required to be paid to another Party shall be reduced by the net amount of any Income Taxes imposed on, related to, or attributable to, the receipt or accrual of such Refund.

“Restructuring” has the meaning set forth in the recitals to this Agreement.

“Reviewing Party” has the meaning set forth in Section 2.04(a)(ii).

“Separation Agreement” means the Separation and Distribution Agreement by and between Inpixon and Sysorex dated as of August 7, 2018.

“Single Business Return” means any Tax Return, including any consolidated, combined or unitary Tax Return, that reflects or reports Tax Items relating only to the IPA Business, on the one hand, or the VAR Business, on the other (but not both).

“Single Business Return Preparing Party” has the meaning set forth in Section 2.04(b).

“Single Business Return Reviewing Party” has the meaning set forth in Section 2.04(b).

“Sysorex” has the meaning set forth in the preamble to this Agreement.

“Sysorex Entity” means any Subsidiary of Sysorex immediately after the Distribution.

“Sysorex Group” means, individually or collectively, as the case may be, Sysorex and any Sysorex Entity.

“Sysorex Taxes” means, without duplication, (a) any Taxes of (i) Inpixon or any Subsidiary or former Subsidiary of Inpixon attributable to assets or activities of the VAR Business, as determined pursuant to Section 2.09 or (ii) Sysorex or any Subsidiary of Sysorex and (b) any Taxes attributable to an Extraordinary Transaction occurring after the Distribution on the Distribution Date by Sysorex or a Sysorex Entity.

“Straddle Period” means any taxable period that begins on or before and ends after the Distribution Date.

“Subsidiary” means, with respect to any Person (a) a corporation more than 50% of the voting or capital stock of which is owned, directly or indirectly, by such Person or (b) a limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization or other entity in which such Person, directly or indirectly, owns more than 50% of the equity economic interests thereof or for which such Person, directly or indirectly, has the power to elect or direct the election of more than 50% of the members of the governing body or which such Person otherwise has control (e.g., as the managing partner or managing member of a partnership or limited liability company, as the case may be).

“Tax” means (a) all taxes, charges, fees, duties, levies, imposts, or other similar assessments, imposed by any U.S. federal, state or local or foreign governmental authority, including net income, gross income, gross receipts, excise, real property, personal property, sales, use, service, service use, license, lease, capital stock, transfer, recording, franchise, business organization, occupation, premium, environmental, windfall profits, profits, customs, duties, payroll, wage, withholding, social security, employment, unemployment, insurance, severance, workers compensation, excise, stamp, alternative minimum, estimated, value added, ad valorem, hospitality, accommodations, transient accommodations, unclaimed property, escheat and other taxes, charges, fees, duties, levies, imposts, or other similar assessments, (b) any interest, penalties or additions attributable thereto and (c) all liabilities in respect of any items described in clauses (a) or (b) payable by reason of assumption, transferee or successor liability, operation of Law or Treasury Regulation Section 1.1502-6(a) (or any predecessor or successor thereof or any analogous or similar provision under Law).

“Tax Attributes” means net operating losses, capital losses, tax credit carryovers, earnings and profits, foreign tax credit carryovers, overall foreign losses, previously taxed income, tax bases, separate limitation losses and any other losses, deductions, credits or other comparable items that could affect a Tax liability for a past or future taxable period.

“Tax Benefit” means any refund, credit, or other reduction in Tax payments otherwise required to be made to a Taxing Authority, including for the avoidance of doubt, any actual Tax savings if, as and when realized arising from a step-up in Tax basis or an increase in a Tax Attribute.

“Tax Cost” means any increase in Tax payments otherwise required to be made to a Taxing Authority (or any reduction in any refund otherwise receivable from any Taxing Authority).

“Tax Group” means the members of a consolidated, combined, unitary or other tax group (determined under applicable U.S., State or foreign Income Tax law) which includes Inpixon or Sysorex, as the context requires, but for the avoidance of doubt, (i) Inpixon’s Tax Group does not include any members of the Sysorex Group and (ii) Sysorex’s Tax Group does not include any members of the Inpixon Group.

“Tax Item” means any item of income, gain, loss, deduction, credit, recapture of credit or any other item which increases or decreases Taxes paid or payable.

“Tax Matter” has the meaning set forth in Section 6.01(a).

“Tax Proceeding” means any audit, assessment of Taxes, pre-filing agreement, other examination by any Taxing Authority, proceeding, appeal of a proceeding or litigation relating to Taxes, whether administrative or judicial, including proceedings relating to competent authority determinations.

“Tax Return” means any return, report, certificate, form or similar statement or document (including any related or supporting information or schedule attached thereto and any information return, or declaration of estimated Tax) required to be supplied to, or filed with, a Taxing Authority in connection with the payment, determination, assessment or collection of any Tax or the administration of any Laws relating to any Tax and any amended Tax return or claim for refund.

“Taxing Authority” means any governmental authority or any subdivision, agency, commission or entity thereof or any quasi-governmental or private body having jurisdiction over the assessment, determination, collection or imposition of any Tax (including the IRS).

“Transfer Taxes” means all sales, use, transfer, real property transfer, intangible, recordation, registration, documentary, stamp or similar Taxes imposed on the Restructuring or the Distribution.

“Treasury Regulations” means the final and temporary (but not proposed) Income Tax regulations promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

“U.S.” means the United States of America.

“VAR Business” has the meaning set forth in the Recitals.

Section 1.02 Additional Definitions. Capitalized terms not defined in this Agreement shall have the meaning ascribed to them in the Separation Agreement.

ARTICLE II

PREPARATION, FILING AND PAYMENT OF TAXES

SHOWN DUE ON TAX RETURNS

Section 2.01 Inpixon Consolidated Returns.

(a)       Inpixon Consolidated Returns. Inpixon shall prepare and file all Inpixon Consolidated Returns for a Pre-Closing Period or a Straddle Period, and shall pay all Taxes shown to be due and payable on such Tax Returns; provided that Sysorex shall reimburse Inpixon for any such Taxes that are Sysorex Taxes.

(b)       Extraordinary Transactions. Notwithstanding anything to the contrary in this Agreement, for all Tax purposes, the Parties shall report any Extraordinary Transactions that are caused or permitted by Sysorex or any Sysorex Entity on the Distribution Date after the Distribution as occurring on the day after the Distribution Date pursuant to Treasury Regulation Section 1.1502-76(b)(1)(ii)(B) or any similar or analogous provision of state, local or foreign Law.

Section 2.02 Mixed Business Tax Returns.

(a)       Subject to Section 2.02(b), Inpixon shall prepare (or cause an Inpixon Entity to prepare) and Inpixon, an Inpixon Entity or Sysorex shall file (or cause to be filed) any Mixed Business Tax Returns for a Pre-Closing Period or a Straddle Period and shall pay, or cause such Inpixon Entity to pay, all Taxes shown to be due and payable on such Tax Returns; provided that Sysorex shall reimburse Inpixon for any such Taxes that are Sysorex Taxes.

(b)       Sysorex shall prepare and file (or cause a Sysorex Entity to prepare and file) any Mixed Business Tax Returns for a Pre-Closing Period or a Straddle Period required to be filed by Sysorex or a Sysorex Entity after the Distribution Date, and Sysorex shall pay, or cause such Sysorex Entity to pay, all Taxes shown to be due and payable on such Tax Returns; provided that Inpixon shall reimburse Sysorex for any such Taxes that are Inpixon Taxes.

Section 2.03 Single Business Returns.

(a)       Inpixon shall prepare and file (or cause an Inpixon Entity to prepare and file) any Single Business Returns for a Pre-Closing Period or a Straddle Period required to be filed by Inpixon or an Inpixon Entity and shall pay, or cause such Inpixon Entity to pay, all Taxes shown to be due and payable on such Tax Returns; provided that Sysorex shall reimburse Inpixon for any such Taxes that are Sysorex Taxes.

(b)       Sysorex shall prepare and file (or cause a Sysorex Entity to prepare and file) any Single Business Returns for a Pre-Closing Period or a Straddle Period required to be filed by Sysorex or a Sysorex Entity and shall pay, or cause such Sysorex Entity to pay, all Taxes shown to be due and payable on such Tax Returns; provided that Inpixon shall reimburse Sysorex for any such Taxes that are Inpixon Taxes.

Section 2.04 Tax Return Procedures.

(a)       Procedures relating to Tax Returns other than Single Business Returns.

(i)       Inpixon Consolidated Returns. With respect to all Inpixon Consolidated Returns for the taxable year which includes the Distribution Date, Inpixon shall use the closing of the books method under Treasury Regulation Section 1.1502-76 (including adopting the “end of the day rule” described therein). To the extent that the positions taken on any Inpixon Consolidated Tax Return would reasonably be expected to materially adversely affect the Tax position of Sysorex or a Sysorex Entity for any period after the Distribution Date, Inpixon shall prepare the portions of such Tax Return that relates to the VAR Business in a manner that is consistent with Past Practice unless otherwise required by applicable Law or agreed to in writing by the Parties, and shall provide a draft of such portion of such Tax Return to Sysorex for its review and comment at least 30 days prior to the Due Date for such Tax Return, provided, however, that nothing herein shall prevent Inpixon from timely filing any such Tax Return. In the event that Past Practice is not applicable to a particular item or matter, Inpixon shall determine the reporting of such item or matter in good faith. The Parties shall negotiate in good faith to resolve all disputed issues. Any disputes that the Parties are unable to resolve shall be resolved by the Accounting Firm pursuant to Section 7.01. In the event that any dispute is not resolved (whether pursuant to good faith negotiations among the Parties or by the Accounting Firm) prior to the Due Date for the filing of any such Tax Return, such Tax Return shall be timely filed by Inpixon and Inpixon agrees to amend such Tax Return as necessary to reflect the resolution of such dispute in a manner consistent with such resolution.

(ii)       Mixed Business Tax Returns. To the extent that the positions taken on any Mixed Business Tax Return would reasonably be expected to materially adversely affect the Tax position of the party other than the party that is required to prepare and file any such Tax Return pursuant to Section 2.02 (the “Reviewing Party”) in any Post-Closing Period, the party required to prepare and file such Tax Return (the “Preparing Party”) shall prepare the portions of such Tax Return that relates to the business of the Reviewing Party (the VAR Business or the IPA Business, as the case may be) in a manner that is consistent with Past Practice unless otherwise required by applicable Law or agreed to in writing by the Parties, and shall provide a draft of such portion of such Tax Return to the Reviewing Party for its review and comment at least 30 days prior to the Due Date for such Tax Return, provided, however, that nothing herein shall prevent the Preparing Party from timely filing any such Tax Return. In the event that Past Practice is not applicable to a particular item or matter, the Preparing Party shall determine the reporting of such item or matter in good faith. The Parties shall negotiate in good faith to resolve all disputed issues. Any disputes that the Parties are unable to resolve shall be resolved by the Accounting Firm pursuant to Section 7.01. In the event that any dispute is not resolved (whether pursuant to good faith negotiations among the Parties or by the Accounting Firm) prior to the Due Date for the filing of any such Tax Return, such Tax Return shall be timely filed by the Preparing Party and the Parties agree to amend such Tax Return as necessary to reflect the resolution of such dispute in a manner consistent with such resolution.

(b)       Procedures relating to Single Business Returns. The Party that is required to prepare and file any Single Business Return pursuant to Section 2.03 (the “Single Business Return Preparing Party”) which reflects Taxes which are reimbursable by the other Party (the “Single Business Return Reviewing Party”), in whole or in part, shall (x) unless otherwise required by Law or agreed to in writing by the Single Business Return Reviewing Party, prepare such Tax Return in a manner consistent with Past Practice to the extent such items affect the Taxes for which the Single Business Return Reviewing Party is responsible pursuant to this Agreement, and (y) submit to the Single Business Return Reviewing Party a draft of any such Tax Return (or to the extent practicable the portion of such Tax Return that relates to Taxes for which the Single Business Return Reviewing Party is responsible pursuant to this Agreement) along with a statement setting forth the calculation of the Tax shown due and payable on such Tax Return reimbursable by the Single Business Return Reviewing Party under Section 2.03 at least 30 days prior to the Due Date for such Tax Return provided, however, that nothing herein shall prevent the Single Business Return Preparing Party from timely filing any such Single Business Return. The Parties shall negotiate in good faith to resolve all disputed issues. Any disputes that the Parties are unable to resolve shall be resolved by the Accounting Firm pursuant to Section 7.01. In the event that any dispute is not resolved (whether pursuant to good faith negotiations among the Parties or by the Accounting Firm) prior to the Due Date for the filing of any Single Business Return, such Single Business Return shall be timely filed by the Single Business Return Preparing Party and the Parties agree to amend such Single Business Return as necessary to reflect the resolution of such dispute in a manner consistent with such resolution.

Section 2.05 Amended Returns. Except as provided in Section 2.04 to reflect the resolution of any dispute by the Accounting Firm pursuant to Section 7.01, (a) except with the prior written consent of Inpixon (such consent not to be unreasonably withheld, delayed or conditioned), Sysorex shall not, and shall not permit any Sysorex Entity to, amend any Tax Return of Sysorex or any Sysorex Entity for any Pre-Closing Period or Straddle Period to the extent such amendment could reasonably be expected to result in an indemnification obligation on the part of Inpixon pursuant to Article III or otherwise increase the Taxes of any member of the Inpixon Group and (b) except with the prior written consent of Sysorex (such consent not to be unreasonably withheld, delayed or conditioned), Inpixon shall not, and shall not permit any Inpixon Entity to, amend any Tax Return for any Pre-Closing Period or Straddle Period to the extent such amendment could reasonably be expected to result in an indemnification obligation on the part of Sysorex pursuant to Article III or otherwise increase the Taxes of any member of the Sysorex Group.

Section 2.06 Straddle Period Tax Allocation. Inpixon and Sysorex shall take all actions necessary or appropriate to close the taxable year of Sysorex and each Sysorex Entity for all Tax purposes as of the close of the Distribution Date to the extent permissible or required under applicable Law. If applicable Law does not require or permit Sysorex or a Sysorex Entity, as the case may be, to close its taxable year on the Distribution Date, then the allocation of income or deductions required to determine any Taxes or other amounts attributable to the portion of the Straddle Period ending on, or beginning after, the Distribution Date shall be made by means of a closing of the books and records of Sysorex or such Sysorex Entity as of the close of the Distribution Date; provided that exemptions, allowances or deductions that are calculated on an annual or periodic basis shall be allocated between such portions in proportion to the number of days in each such portion; provided, further, that real property and other property or similar periodic Taxes shall be apportioned on a per diem basis.

Section 2.07 Timing of Payments. All Taxes required to be paid or caused to be paid pursuant to this Article II by either Inpixon or an Inpixon Entity or Sysorex or a Sysorex Entity, as the case may be, to an applicable Taxing Authority or reimbursed by Inpixon or Sysorex to the other Party pursuant to this Agreement, shall, in the case of a payment to a Taxing Authority, be paid on or before the Due Date for the payment of such Taxes and, in the case of a reimbursement to the other Party, be paid at least two business days before the Due Date for the payment of such Taxes by the other Party; provided that the Party seeking reimbursement shall furnish such other Party reasonably satisfactory documentation setting forth the basis for, and calculation of, the amount of such reimbursement obligation at least 20 days before such Due Date.

Section 2.08 Expenses. Except as provided in Section 7.01 in respect of the expenses relating to the Accounting Firm, each Party shall bear its own expenses incurred in connection with this Article II.

Section 2.09 Apportionment of Sysorex Taxes. For all purposes of this Agreement, but subject to Section 4.03, Inpixon and Sysorex shall jointly determine in good faith which Tax Items are properly attributable to assets or activities of the VAR Business (and in the case of a Tax Item that is properly attributable to both the VAR Business and the IPA Business, the allocation of such Tax Item between the VAR Business and the IPA Business) in a manner consistent with the Past Practices of the Parties and the provisions of this Agreement and any disputes shall be resolved by the Accounting Firm in accordance with Section 7.01.

Section 2.10 Distribution Tax Reporting. The Parties shall cause the Distribution to be reported to holders of Parent Shares. The Parties shall not take any position on any U.S. federal or state income tax return or take any other U.S. tax reporting position that is inconsistent with the treatment of the Distribution as a distribution to which Section 301 of the Code applies, except as otherwise required by applicable Law.

ARTICLE III

INDEMNIFICATION

Section 3.01 Indemnification by Inpixon. Subject to Section 3.03, Inpixon shall pay, and shall indemnify and hold the Sysorex Group harmless from and against, without duplication, (a) all Inpixon Taxes, (b) all Taxes incurred by Sysorex or any Sysorex Entity arising out of, attributable to, or resulting from the breach by Inpixon of any of its covenants hereunder, and (c) any out-of-pocket costs and expenses related to the foregoing (including reasonable attorneys’ fees and expenses).

Section 3.02 Indemnification by Sysorex. Subject to Section 3.03, Sysorex shall pay, and shall indemnify and hold the Inpixon Group harmless from and against, without duplication, (a) all Sysorex Taxes, (b) all Taxes incurred by Inpixon or any Inpixon Entity arising out of, attributable to, or resulting from the breach by Sysorex of any of its covenants hereunder, and (c) any out-of-pocket costs and expenses related to the foregoing (including reasonable attorneys’ fees and expenses).

Section 3.03 Characterization of and Adjustments to Payments.

(a)       For all Tax purposes, Inpixon and Sysorex shall treat any payment by Inpixon to a member of the Sysorex Group or by Sysorex to a member of the Inpixon Group required by this Agreement (other than payments with respect to interest accruing after the Distribution Date) as either a contribution by Inpixon to Sysorex or a distribution by Sysorex to Inpixon, as the case may be, occurring immediately prior to the Distribution.

(b)       Notwithstanding the foregoing, the amount that any Indemnifying Party is or may be required to provide indemnification to or on behalf of any Indemnified Party pursuant to Article III of this Agreement shall be (i) decreased to take into account any Tax Benefit to the Indemnified Party (or any of its affiliates) arising from the incurrence or payment of the relevant indemnified item and actually realized in or prior to the taxable year succeeding the taxable year in which the indemnified item is incurred (which Tax Benefit would not have arisen or been allowable but for such indemnified item), and (ii) increased to take into account any actual Tax Cost of the Indemnified Party (or any of its affiliates) arising from the receipt of the relevant indemnity payment.

Section 3.04 Timing of Indemnification Payments. Indemnification payments in respect of any liabilities for which an Indemnified Party is entitled to indemnification pursuant to this Article III shall be paid by the Indemnifying Party to the Indemnified Party within 10 days after written notification thereof by the Indemnified Party, including reasonably satisfactory documentation setting forth the basis for, and calculation of, the amount of such indemnification payment, or within 10 days after resolution pursuant to Section 7.01.

Section 3.05 Indemnification Payments under Ancillary Agreements. To the extent that an indemnification payment is made under any Ancillary Agreement, such indemnification payment shall be decreased to take into account the Tax Benefit actually realized (whether directly or indirectly) by the indemnified party and increased to take into account any Tax Cost actually incurred (whether directly or indirectly) by the indemnified party under principles analogous to the principles described in Section 3.03 hereof.

ARTICLE IV

REFUNDS, CARRYBACKS, TIMING DIFFERENCE AND TAX ATTRIBUTES

Section 4.01 Refunds and Credits.

(a)       Except as provided in Section 4.02, Inpixon shall be entitled to all Refunds of Taxes for which Inpixon is responsible pursuant to Article III, and Sysorex shall be entitled to all Refunds of Taxes for which Sysorex is responsible pursuant to Article III. For the avoidance of doubt, to the extent that a particular Refund of Taxes may be allocable to a Straddle Period with respect to which the Parties may share responsibility pursuant to Article III, the portion of such Refund to which each Party will be entitled shall be determined by comparing the amount of payments made by a Party (or any of member of such Party’s Group) to a Taxing Authority or to the other Party (and reduced by the amount of payments received from the other Party) pursuant to Articles II and III hereof with the Tax liability of such Party as determined under Section 2.06, taking into account the facts as utilized for purposes of claiming such Refund. If a Party (or any member of its Tax Group) receives a Refund to which the other Party is entitled pursuant to this Agreement, such Party shall pay the amount to which such other Party is entitled (net of any Taxes imposed with respect to such refund and any other reasonable out-of-pocket costs incurred by such Party) within 10 days after the receipt of the Refund.

(b)       Notwithstanding Section 4.01(a), to the extent that a Party (or any member of its Tax Group) applies or causes to be applied an overpayment of Taxes as a credit toward or a reduction in Taxes otherwise payable (or a Taxing Authority requires such application in lieu of a Refund) and such overpayment of Taxes, if received as a Refund, would have been payable by such Party to the other Party pursuant to this Section 4.01, such Party shall pay such amount to the other Party no later than 10 days following the date on which the overpayment is reflected on a filed Tax Return.

(c)       To the extent that the amount of any Refund under this Section 4.01 is later reduced by a Taxing Authority or in a Tax Proceeding, such reduction shall be allocated to the Party to which such Refund was allocated pursuant to this Section 4.01 and an appropriate adjusting payment shall be made.

Section 4.02 Carrybacks. Except to the extent otherwise consented to by Inpixon or prohibited by applicable Law, Sysorex (or the appropriate member of its Tax Group) shall elect to relinquish, waive or otherwise forgo the carryback of any loss, credit or other Tax Attribute from any Post-Closing Period to any Pre-Closing Period or Straddle Period with respect to members of the Sysorex Group (a “Carryback”). In the event that Sysorex (or the appropriate member of its Tax Group) is prohibited by applicable Law to relinquish, waive or otherwise forgo a Carryback (or Inpixon consents to a Carryback), Inpixon shall cooperate with Sysorex, at Sysorex’s expense, in seeking from the appropriate Taxing Authority such Refund as reasonably would result from such Carryback, to the extent that such Refund is directly attributable to such Carryback, and shall pay over to Sysorex the amount of such Refund, net of any Taxes imposed on the receipt of such Refund and any other reasonable out-of-pocket costs, within 10 days after such Refund is received.

Section 4.03 Tax Attributes.

(a)       As soon as reasonably practicable after the Distribution Date, Inpixon shall reasonably determine in good faith the allocation of Tax Attributes, as well as any limitations on the use thereof, arising in a Pre-Closing Period to the Inpixon Group and the Sysorex Group in accordance with the Code and Treasury Regulations including Treasury Regulations Sections 1.1502-9T(c), 1.1502-21, 1.1502-21T, 1.1502-22, 1.1502-79 and, if applicable, 1.1502-79A, and 1.1502-95 (and any applicable state, local and foreign Tax Laws). Subject to the preceding sentence, Inpixon shall be entitled to make any determination as to (A) basis, and (B) valuation, and shall make such determinations reasonably and in good faith and consistent with Past Practice, where applicable. Inpixon shall consult in good faith with Sysorex regarding such allocation of Tax Attributes and determinations as to basis and valuation, and shall consider in good faith any comments received in writing from Sysorex regarding such allocation and determinations. Inpixon and Sysorex hereby agree to compute all Taxes for Post-Closing Periods consistently with the determination of the allocation of Tax Attributes pursuant to this Section 4.03(a) unless otherwise required by a Final Determination.

(b)       To the extent that the amount of any Tax Attribute is later reduced or increased by a Taxing Authority or Tax Proceeding, such reduction or increase shall be allocated to the Party to which such Tax Attribute was allocated pursuant to Section 4.03(a).

Section 4.04 Timing Differences. If pursuant to a Final Determination an Adjustment (i) increases the amount of liability for any Taxes for which a member of the Inpixon Group is responsible hereunder and a Tax Benefit is made allowable to Sysorex or a member of its Tax Group for any Tax period after the Distribution Date, which Tax Benefit would not have arisen or been allowable but for such Adjustment, and which Tax Benefit reduces Taxes in respect of a Tax period for which Sysorex or a member of its Tax Group is liable (and for which no member of the Inpixon Group is liable) or (ii) increases the amount of liability for any Taxes for which a member of the Sysorex Group is responsible hereunder and a Tax Benefit is made allowable to Inpixon or a member of its Tax Group for any Tax period prior to the Distribution Date, which Tax Benefit would not have arisen or been allowable but for such Adjustment, and which Tax Benefit reduces Taxes in respect of a Tax period which Inpixon or a member of its Tax Group is liable (and for which no member of the Sysorex Group is liable), then Sysorex or Inpixon, as the case may be, shall make a payment to either Inpixon or Sysorex, as appropriate, within 30 days of the date that such paying Party (or any of its Tax Group members) actually receives such Tax Benefit (determined by comparing its (and its Tax Group members’) Tax liability with and without the Tax consequences of the Adjustment), which payment shall not exceed the increase in the amount of liability for any Taxes resulting from such Adjustment, for which a member of the Inpixon Group or Sysorex Group, as the case may be, is responsible hereunder.

Section 4.05 Tax Benefit Determinations. Notwithstanding anything herein to the contrary, if and to the extent a Party owns, directly or indirectly, less than 100% of the equity of any entity and as a result of such less-than-100% ownership interest in the entity such entity is not a member of the Party’s Tax Group, then the amount of the Tax Benefit payment under Article IV shall be appropriately adjusted to take into account the percentage ownership (based on value) of any such entity, and shall be determined and due and owing even if such entity is not a member of the Tax Group of a Party.

Section 4.06 Supporting Documentation. If a Party seeks any payment from the other Party pursuant to Article IV, the requesting Party shall furnish such other Party reasonably satisfactory documentation setting forth the basis for, and the calculation of, the amount of such payment obligation. If such other Party disagrees with the determination of the amount of the payment obligation set forth therein, any disputes shall be resolved by the Accounting Firm in accordance with Section 7.01

ARTICLE V

TAX PROCEEDINGS

Section 5.01 Notification of Tax Proceedings. Within 10 days after an Indemnified Party becomes aware of the commencement of a Tax Proceeding that may give rise to Taxes for which an Indemnifying Party is responsible pursuant to Article III, such Indemnified Party shall notify the Indemnifying Party of such Tax Proceeding, and thereafter shall promptly forward or make available to the Indemnifying Party copies of notices and communications relating to such Tax Proceeding. The failure of the Indemnified Party to notify the Indemnifying Party of the commencement of any such Tax Proceeding within such 10 day period or promptly forward any further notices or communications shall not relieve the Indemnifying Party of any obligation which it may have to the Indemnified Party under this Agreement except to the extent that the Indemnifying Party is prejudiced by such failure.

Section 5.02 Tax Proceeding Procedures Generally.

(a)       Tax Proceedings relating to Inpixon Consolidated Returns. Inpixon shall be entitled to contest, compromise, control and settle any adjustment or deficiency proposed, asserted or assessed pursuant to any Tax Proceeding with respect to any Inpixon Consolidated Return; provided that to the extent such Tax Proceeding could reasonably be expected to adversely affect the amount of Taxes for which Sysorex is responsible pursuant to Article III less the amount payable to Sysorex pursuant to Section 4.04, Inpixon shall (i) defend such Tax Proceeding diligently and in good faith and (ii) shall keep Sysorex informed in a timely manner of all actions proposed to be taken by Inpixon with respect to such Tax Proceeding (or to the extent practicable the portion of such Tax Proceeding that relates to Taxes for which Sysorex is responsible pursuant to Article III), (C) shall permit Sysorex to participate (at Sysorex’s sole expense) in all proceedings with respect to such tax Proceeding (or to the extent practicable the portion of such Tax Proceeding that relates to Taxes for which Sysorex is responsible pursuant to Article III), and (D) shall not settle any such Tax Proceeding without the prior written consent of Sysorex, which shall not be unreasonably withheld, conditioned or delayed.

(b)       Tax Proceedings relating to Other Returns. The Preparing Party (in the case of a Mixed Business Tax Return) or the Single Business Return Preparing Party (in the case of a Single Business Return) shall be entitled to contest, compromise, control and settle any adjustment or deficiency proposed, asserted or assessed pursuant to any Tax Proceeding with respect to any Mixed Business Tax Return or Single Business Return; provided that to the extent such Tax Proceeding could reasonably be expected to adversely affect the amount of Taxes for which the Reviewing Party or Single Business Return Reviewing Party (as applicable) is responsible pursuant to Article III, the controlling party shall (A) defend such Tax Proceeding diligently and in good faith, (B) shall keep the non-controlling party informed in a timely manner of all actions proposed to be taken by the controlling party with respect to such Tax Proceeding (or to the extent practicable the portion of such Tax Proceeding that relates to Taxes for which the non-controlling party is responsible pursuant to Article III), (C) shall permit the non-controlling party to participate (at the non-controlling party’s sole expense) in all proceedings with respect to such Tax Proceeding (or to the extent practicable the portion of such Tax Proceeding that relates to Taxes for which the non-controlling party is responsible pursuant to Article III), and (D) shall not settle any such Tax Proceeding without the prior written consent of the non-controlling party, which shall not be unreasonably withheld, conditioned or delayed.

ARTICLE VI

COOPERATION

Section 6.01 General Cooperation.

(a)       The Parties shall each cooperate fully (and each shall cause its respective Subsidiaries to cooperate fully) with all reasonable requests in writing from another Party hereto, or from an agent, representative or advisor to such Party, in connection with the preparation and filing of Tax Returns, claims for Refunds, Tax Proceedings, and calculations of amounts required to be paid pursuant to this Agreement, in each case, related or attributable to or arising in connection with Taxes of either of the Parties or their respective Subsidiaries covered by this Agreement and in connection with any financial reporting matter relating to Taxes (a “Tax Matter”). Such cooperation shall include the provision of any information reasonably necessary or helpful in connection with a Tax Matter (“Information”) and shall include, without limitation:

(i)       the provision of any Tax Returns, other than any Inpixon Consolidated Return, of the Parties and their respective Subsidiaries, books, records (including information regarding ownership and Tax basis of property), documentation and other information relating to such Tax Returns, including accompanying schedules, related work papers, and documents relating to rulings or other determinations by Taxing Authorities (or, in the case of any Mixed Business Income Tax Return, to the extent practicable, the portion of such Tax Return that relates to Taxes for which Sysorex is responsible pursuant to this Agreement);

(ii)       the execution of any document (including any power of attorney) in connection with any Tax Proceedings of either of the Parties or their respective Subsidiaries, or the filing of a Tax Return or a Refund claim of the Parties or any of their respective Subsidiaries;

(iii)       the use of the Party’s commercially reasonable efforts to obtain any documentation in connection with a Tax Matter;

(iv)       the use of the Party’s commercially reasonable efforts to obtain any Tax Returns (including accompanying schedules, related work papers, and documents) (other than any Inpixon Consolidated Return), documents, books, records or other information in connection with the filing of any Tax Returns of either of the Parties or their Subsidiaries (or, in the case of any Mixed Business Income Tax Return, to the extent practicable, the portion of such Tax Return, documents, books, records or other information that relates to Taxes for which Sysorex is responsible pursuant to this Agreement); and

(v)       the making of each Party’s employees, advisors, and facilities available on a reasonable and mutually convenient basis in connection with the foregoing matters.

(b)       Notwithstanding anything in this Agreement to the contrary, neither Party shall be required to provide the other Party or any of such other Party’s Subsidiaries access to or copies of information, documents or personnel if such action could reasonably be expected to result in the waiver of any Privilege. In the event that either Party determines that the provision of any information or documents to the other Party or any of such other Party’s Subsidiaries could be commercially detrimental, violate any law or agreement or waive any Privilege, the Parties shall use commercially reasonable efforts to permit compliance with its obligations hereunder in a manner that avoids any such harm or consequence.

(c)       The Parties shall perform all actions required or permitted under this Agreement in good faith. If one Party requests the cooperation of the other Party pursuant to this Section 6.01 or any other provision of this Agreement, except as otherwise expressly provided in this Agreement, the requesting Party shall reimburse such other Party for all reasonable out-of-pocket costs and expenses incurred by such other Party in complying with the requesting Party’s request.

Section 6.02 Retention of Records. Inpixon and Sysorex shall retain or cause to be retained all Tax Returns, schedules and work papers, and all material records or other documents relating thereto in their possession, in each case that relate to a Pre-Closing Period, until the later of the six-year anniversary of the filing of the relevant Tax Return or, upon the written request of the other Party, for a reasonable time thereafter (the “Retention Period”). Upon the expiration of the Retention Period, the foregoing information may be destroyed or disposed of by the Party retaining such documentation or other information unless the other Party otherwise requests in writing before the expiration of the Retention Period. In such case, the Party retaining such documentation or other information shall deliver such materials to the other Party or continue to retain such materials, in either case at the expense of such other Party.

ARTICLE VII

MISCELLANEOUS

Section 7.01 Dispute Resolution. In the event of any dispute between the Parties as to any matter covered by this Agreement, the Parties shall appoint a nationally recognized public accounting firm reasonably acceptable to both of the Parties (the “Accounting Firm”) to resolve such dispute. In this regard, the Accounting Firm shall make determinations with respect to the disputed items based solely on representations made by Inpixon and Sysorex and their respective representatives, and not by independent review, and shall function only as an expert and not as an arbitrator and shall be required to make a determination within the ranges submitted by the Parties. The Parties shall require the Accounting Firm to resolve all disputes no later than 30 days after the submission of such dispute to the Accounting Firm, and agree that all decisions by the Accounting Firm with respect thereto shall be final and conclusive and binding on the Parties. The Accounting Firm shall resolve all disputes in a manner consistent with this Agreement and, to the extent not inconsistent with this Agreement, in a manner consistent with the Past Practices of Inpixon and its Subsidiaries, except as otherwise required by applicable Law. The Parties shall require the Accounting Firm to render all determinations in writing and to set forth, in reasonable detail, the basis for such determination. The total costs and expenses of the Accounting Firm will be allocated and borne between Inpixon and Sysorex based upon that percentage of such fees and expenses equal to the percentage of the dollar value of the proposed determinations submitted to the Accounting Firm determined in favor of the other Party; provided, that if in light of the nature of the dispute the foregoing is not feasible, such costs and expenses shall be borne equally by the Parties. Any initial retainer required by the Accounting Firm shall be funded equally by the Parties (and, following the Accounting Firm’s determination, the Parties shall make appropriate payments between themselves as are necessary to give effect to the preceding sentence).

Section 7.02 Interest on Late Payments. With respect to any payment between the Parties pursuant to this Agreement not made by the due date set forth in this Agreement for such payment, the outstanding amount will accrue interest at a rate per annum equal to the Prime Rate, as defined in the Separation Agreement.

Section 7.03 Survival of Covenants. Except as otherwise contemplated by this Agreement, all covenants and agreements of the Parties contained in this Agreement shall survive the Distribution and remain in full force and effect in accordance with their applicable terms.

Section 7.04 Successors. This Agreement shall be binding on and inure to the benefit of any successor by merger, acquisition of assets, or otherwise, to either of the Parties hereto (including without limitation any successor of Inpixon or Sysorex succeeding to the Tax Attributes of either under Section 381 of the Code), to the same extent as if such successor had been an original party to this Agreement.

Section 7.05 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any Law or as a matter of public policy, all other conditions and provisions of this Agreement shall remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties to this Agreement shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner.

Section 7.06 Entire Agreement. Except as otherwise expressly provided in this Agreement, this Agreement, the Separation Agreement and the other Ancillary Agreements constitute the entire agreement of the Parties hereto with respect to the subject matter of this Agreement and supersedes all prior agreements and undertakings, both written and oral, between or on behalf of the Parties hereto with respect to the subject matter of this Agreement.

Section 7.07 Assignment; No Third-Party Beneficiaries. This Agreement shall not be assigned by any Party without the prior written consent of the other Parties hereto, except that each Party may assign (a) any or all of its rights and obligations under this Agreement to any of its Subsidiaries and (b) any or all of its rights and obligations under this Agreement in connection with a sale or disposition of any of its assets or entities or lines of business; provided, however, that, in each case, no such assignment shall release such Party from any liability or obligation under this Agreement. Except as provided in Article III with respect to indemnified Parties, this Agreement is for the sole benefit of the Parties to this Agreement and their respective Subsidiaries and their permitted successors and assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Section 7.08 Specific Performance. In the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement, the Party who is or is to be thereby aggrieved shall have the right to specific performance and injunctive or other equitable relief of its rights under this Agreement, in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative. The Parties agree that the remedies at law for any breach or threatened breach, including monetary damages, may be inadequate compensation for any loss and that any defense in any action for specific performance that a remedy at law would be adequate is waived. Any requirements for the securing or posting of any bond with such remedy are waived by the Parties to this Agreement.

Section 7.09 Amendment. No provision of this Agreement may be amended or modified except by a written instrument signed by the Parties to this Agreement. No waiver by any Party of any provision of this Agreement shall be effective unless explicitly set forth in writing and executed by the Party so waiving. The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other subsequent breach.

Section 7.10 Rules of Construction. Interpretation of this Agreement shall be governed by the following rules of construction: (a) words in the singular shall be held to include the plural and vice versa and words of one gender shall be held to include the other gender as the context requires; (b) references to the terms Article, Section, paragraph, clause, Exhibit and Schedule are references to the Articles, Sections, paragraphs, clauses, exhibits and schedules of this Agreement unless otherwise specified; (c) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement, including the Schedules and Exhibits hereto; (d) references to “$” shall mean U.S. dollars; (e) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation,” unless otherwise specified; (f) the word “or” shall not be exclusive; (g) references to “written” or “in writing” include in electronic form; (h) provisions shall apply, when appropriate, to successive events and transactions; (i) the headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement; (j) Inpixon and Sysorex have each participated in the negotiation and drafting of this Agreement and if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or burdening either Party by virtue of the authorship of any of the provisions in this Agreement or any interim drafts of this Agreement; and (k) a reference to any Person includes such Person’s successors and permitted assigns.

Section 7.11 Counterparts. This Agreement may be executed in one or more counterparts each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or portable document format (PDF) shall be as effective as delivery of a manually executed counterpart of any such Agreement.

Section 7.12 Coordination with the Employee Matters Agreements. To the extent any covenants or agreements between the Parties with respect to employee withholding Taxes are set forth in the Employee Matters Agreement, such Taxes shall be governed exclusively by the Employee Matters Agreement and not by this Agreement.

Section 7.13 Expenses. Except as otherwise provided in this Agreement, whether or not the Distribution or the other transactions contemplated by this Agreement are consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the Party incurring such costs or expenses.

Section 7.14 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without giving effect to any choice or conflict of law provision or rule (whether of the State of Nevada or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Nevada.

Section 7.15 Notices. All notices, requests, claims, demands or other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, or by facsimile with receipt confirmed, to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 7.15:

If to Inpixon prior to or after the Distribution Date, to:

Inpixon

2479 E. Bayshore Road, Suite 195

Palo Alto, California 94303

Attn.: Chief Executive Officer

Fax No.:

with a copy to (which will not constitute notice):

Melanie Figueroa, Esq.

Mitchell Silberberg & Knupp LLP

12 East 49th Street, 30th Floor

New York, New York 10017

Fax No.: (212) 509-7239

If to Sysorex prior to the Distribution Date, to:

Sysorex, Inc.

2479 E. Bayshore Road, Suite 195

Palo Alto, California 94303

Attn.: Chief Executive Officer

Fax No.: (408) 824-1543

with a copy to (which will not constitute notice):

Melanie Figueroa, Esq.

Mitchell Silberberg & Knupp LLP

12 East 49th Street, 30th Floor

New York, New York 10017

Fax No.: (212) 509-7239

If to Sysorex from and after the Distribution Date, to:

Sysorex, Inc.

2355 Dulles Corner Boulevard, Suite 600

Herndon, Virginia 20171

Attn.: Chief Executive Officer

Fax No.: (703) 880-7219

with a copy to (which will not constitute notice):

Melanie Figueroa, Esq.

Mitchell Silberberg & Knupp LLP

12 East 49th Street, 30th Floor

New York, New York 10017

Fax No.: (212) 509-7239

A Party may, by notice to the other Party, change the address to which such notices are to be given. Any notice to Inpixon will be deemed notice to all members of the Inpixon Group, and any notice to Sysorex will be deemed notice to all members of the Sysorex Group.

Section 7.16 Coordination with Ancillary Agreements. Except as explicitly set forth in the Separation Agreement or any other Ancillary Agreement, this Agreement shall be the exclusive agreement among the Parties with respect to all Tax matters, including indemnification in respect of Tax matters. The Parties agree that this Agreement shall take precedence over any and all agreements among the Parties with respect to Tax matters.

Section 7.17 Effective Date. This Agreement shall become effective only upon the occurrence of the Distribution.

[The remainder of this page is intentionally left blank.]

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day and year first above written.

Exhibit 10.3

EMPLOYEE MATTERS AGREEMENT

BY AND BETWEEN

INPIXON

AND

SYSOREX, INC.

DATED AS OF AUGUST 31, 2018

TABLE OF CONTENTS

EMPLOYEE MATTERS AGREEMENT

This EMPLOYEE MATTERS AGREEMENT, dated as of August 31, 2018 (this “Agreement”), is by and between Inpixon, a Nevada corporation (“Parent”), and Sysorex, Inc., a Nevada corporation (“Sysorex”).

R E C I T A L S:

WHEREAS, the board of directors of Parent (the “Parent Board”) has determined that it is in the best interests of Parent and its stockholders to create a new publicly traded company that shall operate the Sysorex Business;

WHEREAS, in furtherance of the foregoing, the Parent Board has determined that it is appropriate and desirable to separate the Sysorex Business from the Parent Business (the “Separation”) and, following the Separation, to make a distribution, on a pro rata basis, to holders of Parent Shares on the Record Date of all of the outstanding Sysorex Shares owned by Parent (the “Distribution”);

WHEREAS, in order to effectuate the Separation and Distribution, Parent and Sysorex have entered into a Separation and Distribution Agreement, dated as of August 7, 2018 (the “Separation and Distribution Agreement”);

WHEREAS, in addition to the matters addressed by the Separation and Distribution Agreement, the Parties desire to enter into this Agreement to set forth the terms and conditions of certain employment, compensation and benefit matters; and

WHEREAS, the Parties acknowledge that this Agreement, the Separation and Distribution Agreement and the Ancillary Agreements represent the integrated agreement of Parent and Sysorex relating to the Separation and Distribution, are being entered into together and would not have been entered into independently.

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:

ARTICLE I

DEFINITIONS

Section 1.01. Definitions. For purposes of this Agreement, the following terms shall have the meanings set forth below. Any terms that are capitalized but not otherwise defined herein shall have the respective meanings assigned to them in the Separation and Distribution Agreement.

“Agreement” shall have the meaning set forth in the Preamble to this Agreement and shall include all Schedules hereto and all amendments, modifications, and changes hereto entered into pursuant to Section 7.17.

“Benefit Plan” shall mean any contract, agreement, policy, practice, program, plan, trust, commitment or arrangement providing for benefits, perquisites or compensation of any nature from an employer to any Employee, or to any family member, dependent, or beneficiary of any such Employee, including cash or deferred arrangement plans, profit sharing plans, post-employment programs, pension plans, thrift plans, supplemental pension plans, welfare plans, stock option, stock purchase, stock appreciation rights, restricted stock, restricted stock units, performance stock units, other equity-based compensation and contracts, agreements, policies, practices, programs, plans, trusts, commitments and arrangements providing for terms of employment, fringe benefits, severance benefits, change in control protections or benefits, travel and accident, life, accidental death and dismemberment, disability and accident insurance, tuition reimbursement, adoption assistance, travel reimbursement, vacation, sick, personal or bereavement days, leaves of absences and holidays; provided, however, that the term “Benefit Plan” does not include any government-sponsored benefits, such as workers’ compensation, unemployment or any similar plans, programs or policies or Individual Agreements.

“COBRA” shall mean the U.S. Consolidated Omnibus Budget Reconciliation Act of 1985, as codified at Section 601 et seq. of ERISA and at Section 4980B of the Code.

“Distribution” shall have the meaning set forth in the Recitals.

“Effective Time” shall have the meaning set forth in the Separation and Distribution Agreement.

“Employee” shall mean any Parent Employee or Sysorex Employee.

“ERISA” shall mean the U.S. Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.

“Former Employee” shall mean any individual who is a former employee of the Parent Group as of immediately prior to the Effective Time.

“HIPAA” shall mean the U.S. Health Insurance Portability and Accountability Act of 1996, as amended, and the regulations promulgated thereunder.

“Individual Agreement” shall mean any individual (a) employment contract, (b) retention, severance or change in control agreement, (c) expatriate (including any international assignee) contract or agreement (including agreements and obligations regarding repatriation, relocation, equalization of Taxes and living standards in the host country), or (d) other agreement containing restrictive covenants (including confidentiality, non-competition and non-solicitation provisions) between a member of the Parent Group and a Sysorex Employee, as in effect immediately prior to the Effective Time.

“IRS” shall mean the U.S. Internal Revenue Service.

“Parent” shall have the meaning set forth in the Preamble.

“Parent 401(k) Plan” shall mean the 401(k) Plan to be established by Parent at or after the Effective Time.

“Parent Benefit Plan” shall mean any Benefit Plan established, sponsored or maintained by Parent at or after the Effective Time.

“Parent Compensation Committee” shall mean the Compensation Committee of the Parent Board.

“Parent Employees” shall have the meaning set forth in Section 3.01.

“Parent Option Award” shall mean an award of options to purchase Parent Shares granted pursuant to the Parent Stock Incentive Plan that is outstanding as of immediately prior to the Effective Time.

“Parent Ratio” shall mean the quotient obtained by dividing (a) the Pre-Separation Parent Stock Value by (b) the Post-Separation Parent Stock Value.

“Parent Stock Incentive Plan” shall mean the Amended and Restated 2011 Employee Stock Incentive Plan.

“Parties” shall mean the parties to this Agreement.

“Post-Separation Parent Option Award” shall mean a Parent Option Award adjusted as of the Effective Time in accordance with Section 4.02(a).

“Post-Separation Parent Stock Value” shall mean the simple average of the closing per-share price of Parent Shares trading on the Nasdaq Capital Market for each of the first 5 full Trading Sessions immediately after the Effective Time.

“Pre-Separation Parent Stock Value” shall mean the closing per-share price of Parent Shares trading “regular way with due bills” on the Nasdaq Capital Market as of the last Trading Session prior to the Effective Time.

“Separation” shall have the meaning set forth in the Recitals.

“Separation and Distribution Agreement” shall have the meaning set forth in the Recitals to this Agreement.

“Sysorex” shall have the meaning set forth in the Preamble.

“Sysorex 401(k) Plan” shall mean the Sysorex USA 401(k) Plan, established by Sysorex prior to the Effective Time.

“Sysorex Benefit Plan” shall mean any Benefit Plan established, sponsored, maintained or contributed to by a member of the Sysorex Group as of or prior to the Effective Time.

“Sysorex Board” shall mean the Board of Directors of Sysorex.

“Sysorex Employees” shall have the meaning set forth in Section 3.01.

“Sysorex Option Award” shall mean an award of options to purchase Sysorex Shares assumed by Sysorex pursuant to the Sysorex Stock Incentive Plan in accordance with Section 4.02(a).

“Sysorex Ratio” shall mean the quotient obtained by dividing (a) the Pre-Separation Parent Stock Value by (b) the Sysorex Stock Value.

“Sysorex Stock Incentive Plan” shall mean the Sysorex 2018 Equity Incentive Plan, as established by Sysorex as of the Effective Time pursuant to Section 4.01.

“Sysorex Stock Value” shall mean the simple average of the closing per-share price of Sysorex Shares trading on the OTCQB for each of the first 5 full Trading Sessions immediately after the Effective Time.

“Sysorex Welfare Plan” shall mean a Welfare Plan established, sponsored, maintained or contributed to by any member of the Sysorex Group for the benefit of Sysorex Employees.

“Tax” shall have the meaning set forth in the Tax Matters Agreement.

“Trading Session” shall mean the period of time during any given calendar day, commencing with the determination of the opening price on the Nasdaq Capital Market, as to the Parent Shares, or the OTCQB, as to the Sysorex Shares, and ending with the determination of the closing price on the Nasdaq Capital Market or the OTCQB, as applicable, in which trading in the Parent Shares or the Sysorex Shares, as applicable, is permitted.

“Transferred Director” shall mean each Sysorex non-employee director as of the Effective Time who served as a non-employee director on the Parent Board immediately prior to the Effective Time.

“Welfare Plan” shall mean any “welfare plan” (as defined in Section 3(1) of ERISA) or a “cafeteria plan” under Section 125 of the Code, and any benefits offered thereunder, and any other plan offering health benefits (including medical, prescription drug, dental, vision, mental health, substance abuse and retiree health), disability benefits, or life, accidental death and dismemberment, and business travel insurance, pre-Tax premium conversion benefits, dependent care assistance programs, employee assistance programs, paid time-off programs, contribution funding toward a health savings account, flexible spending accounts, supplemental unemployment benefits or severance.

Section 1.02. Interpretation. Section 10.15 of the Separation and Distribution Agreement is hereby incorporated by reference.

ARTICLE II

GENERAL PRINCIPLES FOR ALLOCATION OF LIABILITIES

Section 2.01. General Principles.

(a) Acceptance and Assumption of Sysorex Liabilities . Except as otherwise provided by this Agreement, on or prior to the Effective Time, but in any case prior to the Distribution, Sysorex and the applicable Sysorex Designees shall accept, assume and agree faithfully to perform, discharge and fulfill all of the following Liabilities in accordance with their respective terms (each of which shall be considered a Sysorex Liability), regardless of when or where such Liabilities arose or arise, or whether the facts on which they are based occurred prior to or subsequent to the Effective Time, regardless of where or against whom such Liabilities are asserted or determined (including any Liabilities arising out of claims made by Parent’s or Sysorex’s respective directors, officers, Employees, Former Employees, agents, Subsidiaries or Affiliates against any member of the Parent Group or the Sysorex Group) or whether asserted or determined prior to the date hereof, and regardless of whether arising from or alleged to arise from negligence, recklessness, violation of Law, fraud or misrepresentation by any member of the Parent Group or the Sysorex Group, or any of their respective directors, officers, Employees, Former Employees, agents, Subsidiaries or Affiliates:

(i) any and all wages, salaries, incentive compensation, equity compensation, commissions, bonuses and any other employee compensation or benefits payable to or on behalf of any Sysorex Employees after the Effective Time, without regard to when such wages, salaries, incentive compensation, equity compensation, commissions, bonuses or other employee compensation or benefits are or may have been awarded or earned;

(ii) any and all Liabilities whatsoever with respect to claims under a Sysorex Benefit Plan, taking into account the Sysorex Benefit Plan’s assumption of Liabilities with respect to Sysorex Employees that were originally the Liabilities of the corresponding Parent Benefit Plan with respect to periods prior to the Effective Time; and

(iii) any and all Liabilities expressly assumed or retained by any member of the Sysorex Group pursuant to this Agreement.

(b) Acceptance and Assumption of Parent Liabilities . Except as otherwise provided by this Agreement, on or prior to the Effective Time, but in any case prior to the Distribution, Parent and certain members of the Parent Group designated by Parent shall accept, assume and agree faithfully to perform, discharge and fulfill all of the following Liabilities in accordance with their respective terms (each of which shall be considered a Parent Liability), regardless of when or where such Liabilities arose or arise, or whether the facts on which they are based occurred prior to or subsequent to the Effective Time, regardless of where or against whom such Liabilities are asserted or determined (including any Liabilities arising out of claims made by Parent’s or Sysorex’s respective directors, officers, Employees, Former Employees, agents, Subsidiaries or Affiliates against any member of the Parent Group or the Sysorex Group) or whether asserted or determined prior to the date hereof, and regardless of whether arising from or alleged to arise from negligence, recklessness, violation of Law, fraud or misrepresentation by any member of the Parent Group or the Sysorex Group, or any of their respective directors, officers, Employees, Former Employees, agents, Subsidiaries or Affiliates:

(i) any and all wages, salaries, incentive compensation, equity compensation, commissions, bonuses and any other employee compensation or benefits payable to or on behalf of any Parent Employees and Former Employees after the Effective Time, without regard to when such wages, salaries, incentive compensation, equity compensation, commissions, bonuses or other employee compensation or benefits are or may have been awarded or earned;

(ii) any and all Liabilities whatsoever with respect to claims under a Parent Benefit Plan, taking into account a corresponding Sysorex Benefit Plan’s assumption of Liabilities with respect to Sysorex Employees that were originally the Liabilities of such Parent Benefit Plan with respect to periods prior to the Effective Time; and

(iii) any and all Liabilities expressly assumed or retained by any member of the Parent Group pursuant to this Agreement.

(c) Unaddressed Liabilities . To the extent that this Agreement does not address particular Liabilities under any Benefit Plan and the Parties later determine that they should be allocated in connection with the Distribution, the Parties shall agree in good faith on the allocation, taking into account the handling of comparable Liabilities under this Agreement.

Section 2.02. Service Credit. As of the Effective Time, the Sysorex Benefit Plans shall, and Sysorex shall cause each member of the Sysorex Group to, recognize for each Sysorex Employee who is employed immediately following the Effective Time by a member of the Sysorex Group, full service with Parent or any of its Subsidiaries or predecessor entities at or before the Effective Time, to the same extent that such service was recognized by Parent for similar purposes prior to the Effective Time as if such full service had been performed for a member of the Sysorex Group, for purposes of eligibility, vesting and determination of level of benefits under any such Sysorex Benefit Plan. As of the Effective Time, the Parent Benefit Plans shall, and Parent shall cause each member of the Parent Group to, recognize for each Parent Employee who is employed immediately following the Effective Time by a member of the Parent Group, full service with Sysorex or any of its Subsidiaries or predecessor entities at or before the Effective Time, to the same extent that such service was recognized by Sysorex for similar purposes prior to the Effective Time as if such full service had been performed for a member of the Parent Group, for purposes of eligibility, vesting and determination of level of benefits under any such Parent Benefit Plan.

Section 2.03. Adoption and Transfer and Assumption of Benefit Plans.

(a) Adoption by Parent of Benefit Plans . As of no later than the Effective Time or as soon thereafter as is practicable, Parent shall adopt Benefit Plans (and related trusts, if applicable) as contemplated by, and in accordance with, the terms of this Agreement.

(b) Plans Not Required to Be Adopted . With respect to any Benefit Plan not listed or otherwise addressed in this Agreement, the Parties shall agree in good faith on the treatment of such plan taking into account the handling of any comparable plan under this Agreement and, notwithstanding that Parent shall not have an obligation to continue to maintain any such plan with respect to the provision of future benefits from and after the Effective Time, Parent shall remain obligated to pay or provide any previously accrued or incurred benefits to the Parent Employees consistent with Section 2.01(b) of this Agreement.

(c) Information and Operation . Each Party shall use its commercially reasonable efforts to provide the other Party with information describing each Benefit Plan election made by an Employee or Former Employee that may have application to such Party’s Benefit Plans from and after the Effective Time, and each Party shall use its commercially reasonable efforts to administer its Benefit Plans using those elections. Each Party shall, upon reasonable request, use its commercially reasonable efforts to provide the other Party and the other Party’s respective Affiliates, agents, and vendors all information reasonably necessary to the other Party’s operation or administration of its Benefit Plans.

(d) No Duplication or Acceleration of Benefits . Notwithstanding anything to the contrary in this Agreement, the Separation and Distribution Agreement or any Ancillary Agreement, no participant in any Benefit Plan shall receive service credit or benefits to the extent that receipt of such service credit or benefits would result in duplication of benefits provided to such participant by the corresponding Benefit Plan or any other plan, program or arrangement sponsored or maintained by a member of the Group that sponsors the corresponding Benefit Plan. Furthermore, unless expressly provided for in this Agreement, the Separation and Distribution Agreement or in any Ancillary Agreement or required by applicable Law, no provision in this Agreement shall be construed to create any right to accelerate vesting distributions or entitlements under any Benefit Plan sponsored or maintained by a member of the Parent Group or member of the Sysorex Group on the part of any Employee or Former Employee.

(e) Transition Services . The Parties acknowledge that the Parent Group or the Sysorex Group may provide administrative services for certain of the other Party’s compensation and benefit programs for a transitional period. The Parties agree to enter into a business associate agreement (if required by HIPAA or other applicable health information privacy Laws) in connection with such services.

(f) Beneficiaries . References to Parent Employees, Sysorex Employees, Former Employees, and current and former non-employee directors of either Parent or Sysorex, shall be deemed to refer to their beneficiaries, dependents, survivors and alternate payees, as applicable.

Section 2.04. Individual Agreements.

(a) Assignment by Sysorex . To the extent necessary, Sysorex shall assign, or cause an applicable member of the Sysorex Group to assign, to Parent or another member of the Parent Group, as designated by Parent, all Individual Agreements, with such assignment to be effective as of no later than the Effective Time; provided, however, that to the extent that assignment of any such Individual Agreement is not permitted by the terms of such agreement or by applicable Law, effective as of the Effective Time, each member of the Parent Group shall be considered to be a successor to each member of the Sysorex Group for purposes of, and a third-party beneficiary with respect to, such Individual Agreement, such that each member of the Parent Group shall enjoy all of the rights and benefits under such agreement (including rights and benefits as a third-party beneficiary), with respect to the business operations of the Parent Group; provided, further, that in no event shall Sysorex be permitted to enforce any Individual Agreement (including any agreement containing non-competition or non-solicitation covenants) against a Parent Employee for action taken in such individual’s capacity as a Parent Employee other than on behalf of Parent Group as requested by Parent Group in its capacity as a third-party beneficiary.

(b) Assumption by Parent . Effective as of the Effective Time, Parent shall assume and honor any individual agreement to which any Parent Employee is a party with any member of the Sysorex Group, including any Individual Agreement described in subsection (a) above.

ARTICLE III

ASSIGNMENT OF EMPLOYEES

Section 3.01. Assignment and Transfer of Employees. Effective as of the Effective Time and except as otherwise agreed by the Parties, (a) the Parties shall have taken such actions as are necessary to ensure that each individual who is intended to be an employee of the Sysorex Group as of immediately after the Effective Time (including any such individual who is not actively working as of the Effective Time as a result of an illness, injury or leave of absence approved by the Parent Human Resources department or otherwise taken in accordance with applicable Law) (collectively, the “Sysorex Employees”) is employed by a member of the Sysorex Group as of immediately after the Effective Time, and (b) the Parties shall have taken such actions as are necessary to ensure that each individual who is intended to be an employee of the Parent Group as of immediately after the Effective Time (including any such individual who is not actively working as of the Effective Time as a result of an illness, injury or leave of absence approved by the Parent Human Resources department or otherwise taken in accordance with applicable Law) and any other individual employed by the Parent Group as of the Effective Time who is not a Sysorex Employee (collectively, the “Parent Employees”) is employed by a member of the Parent Group as of immediately after the Effective Time. Each of the Parties agrees to execute, and to seek to have the applicable Employees execute, such documentation, if any, as may be necessary to reflect such assignment and/or transfer , including but not limited to the Employee Transition Agreement in substantially the form attached here to as Exhibit 3.01 pursuant to which individuals that are intended to be Parent Employees following the Effective Time may effectively be transferred to work for the Parent Group for a transitional period or other mutually satisfactory written agreement.

Section 3.02. At-Will Status. Nothing in this Agreement shall create any obligation on the part of any member of the Parent Group or any member of the Sysorex Group to (a) continue the employment of any Employee or permit the return from a leave of absence for any period after the date of this Agreement (except as required by applicable Law) or (b) change the employment status of any Employee from “at-will,” to the extent that such Employee is an “at-will” employee under applicable Law.

Section 3.03. Severance. The Parties acknowledge and agree that, except as required by applicable Law, the Separation, Distribution and the assignment, transfer or continuation of the employment of Employees as contemplated by this Section 3.03 shall not be deemed an involuntary termination of employment entitling any Sysorex Employee or Parent Employee to severance payments or benefits.

Section 3.04. Not a Change in Control. The Parties acknowledge and agree that neither the consummation of the Separation, Distribution nor any transaction contemplated by this Agreement, the Separation and Distribution Agreement or any other Ancillary Agreement shall be deemed a “change in control,” “change of control,” or term of similar import for purposes of any Benefit Plan sponsored or maintained by any member of the Parent Group or member of the Sysorex Group.

ARTICLE IV

EQUITY, INCENTIVE AND EXECUTIVE COMPENSATION

Section 4.01. Generally. Each Parent Option Award that is outstanding as of immediately prior to the Effective Time shall be adjusted as described below; provided, however, effective immediately prior to the Effective Time, the Parent Compensation Committee may provide for different adjustments with respect to some or all Parent Option Awards to the extent that the Parent Compensation Committee deems such adjustments necessary and appropriate. Any adjustments made by the Parent Compensation Committee pursuant to the foregoing sentence shall be deemed incorporated by reference herein as if fully set forth below and shall be binding on the Parties and their respective Affiliates. Before the Effective Time, the Sysorex Stock Incentive Plan shall be established, with such terms as are necessary to permit the implementation of the provisions of Section 4.02.

Section 4.02. Treatment of Option Awards.

(a) Option Awards . Each Parent Option Award that is outstanding as of immediately prior to the Effective Time shall be treated as follows:

(i) Parent Employees, Former Employees and Directors . If the holder is a Parent Employee, Former Employee or a non-employee director of Parent (other than a Transferred Director), such award shall be converted, as of the Effective Time, into a Post-Separation Parent Option Award and shall, except as otherwise provided in this Section 4.02, be subject to the same terms and conditions (including with respect to vesting and expiration) after the Effective Time as were applicable to such Parent Option Award immediately prior to the Effective Time; provided, however, that from and after the Effective Time:

(A) the number of Parent Shares subject to such Post-Separation Parent Option Award shall be equal to the product, rounded down to the nearest whole share, of (I) the number of Parent Shares subject to the corresponding Parent Option Award immediately prior to the Effective Time, multiplied by (II) the Parent Ratio; and

(B) the per share exercise price of such Post-Separation Parent Option Award shall be equal to the quotient, rounded up to the nearest cent, of (I) the per share exercise price of the corresponding Parent Option Award immediately prior to the Effective Time, divided by (II) the Parent Ratio.

Notwithstanding anything to the contrary in this Section 4.02(a)(i), the exercise price, the number of Parent Shares subject to each Post-Separation Parent Option Award and the terms and conditions of exercise of such options shall be determined in a manner consistent with the requirements of Section 409A of the Code.

(ii) Sysorex Employees and Directors . If the holder is a Sysorex Employee or a Transferred Director, such award shall be converted, as of the Effective Time, into a Sysorex Option Award and shall, except as otherwise provided in this Section 4.02, be subject to the same terms and conditions (including with respect to vesting and expiration) after the Effective Time as were applicable to such Parent Option Award immediately prior to the Effective Time; provided, however, that from and after the Effective Time:

(A) the number of Parent Shares subject to such Sysorex Option Award shall be equal to the product, rounded down to the nearest whole share, of (I) the number of Parent Shares subject to the corresponding Parent Option Award immediately prior to the Effective Time, multiplied by (II) the Sysorex Ratio; and

(B) the per share exercise price of such Sysorex Option Award shall be equal to the quotient, rounded up to the nearest cent, of (I) the per share exercise price of the corresponding Parent Option Award immediately prior to the Effective Time, divided by (II) the Sysorex Ratio.

Notwithstanding anything to the contrary in this Section 4.02(a)(ii), the exercise price, the number of Sysorex Shares subject to each Sysorex Option Award and the terms and conditions of exercise of such options shall be determined in a manner consistent with the requirements of Section 409A of the Code.

(b) Settlement; Tax Reporting and Withholding .

(i) Except as otherwise provided in this Section 4.02(b), after the Effective Time, Post-Separation Parent Option Awards, regardless of by whom held, shall be settled by Parent, and Sysorex Option Awards, regardless of by whom held, shall be settled by Sysorex.

(ii) Upon the vesting, payment or settlement, as applicable, of Sysorex Option Awards, Sysorex shall be solely responsible for ensuring the satisfaction of all applicable Tax withholding requirements on behalf of each Sysorex Employee. Upon the vesting, payment or settlement, as applicable, of Post-Separation Parent Option Awards, Parent shall be solely responsible for ensuring the satisfaction of all applicable Tax withholding requirements on behalf of each Parent Employee or Former Employee. Following the Effective Time, Parent shall be responsible for all income Tax reporting in respect of Post-Separation Parent Option Awards held by Parent Employees, Former Employees and individuals who are or were Parent non-employee directors, and Sysorex shall be responsible for all income Tax reporting in respect of Sysorex Option Awards held by Sysorex Employees and Transferred Directors.

(c) Cooperation . Each of the Parties shall establish an appropriate administration system in order to administer, in an orderly manner, (i) exercises of vested Post-Separation Parent Options and Sysorex Options, (ii) the vesting and forfeiture of unvested Post-Separation Parent Option Awards and Sysorex Option Awards, and (iii) the withholding and reporting requirements with respect to all awards. Each of the Parties shall work together to unify and consolidate all indicative data and payroll and employment information on regular timetables and make certain that each applicable Person’s data and records in respect of such awards are correct and updated on a timely basis. The foregoing shall include employment status and information required for vesting and forfeiture of awards and Tax withholding/remittance, compliance with trading windows and compliance with the requirements of the Exchange Act and other applicable Laws.

(d) Registration and Other Regulatory Requirements . Sysorex agrees to file Forms S-1 or S-8 registration statements, as appropriate, with respect to, and to cause to be registered pursuant to the Securities Act, the Sysorex Shares authorized for issuance under the Sysorex Stock Incentive Plan, as required pursuant to the Securities Act, not later than the Effective Time and in any event before the date of issuance of any Sysorex Shares pursuant to the Sysorex Stock Incentive Plan. The Parties shall take such additional actions as are deemed necessary or advisable to effectuate the foregoing provisions of this Section 4.02(d), including compliance with securities Laws and other legal requirements associated with equity compensation awards in affected non-U.S. jurisdictions. Parent agrees to facilitate the adoption and approval of the Sysorex Stock Incentive Plan consistent with the requirements of Treasury Regulations Section 1.162-27(f)(4)(iii).

Section 4.03. Director Compensation. Parent shall be responsible for the payment of any fees for service on the Parent Board that are earned at, before, or after the Effective Time, and Sysorex shall not have any responsibility for any such payments. With respect to any Sysorex non-employee director, Sysorex shall be responsible for the payment of any fees for service on the Sysorex Board that are earned at any time after the Effective Time and Parent shall not have any responsibility for any such payments.

ARTICLE V

RETIREMENT PLANS

Section 5.01. Establishment of Plan. As soon as practicable after the Distribution Date, the Parent Board shall adopt and establish the Parent 401(k) Plan and a related trust, which shall be intended to meet the qualification requirements of Section 401(a) of the Code (including under Sections 401(k) and (m) of the Code) including the safe-harbor requirements of Section 401(k)(12) of the Code. Parent may make such changes, modifications or amendments to the Parent 401(k) Plan as may be required by applicable Law or as are necessary and appropriate to reflect the Separation or which result from vendor limitations. As soon as practicable after the Distribution Date, Parent shall provide Sysorex with (a) a copy of the Parent 401(k) Plan and related trust and applicable IRS volume submitter approval or other IRS favorable determination letter with respect to the plan and (b) a copy of certified resolutions of the Parent Board (or its authorized committee or other delegate) evidencing adoption of the Parent 401(k) Plan and related trust and the obligations described in Section 5.02.

Section 5.02. Transfer of Account Balances. Parent Employees shall be eligible to participate in the Parent 401(k) Plan as of the effective date of the plan to the extent that they were eligible to participate in the Sysorex 401(k) Plan as of immediately prior to the Effective Time. As soon as reasonably practicable following the effective date of the Parent 401(k) Plan, Sysorex shall cause the Sysorex 401(k) Plan to transfer to the Parent 401(k) Plan the account balances of Parent Employees, whether vested or non-vested, in the form of cash (or, in the case of loans, notes).

Section 5.03. Plan Fiduciaries. For all periods on and after the Effective Time, the Parties agree that the applicable fiduciaries of each of the Parent 401(k) Plan and the Sysorex 401(k) Plan, respectively, shall have the authority with respect to the Parent 401(k) Plan and the Sysorex 401(k) Plan, respectively, to determine the investment alternatives, the terms and conditions with respect to those investment alternatives and such other matters as are within the scope of their duties under ERISA and the terms of the applicable plan documents.

ARTICLE VI

WELFARE BENEFIT PLANS

Section 6.01. Welfare Plans.

(a) Continued Participation in Sysorex Welfare Plans . For the period beginning on the date of the Distribution and ending on December 31, 2018 (or such later date as may be required under COBRA in the case of Parent Employees or former Parent Employees (or such Parent Employee’s or former Parent Employee’s eligible dependents) who have a “qualifying event” for the purposes of COBRA on or prior to the date of Distribution) (the “ Participation Period ”), (i) Parent Employees and former Parent Employees who participate in the Welfare Plans identified on Schedule 6.01(a) (such plans, the “ Participation Period Plans ”), and (ii) individuals who become employed by Parent who would become eligible to participate in the Participation Period Plans had the Distribution not occurred, shall continue to participate or begin to participate, as applicable in such Participation Period Plans during the Participation Period on the terms set forth in such Participation Period Plans. The Parties acknowledge and agree that, as of December 31, 2018, the Parent Employees who remain Parent Employees as of that date shall cease participation in the Sysorex Welfare Plans and, effective January 1, 2019, , such employees shall commence participation in the Parent Welfare Plans. To the extent the Participation Period applicable to a Parent Employee (or such Parent Employee’s eligible dependents) who experiences a “qualifying event” for the purposes of COBRA after the date of Distribution would otherwise extend beyond December 31, 2018, such Parent Employee shall become eligible for benefits solely pursuant to the Parent Welfare Plans, in accordance with COBRA and consistent with the terms generally available to active Parent Employees, as of January 1, 2019.

(b) Waiver of Conditions; Benefit Maximums . Parent has and shall continue to use commercially reasonable efforts to cause the Parent Welfare Plans to:

(i) with respect to initial enrollment, waive (A) all exclusions, and service conditions with respect to participation and coverage requirements applicable to any Parent Employee, other than limitations that were in effect with respect to the Parent Employee under the applicable Sysorex Welfare Plan as of immediately prior to the Distribution Date, and (B) any waiting period limitation or evidence of insurability requirement applicable to a Parent Employee other than limitations or requirements that were in effect with respect to such Parent Employee under the applicable Sysorex Welfare Plans as of immediately prior to the Distribution Date; and

(ii) take into account (A) with respect to aggregate annual or similar maximum benefits available under the Parent Welfare Plans, a Parent Employee’s prior claim experience under the Sysorex Welfare Plans and any Benefit Plan that provides leave benefits; and (B) any eligible expenses incurred by a Parent Employee and his or her covered dependents during the portion of the plan year of the applicable Sysorex Welfare Plan ending as of the Distribution Date to be taken into account under such Parent Welfare Plan for purposes of satisfying all deductible, coinsurance, and maximum out-of-pocket requirements applicable to such Parent Employee and his or her covered dependents for the applicable plan year to the same extent as such expenses were taken into account by Sysorex for similar purposes prior to the Distribution Date as if such amounts had been paid in accordance with such Parent Welfare Plan.

(d) Allocation of Welfare Plan Assets and Liabilities .

(i) Except as otherwise provided in this Article VI, effective as of the Effective Time, the Parent Group shall retain or assume, as applicable, and be responsible for all Assets (including any insurance contracts, policies or other funding vehicles) and Liabilities relating to the Parent Welfare Plans, regardless of when arising, and the Sysorex Group shall retain or assume, as applicable, and be responsible for all Assets (including any insurance contracts, policies or other funding vehicles) and Liabilities relating to the Sysorex Welfare Plans, regardless of when arising.

(ii) For these purposes, a claim or Liability is deemed to be incurred: (A) with respect to medical, dental, vision and/or prescription drug benefits, upon the rendering of health services giving rise to such claim or Liability; (B) with respect to life insurance, accidental death and dismemberment and business travel accident insurance, upon the occurrence of the event giving rise to such claim or Liability; and (C) with respect to disability benefits, upon the date of an Employee’s disability, as determined by the disability benefit insurance carrier or claim administrator, giving rise to such claim or Liability.

Section 6.02. COBRA. The Sysorex Group shall be responsible for complying with, and providing coverage pursuant to, the health care continuation requirements of COBRA, and the corresponding provisions of the Sysorex Welfare Plans with respect to any Sysorex Employees or Former Employees (and their covered dependents) who incur a qualifying event under COBRA before, as of, or after the Distribution Date. Effective January 1, 2019, the Parent Group shall assume responsibility for complying with, and providing coverage pursuant to, the health care continuation requirements of COBRA, and the corresponding provisions of the Parent Welfare Plans with respect to any Parent Employees (and their covered dependents) who incur a qualifying event or loss of coverage under the Parent Welfare Plans after the Distribution Date. For purposes of this Section 6.02, any Former Employee who participated in the Sysorex Welfare Plans as of the date of such Former Employee’s qualifying event under COBRA shall be considered a Sysorex Employee. The Parties agree that the consummation of the transactions contemplated by the Separation and Distribution Agreement shall not constitute a COBRA qualifying event for any purpose of COBRA.

Section 6.03. Vacation, Holidays and Leaves of Absence. Effective as of no later than the Effective Time, the Sysorex Group shall assume all Liabilities of the Sysorex Group with respect to vacation, holiday, annual leave or other leave of absence, and required payments related thereto, for each Sysorex Employee, unless otherwise required by applicable Law. The Parent Group shall retain all Liabilities with respect to vacation, holiday, annual leave or other leave of absence, and required payments related thereto, for each Parent Employee.

Section 6.04. Severance and Unemployment Compensation. As of the Effective Time, the Sysorex Group shall assume and be responsible for any and all Liabilities relating to Sysorex Employees regardless of when arising and Former Employees who worked the majority of their time on Sysorex Group activities in respect of severance, unemployment compensation and supplemental unemployment benefits. The Parent Group shall retain or assume, as applicable, and be responsible for any and all Liabilities relating to Parent Employees regardless of when arising and Former Employees who worked the majority of their time on Parent Group activities in respect of severance, unemployment compensation and supplemental unemployment benefits.

Section 6.05. Workers’ Compensation. With respect to claims for workers’ compensation in the United States, (a) the Sysorex Group shall be responsible for claims in respect of Sysorex Employees regardless of when arising and Former Employees who worked the majority of their time on Sysorex Group activities , and (b) the Parent Group shall be responsible for all claims in respect of Parent Employees regardless of when arising and Former Employees who worked the majority of their time on Parent Group activities.

Section 6.06. Insurance Contracts. To the extent that any Welfare Plan is funded through the purchase of an insurance contract or is subject to any stop loss contract, the Parties shall cooperate and use their commercially reasonable efforts to replicate such insurance contracts for Sysorex or Parent as applicable (except to the extent that changes are required under applicable Law or filings by the respective insurers) and to maintain any pricing discounts or other preferential terms for both Parent and Sysorex for a reasonable term. Neither Party shall be liable for failure to obtain such insurance contracts, pricing discounts, or other preferential terms for the other Party. Each Party shall be responsible for any additional premiums, charges, or administrative fees that such Party may incur pursuant to this Section 6.06.

Section 6.07. Third-Party Vendors. Except as provided below, to the extent that any Welfare Plan is administered by a third-party vendor, the Parties shall cooperate and use their commercially reasonable efforts to replicate any contract with such third-party vendor for Parent or Sysorex, as applicable and to maintain any pricing discounts or other preferential terms for both Parent and Sysorex for a reasonable term. Neither Party shall be liable for failure to obtain such pricing discounts or other preferential terms for the other Party. Each Party shall be responsible for any additional premiums, charges, or administrative fees that such Party may incur pursuant to this Section 6.07.

ARTICLE VII

MISCELLANEOUS

Section 7.01. Information Sharing and Access.

(a) Sharing of Information . Subject to any limitations imposed by applicable Law, each of Parent and Sysorex (acting directly or through members of the Parent Group or the Sysorex Group, respectively) shall provide to the other Party and its authorized agents and vendors all information necessary (including information for purposes of determining benefit eligibility, participation, vesting, calculation of benefits) on a timely basis under the circumstances for the Party to perform its duties under this Agreement. Such information shall include information relating to equity awards under stock plans. To the extent that such information is maintained by a third-party vendor, each Party shall use its commercially reasonable efforts to require the third-party vendor to provide the necessary information and assist in resolving discrepancies or obtaining missing data.

(b) Transfer of Personnel Records and Authorization . Subject to any limitation imposed by applicable Law and to the extent that it has not done so before the Effective Time, Sysorex shall transfer to Parent any and all employment records (including any Form I-9, Form W-2 or other IRS forms) with respect to Parent Employees and other records reasonably required by Parent to enable Parent properly to carry out its obligations under this Agreement. Such transfer of records generally shall occur as soon as administratively practicable at or after the Effective Time. Each Party shall permit the other Party reasonable access to its Employee records, to the extent reasonably necessary for such accessing Party to carry out its obligations hereunder.

(c) Access to Records . To the extent not inconsistent with this Agreement, the Separation and Distribution Agreement or any applicable privacy protection Laws or regulations, reasonable access to Employee-related and benefit plan related records after the Effective Time shall be provided to members of the Parent Group and members of the Sysorex Group pursuant to the terms and conditions of Article VI of the Separation and Distribution Agreement.

(d) Maintenance of Records . With respect to retaining, destroying, transferring, sharing, copying and permitting access to all Employee-related information, Parent and Sysorex shall comply with all applicable Laws, regulations and internal policies, and shall indemnify and hold harmless each other from and against any and all Liability, Actions, and damages that arise from a failure (by the indemnifying Party or its Subsidiaries or their respective agents) to so comply with all applicable Laws, regulations and internal policies applicable to such information.

(e) Cooperation . Each Party shall use commercially reasonable efforts to cooperate and work together to unify, consolidate and share (to the extent permissible under applicable privacy/data protection Laws) all relevant documents, resolutions, government filings, data, payroll, employment and benefit plan information on regular timetables and cooperate as needed with respect to (i) any claims under or audit of or litigation with respect to any employee benefit plan, policy or arrangement contemplated by this Agreement, (ii) efforts to seek a determination letter, private letter ruling or advisory opinion from the IRS or U.S. Department of Labor on behalf of any employee benefit plan, policy or arrangement contemplated by this Agreement, (iii) any filings that are required to be made or supplemented to the IRS, U.S. Pension Benefit Guaranty Corporation, U.S. Department of Labor or any other Governmental Authority, and (iv) any audits by a Governmental Authority or corrective actions, relating to any Benefit Plan, labor or payroll practices; provided, however, that requests for cooperation must be reasonable and not interfere with daily business operations.

(f) Confidentiality . Notwithstanding anything in this Agreement to the contrary, all confidential records and data relating to Employees to be shared or transferred pursuant to this Agreement shall be subject to Section 6.9 of the Separation and Distribution Agreement and the requirements of applicable Law.

Section 7.02. Preservation of Rights to Amend. Except as set forth in this Agreement, the rights of each member of the Parent Group and each member of the Sysorex Group to amend, waive, or terminate any plan, arrangement, agreement, program, or policy referred to herein shall not be limited in any way by this Agreement.

Section 7.03. Fiduciary Matters. Parent and Sysorex each acknowledge that actions required to be taken pursuant to this Agreement may be subject to fiduciary duties or standards of conduct under ERISA or other applicable Law, and no Party shall be deemed to be in violation of this Agreement if it fails to comply with any provisions hereof based upon its good-faith determination (as supported by advice from counsel experienced in such matters) that to do so would violate such a fiduciary duty or standard. Each Party shall be responsible for taking such actions as are deemed necessary and appropriate to comply with its own fiduciary responsibilities and shall fully release and indemnify the other Party for any Liabilities caused by the failure to satisfy any such responsibility.

Section 7.04. Further Assurances. Each Party hereto shall take, or cause to be taken, any and all reasonable actions, including the execution, acknowledgment, filing and delivery of any and all documents and instruments that any other Party hereto may reasonably request in order to effect the intent and purpose of this Agreement and the transactions contemplated hereby.

Section 7.05. Counterparts; Entire Agreement; Corporate Power.

(a) This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Party.

(b) This Agreement, the Separation and Distribution Agreement and the Ancillary Agreements and the Exhibits, Schedules and appendices hereto and thereto contain the entire agreement between the Parties with respect to the subject matter hereof, supersede all previous agreements, negotiations, discussions, writings, understandings, commitments and conversations with respect to such subject matter, and there are no agreements or understandings between the Parties other than those set forth or referred to herein or therein. This Agreement, the Separation and Distribution Agreement and the Ancillary Agreements govern the arrangements in connection with the Separation and Distribution and would not have been entered independently.

(c) Parent represents on behalf of itself and each other member of the Parent Group, and Sysorex represents on behalf of itself and each other member of the Sysorex Group, as follows:

(i) each such Person has the requisite corporate or other power and authority and has taken all corporate or other action necessary in order to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby; and

(ii) this Agreement has been duly executed and delivered by it and constitutes a valid and binding agreement of it enforceable in accordance with the terms hereof.

(d) Each Party acknowledges that it and each other Party is executing this Agreement by facsimile, stamp or mechanical signature, and that delivery of an executed counterpart of a signature page to this Agreement (whether executed by manual, stamp or mechanical signature) by facsimile or by email in portable document format (PDF) shall be effective as delivery of such executed counterpart of this Agreement. Each Party expressly adopts and confirms each such facsimile, stamp or mechanical signature (regardless of whether delivered in person, by mail, by courier, by facsimile or by email in portable document format (PDF)) made in its respective name as if it were a manual signature delivered in person, agrees that it will not assert that any such signature or delivery is not adequate to bind such Party to the same extent as if it were signed manually and delivered in person and agrees that, at the reasonable request of the other Party at any time, it will as promptly as reasonably practicable cause this Agreement to be manually executed (any such execution to be as of the date of the initial date thereof) and delivered in person, by mail or by courier.

Section 7.06. Governing Law. This Agreement (and any claims or disputes arising out of or related hereto or to the transactions contemplated hereby or to the inducement of any Party to enter herein, whether for breach of contract, tortious conduct or otherwise and whether predicated on common Law, statute or otherwise) shall be governed by and construed and interpreted in accordance with the Laws of the State of California, irrespective of the choice of Laws principles of the State of California, including all matters of validity, construction, effect, enforceability, performance and remedies.

Section 7.07. Assignability. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns; provided, however, that neither Party may assign its rights or delegate its obligations under this Agreement without the express prior written consent of the other Party hereto. Notwithstanding the foregoing, no such consent shall be required for the assignment of a Party’s rights and obligations under this Agreement, the Separation and Distribution Agreement and all other Ancillary Agreements (except as may be otherwise provided in any such Ancillary Agreement) in whole (i.e., the assignment of a party’s rights and obligations under this Agreement and all Ancillary Agreements all at the same time) in connection with a change of control of a Party so long as the resulting, surviving or transferee Person assumes all the obligations of the relevant party thereto by operation of Law or pursuant to an agreement in form and substance reasonably satisfactory to the other Party.

Section 7.08. Third-Party Beneficiaries. Subject to the requirements of Section 2.04(a), the provisions of this Agreement are solely for the benefit of the Parties and are not intended to confer upon any other Person except the Parties any rights or remedies hereunder. There are no third-party beneficiaries of this Agreement and this Agreement shall not provide any third person with any remedy, claim, Liability, reimbursement, claim of action or other right in excess of those existing without reference to this Agreement. Nothing in this Agreement is intended to amend any employee benefit plan or affect the applicable plan sponsor’s right to amend or terminate any employee benefit plan pursuant to the terms of such plan. The provisions of this Agreement are solely for the benefit of the Parties, and no current or former Employee, officer, director, or independent contractor or any other individual associated therewith shall be regarded for any purpose as a third-party beneficiary of this Agreement.

Section 7.09. Notices. All notices, requests, claims, demands or other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 7.09):

If to Parent (prior to, on or after the Effective Time), to:

Inpixon

2479 E. Bayshore Road, Suite 195

Palo Alto, California 94303

Attn.: Chief Executive Officer

with a copy to (which will not constitute notice):

Melanie Figueroa, Esq.

Mitchell Silberberg & Knupp LLP

12 East 49th Street, 30th Floor

New York, New York 10017

If to Sysorex (prior to the Effective Time), to:

Sysorex, Inc.

2479 E. Bayshore Road, Suite 195

Palo Alto, California 94303

Attn.: Chief Executive Officer

with a copy to (which will not constitute notice):

Melanie Figueroa, Esq.

Mitchell Silberberg & Knupp LLP

12 East 49th Street, 30th Floor

New York, New York 10017

If to Sysorex (from and after the Effective Time), to:

Sysorex, Inc.

2355 Dulles Corner Boulevard, Suite 600

Herndon, Virginia 20171

Attn.: Chief Executive Officer

with copies to (which will not constitute notice):

Melanie Figueroa, Esq.

Mitchell Silberberg & Knupp LLP

12 East 49th Street, 30th Floor

New York, New York 10017

Addison K. Adams, Esq.
Adams Corporate Law, Inc.
1851 E 1st St, Suite 900

Santa Ana, California 92705

A Party may, by notice to the other Party, change the address to which such notices are to be given.

Section 7.10. Severability. If any provision of this Agreement or the application thereof to any Person or circumstance is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof, or the application of such provision to Persons or circumstances or in jurisdictions other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. Upon such determination, the Parties shall negotiate in good faith in an effort to agree upon such a suitable and equitable provision to effect the original intent of the Parties.

Section 7.11. Force Majeure. No Party shall be deemed in default of this Agreement or, unless otherwise expressly provided therein, any Ancillary Agreement for any delay or failure to fulfill any obligation (other than a payment obligation) hereunder or thereunder so long as and to the extent to which any delay or failure in the fulfillment of such obligation is prevented, frustrated, hindered or delayed as a consequence of circumstances of Force Majeure. In the event of any such excused delay, the time for performance of such obligations (other than a payment obligation) shall be extended for a period equal to the time lost by reason of the delay. A Party claiming the benefit of this provision shall, as soon as reasonably practicable after the occurrence of any such event, (a) provide written notice to the other Party of the nature and extent of any such Force Majeure condition; and (b) use commercially reasonable efforts to remove any such causes and resume performance under this Agreement and the Ancillary Agreements, as applicable, as soon as reasonably practicable.

Section 7.12. Headings. The article, section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

Section 7.13. Survival of Covenants. Except as expressly set forth in this Agreement, the covenants, representations and warranties contained in this Agreement, and Liability for the breach of any obligations contained herein, shall survive the Separation and Distribution and shall remain in full force and effect.

Section 7.14. Waivers of Default. Waiver by a Party of any default by the other Party of any provision of this Agreement shall not be deemed a waiver by the waiving Party of any subsequent or other default, nor shall it prejudice the rights of the other Party. No failure or delay by a Party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall a single or partial exercise thereof prejudice any other or further exercise thereof or the exercise of any other right, power or privilege.

Section 7.15. Dispute Resolution. The dispute resolution procedures set forth in Article VII of the Separation and Distribution Agreement shall apply to any dispute, controversy or claim arising out of or relating to this Agreement.

Section 7.16. Specific Performance. Subject to the provisions of Article VII of the Separation and Distribution Agreement, in the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement, the Party or Parties who are, or are to be, thereby aggrieved shall have the right to specific performance and injunctive or other equitable relief in respect of its or their rights under this Agreement, in addition to any and all other rights and remedies at Law or in equity, and all such rights and remedies shall be cumulative. The Parties agree that the remedies at Law for any breach or threatened breach, including monetary damages, are inadequate compensation for any Loss and that any defense in any Action for specific performance that a remedy at Law would be adequate is waived. Any requirements for the securing or posting of any bond with such remedy are hereby waived by each of the Parties.

Section 7.17. Amendments. No provisions of this Agreement shall be deemed waived, amended, supplemented or modified by a Party, unless such waiver, amendment, supplement or modification is in writing and signed by the authorized representative of the Party against whom it is sought to enforce such waiver, amendment, supplement or modification.

Section 7.18. Interpretation. In this Agreement, (a) words in the singular shall be deemed to include the plural and vice versa and words of one gender shall be deemed to include the other genders as the context requires; (b) the terms “hereof,” “herein,” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole (including all of the Schedules, Exhibits and Appendices hereto and thereto) and not to any particular provision of this Agreement; (c) Article, Section, Schedule, Exhibit and Appendix references are to the Articles, Sections, Schedules, Exhibits and Appendices to this Agreement unless otherwise specified; (d) unless otherwise stated, all references to any agreement shall be deemed to include the exhibits, schedules and annexes to such agreement; (e) the word “including” and words of similar import when used in this Agreement shall mean “including, without limitation,” unless otherwise specified; (f) the word “or” shall not be exclusive; (g) unless otherwise specified in a particular case, the word “days” refers to calendar days; (h) references to “business day” shall mean any day other than a Saturday, a Sunday or a day on which banking institutions are generally authorized or required by Law to close in the United States or New York, New York; (i) references herein to this Agreement or any other agreement contemplated herein shall be deemed to refer to this Agreement or such other agreement as of the date on which it is executed and as it may be amended, modified or supplemented thereafter, unless otherwise specified; and (j) unless expressly stated to the contrary in this Agreement, all references to “the date hereof,” “the date of this Agreement,” “hereby” and “hereupon” and words of similar import shall all be references to the date set forth in the introductory paragraph of this Agreement.

Section 7.19. Limitations of Liability. Notwithstanding anything in this Agreement to the contrary, neither Sysorex or any member of the Sysorex Group, on the one hand, nor Parent or any member of the Parent Group, on the other hand, shall be liable under this Agreement to the other for any indirect, punitive, exemplary, remote, speculative or similar damages in excess of compensatory damages of the other arising in connection with the transactions contemplated hereby (other than any such Liability with respect to a Third-Party Claim).

Section 7.20. Mutual Drafting. This Agreement shall be deemed to be the joint work product of the Parties and any rule of construction that a document shall be interpreted or construed against a drafter of such document shall not be applicable.

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IN WITNESS WHEREOF, the Parties have caused this Employee Matters Agreement to be executed by their duly authorized representatives as of the date first written above.

[Signature Page to Employee Matters Agreement]

Exhibit 3.01

EMPLOYEE TRANSITION AGREEMENT

THIS EMPLOYEE TRANSITION AGREEMENT (the “Agreement”) is entered into effective as of August 31, 2018, by and between INPIXON, a Nevada corporation (“PARENT”), on the one hand, and SYSOREX, INC., a Nevada corporation (“SYSOREX”), on the other.

WHEREAS, the undersigned employee (“Employee”) is employed by SYSOREX pursuant to an employment at-will arrangement; and

WHEREAS, SYSOREX is agreeing to furnish to PARENT, on a transitional basis, the services of Employee;

NOW THEREFORE, in consideration of the covenants and promises contained herein, SYSOREX and PARENT agree as follows:

1. Term of Transitional Period : SYSOREX agrees to loan Employee’s services to PARENT from August 31, 2018 (the “Effective Date”), through and including December 31, 2018 (the “Transitional Period”). The parties hereto contemplate that subject to satisfactory job performance in the sole opinion of PARENT and continued ability to work, Employee at the end of the Transitional Period or at an earlier or later mutually agreeable date shall become an employee of PARENT and cease employment with SYSOREX.

2. Reimbursement of SYSOREX’s Costs and Expenses : PARENT agrees that it shall reimburse SYSOREX for any and all costs and expenses incurred by SYSOREX with respect to Employee’s employment during the Transitional Period, including but not limited to each of the following:

(a) Salary : During the Transitional Period, SYSOREX shall pay to Employee, and PARENT shall in turn reimburse SYSOREX for, Employee’s pro rata annualized gross salary in an amount equal to Employee’s salary as paid by SYSOREX as of the Effective Date. [Said salary shall be paid to Employee in equal installments on SYSOREX’s regular paydays and shall be subject to the SYSOREX’s usual and required employee payroll deductions and withholdings].

(b) Payroll Taxes and Withholdings : During the Transitional Period, SYSOREX shall pay or remit to the appropriate taxing authorities and/or governmental agencies, and PARENT shall in turn reimburse SYSOREX for, any and all payroll taxes and withholdings required by law to be paid in connection with Employee’s employment.

(c) Employee Benefits : During the Transitional Period and as long as such benefits are provided generally to other SYSOREX employees at Employee’s level, SYSOREX shall continue to provide to Employee, and PARENT shall in turn reimburse SYSOREX for, those pension, group insurance benefits and other group employment benefits which Employee is currently eligible to receive and which are otherwise provided to other SYSOREX employees at Employee’s level.

(d) Additional Compensation : During the Transitional Period, SYSOREX shall pay to Employee, and PARENT shall in turn reimburse SYSOREX for, any additional compensation, including but not limited to any production bonus, compensation for origination, or discretionary bonus requested by PARENT to be paid to Employee. If PARENT desires any such additional compensation be paid by SYSOREX to Employee, PARENT shall make such request in writing.

(e) Business Expenses : During the Transitional Period, SYSOREX shall pay to or reimburse Employee for, and PARENT shall in turn reimburse SYSOREX for, any reasonable and necessary business expenses incurred by Employee in accordance with PARENT’s expense reimbursement policies. Employee shall be required to request reimbursement through SYSOREX’s standard procedures and PARENT agrees to approve, in writing, each of Employee’s expense reports before it is submitted to SYSOREX for payment. SYSOREX shall not reimburse Employee for any expense which has not been approved, in writing, by PARENT.

SYSOREX shall invoice PARENT on a regular basis, not more frequently than every thirty (30) days, for the foregoing costs and expenses which it will incur, and PARENT agrees to and shall promptly reimburse SYSOREX for all such costs and expenses within fifteen (15) days of its receipt of each such invoice, plus an administrative service fee of [2]% of the gross amount of each respective invoice; provided, however, that SYSOREX agrees to waive such fee for so long as any PARENT employees are providing any necessary administrative services on behalf of and for the benefit of SYSOREX including any employees that are furnished to PARENT in accordance with this Agreement. Except as described herein, PARENT understands and expressly agrees that it shall reimburse SYSOREX for all such costs and expenses described herein, whether or not PARENT actually utilizes Employee’s services throughout the entire Transitional Period.

3. Workers’ Compensation : In connection with Employee’s performance of services during the Transitional Period, Employee shall continue be insured under SYSOREX’s general liability and workers’ compensation insurance policies to the same extent as its other employees, and SYSOREX shall take all reasonable steps to have its insurers include PARENT as an additional named insured employer under each such insurance policy; provided that PARENT shall in turn reimburse SYSOREX for any and all additional costs and expenses required by any such insurer to have PARENT so included as an additional named insured employer on such insurer’s respective policy. Notwithstanding that SYSOREX is furnishing Employee’s services to PARENT, for the purposes of any applicable workers’ compensation statute, an employment relationship shall be deemed to exist between PARENT and Employee, with PARENT being Employee’s special employer hereunder and SYSOREX being Employee’s general employer, as such terms are understood for purposes of workers’ compensation statutes.

4. Indemnity : PARENT agrees to indemnify, defend and hold harmless, SYSOREX, and its parent, subsidiary, affiliated and related corporations, businesses, companies, entities, and divisions, as well as each of their respective trustees, directors, officers, agents, partners, general partners, limited partners, attorneys, insurers, employees, stockholders, shareholders, representatives, assigns and successors, past, present and future, and each of them, from and against any and all losses, claims, demands, actions, suits, causes of action, attorneys’ fees, obligations, debts, costs, expenses, damages, judgments, orders and liabilities of whatever kind or nature in law, equity or otherwise, arising from or pertaining to Employee’s actions, services or his work for PARENT at any time during the Transitional Period.

5. Governing Law and Enforcement By Arbitration : This Agreement shall be governed and construed in accordance with the laws of the State of California applicable to contracts entered into and fully performed in California, without regard to principles of conflict of laws. Any controversy or claim arising out of or relating to this Agreement, its enforcement or interpretation, or because of an alleged breach, default, or misrepresentation in connection with any of its provisions, shall be submitted to final and binding arbitration, to be held in Los Angeles County, California, in accordance with California Code of Civil Procedure Sections 1282-1284.2, with the exception of Section 1283.1(a). This agreement to arbitrate specifically incorporates and makes applicable the provisions of Section 1283.05. The arbitrator shall decide all issues relating to arbitrability.

6. Notices : Unless otherwise required by law, all notices, or communications required or desired to be given hereunder shall be directed to the persons identified below or their designees:

Notices to PARENT shall be directed to:

Inpixon

2479 E. Bayshore Road, Suite 195

Palo Alto, California 94303

Attn.: Chief Executive Officer

Notices to SYSOREX shall be directed to:

Sysorex, Inc.

2479 E. Bayshore Road, Suite 195

Palo Alto, California 94303

Attn.: Chief Executive Officer

IN WITNESS WHEREOF, the parties have executed this Agreement on the date or dates designated below.

3

Exhibit 10.4

ASSIGNMENT AND ASSUMPTION AGREEMENT

This ASSIGNMENT AND ASSUMPTION AGREEMENT (this “ Agreement ”) is made and entered into as of August 31, 2018, by and among Inpixon, a Nevada corporation (“ Inpixon ”), Sysorex, Inc., a Nevada corporation (“ Sysorex ”), the Inpixon and Sysorex entities listed on Schedules A and B hereto (as appropriate, collectively with Inpixon, the “ Inpixon Group ” and each, an “ Inpixon Entity ” and collectively with Sysorex, the “ Sysorex Group ” and each, a “ Sysorex Entity ”). Capitalized terms used in this Agreement and not otherwise defined have the meanings ascribed to such terms in the Separation Agreement (as defined below).

RECITALS

WHEREAS , Inpixon and Sysorex have entered into that certain Separation and Distribution Agreement (the “ Separation Agreement ”), dated as of August 7, 2018, pursuant to which Inpixon will transfer its IT consulting and value added reseller business to Sysorex (the “ Separation ”) and distribute all of the outstanding common stock of Sysorex to Inpixon stockholders of record (including holders of Inpixon’s Series 4 Convertible Preferred Stock) and certain holders of Inpixon’s warrants as of the close of business on August 21, 2018 (the “ Distribution ” and with the Separation, the “ Spin-off ”); and

WHEREAS , in connection with the Spin-off and pursuant to Section 2.1 of the Separation Agreement, the Inpixon Group desires to assign to Sysorex the Sysorex Assets and Sysorex has agreed to assume the Sysorex Liabilities while the Sysorex Group desires to assign to Inpixon the Inpixon Assets.

NOW, THEREFORE , pursuant to the terms and conditions of the Separation Agreement and for the consideration set forth therein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

AGREEMENT

1. Assignment and Assumption of Sysorex Assets and Liabilities . Subject to the terms and conditions of the Separation Agreement, each Inpixon Entity hereby assigns, conveys, and transfers to Sysorex all of such Inpixon Entity’s right, title and interest in and to the Sysorex Assets (the “ Sysorex Assignment ”). Sysorex hereby accepts the Sysorex Assignment and retains or assumes, as appropriate, the Sysorex Liabilities, in each case effective as of the Effective Time; provided, however, that following the Effective Time, each of Inpixon and Sysorex will be responsible for 50% of the Shared Liabilities included on Schedule 1.5 of the Separation Agreement.

2. Assignment and Assumption of Inpixon Assets and Liabilities . Subject to the terms and conditions of the Separation Agreement, each Sysorex Entity hereby assigns, conveys, and transfers to Inpixon all of such Sysorex Entity’s right, title and interest in and to the Inpixon Assets (the “ Inpixon Assignment ”). Inpixon hereby accepts the Inpixon Assignment and retains or assumes, as appropriate, the Inpixon Liabilities, in each case effective as of the Effective Time; provided, however, that following the Effective Time, each of Inpixon and Sysorex will be responsible for 50% of the Shared Liabilities included on Schedule 1.5 of the Separation Agreement.

3. Terms of the Separation Agreement . The terms of the Separation Agreement, including, but not limited to, the representations, warranties, covenants, agreements and indemnities relating the Sysorex Liabilities are incorporated herein by reference. The parties hereto acknowledge and agree that the representations, warranties, covenants, agreements and indemnities contained in the Separation Agreement shall not be superseded hereby, but shall remain in full force and effect to the extent provided therein. In the event of any conflict or inconsistency between the terms of the Separation Agreement and the terms hereof, the terms of the Separation Agreement shall govern.

4. Governing Law . This Agreement shall be governed by and construed in accordance with the Law of the State of Nevada, without regard to the choice of law or conflicts of law principles thereof. The parties expressly waive any right they may have, now or in the future, to demand or seek the application of a governing Law other than the Law of the State of Nevada.

5. Assignment . This Agreement may not be assigned by any party hereto without the prior written consent of Inpixon and Sysorex. All of the terms and provisions of this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.

6. Counterparts . This Agreement may be executed in multiple original, facsimile or electronic counterparts (including via PDF), each of which shall be deemed an original, but all of which when taken together shall constitute one and the same agreement.

7. Further Assurances . Each party hereto shall execute and deliver, at the reasonable request of the other parties hereto, such additional documents, instruments, conveyances and assurances and take such further actions as such other party may reasonably request to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement.

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

Schedule A

Inpixon Entities

Inpixon Canada, Inc., a Canadian corporation

Sysorex India, Ltd., a corporation formed under the laws of India

Schedule B

Sysorex, Inc. Entities

Sysorex Government Services, Inc., a Nevada corporation

Exhibit 10.5

AMENDMENT NO. 1 TO SEPARATION AND DISTRIBUTION AGREEMENT

This AMENDMENT NO. 1 TO SEPARATION AND DISTRIBUTION AGREEMENT (this “ Amendment ”) is made and entered into as of August 31, 2018 (“ Effective Date ”) by and between Inpixon, a Nevada corporation (“ Inpixon ”), and Sysorex, Inc., a Nevada corporation (“ Sysorex ”). This Amendment is made in accordance with Section 10.14 of that certain Separation and Distribution Agreement, dated as of August 7, 2018, by and between Inpixon and Sysorex (the “ Original Agreement ”). In this Amendment, Inpixon and Sysorex are sometimes referred to singularly as a “party” and collectively as the “parties”. Capitalized terms not otherwise defined herein shall have the meanings set forth in the Original Agreement.

WHEREAS , the Original Agreement defined the term “Effective Time” as follows:

“Effective Time” shall mean 12:01 a.m., Eastern standard time, on the Distribution Date.

WHEREAS , the parties have agreed to change the definition of Effective Time to have the Distribution be effective as of 4:01 p.m., Eastern standard time, on the Distribution Date.

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

AGREEMENT

1. Change to Definition of Effective Time . The definition of Effective Time in the Original Agreement shall be modified to state:

“Effective Time” shall mean 4:01 p.m. Eastern standard time, on the Distribution Date.

2. Effect on the Original Agreement .

a) As of the date hereof, each reference in the Original Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Original Agreement, and each reference in the Ancillary Agreements to the Original Agreement, “thereunder,” “thereof” or words of like import referring to the Original Agreement shall mean and be a reference to the Original Agreement, as amended by this Amendment.

b) Except as expressly set forth herein, the terms and conditions of the Original Agreement and the Ancillary Agreements shall remain in full force and effect and each of the parties reserves all rights with respect to any other matters and remedies.

3. Miscellaneous .

a) The Original Agreement, this Amendment and the Ancillary Agreements contain the entire agreement of the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, oral or written, with respect to such matters. This Amendment shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. This Amendment may not be amended, modified or supplemented, and no provision of this Amendment may be waived, other than by a written instrument duly executed and delivered by a duly authorized officer of Inpixon and Sysorex.

b) This Amendment (and any claims or disputes arising out of or related hereto or thereto or to the transactions contemplated hereby and thereby or to the inducement of any party to enter herein and therein, whether for breach of contract, tortious conduct or otherwise and whether predicated on common law, statute or otherwise) shall be governed by and construed and interpreted in accordance with the Laws of the State of Nevada irrespective of the choice of laws principles of the State of Nevada including all matters of validity, construction, effect, enforceability, performance and remedies.

c) This Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and, all of which taken together shall constitute one and the same Amendment. In the event that any signature is delivered by facsimile transmission, such signature shall create a valid binding obligation of the party executing (or on whose behalf such signature is executed) the same with the same force and effect as if such facsimile signature were the original thereof.

d) Each of Inpixon and Sysorex shall file a Current Report on Form 8-K with the Securities and Exchange Commission on or before the fourth business day following the Effective Date describing the terms of the transactions contemplated hereby.

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed on the day and year first above written.

Exhibit 10.6

PAYPLANT CLIENT AGREEMENT

This Payplant Client Agreement is entered into by and between (1) Sysorex, Inc., a Nevada corporation (“ Sysorex ”), and successor-in-interest by merger to Inpixon USA, a California corporation, with offices at 2479 East Bayshore Road, Suite 195, Palo Alto, CA 94303, and Sysorex Government Services, Inc., a Virginia corporation, with offices at 2479 East Bayshore Road, Suite 195, Palo Alto, CA 94303 (“SGS” and together with Sysorex, jointly and severally, the “Client”) and (2) Payplant LLC a Delaware limited liability company, with an address of 2625 Middlefield Road #595, Palo Alto, CA 94306, on

31 August 2018.

PREFACE

A. This Agreement sets forth the understandings of the Parties with respect to: Posting procedures and Client’s additional representations and warranties at time of posting; (iii) Payplant’s right to direct Debtors to pay Collection Proceeds into the Lockbox Account; (iv) other covenants with respect to funds held on deposit in the Lockbox Account; (v) Consummation of sales of Purchased Receivables; (vi) the True Sale effects of such sales; (vii) Client Fees and Client Reimbursable Expenses; (viii) provisions applicable to charge backs and credit adjustments to Client’s Receivables; (ix) Client’s obligation to assist in the collection of Receivables; (xii) Client Remittance Payments; (x) Client’s Repurchase Obligations; (xi) Client late charges; (xii) the potential personal liability of Client Key Principals for certain acts; (xiii) Client’s grant of a security interest in Client’s Receivables and other Client Collateral; (xiii) termination of Client’s registration rights; (xiv) provisions relating to referrals; and (xv) such other matters as included therein.

AGREEMENT

FOR GOOD AND VALUABLE CONSIDERATION Client absolutely, unconditionally and irrevocably agrees to the following:

Section 1. Applicability

This Agreement shall apply to all matters relating to Client’s sale of Receivables to Payplant.

Section 2. Accuracy of Data; Authority to Provide Debtor Information

Client shall be solely responsible for the completeness and accuracy of the Client Information and Debtor Information that Client may have provided to Payplant from time to time, with Client representing and warranting to Payplant that such Client Information and Debtor Information is complete and accurate in all material respects at the time provided. Client further represents and warrants to Payplant that Client has the requisite right and authority to provide Debtor Information to Payplant.

Section 3. Payplant Work Product Data

A. Client agrees that Payplant, through its own analysis and data gathering, may compile and formulate Payplant Work Product Data, including but not limited to Payplant’s summarized transactional and observational experience regarding Client and Client’s Registered Debtors.

B. Client recognizes and agrees that all Payplant Work Product Data shall be the sole and exclusive property of Payplant, and that Payplant shall have the right to sell, resell, distribute and redistribute Payplant Work Product Data for any purpose within Payplant’s sole discretion, with Client having no rights or interest therein or in and to any proceeds thereof. Client’s and Client’s customer information and all financial data are confidential information.

Section 4. Client Information, Debtor Information and Payplant Work Product Data

A. Client agrees to periodically update Client Information and Debtor Information to include such additional information and reports as Payplant may reasonably request.

B. Client further agrees to provide Payplant with such reasonable additional information about Client and Client’s business, customers, owners, officers, persons of influence and employees as Payplant may reasonably request from time to time.

C . At the time of posting of a Receivable, Client recertifies and reaffirms to Payplant that the Client Information and Debtor Information that Client previously provided to Payplant is the most current Client Information and Debtor Information available, and accurately reflects Client’s and each Registered Debtor’s then business and financial condition, and that since the date of Client’s most recent Officer Certificate provided to Payplant, no Client Event of Default has occurred or may exist with the passage of time and failure to cure.

Section 5. Posting Procedures

While Client is registered with Payplant and no Client Event of Default exists, Client is authorized to post Client’s Eligible Receivables for sale to Payplant. Client shall at all times follow the posting procedures implemented by Payplant from time to time. Client must only post Eligible Receivables that satisfy requirements specified by Payplant. Client shall further cooperate with Payplant by responding to questions and inquiries submitted by Payplant. Payplant is under no obligation to purchase Eligible Receivables and maintains full and absolute discretion to not purchase any Eligible Receivable or provide additional advances for previously Purchased Receivables for any reason. Only Eligible Receivables may be posted for sale.

Section 6. Additional Client Representations and Warranties at Time of Posting

A. Each and every time that Client posts a Receivable for sale on the Payplant Platform, Client reaffirms all of the Client general representations and warranties as set forth in this Agreement, and Client further affirms, represents and warrants that:

(i) each Posted Receivable in all respects satisfies the requirement of an Eligible Receivable; and

(ii) each Posted Receivable validly exists and represents the bona fide Invoice Payment Obligation of the Debtor enforceable against the Debtor in accordance with the Invoice terms; and

(iii) to the extent that the Posted Receivable represents the Debtor’s Invoice Payment Obligation for goods sold or services performed, such goods and services have been accepted by the Debtor without condition or reservation of rights; and

(iv) Client has satisfied its obligations to pay all applicable sales, use, excise and similar taxes to appropriate Governmental Authorities with respect to sales of goods or performance of services; and

(v) Client knows of no reason why the Debtor does not have the financial ability, or the authority, or is not legally or contractually obligated to pay the Posted Receivable in full as and when due; and

(vi) Client is not then Insolvent or contemplating filing for bankruptcy relief from creditors; and

(vii) Client is not in default under any loan or debt or performance obligation in favor of any third-party creditor of Client, and Client is not subject to or contemplating entering into a workout or forbearance agreement with any of Client’s creditors except HP Inc., Test Plan, Version 1, HP Enterprise, Embarcadero Technologies, Dianna Associates, Inc., NewGator Technologies, Inc., Zenoss Inc., Avnet . Inc. (“Avnet”) and Dell Marketing L.P.; and

(viii) Client fully intends that the sale of the Purchased Receivable results in a True Sale for all purposes under Applicable Law.

B. All Client representations and warranties under this Agreement, and under each Officer Certificate provided to Payplant, shall conclusively be deemed for all purposes to be made and directed to Payplant at Payplant’s main office in California.

Section 7. Verification

Client agrees that Payplant or its agent may, in Client’s name and stead, contact Client’s Registered Debtors, to verify (i) the status and existence of each Receivable posted for sale or sold to Payplant, (ii) the Invoice Face Value amount and the Invoice Due Date thereof, and (iii) such other matters as Payplant may deem important.

Section 8. Requirement That All Registered Debtor Invoice Payments Be Paid into the Payplant Controlled Lockbox Account

A. Client agrees that Payplant may instruct each and every one of Client’s Registered Debtors to pay all Invoice Payments under Receivables initially due to Client into a designated Lockbox Account maintained and controlled by Payplant, and further instructing the Debtor not to pay Client directly. Client further agrees to re-notify Debtors at Payplant’s request should Payplant’s Lockbox Account details change in the future.

THIS REQUIRMENT APPLIES TO PAYMENT OF ALL INVOICES DUE FROM REGISTERED DEBTORS TO CLIENT, AND IS NOT LIMITED TO INVOICE PAYMENTS DUE UNDER RECEIVABLES SOLD ON THE PLATFORM. ALL REGISTERED DEBTOR INVOICE PAYMENTS, INCLUDING INVOICE PAYMENTS UNDER CLIENT’S OTHER RECEIVABLES NOT SOLD OVER THE PLATFORM, ARE REQUIRED TO BE PAID INTO THE PAYPLANT CONTROLLED LOCKBOX ACCOUNT WITHOUT EXCEPTION.

B. Client agrees that Payplant may re-notify the Registered Debtor as Payplant may deem to be necessary, making it clear to the Debtor that the Debtor is required to make all Invoice Payments otherwise due to Client into the Lockbox Account.

C. Client shall further include appropriate written instructions on each Invoice sent to a Registered Debtor instructing the Debtor to make its Invoice Payments into the Payplant controlled Lockbox Account, with Client removing any contrary written instructions to pay Client directly.

D. Once a Registered Debtor is instructed to make Invoice Payments into the Payplant controlled Lockbox Account, Client shall have no right whatsoever to counter-instruct the Debtor to pay Client directly or to pay an Affiliate of Client or some other third Person.

E. Once a Registered Debtor is instructed to make Invoice Payments into the Payplant controlled Lockbox Account, Client shall have no right whatsoever to receive Invoice Payments from the Debtor. To the extent that Client receives any Invoice Payment from a Registered Debtor, whether due to Debtor error or otherwise, Client shall notify Payplant of such occurrence within two (2) Business Days and turn such payment over to Payplant in the form received within three (3) Business Days, transferring funds within 3 business days, and if received via check, without depositing the check into a Client deposit account. In the interim, and at all times while Client may possess or have control over amounts received from Registered Debtors, Client shall hold such funds “in trust” for and on behalf of Payplant, with Client having full fiduciary duties and obligations to segregate and safeguard such funds.

F. Client agrees to pay Payplant a Misdirected Payment Fee in the amount equal to 1% of each Invoice Payment that a Registered Debtor pays to Client, or to an Affiliate of Client, if after the Registered Debtor receives notice from Payplant or Client to make its Invoice Payments into the Payplant controlled Lockbox Account, and Client does not notify Payplant and transfer funds to Payplant as required in Section 8 E.

G. Client recognizes, confirms and agrees that Payplant have or will have a perfected UCC Security Interest in all of Client’s Purchased Receivables sold on the Platform, and that any failure on the part of Client to comply with the requirements of Sections 8(D) and (E) above shall constitute a Diversion of funds due to Payplant and an act of civil conversion under Applicable Law, giving rise to a Client Event of Default under Section 29.1 of this Agreement.

Section 9. Payplant Authorized to Indorse Client’s Name on All Instruments Deposited into the Lockbox Account

Client irrevocably authorizes Payplant to indorse Client’s name on all checks, drafts and instruments deposited into the Lockbox Account for Client’s account. Client forever waives any claim that Client may now or in the future have against Payplant based on wrongful or unauthorized endorsement of Client’s name on any check, draft or instrument deposited into the Lockbox Account.

Section 10. Notification

A. Client agrees that Payplant may, at any time before or after the occurrence of a Client Event of Default, and at Payplant’s sole election, notify all or selected Registered Debtors of the fact that their Invoice Payment Obligations have been or may be sold on the Platform, or otherwise encumbered in favor of Payplant, and Payplant shall have the further right to instruct or reinstruct such Registered Debtors to make their respective Invoice Payments directly to Payplant at the Lockbox Account address.

B. All such notifications shall be made pursuant to Sections 9-406(a) and 9-607(a) of the UCC.

C. Once Payplant notifies a Registered Debtor to make its Invoice Payments directly to Payplant, Client shall have no right to counter-instruct the Debtor to make its Invoice Payments to Client, or to an Affiliate of Client, or to any other third person. Any attempt by Client to do so shall constitute a Diversion of funds due to Payplant.

SECTION 11. True Sale

11.1 Party Intent

IT IS THE STATED INTENT OF THE PARTIES AND OF EACH AND EVERY ONE OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, PARTNERS, MEMBERS AND OWNERS, THAT ALL SALES OF RECEIVABLES TO PAYPLANT SHALL FOR ALL PURPOSES CONSTITUTE AND RESULT IN TRUE SALES OF A 100% OWNERSHIP INTEREST IN AND TO EACH PURCHASED RECEIVABLE AND ALL COLLECTION PROCEEDS THEREOF, WITH ALL OF CLIENT’S RIGHTS, TITLE AND INTEREST (WHETHER LEGAL, EQUITABLE OR BENEFICIAL) AND ALL CONTROL THEREIN AND THERE OVER BEING FULLY TRANSFERRED TO AND THEREAFTER BEING SOLELY VESTED IN PAYPLANT. THE PARTIES AND EACH AND EVERY ONE OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, PARTNERS, MEMBERS AND OWNERS, FURTHER INTEND THAT ALL SALES OF RECEIVABLES TO PAYPLANT NOT BE CONSTRUED BY ANY PERSON, INCLUDING BY ANY GOVERNMENTAL AUTHORITY OR BY ANY COURT OR ARBITRATOR IN ARBITRATION, AS A LOAN OF MONEY BY THE PAYPLANT TO THE CLIENT OR AS A TRANSACTION INTENDED AS SECURITY UNDER THE UCC OR ANY OTHER APPLICABLE LAW.

11.2 True Sale for All Purposes

A. It is the further stated intent of the Parties, and of each and every one of their respective officers, directors, managers, partners, members and owners, that all purchases of Purchased Receivables by Payplant result in True Sales of such Receivables for all purposes , including permitting Payplant (i) to carry the Receivable as a financial asset on Payplant’s books and records, (ii) to grant a Security Interest in the Receivable in favor of Payplant’s creditors, and (iii) to resell the Receivable to a Subsequent Buyer, only with Client’s written permission, which the Client cannot unreasonably withhold.

B. Client shall reflect each sale of a Purchased Receivable over the Platform as a true and complete

sales, transfer and assignment on Client’s books, records and computer files, and Client shall advise all Persons inquiring about the ownership of Purchased Receivables that such Receivables are no longer owned by Client and are now owned by Payplant.

11.3 California Law Applicable

The Parties agree and covenant that all sales of Receivables to Payplant, and assignment of all of the Client’s ownership rights, title and interests therein and thereto to the Payplant, shall conclusively be deemed to have been Consummated and to having taken place at Payplant’s offices in California, and that such sale, transfer and assignment of rights shall be exclusively governed by and under the substantive laws of the State of California irrespective of the conflicts of law principles of that state.

Section 12. Purchase Price and Accrual of Discount Fees

A. The Purchase Price of each Receivable will be displayed on the Platform for the Client to view.

B. Discount Fees are assessed at a 30-day minimum, and will accrue on a daily basis thereafter on the unrecovered amount of each Receivable, commencing on the Consummation Date until the date that Payplant is repaid in full.

Section 13. Consummation

The sale of each Client Receivable shall be deemed to be Consummated (that is, a completed and final sale under Applicable Law) at the time the Advance Amount (less any Client Fees and Client Reimbursable Expenses then due to Payplant) is paid to Client or is otherwise applied by Payplant for the Client’s account. Payplant will transfer the remaining amount due to Client within 2 business days of receiving the funds from Client’s accounts.

Section 14. True Sale of Purchased Receivables

A. Client intends that all purchases and sales of Purchased Receivables on the Platform result, for all purposes, in True Sales of a 100% ownership interest in the Purchased Receivable by Client to Payplant. Following Consummation, Client shall have no residual rights, title or interest (whether legal, equitable or beneficial) in and to, and no control over, the Purchased Receivable and all Collection Proceeds derived or to be derived therefrom, with the Collection Proceeds and any and all monies and funds in any way attributable to the Purchased Receivable being exclusively owned by Payplant.

B. Client further agrees that, following Consummation, Client shall have no right whatsoever (i) to agree to (whether overtly or tacitly) or otherwise allow any compromise, reduction, credit or setoff to be made in or against the amount owed by the Debtor under the Traded Receivable, (ii) to issue a new or replacement Invoice, (iii) to instruct or request the Debtor to make its Invoice Payments to any address other than to the Lockbox Account address , or (iv) to receive or apply any Invoice Payment made by the Debtor under the Purchased Receivables, or (v) to otherwise Divert all or any portion of the Debtor’s Invoice Payment.

Section 15. Client Fees and Client Reimbursable Expenses

A. Client agrees to pay Client Fees to Payplant in the amounts provided in Schedule 1 attached hereto, and additionally to pay all Client Reimbursable Expense to Payplant as provided in Section 31.1 of this Agreement. Once paid, Client Fees are not subject to refund, rebate or reduction.

B. Client agrees that Payplant may include such sums in the amount of Direct Debit Transfers from Client’s designated deposit accounts with Client’s Bank(s). Alternatively, Payplant may set off such amounts so owed by Client against any amounts then or thereafter due to Client.

C. Payplant reserves the right to adjust all or any portion of Client Fees at any time by providing Client with two-months prior written notice. Any increase or decrease in the amount of Client Fees shall apply prospectively only to sales of Purchased Receivables after the effective date of such adjustment.

Section 16. Chargebacks, Credit Adjustments and Reissuance of Invoices

A . Client shall notify Payplant in writing within three (3) Business Day (i) should a Registered Debtor subsequently return purchased goods to Client for credit, or (ii) should a Registered Debtor become entitled to or claim a credit adjustment against the Debtor’s Invoice Payment Obligation, or (iii) should a Registered Debtor dispute the amount owed under a Purchased Receivable or attempt to set off any other amount that Client may owe to the Debtor against the Debtor’s Invoice Payment Obligation, or (iv) should Client subsequently reissue an Invoice with respect to a Purchased Receivable after the Receivable has been sold to Payplant.

B. Upon the occurrence of any of the events listed in Section 16(A) above, Client shall pay to Payplant within three (3) Business Days, the full amount of (i) the credit adjustment made or claimed by the Debtor against the Debtor’s Invoice Payment Obligation, or (as applicable) (ii) the Face Value of the Purchased Receivable for which is substitute or corrected Invoice has been issued. Alternatively, Payplant may set off any amounts so owed by Client against any amounts then or thereafter due to Client.

C. Any failure on the part of Client to comply with the requirements of Sections 16(A) and (B) above shall constitute a Diversion of funds due to Payplant, giving rise to a Client Event of Default under Section 29.1 of this Agreement.

Section 17. Obligation to Assist in Collection

Client agrees to use its reasonable commercial efforts to assist Payplant in collecting each Client Purchased Receivable from the Debtor. Such assistance shall include (i) making calls to or otherwise contacting the Debtor, (ii) forwarding collection and demand letters to the Debtor (or permitting Payplant to do so), (iii) providing Payplant with such information with respect to the Debtor as Payplant may reasonably require; and (iv) timely performing such further acts and executing such waivers and consents as the Debtor may require as a precondition for payment. Client agrees not to hinder in any way Payplant’s efforts in collecting Purchased Receivables, except that Payplant will not unduly burden the Debtor.

Section 18. Reconciliation

Client agrees to assist Payplant in reconciling Registered Debtor Invoice Payments and credit adjustments with Payplant’s internal records relating to Client’s Purchased Receivables and amounts due and paid and payable thereunder.

Section 19. Client Remittance Payment; Right to Setoff; Forfeiture in Client Event of Default

A. Depending upon if and when a Debtor pays the full Face Value amount owed under a Purchased Receivable, and when such payment is received by Payplant in Good Funds, Client may receive a Client Remittance Payment payable out of the Retained Amount.

B. Client agrees that Payplant may, at any time and for any reason, setoff any amounts that Client may owe to Payplant against any Client Remittance Payments that may then be due to Client.

C. Client further agrees that Client’s shall forfeit any right to receive Client Remittance Payments so long as (i) any Client Event of Default exists under Section 29.1 of this Agreement., and (ii) any amount or contingent amount is owed by Client under this Agreement. Client’s forfeiture of the right to receive Client Remittance Payments is an agreed-upon penalty as a result of a Client Event of Default.

Section 20. Repurchase Obligations; Right to Setoff and Withhold Payments to Client

A. Client agrees to repurchase any and all then outstanding Purchased Receivables for the Repurchase Price thereof from Payplant when one of the following types of events occurs.

(i) if for any reason the Debtor fails to pay the Face Value of the Purchased Receivable, in full and in Good Funds, by no later than the 60‘th day following the Invoice Due Date (an “Debtor Event of Default”); or

(ii) if and when the Debtor becomes or otherwise claims to be entitled to a credit adjustment against any amount owed under the Purchased Receivable; or

(iii) if and when the Debtor raises any defense to payment or otherwise demonstrates that it is unable or unwilling to pay the Face Value of the Purchased Receivable in full and when due; or

(iv) should the Purchased Receivable fail to qualify for any reason as an Eligible Receivable eligible to be sold on to Payplant; or

(v) if and when Client or the Debtor files or becomes subject to a bankruptcy or Insolvency proceeding; or

(vi) at the time of the occurrence and continuation of any other Client Event of Default not mentioned above.

In the case of an event of type (i) above the Repurchase Date is 60 days after the Invoice Due Date. In the case of an event of type (ii)-(vi) above, the Repurchase Date is the date the event occurs.

B. Client further agrees to pay the Repurchase Price to Payplant, in full, by no later than the Repurchase Date.

CLIENT’S REPURCHASE OBLIGATIONS ARE ABSOLUTE, UNCONDITIONAL AND IRREVOCABLE AND ARE NOT SUBJECT TO ANY CLAIM THAT CLIENT MAY HAVE AGAINST PAYPLANT OR ANY PAYPLANT RELATED PERSON, OR TO ANY DEFENSES TO PAYMENT (INCLUDING SURETYSHIP DEFENSES), ALL OF WHICH ARE KNOWINGLY AND WILLINGLY WAIVED BY CLIENT.

C. It is the stated intent of the Parties that Client’s repurchase of Purchased Receivables and payment of the Repurchase Price shall result in a True Sale of such Receivables by Payplant back to Client for all purposes, with the Payplant thereafter retaining no rights, title or interest (whether legal or equitable) therein, and with Client thereafter having total ownership and responsibility for the collection thereof.

D. Client agrees that Payplant shall have the right to set off any amounts then or thereafter due to Client (including proceeds derived from sales of Client’s Purchased Receivables) against Client’s then or contingent Repurchase Obligations in favor of Payplant. Client further agrees that Payplant, in its reasonable Administrative Discretion, shall have the right to withhold payment of funds otherwise due to Client, and to hold such funds as additional Client Collateral to secure the prompt and punctual payment and satisfaction of Client’s present and future obligations (including Client’s Repurchase Obligations) to Payplant for so long as an Event of Default persists.

Section 21. Client Key Principal Personal Liability for Diversion of Funds and Other Limited Acts

A. Client agrees that Client Key Principals, specified in Exhibit 2, shall be personally liable for losses sustained by Payplant as a consequence of (i) any Diversion of funds that are not immediately repaid to Payplant, or (ii) acts of fraud by Client or by any Key Principal, or (iii) any attempt by Client or by a Client Key Principal to in any way interfere with Payplant’s collection of Purchased Receivables from an obligated Debtor, or to interfere with Payplant security rights under this Agreement.

B. Client and each Key Principal of Client agree that Payplant may file suit against Client Key Principals along with Client for any of the reasons mentioned in Section 21(A) above, before a Court in California, as provided in Section 31.14 of this Agreement.

C. As a result of Client signing this agreement, each Client Key Principal shall conclusively be deemed to have accepted Client Key Principal potential personal liability to Payplant (limited to the circumstances described in Section 21(A) above), and to have consented to the personal jurisdiction of California courts and to the waiver of trial by jury provisions of Section 31.15 of this Agreement.

Section 22. Late Charges

For each day after the Repurchase Date that Client fails to pay the Repurchase Price in full to Payplant, Client agrees to pay an additional daily late charge in an amount equal to .049315% (equating to 18% per annum) multiplied by the then unpaid balance of the Advance Amount for each day that payment is delinquent.

Section 23. Security Interest

Client hereby reaffirms and grants Payplant and a continuing Security Interest in the Client Collateral described in Section 24 below, to secure the prompt and punctual payment and satisfaction of Client’s present and future obligations (including Client’s Repurchase Obligations) in favor of Payplant incident to and as a consequence of the Payplant Receivables Program.

Section 24. Client Collateral

Client Collateral includes the following:

1. All of Clients’ present and future accounts, payment intangibles, chattel, paper, instruments, commercial tort claims identified in writing to Payplant, contracts, letter-of-credit rights, and other receivables, of all types and descriptions (individually and collectively, “Additional Receivables”); and

2. All of Client’s present and future inventory, equipment of all types and descriptions and property including investment property; and

3. All of Client’s present and future general intangibles of all types and descriptions, including all intellectual property, books, records, files, computer programs, etc. relating to the foregoing; and

4. All of Client’s cash and cash equivalents, deposit accounts, securities accounts; and

5. All proceeds (including, without limitation, proceeds of insurance covering any of the foregoing or other property resulting from the sale, exchange, collection, or other disposition of any of the foregoing) and supporting obligations of any and all of the foregoing.

Section 25. Perfection

Client agrees that Payplant may file whatever financing statements and amendments thereto, and take whatever additional actions as Payplant may determine to be necessary and proper to perfect and continue perfection of Payplant’s Security Interest in the Client Collateral. Upon request of Payplant, Client agrees to deliver to Payplant any and all documents evidencing or constituting the Client Collateral.

Section 26. Client Default and Enforcement Rights

A. Upon the occurrence of a Client Event of Default, and at any time thereafter, Payplant shall have all of the rights of a secured party under the UCC and other Applicable Law. In addition, and without limitation, Payplant may exercise any one or more of the following Enforcement Rights in addition to the Enforcement Remedies provided in Section 29.2 of this Agreement and available under the UCC and other Applicable Law:

(i) Payplant may immediately terminate Client’s rights, thereby prohibiting Client from posting and selling additional Receivables to Payplant.

(ii) Payplant may require that Client repurchase all then unpaid and outstanding Purchased Receivables that Client may have previously sold to Payplant, further requiring that Client immediately pay Payplant the Repurchase Price, in full and in Goods Funds, within three (3) Business Days, without further notice to or demand on Client, which rights are knowingly and willingly waived.

(iii) To the extent that Payplant may not have already done so, Payplant may send appropriate notifications to Client’s Registered Debtors under Sections 9-406(a) and 9-703(a) of the UCC, instructing or reinstructing such Registered Debtors to make all of their Invoice Payments to Payplant at the Lockbox Account address, and not to pay Client directly.

(iv) Payplant may then proceed to collect all Receivables from the Debtors. In this respect, Client agrees that Payplant may compromise, settle, extend, or renew for any period (whether or not longer than the original period) any Registered Debtor Receivable or indebtedness thereunder or evidenced thereby, or release all or any part of said indebtedness, without affecting the liability of Client to Payplant. To that end, Client irrevocably constitutes and appoints Payplant as Client’s attorney-in-fact, coupled with an interest, with full power of substitution, to take any and all such actions and any and all other actions permitted hereby, either in Client’s name or in Payplant’s name.

B . Payplant shall have the right, at any time before or after the occurrence of a Client Event of Default, to apply any and all amounts that Payplant may then or thereafter owe to Client, as well as to apply any funds belonging to Client that are in Payplant’s possession or under Payplant’s control (including Client funds then and thereafter on deposit in the Lockbox Account), to the payment and satisfaction, whole or in part, of Client’s obligations to Payplant.

C. Client shall remain liable for any deficiency that results should the proceeds of the Client Collateral not be sufficient to fully pay and satisfy Client’s then obligations in favor of Payplant.

D. Except as may be prohibited by Applicable Law, all of Payplant’s Enforcement Rights, whether provided under this Agreement, or available under Applicable Law, shall be cumulative and may be exercised singularly or concurrently. Election by Payplant to pursue any remedy shall not exclude pursuit of any other remedy, specifically and without limitation, nothing under this Agreement shall obligate Payplant to pursue Enforcement Rights against the Client Collateral before filing a collection action against Client to collect any and all amounts then owed to Payplant.

Section 27. Termination

A. Client may elect to notify Payplant at any time and for any reason of Client’s decision to withdraw as a registrant on the Platform, with Client having no rights to post additional Receivables for sale on the Platform after the sending of such notice. Client further agrees to pay Payplant a UCC Termination Fee in the amount provided in Schedule 1 to this Agreement, should Client withdraw as a registrant on the Platform. Payplant’s consent to allow Client to terminate its relationship with Payplant shall be conditioned on Client paying such UCC Termination Fee to Payplant should Client request Payplant terminate its UCC-1 on behalf of the Client.

B. Payplant shall have the unrestricted right to terminate or to temporarily suspend Client’s registration rights on the Platform at any time for any or no reason whether or not a Client Event of Default then exists. Thereafter, Client shall have no right to post additional Receivables for sale on the Platform or to access the Payplant Platform.

C. Following Client’s termination as a registrant on the Platform for any reason, whether at Client’s election or at the election of Payplant, Client’s Repurchase Obligations and other payment and indemnity obligations under this Agreement shall continue in effect with respect to previously sold and unpaid Purchased Receivables, and Client shall continue to be obligated to assist Payplant in collecting Receivables from Client’s customers.

D. Payplant’s Security Interest in the Client Collateral shall continue in effect until such time as all of Client’s payment and other obligations in favor of Payplant have been fully and finally paid and satisfied.

Section 28. Client General Representations and Warranties

Client makes the following general representations and warranties to Payplant

(i) as of the date that Client agrees to be bound and obligated under this Agreement and again

(ii) as of each date that Client posts a Receivable for sale on the Platform.

28.1 Organization

Client is duly organized and in good standing under the laws of Client’s jurisdiction of organization and is duly qualified to do business and is in good standing under the laws of all other jurisdictions in which qualification and good standing are necessary in order to conduct its business and to own its properties, and where the failure to do so could reasonably be expected to have a material adverse effect on Client’s ability to conduct business in that state or jurisdiction.

28.2 Authorization

Client is duly authorized to perform under this Agreement.

28.3 No Conflict; Notice to Client’s Creditors

A . The performance by Client of its obligations under this Agreement, and Consummation of Payplant Receivables Program Transactions, are within Client’s organizational powers, and will not (i) conflict with or constitute a breach of Client’s Organizational Documents, or (ii) conflict with, constitute a default under, or result in the termination of, or accelerate, or permit the acceleration of any performance, under any loan or credit agreement, indenture, mortgage, deed of trust, lease, contract, note, order, judgment, decree or other material agreement, instrument or restriction of any kind to which Client of any of Client’s Affiliates is a party or by which it or any of its or their properties are or may be bound or affected, or (iii) result in a violation of Applicable Law or of any judgment, decree, order that may apply to Client or its Affiliates.

B. There are no prohibitions or restrictions under any loan or credit agreement, or under any other agreement binding on Client that would limit or restrict (i) Client’s ability to freely offer Client’s Receivables for sale and to sell such Receivables to Payplant, or (ii) on Client’s ability to use and employ the sale and collection proceeds of such Receivables for any purpose within Client’s discretion. Furthermore, there is no requirement that collection proceeds of Client’s Receivables be paid into a lockbox, impound or concentration account with a particular bank or financial institution.

C. Client has notified, and in the future Client shall notify, each and every one of Client’s secured

creditors, verbally or in writing, to make their respective Invoice Payments directly to Payplant at the Lockbox Account address. Client recognizes that Payplant has the right to contact each of Client’s secured creditors to verify their understanding and agreement to the foregoing.

D. To the extent that Payplant determines that a third party has filed a Priming Lien with respect to the

Client’s Receivables or other Client Collateral, Client authorizes Payplant to contact the Priming Lien Holder to obtain a Priming Lien Holder Authorization and Consent to permit Client to sell its Receivables to Payplant free and clear of such Priming Lien.

28.4 Legality, Validity and Enforceability

This Agreement is a legal, valid and binding obligation of Client, enforceable against Client and its properties in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy and other Applicable Laws affecting creditors’ rights.

28.5 No Client Event of Default

No Client Event of Default has occurred and is continuing.

28.6 Financial Information

The financial statements and other Client Information and Debtor Information that Client delivered

to Payplant fairly present the financial condition and results of operation of Client for the periods then ended on and as of the dates thereof.

28.7 Disclosure

No representation or warranty made by Client in any Payplant Receivables Program Agreement, or in any Client Information or Debtor Information provided by Client, or in any financial statement, report, officer certificate or any other document furnished by Client to Payplant, contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements true, correct and accurate in all material respects. There is no fact known or which reasonably should be known to Client’s management officials which Client has not disclosed to Payplant in writing which could reasonably be expected to have a material adverse effect on any Payplant Receivables Program Transaction to which Client may be a Party.

28.8 Material Litigation; Default under Material Obligations; Forbearance

Except as previously disclosed to Payplant in writing, there is no Material Litigation pending or threatened against or affecting Client or its properties, and neither Client nor any Affiliate of Client is in default under any Material Obligation. Specifically, Client is not in material default under any loan or credit agreement, and is not subject to, or has not been requested or required to enter into any type of forbearance or similar agreement with any creditor.

28.9 Solvency; Bankruptcy

A. Client is not Insolvent at the time of, and will not be rendered Insolvent after giving effect to, each Payplant Receivables Program Transaction.

B. Client is not in bankruptcy, and it is not contemplated that Client will file for bankruptcy or will seek protection under any bankruptcy, insolvency or orderly liquidation law.

28.10 Taxes

Except as previously disclosed to Payplant in writing, Client has paid all taxes and other Charges due and payable on such returns and all other taxes and charges that may be lawfully assessed, levied or imposed on it, other than when Client is properly contesting any such taxes or other Charges in good faith with diligence and by appropriate proceedings.

28.11 Security Interest

Client has granted Payplant a Security Interest in the Client Collateral.

28.12 Anti-Terrorism Law

Neither Client nor any of its Affiliates (i) is, or is controlled by, a “restricted party” within the meaning of the Anti-Terrorism Laws, (ii) has received funds or other property from, or engaged in any other transaction with, a restricted party, or (iii) is the subject of any action or investigation under any Anti-Terrorism Law. Client and its Affiliates are in compliance with the Anti-Terrorism Laws.

28.13 Foreign Corrupt Practices Act

Neither Client nor any of its Affiliates, or any of their respective officers, directors, employees, agents or other representatives, have taken any action in connection with the Payplant Receivables Program or any Payplant Receivables Program Transaction that violates or will violate the FCPA, or any similar law to the extent applicable.

Section 29. Client Default

29.1 Client Events of Default

The occurrence of any one or more of the following events shall constitute a Client Event of Default:

29.1.1 Repurchase Obligations

Failure by Client to comply with Client’s Repurchase Obligations as and when required under this Agreement.

29.1.2 Diversion of Funds.

Any Diversion of funds if the amount so diverted is not paid and remitted to Payplant as specified in Section 8 E.

29.1.3 Failure to Comply with Sections 10 and 19 of this Agreement.

Failure by Client to comply with the requirements of Sections 10 and 19 of this Agreement to pay Payplant amounts owed under those Sections within three (3) Business Days.

29.1.4 Breach of Representation . Any representation or warranty made or deemed made by Client in this Agreement, or in any agreement or in any certificate, document or financial or other statement furnished at any time in connection herewith or therewith, shall prove to have been untrue, incorrect or misleading in any material respect on the date when made or when deemed to be made.

29.1.5 Financial Information . Failure by Client to (i) furnish financial information as required under Section 32.1 of this Agreement when due and as requested, (ii) copies of tax returns as required under Section 32.2 of this Agreement hereof when due, or (iii) permit Payplant to inspect Client’s books or records.

29.1.6 Judicial Actions . As of effective date of this agreement Issuance of a notice of Lien, levy, assessment, injunction or attachment against any material portion of the Client Collateral or against a material portion of Client’s other property, which is not stayed or lifted within twenty (20) business days.

29.1.7 Bankruptcy . Client or any of Client’s Affiliates shall (i) apply for, consent to or suffer the appointment of, or the taking of possession by, a receiver, custodian, trustee, liquidator or similar fiduciary of itself or of all or a substantial part of its property, (ii) make a general assignment for the benefit of creditors, (iii) commence a voluntary case under any state or federal bankruptcy laws (as now or hereafter in effect), (iv) be adjudicated a bankrupt, (v) file a petition seeking to take advantage of any other law providing for the relief of debtors, (vi) acquiesce to, or fail to have dismissed, within thirty (30) days, any petition filed against it in any involuntary case under such bankruptcy laws, or (vii) take any action for the purpose of effecting any of the foregoing.

29.1.8 Insolvency . Client becomes Insolvent.

29.1.9 Default under a Material Obligation. Client or an Affiliate of Client defaults under a Material Obligation or is required to or otherwise enters into a forbearance or similar agreement with a creditor.

29.1.10 Invalidity . Any material provision of this Agreement, for any reason, cease to be valid and binding on Client in accordance with the terms thereof.

29.1.11 Client Repudiation. Client attempts to disavow or otherwise repudiate any provision of this Agreement.

29.1.12 Client Key Principal Repudiation. A Client Key Principal of Client attempts to disavow or otherwise repudiate the Client Key Principal’s liability to Payplant as provided in Section 21 of this Agreement.

29.1.13 Seizure . Client’s rights under any Client Collateral shall be seized, or taken by a Governmental Authority, or become the subject matter of a claim, litigation, suit or other proceeding, which might, in the reasonable opinion of Payplant, upon final determination, result in impairment or loss to Payplant, or in any way adversely affect Payplant’s ownership rights and interests in any of Client’s Purchased Receivables sold to Payplant.

29.1.14 Breach of Section 33 Covenants of this Agreement . Any breach of Client’s covenants under Section 33 of this Agreement.

29.1.15 Non-compliance . Any failure or neglect on the part of Client to perform, keep or observe any additional term, provision, condition or covenant not otherwise mentioned in this Section 29.1 , as contained in this Agreement which (to the limited extent that such failure of compliance is subject to cure) is not cured within fifteen (15) days from the first occurrence of such failure or neglect.

29.2 Enforcement Rights

A. Payplant shall have the following Enforcement Rights following the occurrence of any Client Event of Default.

A-1. Against Defaulting Clients:

(i) to require Client to immediately repurchase any and all of Client’s then outstanding and unpaid Purchased Receivables, with Client agreeing to pay the Repurchase Price within three (3) Business Days of demand; and

(ii) to file suit or commence arbitration against Client to enforce payment of Client’s Repurchase Obligation and all other amounts then or thereafter owed by Client, including unpaid Client Fees and Client Reimbursable Expenses; and

(iii) to exercise any and all of the Enforcement Rights provided under this Agreement or under Applicable Law, including all enforcement rights and remedies of a secured party under the UCC; and

(iv) to set off any amounts then or thereafter owed by Client against any amounts then or thereafter due to Client; and

A-2. Against Debtors:

(i) to notify each and every of Client’s Debtors under UCC Sections 9-406(a) and 9-607(a) of the fact that their Invoice Payment Obligation has been sold to and purchased by Payplant, and to instruct each Debtor to pay all amounts (Collection Proceeds) with respect to the Purchased Receivable directly to Payplant; and

(ii) to file suit against or to otherwise enforce payment against each obligated Debtor to collect payment of the Debtor’s Invoice Payment Obligations and to exercise whatever additional Enforcement Rights that may be available under Applicable Law.

B. Client shall be responsible for payment of, and shall reimburse Payplant for Payplant’s Collection Expenses and reasonable attorneys’ fees, court cost and out-of-pocket expenses (including third-party collection agency fees) that may be incurred in attempting to collect and in collecting amounts due by Client and by Client’s Debtors.

C. Unless Payplant otherwise agrees, all enforcement actions against any Client of Purchased Receivables shall be brought in a court in California, or in arbitration as provided in Section 30 of this Agreement.

D. All amounts collected by Payplant from defaulting Clients or Debtors shall be paid into the Lockbox Account.

E. Following the occurrence of, and so long as a Client Event of Default continues to exist, Client shall at Payplant’s reasonable request meet with a Payplant representative at the Client’s main office from time-to-time to review Client’s billings and collections, financial documents and business activities. Client further recognizes and agrees failure of Client to comply with this Section 29.2(E) shall result in irreparable harm to Payplant to obtain judicially ordered injunctive relief against Client as provided under Applicable Law.

Section 30. Arbitration

The Parties agree to mediate prior to arbitration.

30.1 Compulsory Binding Arbitration.

The Parties agree that any Party may elect to arbitrate and require any other Party to arbitrate any Claim brought by or against or involving the rights of any Party.

30.2 Limitations

If any Party elects to arbitrate a Claim, no Party shall have the right to (i) have a court or jury decide the Claim, (ii) engage in pre-arbitration discovery to the same extent that the Party would have the right to do in court, (iii) participate in a class action in court or in arbitration, either as a class representative or a class member; or (iv) join or consolidate the Claim with claims of any other Person or involving any other Payplant Receivables Program Transaction. Notwithstanding the foregoing, Payplant shall have the right to exercise Enforcement Rights against a Defaulting Client or a Debtor (as applicable) by filing suit before a court of competent jurisdiction, or otherwise, and nothing under this Section 30 shall in any way impair or otherwise affect the Enforcement Rights available to Payplant following a Client Event of Default.

30.3 Election to Arbitrate

To commence arbitration, the electing Party must give written notice to the other Party of an election to arbitrate. This notice may be given within ninety (90) days after a lawsuit has been filed, and may be given in papers or motions in the lawsuit. If an arbitration election notice is given, the Claim shall be resolved by arbitration under this Section 30 and the American Arbitration Association rules for large, complex commercial disputes then in effect. The Arbitration Administer need not be the American Arbitration Association. The electing Party may select the Arbitration Administrator in its notice electing to arbitrate or by giving written notice to the other Party within twenty (20) days thereafter. The arbitrator will be selected under the Arbitration Administrator’s rules.

30.4 Location and Costs

Any arbitration hearing shall take place in California. The Party demanding arbitration shall be responsible for the initial payment of all filing fees and expenses of the Arbitration Administrator. Notwithstanding the outcome of the arbitration, the Client shall be responsible for reimbursement of Payplant’s reasonable arbitration related attorneys’ fees and costs to the extent provided in Sections 31.1 and 31.2 of this Agreement.

30.5 Effective Arbitration Award

Any court with jurisdiction may enter judgment upon the arbitrator’s award, which will be final and binding.

30.6 Mandatory Application of California Law; Arbitrator Authority

A. Consistent with the situs of each Payplant Receivables Program Transaction and the choice of law provisions of Sections 31.13 and 11.3 of this Agreement the arbitrator shall apply substantive California law (and Federal law to the extent applicable) to all substantive issues presented in arbitration. The arbitrator shall further apply all applicable statutes of limitation (prescription and preemption principles in California) and applicable privilege rules, as well as rules of procedure and evidence consistent with the FAA, the Arbitration Administrator’s rules and the rules of the American Arbitration Association.

B. The arbitrator shall be authorized to award all remedies available in an individual lawsuit including awards of compensatory and statutory (but not punitive or exemplary) damages, declaratory, and injunctive and other equitable relief.

C. Upon the request of any Party, the arbitrator shall provide written findings of fact and conclusions of

law explaining the basis of the award.

Section 31. Miscellaneous

31.1 Client Reimbursable Expenses

A. Client shall pay and reimburse Payplant within three (3) business days:

(i) Wire/ACH fees as specified in the Client Fee Schedule for transferring funds in and out of Client’s designated account with Client’s bank, and

(ii) all reasonable outside counsel and professional fees and costs incurred in connection with or arising out of any litigation, contest, dispute, suit, proceeding, arbitration, or other action threatened or instituted by or against Payplant, against Client, or against or involving any Client Key Principal, or Registered Debtor of Client, or any other Person, and whether as a party, witness or otherwise, that is in any way related to the Payplant Receivables Program, or this Agreement, or with respect to any Payplant Receivables Program Transaction, to which Client may be a Party, including any appeal or review thereof; or any litigation, contest, dispute, suit, proceeding or action threatened or instituted by Client against Payplant asserting any claim, cause of action or theory of recovery; or any work-out or restructuring of Client’s or any Client Key Principal’s obligations during the pendency of one or more Client Events of Default; and

(iii) all Collection Expenses (including reasonable outside counsel and other professional fees, collection agency fees and other out-of-pocket costs and expenses) incurred by Payplant in the administration and exercise of Enforcement Rights (a) against Client and Key Principals of Client, or against any Client Collateral, or (b) against Defaulting Debtors to collect Purchased Receivables that Client may have sold on the Platform, or (c) in attempting to work out or restructure Client’s or Defaulting Debtor obligations; and

(iv) all reasonable outside counsel and other professional fees, costs and expenses arising out of or incurred in connection with any pending or threatened dispute by and among any one or more Debtors and Payplant or Client; and

(v) UCC Termination Fee specified in Client Fee Schedule for releasing and terminating Payplant’s Security Interest in the Client Collateral; and

(vi) Due Diligence Fee as specified in Client Fee Schedule; and

(vii) all other sums that Client may be obligated to pay under Section 31.2 of this Agreement (Client Indemnification).

B. Client further agrees that Payplant may initiate Direct Debt Transfers out of Client’s designated deposit account with Client’s bank to pay such amounts after the Repurchase Date to satisfy Client’s Repurchase Obligations, or alternatively, Payplant may set off such amounts owed by Client against amounts then or thereafter due to Client, with notification to Client.

31.2 Client Indemnification

Client shall defend, indemnify and hold harmless each Client Indemnified Person from and against any costs, losses, liabilities, damages, penalties, claims, actions, judgments, suits, charges, expenses (including attorney’s fees, expenses and other costs of investigation or defense), disbursements or proceedings of any kind or nature whatsoever incurred by, imposed on, instituted or asserted against any such Client Indemnified Person in any way relating to or arising out of (i) any failure by Client to perform Client’s obligations or any material breach of Client’s representations and warranties provided in this Agreement, (ii) acts of fraud, misrepresentation or omission on the part of Client, any Client Key Principal, or any of Client’s Debtors, (iii) claims or defenses to payment that Client, any Client Key Principal, or any Debtor, or any creditor of Client, or creditor of an Debtor, may assert or threaten to assert against Payplant in any way relating to the Payplant Receivables Program or any Payplant Receivables Program Transaction, (iv) claims that may be asserted against any Client Indemnified Person in any bankruptcy or insolvency proceeding brought by or against Client, any Client Key Principal, or ,any Debtor, or any third-party creditor of Client. or by any trustee in bankruptcy, including alleged fraudulent conveyance, preferential transfer or related state law claims, or (v) claims that may be asserted by any Debtor, Debtor issuing bank, or any other person asserting a fraudulent or unauthorized endorsement of Client’s name on any Debtor check or draft deposited into the Lockbox Account.

31.3 Waivers

No failure or delay on the part of any Party in exercising any right, power or privilege hereunder and no course of dealing between any Party and any other Party or Person, shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder. No notice to or demand on any Party in any case shall entitle such Party to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of any Party to take any other or further action in any circumstances without notice or demand. Any waiver, consent or Specific Amendment shall be effective only in the specific instance and for the specific purpose for which it was given and shall not entitle any Party to any further or subsequent waiver, consent or amendment. All Enforcement Rights and remedies, either under this Agreement, or pursuant to any Applicable Law or otherwise afforded, shall be cumulative and not alternative.

31.4 Transfers; Successors in Interest

A . Client may not assign, transfer or dispose of any of its rights, interests or obligations under this Agreement unless Client shall have received the prior written consent of Payplant, which shall not be unreasonably withheld by Payplant unless Payplant is being paid-off as part of the transaction, and any purported assignment, delegation or other transfer in violation of this Section 31.4(A) shall be void and of no effect.

B. Payplant may assign its rights, interests and obligations under this Agreement and Payplant may subcontract out any of its services or duties.

31.5 Giving of Notice; Address of Notices

A. All notices, instructions, directions or other communications required or permitted to be given under

this Agreement shall be in writing and shall be deemed to have been effectively given or delivered:

(i) when delivered in person;

(ii) if sent by a reputable overnight delivery service (including Federal Express, UPS, Emery, DHL, Airborne and other similar overnight delivery services) with all charges prepaid, one (1) Business Day after deposit with such courier service;

(iii) if mailed by first class mail, postage prepaid, and registered or certified with return receipt

requested, upon the earlier of actual receipt and three (3) Business Days after deposit in the mail;

(iv) if sent by facsimile, upon transmission, with confirmation of receipt; or

(v) if sent by email, upon transmission, with confirmation of receipt.

B. Any Party shall have the right to change its address for notice hereunder to any other location by giving notice to the other parties in the manner set forth herein, which notice shall be effective five (5) Business Days after it is deemed delivered or effectively given pursuant to Section 31.5(A) above.

C. Any communications between the Parties hereto or notices provided herein shall be given to the respective Parties at their respective addresses then on file with Payplant.

31.6 Amendments in Writing

No amendment, modification, consent or waiver of any provision of this Agreement, and no consent to any departure by any Party hereto and thereto, shall be effective unless the same shall be in the form of a written Specific Amendment to this Agreement, and then shall be effective only as to the specific instance and for the specific purpose for which given. No course of dealing, and so subsequent conversations, emails and other written or oral communications by and between any of the Parties hereto shall be deemed to expressly or impliedly amend, modify, supplement, or waive any of the provisions of this Agreement. Furthermore, the promotional content of the Payplant website is not part of this Agreement and Payplant is not bound by such website content, which is subject to change at Payplant’s will.

31.7 Intentionally left blank

31.8 Specific Amendments

A Specific Amendment or waiver with respect to this Agreement, or any, exhibit or schedule thereto, shall be effective only if reduced to writing and executed (either manually or electronically) or otherwise agreed to by each affected Party

31.9 Party Confidentiality

Each Party agrees to use commercially reasonable efforts (at least equivalent to efforts as it applies to maintaining the confidentiality of its own confidential information) to maintain as confidential all Confidential Information provided to it by any other Party (the “Delivering Party”), except that any such Party (the “Receiving Party”) may disclose such Confidential Information:

(i) to its Affiliates and to its and their employees, officers, directors, auditors, consultants, attorneys, agents and advisors (collectively, “Representatives”) for proper business purposes related to such Party’s participation in the Payplant Receivables Program and such Party’s oversight, compliance and similar functions (it being understood and agreed that

(a) the Persons to whom such disclosure is made will be informed of the confidential nature of such Confidential Information and instructed to keep such information confidential and

(b) such Party shall be responsible for causing such Persons to comply with the terms of this Section 31.9 and Section 31.10 to the same extent as if they were Parties to this Agreement;

(c) Client’s Corporate, Financial information and Debtor information and contacts are confidential;

(ii) any Party may disclose Confidential Information as required or requested by any Governmental

Authority, or reasonably believed by such Party to be compelled by any court decree, subpoena or legal or administrative order or process;

(iii) any Party may disclose Confidential Information as is required by Applicable Law; and

(iv) any Party may disclose Confidential Information in the event that such information has been published or announced in conditions free from confidentiality or has otherwise entered the public domain without default on the part of such Party.

31.10 Return or Destruction of Confidential Information

If and when no longer needed or appropriate, the Receiving Party shall (i) destroy all Confidential Information of the Delivering Party, including internal Confidential Information, analyses, data, summaries, memoranda and other documents prepared or generated by the Receiving Party or by third-party service providers, without the Receiving Party retaining a copy of any such material, (ii) promptly deliver to the Delivering Party all other Confidential Information of the Delivering Party, together with all copies thereof, in the possession, custody or control of the Receiving Party or, alternatively, with the written consent of the Delivering Party, the Receiving Party shall destroy all such Confidential Information and (iii) certify all such return or destruction in writing to the Delivering Party, provided, however, that the Receiving Party may retain a list that contains general descriptions of the information it has returned or destroyed to facilitate the resolution of any controversies after the Delivering Party’s Confidential Information is returned.

31.11 Severability; Entire Agreement

A. Each provision of this Agreement shall be deemed to be effective and valid under applicable California law, but if any provision of this Agreement determined to be invalid, void or unenforceable under any law, rule, administrative order or judicial decision, that determination will not affect the validity of the remaining provisions of this Agreement.

B. This Agreement, and all subsequent amendments hereto and thereto, and any and all other agreements, documents or instruments attached or referred to herein or therein, integrate all of the terms and conditions mentioned herein, therein or incidental thereto.

31.12 Counterparts; Caption Headings

A. This Agreement may be executed manually, or by Electronic Signature, or otherwise agreed to in one or more counterparts all of which shall constitute a single binding agreement.

B. Caption headings under this Agreement are for convenience only and shall not be construed to limit the content of any section, subsection, addendum, exhibit or schedule.

31.13 Governing Law

THIS AGREEMENT, THE RELATIONSHIP BETWEEN THE PARTIES AND ANY CLAIM OR DISPUTE

(WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE) RELATING TO THIS AGREEMENT

AND EACH PAYPLANT RECEIVABLES PROGRAM TRANSACTION SHALL BE EXCLUSIVELY

GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, BUT

EXCLUDING ANY CONFLICT OF LAW RULES THAT WOULD LEAD TO THE APPLICATION OF THE LAWS OF

ANOTHER JURISDICTION. ALL AGREEMENTS, ALL SALES OF PURCHASED RECEIVABLES AND ALL PAYPLANT RECEIVABLES PROGRAM TRANSACTIONS BY AND BETWEEN THE PARTIES SHALL BE DEEMED TO HAVE BEEN NEGOTIATED, CONTRACTED FOR, ACCEPTED, CONSUMMATED AND PERFORMED IN CALIFORNIA.

31.14 Forum Selection; California Courts; Waiver of Right to Class or Multiparty Recovery

A. Subject to the right of any Party to invoke compulsory arbitration under Section 30 of this Agreement,

any legal action or proceeding by or against any Party to this Agreement, including a Client, a Key

Principal, or Payplant, with respect to any claim arising out of this Agreement, or any other Payplant Receivables Program Agreement, or any Payplant Receivables Program Transaction, or any relationship between the Parties, shall be brought in a California court. Should a Client file suit against Payplant before any court other than the foregoing California courts, Client shall be responsible for Payplant’s legal costs and other expenses in attempting to remove or otherwise relocate such litigation to California.

B. Each Party (including each Client Key Principal) accepts for itself and with respect of its properties, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts for legal proceedings arising out of or in connection with this Agreement, or any Payplant Receivables Program Transaction, or any relationship between the Parties.

C. Each Party (including each Client Key Principal) hereby irrevocably waives personal service of any and all legal process, summons, notices and other documents and other service of process of any kind and consents to such service in any suit, action or proceeding brought in the United States of America with respect to or otherwise arising out of or in connection with this Agreement or Payplant Receivables Program Transaction by any means permitted by Applicable Law, including by the mailing thereof (by registered or certified mail, postage prepaid) to the address provided to and on file with Payplant (and shall be effective when such mailing shall be effective, as provided therein). Each Party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

D. Each Party (including each Client Key Principal) hereby irrevocably waives any objection and any right to stay or dismiss any action or proceeding under or in connection with this Agreement, any other Payplant Receivables Program Agreement or any Payplant Receivables Program Transaction to which it is a party brought before the foregoing courts on the basis of forum non conveniens or improper venue or any other grounds that it may now or hereafter have to the bringing of any such action or proceeding in such jurisdictions.

E . Nothing in Section 31.14(A) shall affect the right of Payplant to bring any legal action in against Client’s Debtors in any other competent jurisdiction.

F. Each Client waives the right to bring, assert, or participate in a class action or other multiparty litigation asserting any claim or cause of action against Payplant, whether related to this Agreement, or any Payplant Receivables Program Transaction, or otherwise. The foregoing is a bargained-for covenant, which has been knowingly and willingly agreed to by all Parties.

31.15 Waiver of Jury Trial

FOR THE PURPOSES OF THIS AGREEMENT, AND EACH PAYPLANT RECEIVABLES PROGRAM TRANSACTION, EACH PARTY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHTS EACH MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED ON OR ARISING OUT OF, UNDER, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT, WITH ANY OTHER PAYPLANT RECEIVABLES PROGRAM AGREEMENT, OR ANY PAYPLANT RECEIVABLES PROGRAM TRANSACTION CONTEMPLATED HEREBY OR THEREBY, WITH ANY COURSE OF CONDUCT, WITH ANY COURSE OF DEALING, WITH ANY STATEMENTS (WHETHER VERBAL OR WRITTEN), OR WITH ANY ACTIONS OR OMISSIONS OF ANY PARTY HERETO OR OF ANY OTHER PERSON RELATING TO THIS AGREEMENT. THIS WAIVER APPLIES TO ANY ACTION, SUIT OR PROCEEDING WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE.

31.16 Relationship of the Parties; No Joint Venture

A. The Parties intend that nothing contained in this shall be deemed or construed by any Person, court or arbitrator in arbitration, to create a partnership, joint venture or comparable legal relationship by or between any Client, Payplant, or any other Person.

B. Payplant and each Client are independent contractors and neither Payplant nor any Client

may represent to any third-party that it is the agent or representative of any other Party. No Party shall

incur any obligation or liability in the name of or in behalf of any other Party and each Party shall have the full responsibility and obligations for all of its expenses of operation and for all obligations with respect to its employees, agents and representatives.

31.17 Public Announcements

Each Client agrees that, without first obtaining Payplant’s specific approval, neither it nor its Affiliates will issue any public announcement, press release or similar publicity using the name “Payplant” or any other trade name, service mark, trademark or logo owned or used by Payplant or any of its Affiliates, or referring to the Payplant Receivables Program, this Agreement. Payplant similarly agrees not to include Client’s name or logo in any public announcement, press release or similar publicity without having first obtained Client’s prior approval. Each Party reserves the right to provide to industry trade organizations information necessary and customary for inclusion in statistical analyses prepared by or for such entities.

31.18 Reinstatement

The obligations of the Parties under this Agreement shall remain in full force and effect and continue (i) should any petition be filed by or against any Party for liquidation or reorganization, or (ii) should any Party become Insolvent or make an assignment for the benefit of any creditor or creditors, or (iii) should a receiver or trustee be appointed for all or any significant part of any Party’s assets, and shall continue to be effective or to be reinstated, as the case may be, if at any time payment and performance of the obligations, or any part thereof, pursuant to Applicable Law, is rescinded or reduced in amount, or must otherwise be restored or returned by any Party of the obligations, whether as a “voidable preference,” “fraudulent conveyance,” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.

31.19 No Third-Party Rights

The Agreements, undertakings and relationships of the Parties are solely for the benefit of the Parties, and their respective Affiliates, successors and assigns, and (except as otherwise specifically provided) no other Person shall have any third-party rights hereunder.

31.20 Survival

Termination of this Agreement shall not terminate any rights, liabilities or obligations set forth herein, which by their nature would be intended to be applied following any such termination. Specifically, the rights and obligations in the parts and sections pertaining to True Sale, Client Repurchase Obligations, payment of fees and reimbursable expenses, contractual limitations on Payplant’s responsibilities and liability, governing law, compulsory binding arbitration, forum selection, party confidentiality, copyright protection, indemnification, and provisions relating to Payplant’s Administrative Discretion, shall survive and continue and shall bind the Parties and their legal representatives, successors and permitted assigns. Termination of this Agreement shall not affect any obligations of the Parties prior to such termination, which shall be determined and paid as provided herein.

31.21 Injunctive Relief Outside of Arbitration

A. In the event any Party fails to perform, observe or discharge any of its obligations under this

Agreement or with respect to any Payplant Receivables Program Transaction, or threatens to fail to perform, observe or discharge such obligations or liabilities, any remedy of law may prove to be inadequate relief to the Party ( i.e ., the Party to which the obligation is owed). Therefore, the Party, if the Party so requests, shall be entitled to apply for temporary and permanent injunctive relief as may be granted by the court without the necessity of proving that actual damages are not an adequate remedy.

B. Notwithstanding anything in Section 30 of this Agreement, a Party may seek to obtain injunctive relief before a court of law with any claim for monetary damages remaining subject to elective mandatory arbitration under Sections 30.1, et seq .

31.22 No Punitive or Exemplary Damages

No Party shall be liable to any other Party or any other Person for indirect, punitive, exemplary or consequential damages arising from any breach of contract, tort or other wrong relating to this Agreement or any Payplant Receivables Program Transaction.

31.23 Force Majeure

No Party will be liable for delay or failure to perform its obligations under this Agreement (other than a failure to pay amounts when due or to Consummate the purchase of a Posted Receivable) caused by an event that is beyond the Party’s control; provided, however, that such Party will not have contributed in any way to such event.

31.24 Power of Attorney

Each Client hereby grants Payplant an irrevocable power of attorney, coupled with an interest to:

(i) allow Payplant and its agent bank or banks to take all of the necessary steps to process, approve and receive monies in connection with Payplant Receivables Program Transactions, including

(a) the right on or after the Repurchase Date to initiate wire transfers of funds out of Client’s designated deposit account with Client’s bank to satisfy Client’s Repurchase Obligations,

(b) the right to endorse Client’s name on third-party checks, drafts and other payment instruments, as appropriate;

(c) the right to notify Debtors making it clear to the Debtor that the Debtor is required to make all Invoice Payments otherwise due to Client into the Lockbox Account.

(d) execute and/or file in the name of the Client any documents that Payplant may requires in its Administrative Discretion to collect Client Purchased Receivables from Debtors (to the extent Clients fails to so execute within five (5) Business Days of Payplant’s request or the time when the Client is otherwise obligated to do so)

(d) do such other and further acts and deeds in the name of Client that Payplant may deem necessary to make, create, maintain, continue, enforce or perfect Payplant’s rights in any Client Collateral.

(ii) to perfect, modify and discharge Liens and Security Interests; and

(iii) if necessary, to require Clients to execute such further documents as Payplant may require in its Administrative Discretion to give effect to this Section 31.24 .

31.25 US Dollars

Unless otherwise agree to by Payplant in advance and in writing, all Payplant Receivables Program Transactions shall be paid and settled in US Dollars.

31.26 Certification

EACH CLIENT ACKNOWLEDGES THAT IT HAS THOROUGHLY READ THE PROVISIONS OF THIS AGREEMENT AND THAT CLIENT HAS FREELY AGREED TO ALL OF THE PROVISIONS HEREIN AND THEREIN. EACH CLIENT FURTHER REPRESENTS AND WARRANTS THAT EACH CLIENT KEY PRINCIPAL HAS READ THIS AGREEMENT AND THAT EACH OF CLIENT KEY PRINCIPAL UNDERSTANDS AND AGREES TO THE PROVISIONS OF SECTION 21 OF THIS AGREEMENT IMPOSING PERSONAL LIABILITY ON SUCH CLIENT KEY PRINCIPAL FOR THE TRIGGERING EVENTS LISTED THEREIN.

31.27 Communications with Payplant

Client shall be solely responsible for and shall bear all costs for providing and maintaining all necessary communications with Payplant, including client’s own computer hardware, software, wiring, communication line access and networking devices.

Section 32 Client Reporting Requirements; Notices

32.1 Financial Statements

Except as previously waived by Payplant, Client shall provide to Payplant:

(i) within one hundred twenty (120) days after the end of each fiscal year, the previous year-end unaudited financial statements of Client and its subsidiaries, if any, on a consolidated basis, consisting of balance sheets and statements of income and cash flow, which financial statements (if required by Payplant) shall be prepared in accordance with GAAP on an accrual basis; and

(ii) within forty-five (45) days after the end of each fiscal quarter the year-to- date unaudited financial statements of Client and its subsidiaries, if any, containing the Client’s balance sheet, income statement, statement of cash flows, accounts receivable aging, accounts payable aging, an overview of the Vendor settlement negotiations, and such information as Payplant may reasonably request.

The financial statements referred to in paragraphs (i) and (ii) above shall be accompanied by an Officer Certificate of Client’s chief financial officer (or similar official) certifying that (i) such financial statements present fairly (if required by Payplant, in accordance with GAAP on an accrual basis subject to normal adjustments) the financial position, results of operations and statements of cash flow of Client on a consolidated basis, as of the dates thereof, (ii) any other information presented is true, correct and complete in all material respect, and (iii) there are no Client Events of Default or other events that, with notice, the passage of time and failure to cure, may result in a Client Event of Default.

32.2 Tax Returns

Client shall provide Payplant with copies of all requested tax returns, amended tax returns, and requests for extensions thereof, within thirty (30) Business Days following Client’s filing of such returns, amended returns and requests for extensions with each appropriate Governmental Authority, if requested by Payplant. Alternatively, Client authorizes Payplant to obtain copies of such tax returns directly from the taxing authority with Client agreeing to sign whatever authorizations may be required in order to effectuate the same.

32.3 Schedules

Client shall deliver to Payplant on or before the thirtieth (30th) day of each calendar month, as and for the prior month, such schedules, reports and other information as Payplant may reasonably request in form and substance satisfactory to Payplant. In addition, Client shall deliver to Payplant at such intervals as Payplant may reasonably request (i) copy of Debtor Invoices, (ii) evidence of shipments or delivery, and (iii) such further schedules, documents and/or information as Payplant may reasonably require.

32.4 Notices

Client shall promptly, upon acquiring or giving notice, or obtaining knowledge thereof, as the case may be, provide Payplant with notice of:

(i) the filing of a petition for bankruptcy relief by or against Client or any Affiliate of Client, or by or

against any Registered Debtor;

(ii) any Debtor assertion of a claim or defense to payment of a Purchased Receivable;

(iii) the issuance of any credit adjustment or the reissuance of an Invoice with respect to a Purchased

Receivable within the context of Section 16 of this Agreement;

(iv) the occurrence of any Client Event of Default, specifically stating that a Client Event of Default has

occurred and describing such default in reasonable detail, the circumstances giving rise thereto and any

action that Client is taking or proposes to take to remedy the same;

(v) the filing or threatened filing of Material Litigation involving or affecting Client or any Affiliate of

Client or any of their respective properties;

(vi) Client’s default under a Material Obligation, or if Client or any Affiliate of Client is requested or

otherwise enters into a credit related forbearance or similar agreement with any creditor;

(vii) any change in Client’s legal name, or form of organization, or jurisdiction of organization;

(viii) any Change of Control with respect to Client or change in Client’s senior management;

(ix) the existence or purported existence of any Lien over any part of the Client Collateral other than

Permitted Liens, specifying any action Client is taking or proposes to take in respect of or to release

such Lien

(x) any circumstance those results in Client becoming a “restricted person” under the Anti-Terrorism Laws; or

(xi) Client’s receipt of a notice from the IRS or another tax authority regarding a threat to levy or file a lien.

32.5 Read-only Bank Account Access

Client shall provide Payplant with a username and password to electronically access its bank accounts.

SECTION 33 CLIENT AFFIRMATIVE COVENANTS

So long as this Agreement remains in effect, and until such time as all of Client’s Purchased Receivables are fully paid and satisfied, Client agrees and covenants:

33.1 Existence

Client shall take all necessary steps and actions to preserve its corporate existence (or the existence of any successor or transferee), it being acknowledged that no merger of Client, or sale by Client of all or substantially all of its assets, shall be permitted unless the successor entity or transferee shall assume and be liable for all obligations of Client hereunder, either by operation of law or under written agreement. Client shall promptly notify Payplant of any change in its corporate structure.

33.2 Performance of Client’s Obligations

Client shall comply with and perform each of its obligations under each SMB Program Agreement to which Client is a Party, in each case to the standards and within the time frames required.

33.3 Books and Records of Accounts; Inspection

A . Client shall (i) maintain proper and accurate books and records with respect to Client, its business and operations, and its Debtors and Receivables, and (ii) make appropriate accounting entries with respect

to True Sales of Purchased Receivables to Payplant reflecting that Client no longer has any rights, title or interest therein.

B. Client agrees to permit Payplant and Payplant’s designated agents and representatives to have unrestricted access to Client’s office facilities, where ever located, during ordinary business hours as determined necessary or proper by Payplant in connection with this Agreement with reasonable notice to Client and at Payplant’s expense, (i) to examine and make copies of Client’s books and records, and (ii) to discuss matters relating to Client’s general business affairs with Client management officials and other personnel, all subject to Applicable Law restrictions that apply to public companies generally if Client is a public company. Payplant’s inspection rights shall continue while there are previously sold and unpaid Purchased Receivables or there are outstanding Client payment obligations in favor of Payplant.

C . Client further agrees to provide Payplant with such reports and summaries of Client’s business affairs, sales and aging of Client’s accounts receivables, all in form and substance as Payplant may request from time to time.

33.4 Taxes and Other Charges

Client shall timely pay and discharge all taxes and other Charges due and payable by Client and any other Charges that may be lawfully assessed, levied or imposed on it, and Client shall pay, as the same become due, the nonpayment of which may result in a Lien being asserted against the Client Collateral, other than any tax or other Charge that is properly contested by payment under protest or by securing an appropriate and adequate bond. For any invoices and purchase orders financed by Payplant, Client shall pay third-party vendors immediately on receipt of funds from Payplant. For other accounts payable, Client shall make best effort to make timely payments.

33.5 Compliance with Applicable Law

A. Client shall at all times comply in all material respects with, and perform such acts as may be required by all Applicable Laws (including all laws relating to dealings with public officials, anti-money laundering, anti-fraud, consumer credit protection and foreign exchange regulations) and laws, regulations and government guidance for the prevention of terrorism, terrorist financing and drug trafficking (including the Anti-Terrorism Laws).

B. Without limiting the foregoing, each of Client’s directors, managers, employees, shareholders, partners, members, owners, agents and Affiliates acting on its behalf, (i) shall not take any action that would constitute a violation of the FCPA or any similar law, (ii) shall maintain an effective system of controls adequate to ensure that Client’s agents, representatives, employees, and other staff are trained to ensure compliance with the FCPA, and (iii) shall not take any action that may constitute a violation of the Export Administration Regulations of the United States or similar Applicable Laws with respect to technology transfer (through export, deemed export or otherwise) and shall observe all such Applicable Laws.

C. Client shall furnish Payplant promptly such other information with documentation required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations (including the USA PATRIOT Act), as from time to time may be reasonably requested by Payplant.

33.6 Security Interest

A. Client shall take all actions necessary or reasonably advisable or requested by Payplant to give effect, perfect, preserve or protect Payplant’s Security Interest in the Purchased Receivables and other Client Collateral and the priority thereof, and Payplant’s exercise any of the rights conferred thereunder.

B. Client may not amend, terminate or release any Payplant filed UCC financing statement under any circumstance. Any attempt by Client to do so shall be of no effect and an intentional interference by Client with Payplant’s security and other rights.

C. Client shall, at its own expense, deliver to Payplant each of the instruments, agreements, certificates and documents as Payplant may reasonably request to perfect and maintain Payplant’s Security Interest in the Purchased Receivables and other Client Collateral and to comply with, or evidence compliance with, its obligations under this Section 33.6 .

33.7 Further Assurances

From time to time, upon the reasonable request of Payplant, Client shall promptly and duly execute and deliver any and all such further documents and instruments and render all such (or such further) assistance as Payplant may reasonably require for the purpose of enabling Payplant to obtain the full benefit of such Receivables.

33.8 Performance under Sales Contracts; Notice of Default

A. Client shall timely perform and comply with all material terms, provisions, and obligations under all applicable sales contracts with Client’s customers that produce Purchased Receivables, and refrain from taking any action or omitting to take any action which might in any way prejudice or limit Payplant’s rights to payment on Purchased Receivables from Client’s Debtors.

B. Client shall notify Payplant within three (3) Business Days in writing of (i) any event or occurrence, including any breach or default by Client or by the Debtor of any of the material terms or provisions of any Sales Contract relating to a Purchased Receivable, or any dispute or any governmental action affecting the ability of Client or the Debtor to perform in a material respect thereunder, (ii) any material adverse change in the timeliness of Client receiving payments from the Debtor on any Purchased Receivable, and (iii) any material amendment or modification of any Sales Contract relating to any Purchased Receivable. Client shall not modify the terms of any Sales Contract relating to any Purchased Receivable in any manner which would adversely affect the rights of Payplant.

33.9 Tax Withholdings

If Client is organized under the laws of the United States of America or any State thereof, Client shall furnish to Payplant, on the date hereof, two properly completed and duly executed originals of U.S. Internal Revenue Service Form W-9 certifying that such Client is exempt from U.S. backup withholding tax, provided that the requirements of this sentence shall not apply to a Client that is entitled to a presumption under applicable Treasury Regulations that it is a domestic corporation for U.S. federal income tax purposes.

33.10 Payment of Sales and Other Taxes

Client shall timely pay and transmit to the appropriate taxing authorities all applicable sales, use, excise and similar taxes and fees that Client is required to collect from Client’s customers incident to Client’s sale of goods or services on a deferred payment (invoice) basis. Client shall be obligated to pay such amounts either out of the proceeds of Client’s sale of Purchased Receivables or out of Client’s other funds. Under no circumstance whatsoever shall Payplant be obligated to pay and satisfy Client’s tax liability of any Governmental Authority.

33.11 IRS Liability Monitoring

Client will sign IRS form 8821 to allow Payplant to monitor Client’s IRS liabilities. Client shall not revoke or supplant the Payplant’s ability to monitor IRS liabilities via 8821 while there are amounts owed to Payplant under the Agreement.

Section 34. Client Negative Covenants

So long as this Agreement remains in effect, and until such time as all of Client’s Purchased Receivables are fully paid and satisfied, Client agrees and covenants:

34.1 Creation of Liens

Except for Permitted Liens, Client will not create or suffer to exist any Lien upon or against any Receivable posted for sale to Payplant or against any other Client Collateral.

34.2 Amendment to Organizational Documents Triggering Subsequent UCC Filing

Without first obtaining Payplant’s prior written notice, Client will not amend its Organizational Documents to change its legal name to a materially dissimilar name, or change its form of organization, or its jurisdiction of organization, if and to the extent that such change might necessitate that Payplant amend its then existing UCC filing or file a new UCC financing statement

34.3 Anti-Terrorism Laws

Client shall not (i) conduct any business or engage in any transaction or dealings with any restricted person including the making or receiving any contribution of funds, goods or services to or for the benefit of any “restricted person”, (ii) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224, or (iii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in Executive Order No. 13224, the USA PATRIOT Act or any other Anti-Terrorism Law. Client shall deliver to Payplant any certification or other evidence requested from time to time by Payplant, in its sole discretion, confirming Client’s compliance with this Section 34.3 .

34.4 Trading with the Enemy Act

Client shall not engage in any business or activity in violation of the Trading with the Enemy Act.

34.5 Diversion of Funds

Client shall not Divert all or any portion of funds to be paid into the Payplant controlled Lockbox Account or otherwise due to Payplant. Consistent with the stated intent of the Parties that all purchases and sales of Purchased Receivables on the Platform result in True Sales for all purposes, Client recognizes and agrees that, following Consummation, Client shall have no rights to or interests whatsoever in Collection Proceeds of Purchased Receivables and no right to possess or to use such collected funds for any purpose.

34.6 Illegal Purpose

Client shall not access or use or permit the access or use of the Platform for any illegal purpose or for any purpose that is not permitted under this Agreement or any other Payplant Receivables Program Agreement to which Client is a Party.

34.7 Additional Financing

Client shall not raise additional financing, without Payplant’s approval, which shall not be unreasonably withheld by Payplant unless it is an equity financing or a convertible equity financing, where Client can force conversion, while Payplant’s advances are outstanding.

Payplant LLC, a Delaware limited liability company

ADVANCE RATE – Eligible Receivables will be advanced by Payplant to the Client at a rate of 80% of Face Value (less sales discounts).

DISCOUNT RATE – The Discount Rate for an Eligible Receivables shall be applied at 1.5% of the invoice price per 30 days.

A minimum of 30 days of interest is charged per invoice and on a per day basis thereafter. Payplant reserves the right to adjust the discount rate based on credit analysis of debtor.

PAYMENT INSTRUCTIONS – Updated remittance instructions to Payplant’s address shall be submitted to Debtors upon signing of this agreement. In the event the change remittance address process is not completed with the Debtor before the first scheduled payment, Client will transfer any received payment within 3 business days. If in the event this is not made, Payplant will initiate an ACH draft from the Client’s designated bank accounts within 3 business days after the payment had been received by Client, for the advanced amount plus discount and other applicable fees.

ADDITIONAL DEBTORS – Other debtors may be added at a future date. Client and Payplant will agree separately in writing on the advance rate and interest rate terms for each additional debtor.

EXHIBIT 1: DEFINITIONS AND INTERPRETATION

1. Definitions.

The following terms shall have the following meanings for purposes of Payplant Receivables this Agreement:

“ Debtor ” means, with respect to any Receivable, any Person obligated to pay such Receivable.

“ Debtor Event of Default ” means any failure of the Debtor to fully pay the Invoice Face Value amount by the 60‘th day following the Invoice Due Date of the Purchased Receivables.

“ Debtor Information ” means such financial and other information with respect to a Debtor that a Client may provide to Payplant.

“Administrative Determination” and “Administrative Discretion” means Payplant’s decisions, determinations, approvals, consents and confirmations of a routine or administrative nature, whether or not such administrative decision is specifically designated as such. Administrative Determination and Administrative Discretion include:

(a) routine determinations as to administration compliance with Payplant procedures, this Payplant Agreement, certificates, and other similar items required to be delivered under the terms of this Agreement; and

(b) determinations of (i) Advance Amounts, (ii) Discount Fees, (iii) Client Fees, (iv) Client Remittance Payments, (v) Repurchase Dates, (vi) Repurchase Amounts, (vii) Client Reimbursable Expenses, and (viii) such other amounts as may be provided for under this Agreement; and

(c) decisions as to (i) the existence or absence of an Event of Default, (ii) exercise of any Enforcement Right, and (iii) amendments, modifications or supplements to or waivers of any term of this Agreement.

“Advance Amount” means the amount that Payplant will advance to the Client incident to the purchase of a Receivable. Advance Amount will be negotiated between Client and Payplant and will be visible on the Platform for the Client to view.

“Affiliate” means, with respect to any Person, (i) each Person that, directly or indirectly, owns or controls, whether beneficially, or as a trustee or other fiduciary, 25% or more of the Equity Interests having ordinary voting power in the election or appointment of directors or officers of such Person, (ii) each Person that controls, is controlled by or is under common control with such Person, (iii) each of such Person’s officers, directors, joint ventures, owners and partners, and (iv) in the case of any Person that is an individual, the immediate family members, spouses and lineal descendants of such Person. For the purposes of this definition, “ control of a Person ” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting securities, by contract or otherwise.

“Anti-Terrorism Law” means each of (i) Executive Order No. 13224, (ii) the USA PATRIOT Act, (iii) the Money Laundering Control Act of 1986, Public Law 99-570, (iv) the OFAC Regulations, and (v) any similar Applicable Law enacted in the United States subsequent to the date of this Agreement or in any other jurisdiction that applies to any Client.

“Applicable Law” means, with respect to any Person, any and all laws (including common law), statutes, ordinances, regulations, rules, orders, injunctions, directives, codes, decrees, writs, determinations, awards and judgments issued by any Governmental Authority applicable to or binding upon such Person or any of its properties and any judicial or administrative interpretation thereof, including, for the avoidance of doubt, all environmental laws.

“Arbitration Administrator” means the Person under whose auspices arbitration is conducted. The Party electing commencement of arbitration shall have the right to select the Arbitration Administrator, which may be a national company or a company or law firm with offices in California.

“ Associated Rights ” means any and all of the Client’s right, title and interest in relation to any Purchased Receivable including, in each case, to the extent related to such Receivable:

(a) all Security Interests in the relevant goods arising by law or by agreement with the related Debtor for the purpose of securing payment of the related Invoice Face Amount, including retention of title rights, if applicable;

(b) all rights, remedies and privileges under the related contract;

(c) all documents of title to goods, warehouse keepers’ receipts, bills of lading, shipping documents, airway bills or similar documents, if applicable;

(d) all Collection Proceeds and other remittances and payments of or on account of Collections of such Receivable, and any related securities, bonds, guarantees, indemnities and letters of credit, including direct debit rights if applicable; and

(e) all of the Client’s interest in any returned goods related to any sale giving rise to such Receivable and any proceeds of sale thereof.

“Authorized Representative” means with respect to a Client, the Client’s designated owner, officer or other official who is authorized to (i) agree to the terms of this Agreement, (ii) enter into and consummate Payplant Receivables Program Transactions for and on behalf of Client, (iii) submit quarterly Officer Certificates and other reports to Payplant, and (iv) discuss matters relating to Client with Payplant.

“Bankruptcy Code” means the United States Federal Bankruptcy Code of 1978, as amended from time to time.

“Business Day” means a day (other than a Saturday or Sunday, a legal holiday or a day on which banking institutions are authorized or required by Applicable Law or other government action to close in Santa Clara, CA) on which banks are open for business.

“Change of Control” means (i) the occurrence of any event (whether in one or more transactions) which results in a transfer of control of a Client to a Person who did not have control of the Client at the time the Client applied for registration or membership on the Platform, (ii) any merger or consolidation of or with the Client, or (iii) the sale of all or substantially all of the property or assets of the Client. For purposes of this definition, control shall mean the power, directly or indirectly (x) to vote 50% or more of the Equity Interests having ordinary voting power for the election of directors (or the individuals performing similar functions) of the Client, or (y) to direct or cause the direction of the management and policies of the Client by contract or otherwise. Notwithstanding anything in this definition to the contrary, the distribution of the outstanding shares of stock of Sysorex to the stockholders of Inpixon, a Nevada corporation, shall not be deemed to be a “Change of Control”.

“Charges” means all taxes, charges, fees, imposts, levies or other assessments, including all net income, gross income, gross receipts, sales, use, ad valorem, value added, transfer, franchise, profits, inventory, capital stock, license, withholding, payroll, employment, social security, unemployment, excise, severance, stamp, occupation and property taxes, custom duties, fees, assessments, liens, claims and charges of any kind whatsoever, together with any interest and any penalties, additions to tax or additional amounts, imposed by any taxing or other authority, domestic or foreign (including the Pension Benefit Guaranty Corporation or any environmental agency or superfund), upon Client’s Receivables, Client or any of Client’s Affiliates.

“Client” means a Person registered with Payplant and eligible to offer Receivables for sale to Payplant.

“Client Agreement” means this agreement.

“Client Collateral” means Client’s property and assets on which Payplant is granted a security interest as provided in Section 24 of this Agreement.

“Client Event of Default” means each of the events or circumstances described as a Client default under Section 29.1 of this Agreement.

“Client Failed Payment Fee” means fees paid by a Client to Payplant as a result Client’s failure to pay the Repurchase Price to Payplant in full on the Repurchase Date.

“Client Fees” mean the fees provided in Schedule 1 to this Agreement.

“Client Funds” means any moneys, funds or credits belonging to or otherwise due to Client.

“Client Indemnified Person” means Payplant and its Affiliates, owners, shareholders, members, partners, officers, directors, managers, employees, agents, attorneys, successors and assigns.

“Client Information” means such financial and other information with respect to a Client that the Client may make available to Payplant.

“Client Key Principal” means an owner or executive officer (i.e., president, manager, chief executive officer, chief financial officer, or officer performing executive management functions) of a Client.

“Client Reimbursable Expenses” means the costs and expenses listed in Section 31.1 of this

Agreement.

“Client Remittance Payment” means the amount payable to the Client subsequent to Payplant’s receipt of Collection Proceeds. A Client Remittance Payment may consist of the Retained Amount less any accrued Discount Fees, late charges and Client fees.

“Client Termination Fee” means fees owed by a Client to Payplant as provided in Section 27 of this Agreement upon termination of Client’s relationship with Payplant.

“Code” means the Internal Revenue Code and Internal Revenue Service regulations promulgated thereunder.

“Collection Expenses” means Payplant’s out-of-pocket costs and expenses in pursuing collection from Defaulting Clients, Defaulting Debtors, including Payplant’s reasonable outside counsel fees, collection agency fees, court costs, and other third-party expenditures.

“Collection Proceeds” means all funds and money collected from the Debtor, the Client or from any other obligated Person, or from the exercise of Enforcement Rights with respect to or in any way accruing from a Purchased Receivable.

“ Confidential Information ” of any Party means non-public information that such Party may designate as being confidential or which, under the circumstances surrounding its disclosure, the receiving Party ought to know is confidential.

“ Consummate ” or “ Consummation ” means the completed purchase and True Sale of a Receivable to Payplant as provided in Section 13 of this Agreement.

“Consummation Date” means the date on which the Sale is deemed for all purposes to be completed or Consummated.

“Defaulted Receivable” means and includes a Purchased Receivable that (i) is not paid by the Debtor within 60-days following the Invoice Due Date of the Purchased Receivable, or (ii) is otherwise subject to mandatory repurchase by the Client under Section 20(A) of this Agreement for failure to qualify as an Eligible Receivable or for any other reason provided therein.

“Defaulting Debtor” means and includes a Debtor that is subject to a Debtor Event of Default.

“Defaulting Client” means a Client that is subject to a Client Event of Default.

“Delivering Party ” has the meaning given to that term in Section 31.9 of this Agreement.

“Direct Debit Transfer” means a transfer of funds by Payplant from the Client’s designated account at their respective bank via (i) an inbound Fed wire draw down request for credit transfer or, (ii) a SWIFT Direct Debit request. The transfer of funds from a Client’s bank may be initiated by any of the methods described above, or via debit originated by Payplant via entries on the Automated Clearing House (ACH) system which obligates the Client’s bank to settle the amount requested.

“Discount Fees” are fees paid to and earned by Payplant for Purchased Receivables. Discount Fees are computed as follows, with a minimum duration of 30 days. Purchase Date is the date that the Receivable was purchased by Payplant. Payment Date is the date when the Invoice Payment was received by Payplant in Good Funds. E.g. let’s take a sample invoice with Purchase Price of $10,000 and Discount Rate of 1.2% per month.

“Discount Rate” is the daily interest rate agreed between Client and Payplant at the time of the Sale. Discount Rate is also available on the Platform for the Client to view.

“Divert” or “Diversion” means any action or inaction on the part of a Client which results in all or any portion of the Collection Proceeds of any Purchased Receivable, or in all or any portion of Other Proceeds of Other Receivables that the Registered Debtor is instructed to pay into the Payplant controlled Lockbox Account, being used by the Client or any Affiliate of Client for any purpose other than payment and transmittal to Payplant. Divert or Diversion additionally includes (i) any action or inaction on the part of a Client which results in a setoff of the Registered Debtor’s Invoice Payment Obligation against any obligation that the Client may owe to the Debtor, (ii) any Client instruction to a Registered Debtor not to make Invoice payments into the Lockbox Account, or (iii) the Client’s reissuance of an Invoice evidencing a Purchased Receivable without notifying Payplant and without making immediate payment as required under Section 16(B) of this Agreement.

“Dollars”, “US Dollars”, “$” or “US$” means the lawful currency of the United States of America.

“Due Diligence Fees” are fees paid by the Client to Payplant in order to perform business and officer background checks, with applicable authorizations, including but not limited to credit, criminal history, lien searches and filings, bankruptcy and court filings, and other 3 ^rd party verifications deemed necessary by Payplant. The Due Diligence fees must be paid by Client prior to initial funding and are not refundable.

“Electronic Signature” means the electronic signature of any Party sufficient to legally obligate such Party to the terms of any pertinent contract or agreement under the Electronic Signatures in Global and National Commerce Act, the Model Uniform Electronic Transactions Act and the Electronic Signatures and Records Act.

“Eligible Receivable” means and includes a Receivable, subject to sale under Article 9 of the UCC, that:

(a) represents a bona fide Payment Obligation of an Debtor enforceable in accordance with its terms; and

(b) is not, at the time of sale or at any time thereafter, subject to dispute, compromise, reduction, cancellation, refund, offset, counterclaim or recoupment for any reason; and

(c) the Client knows of no reason why the Debtor will not or cannot pay the Receivable on a timely basis when due; and

(d) is payable to and is owned by the Client; and

(e) is payable in U.S. dollars; and

(f) is not more than 60 days past due as of the Sale Closing Date; and

“Enforcement Rights” mean and include all available enforcement rights and remedies that may be \ (i) against a Defaulting Client following a Client Event of Default, or (ii) against a Defaulting Debtor following an Debtor Event of Default, Enforcement rights further include default rights and remedies that may be asserted against the property of a third Person to satisfy an indebtedness.

“Equity Interest” means for any Person, any and all shares, rights to purchase, options, warrants, general, limited or limited liability partnership interests, limited liability company membership interests, participation or other equivalents of or interest in (regardless of how designated) equity of such Person, whether voting or nonvoting, including common stock, preferred stock, convertible securities or any other “equity security” as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the SEC under the Exchange Act.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Excluded Claim” means any of the following claims or proceedings, which are not subject to compulsory binding arbitration under Section 30 of this Agreement:

(a) any action to assert, collect, protect, realize upon or obtain possession of the Client Collateral following a Client Event of Default;

(b) any action to assert, collect, protect, realize upon or obtain possession of the Client Collateral in any bankruptcy proceeding;

(c) any action insofar as it seeks provisional or ancillary remedies in connection with (a) or (b) above;

(d) any non-judicial repossessions or exercise of Enforcement Rights against any Person; and

(e) any action involving or against a Debtor to enforce the Debtor’s Payment Obligations with respect to a Purchased Receivable.

Notwithstanding the foregoing, the Parties may mutually agree to arbitrate any matter covered under items (a) through (d) above if arbitration will afford the Parties substantially the same rights and remedies as a court action.

“Face Value” means the principal amount of the Purchased Receivable that is billed to or that is otherwise owed by the Debtor.

“FAA” means the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.

“Foreign Corrupt Practices Law” or “FCPL” means the Foreign Corrupt Practices Law and any other Applicable Law concerning making unlawful payments to any governmental official or employee, political party, official of a political party, candidate for political office or anyone else acting in an official capacity, corrupt practices or making unlawful payments or gifts, bribes, rebates, payoffs, influence payments or kickbacks in any jurisdiction.

“GAAP” means generally accepted accounting principles and practices as in effect from time to time in the United States.

“Good Funds” means funds that (i) have been collected by means of the drawee bank’s full, final and irrevocable payment of one or more checks, drafts or monetary instruments, and (ii) are immediately available to be electronically transferred from the depositor’s account to a third party.

“Governmental Authority” means any federal, state or local government, governmental department, governmental commission, governmental board, governmental bureau, governmental agency, regulatory authority, instrumentality, judicial, legislative, executive or administrative body or other political subdivision thereof and any Person exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any of the foregoing entities, having jurisdiction over the Person or matters in question.

“Government Receivable” means a Receivable under which the Debtor is a department, agency or instrumentality of the United States government.

“ Insolvency ” means with respect to any Person on a particular date, that

(a) such Person is unable to realize upon its property and assets and pay its debts and other liabilities (including disputed, contingent and unliquidated liabilities) as they mature in the normal course of business, or

(b) such Person has made a transfer or incurred an obligation with the intent to hinder, delay or defraud any of its present or future creditors.

The amount of contingent liabilities (such as litigation, guarantees and pension plan liabilities) at any time shall be computed as the amount that, in light of all the facts and circumstances existing at the time, represents the amount that can be reasonably expected to become an actual or matured liability.

“ Insolvent ” means, with respect to a Person, the fact that such Person is in Insolvency.

“Intellectual Property” means a patent, patent application, copyright, trademark, service mark, trade name, logo, domain name, mask work, trade secret or license or other right to use any of the foregoing.

“ Invoice ” means a legal debt instrument which indicates the Face Value due from a Debtor to pay the Client for delivered goods or services.

“Invoice Date” means the date an Invoice is issued.

“Invoice Due Date” means the specified date listed on the Invoice by which a Client requests payment by the Debtor.

“Invoice Payment” means any payment made by a Debtor under an Invoice.

“Invoice Payment Obligation” means a Debtor’s obligation to pay the Invoice Face Value under a Receivable sold to Payplant.

“Lien” means any mortgage, lien, privilege, deed of trust, encumbrance, pledge, security interest, hypothecation, covenant, condition, restriction (including restrictions on voting rights or rights of disposition), claim, charge, option, right of first refusal, right of use or occupancy, any legal or equitable encumbrance, or any preference, priority or other arrangement having materially the same effect as any of the foregoing.

“Lockbox Account” means the depository account maintained by Payplant into which Collection Proceeds and other sums shall be deposited.

“Material Litigation” means any action, claim, lawsuit, demand, inquiry, investigation or proceeding that is brought against the Client or its Affiliate, in which the amount in controversy exceeds 25% of Client’s, or its Affiliate’s then net worth.

“Material Obligation” means a payment or performance obligation of a Client, which in the event of the Client’s default, would likely jeopardize Client’s ability to continue to conduct its business as previously conducted.

“Misdirected Payment” means a Debtor Invoice Payment that is paid to the Client, or to an Affiliate of Client, or to a third party, and that is not paid by the Debtor into the Payplant controlled Lockbox Account as required by Section 8 of this Agreement.

“Misdirected Payment Fee” has the meaning provided in Section 8(F) of this Agreement.

“Money-Laundering Activities” means activities involving funds which are (i) proceeds of crime in violation of Applicable Law, or (ii) derived or potentially derived from any restricted party.

“Net Advance Amount” means the Advance Amount less Client Fees .

“Net Present Value Discount Rate” means the prime rate as quoted in the Money & Investing Section of the Wall Street Journal on the last day of each calendar quarter.

“OFAC Regulations” means (i) the Terrorism Sanctions Regulations (Title 31 Part 595 of the U.S. Code of Federal Regulations), (ii) the Terrorism List Governments Sanctions Regulations (Title 31 Part 596 of the U.S. Code of Federal Regulations), and (iii) the Foreign Terrorist Organizations Sanctions Regulations (Title 31 Part 597 of the U.S. Code of Federal Regulations).

“Officer Certificate” means the certificate signed by the Client’s chief executive officer, chief financial officer, or similar official in the form required by Payplant.

“Organizational Documents” means with respect to any Person, (i) the certificate of incorporation, articles of partnership, partnership agreement, certificate of organization or formation or other similar organizational documents of such Person, (ii) the by-laws, operating agreement, limited liability company agreement or other similar document of such Person, and (iii) such other documents or instruments that are required to be registered or lodged in the place of incorporation or organization of such Person and which establish the legal existence of such Person.

“Other Proceeds” means and includes Invoice Payments received from Registered Debtors that are attributable to the Client’s Other Receivables not sold to Payplant.

“Other Receivables” means and includes Client Receivables that are not sold on the Platform.

“Party” means Payplant and each Client that has agreed to be bound and obligated under this Agreement. Payplant Receivables.

“Paying Party” means the Client, a Client Key Principal, a Debtor, or any other obligated Person making payment on a Payment Obligation to Payplant after the occurrence of a Client Event of Default whether or not such Paying Party payment can be identified to any particular Purchased Receivable.

“Payment Date” for an Invoice Payment is the date the Invoice Payment is received in Good Funds by Payplant.

“Payment Obligation” means the contractual obligations of a Person to pay an amount owed to another.

“Permitted Liens” means:

(a) Liens in favor of Payplant for the benefit of Payplant;

(b) Liens for taxes, assessments or other governmental Charges not delinquent or being properly contested in good faith, provided that the Lien shall have no effect on the priority of the Liens in favor of Payplant and a stay of enforcement of any such Lien shall be in effect;

(c) Liens arising by virtue of the rendition, entry or issuance against Client or any Affiliate, or any property of Client or any Affiliate, of any judgment, writ, order, or decree, for so long as each such Lien (i) is in existence for less than 20 consecutive days after it first arises or is being properly contested, and (ii) is at all times junior in priority to any Liens in favor of Payplant;

(d) additional Liens as may be approved by Payplant in advance and in writing

( e )Existing liens

“Person” means any individual, sole proprietorship, partnership, joint venture, unincorporated organization or association, trust, corporation (including a business or statutory trust), limited liability company, institution, public benefit corporation, joint stock company, firm, body corporate, authority, Governmental Authority, or any other entity of whatever nature.

“Platform” means the software platform owned and operated by Payplant for the purchase of Receivables from Clients.

“Posted Receivable” means a Receivable that is offered for sale on the Platform by the Client. The Receivable may be entered on the Platform by Client or by Payplant’s staff on the Client’s behalf.

“ Priming Lien” means a perfected Lien encumbering the Client’s Purchased Receivables and other Client Collateral that potentially has priority over Payplant’s later in time UCC filing, and that may adversely affect the Payplant’s rights to purchase the same free and unencumbered by any then existing Lien.

“Priming Lien Holder” means a Person that has a Priming Lien on or with respect to any posted Receivable or other Client Collateral.

“Priming Lien Holder Authorization and Consent” means an authorization and consent by a Priming Lien Holder agreeing to permit the Client to sell Purchased Receivables to Payplant on a free and clear basis.

“ Purchase Price ” means the Face Value of the Purchased Receivable.

“Racketeering Activities” means involvement or affiliation with any organization, group or individual that engages in or encourages its members to engage in any illegal activities specified in (i) Title 18 of the U.S. Code, or (ii) any other similar state or applicable foreign criminal law.

“Receivable” means and includes the Client’s accounts, contract rights, general intangibles, payment intangibles and all other forms of payment obligations owing to Client, and further includes the Client’s Associated Rights.

“Receiving Party” has the meaning given to such term in Section 31.9 of this Agreement.

“Registered Debtor” means a Debtor that is registered by a Client on the Platform. .

“Repurchase Date” means the date on which the Client is obligated to repurchase a Purchased Receivable from Payplant whether due to a Debtor Event of Default, or a Client Event of Default, or both.

“Repurchase Obligation” means Client’s absolute, irrevocable and unconditional agreement and obligation to repurchase a Purchase Receivable from Payplant as provided in Section 20 of this Agreement.

“Repurchase Price” means (i) the greater of the outstanding amount of the Face Value of a Purchased Receivable, or the sum of the then unpaid Advance Amount and accrued Discount Fees with respect to the repurchased Receivable, together with (ii) the amount of any Late Charges and Client Reimbursable Expenses that may then be due and owing by the Client.

“Retained Amount” means the difference between (i) the Face Value of the Purchased Receivable sold on the Platform and (ii) the Advance Amount paid by Payplant.

“ Sale ” means the sale Receivables to Payplant.

“Sale Closing Date” means the date that the Sale was made.

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

“Securities Law” means any and all federal and state laws (including common law), statutes, regulations, rules, orders, injunctions, directives, codes, decrees, writs, determinations, awards and judgments issued by any Governmental Authority relating to “securities” and any judicial or administrative interpretation thereof.

“Security Interest” means a consensual Lien in the Client’s Purchased Receivables and other Client Collateral granted under the UCC.

“Payplant Receivables Program” means and refers to the program operated by Payplant for purchasing receivables from Clients.

“Payplant Receivables Program Transactions” means all transactions and dealings between the Parties incident to the Payplant Receivables Program, including Payplant Receivables Program Transactions involving (i) sale of Purchased Receivables on the Platform, (ii) all payments by and between the Parties, and (iii) all related payments and dealings with Debtors and third Persons.

“Purchased Receivable” means any Receivable that has been sold to Payplant on the Platform.

“Specified Obligations” means Payment Obligations of a Defaulting Client or Defaulting Debtor that are

subject to a Settlement.

“Trading with the Enemy Act” means the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, and Chapter V, as amended) and any enabling legislation or executive order relating thereto.

“Payplant” means Payplant LLC, as owner and operator of the Platform. Payplant LLC is the Managing Member of Payplant Alternatives Fund LLC. The Payplant Alternatives Fund LLC will fund the Purchased Receivable(s). To the extent necessary for any reason, including enforcement of any obligation in this agreement, Client acknowledges and agrees that Payplant Alternatives Fund LLC may enforce any provisions in this agreement directly or through Payplant LLC as its Agent and/or representative.

“Payplant Platform” means all related Payplant internet and electronic products including the Payplant website, Payplant Receivables purchase application and Payplant code.

“Payplant Related Person” means and includes each of Payplant’s respective officers, directors, managers, shareholders, members, employees, agents, and attorneys.

“Payplant Work Product Data” means the results of Payplant internally produced or otherwise obtained information, data and statistical information, including information, data and statistical information with respect to Clients and Debtors, and with respect to Client and Debtor creditworthiness.

“True Sale” means the sale for all purposes of absolute ownership of a Receivable, with the Client retaining no residual rights, title, interest or control (whether legal, equitable or beneficial) therein, and with all of the Client’s rights, title and ownership interests being fully transferred to and vesting in Payplant.

“UCC” means the Uniform Commercial Code as in effect in California and other applicable jurisdictions.

“UCC Termination Fee” has the meaning provided in Section 27 of this Agreement.

“Global Amendment” means an amendment to any Payplant Receivables Program that has general applicability to similarly situated Clients.

“USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56.

2. Interpretation .

For the purpose of this Agreement, unless the context otherwise requires:

A. Any accounting term used in this Agreement shall have the meaning customarily given such term in accordance with GAAP, and all financial computations hereunder shall be computed in accordance with GAAP.

B. Any UCC term used in this Agreement shall have the meaning given in the UCC unless otherwise defined. Without limited the foregoing, the terms “accounts”, “chattel paper”, “instruments”, “general intangibles”, “payment intangibles”, “supporting obligations”, “securities”, “financial assets”, “investment property”, “documents”, “deposit accounts”, “software”, “letter of credit rights”, “inventory”, “equipment”, “fixtures” and “ordinary course of business”, as and when used shall have the meanings given to such terms in Articles 8 or 9 of the UCC. To the extent the definition of any category or type of UCC collateral is expanded by any subsequent amendment, modification or revision to the UCC, such expanded definition will apply automatically as of the date of such amendment, modification or revision.

EXHIBIT 2

CLIENT KEY PRINCIPALS

GOVERNMENT RECEIVABLES ADDENDUM

This Government Receivables Addendum amends, modifies and supplements the

Agreement by and between Client and Payplant.

Preliminary Statements

A. Client provides goods and services on a deferred payment basis to departments, agencies and

instrumentalities of the United States, and Client has expressed a desire to offer for sale and to sell Client’s Government Receivables to Payplant.

B. In order to be permitted to do so, it is necessary that Client agree to the additional terms of this

Government Receivables Addendum, which amends, modifies and supplements the Payplant Client Agreement signed between Client and Payplant on August 14, 2018 (“Agreement”).

Agreement

NOW THEREFORE , for good and valuable consideration received and with the intent to be legally bound,

Client additionally agrees as follows:

ARTICLE I: INITIAL PROVISIONS

1.01 This Addendum applies solely to Client’s sales of Government Receivables (as defined herein), and

shall not apply to Client’s sales of other Receivables that are not Government Receivables.

1.02 All provisions of the Agreement not amended, modified or supplemented under this Addendum shall be and remain in full force and effect.

ARTICLE II: ADDENDUM TO THE AGREEMENT APPLICABLE TO SALES OF GOVERNMENT RECEIVABLES

The Agreement is hereby amended, modified and supplemented to include the following

additional covenants specifically applicable to Client’s sale of Government Receivables Payplant.

2.01 Addition al Defined Terms . The following terms have the following meanings as used under this

Addendum:

“Change Order” means a change in the Work to be performed under a Government Contract that may affect the amount owed to Client under the resulting Government Receivable.

“Consent and Authorization” means a document acceptable in form and substance to Payplant, under which a Priming Lienholder agrees and consents to permit Client to sell its Receivables to Payplant free and clear of the Priming Lienholder priming lien.

“FACA” means the Federal Assignment of Claims Act (31 U.S.C. 3727 and 41 U.S.C. 15).

“Federal Account Debtor” means the United States government department, agency or instrumentality

obligated to pay the Government Receivable.

“Government Contract” or “Contract” means a contract, purchase order, or similar agreement under which Client will perform Work, and under which Government Receivables will be generated. A “Government

Contract” further includes all Change Orders, addenda, modifications, supplements and replacements of the applicable Contract, and additionally includes all exhibits, addenda, supplemental documents and agreements with respect thereto and with respect to Work performed or to be performed by Client related to the Contract.

“Government Receivable” means a Receivable generated under a Government Contract for Work performed and to be performed by Client for a department, agency or instrumentality of the United States.

“Subcontractor” has the meaning provided in Section 2.07(A) below.