Exhibit 10.1

JUNIOR SECURED CONVERTIBLE NOTE PURCHASE AGREEMENT

This Junior Secured Convertible Note Purchase Agreement (the “ Agreement ” ) is made as of December 27, 2016, by and among Determine, Inc., a Delaware corporation (the “ Company ” ) and the persons or entities set forth on the Schedule of Purchasers attached to this Agreement as Schedule I (each a “ Purchaser ” and, collectively, the “ Purchasers ” ).

RECITALS

A.     The Company desires to issue and sell, and the Purchasers desire to purchase, junior secured convertible promissory notes in substantially the form attached to this Agreement as Exhibit A (each a “ Note ” and, collectively, the “ Notes ” ).

B.     Contemporaneous with the sale of the Notes, the parties hereto will execute and deliver (i) an Amended and Restated Security Agreement in the form attached hereto as Exhibit B (the “ Security Agreement ”), pursuant to which the Notes will be secured by a second position on the Company’s assets, subject to the first priority security position granted to Western Alliance Bank, as successor in interest to Bridge Bank, National Association (“ Bank ”) under that certain Amended and Restated Business Financing Agreement, dated as of July 25, 2014, as amended (the “ Senior Credit Facility ”), between the Company and Bank and (ii) a Second Amended and Restated Subordination Agreement in the form attached hereto as Exhibit C (the “ Subordination Agreement ”) with Bank.

AGREEMENT

In consideration of the mutual promises contained herein and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties to this Agreement agree as follows:

1.      Purchase and Sale of Notes .

(a)      Sale and Issuance of Notes . Subject to the terms and conditions of this Agreement, the Purchasers agree to purchase at the Closing (as defined below) and the Company agrees to sell and issue to the Purchasers at the Closing Notes in the aggregate principal amount of $2,000,000 (the “ Purchase Price ”), as set forth on Schedule I hereto.

(b)      Closing; Delivery .

(i)       The purchase and sale of the Notes (the “ Closing ”) shall take place at the offices of DLA Piper LLP (US), 2000 University Ave., East Palo Alto, California 94303, as soon as practicable after such date that each of the conditions set forth in Sections 4 and 5 hereof is satisfied or waived, or on such other date and at such other place as the parties hereto may agree upon in writing (the date on which the Closing occurs is referred to herein as the “ Closing Date ” ).

(ii)       At the Closing, the Company shall deliver or caused to be delivered to the Purchasers:

(1)       the Notes executed by the Company;

(2)     the Security Agreement and Subordination Agreement executed by the Company;

(3)      such instruments, certificates or documents as reasonably requested by the Purchasers in order to perfect the Purchasers’ second position security interest in the Company’s assets, in accordance with the Security Agreement, executed by the Company ;

(4)       a certificate of the Chief Executive Officer of the Company certifying the accuracy of the Company ’ s representations and warranties as of the Closing; and

(5)       a certificate of the Secretary of the Company certifying the authority of the officer executing this Agreement and all agreements and other documents ancillary hereto and contemplated hereby, including the Notes, the Security Agreement and the Subordination Agreement (collectively, the “ Loan Documents ” ).

(iii)       At the Closing, the Purchasers shall pay the Purchase Price for the Notes, less any fees, expenses or other amounts owed to Purchasers from the Company under Section 6(h) hereof, by wire transfer in immediately available funds to a bank designated by the Company and shall deliver or cause to be delivered to the Company the Security Agreement and Subordination Agreement executed by the Purchasers.

2.       Representations and Warranties of the Company . The Company hereby represents and warrants to the Purchasers that, except as set forth in the schedules delivered herewith (collectively, the “ Disclosure Schedules ”):

(a)      Organization, Good Standing and Qualification . Each of the Company and its Subsidiaries (as defined below) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all requisite corporate power and authority to carry on its business as now conducted and to own or lease its properties. Each of the Company and its Subsidiaries is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property makes such qualification or leasing necessary unless the failure to be in good standing or so qualify has not had and could not reasonably be expected to have a Material Adverse Effect. The Company’s Subsidiaries are listed on Schedule 2(a) hereto.

For purposes of this Agreement, the following terms have the meanings set forth below:

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

“ Person ” means an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint venture, sole proprietorship, unincorporated organization, governmental authority or any other form of entity not specifically listed herein.

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

(b)      Authorization . The Company has all corporate power and authority and has taken all requisite action on the part of the Company, its officers, directors and stockholders necessary for (i) the authorization, execution and delivery of the Loan Documents, (ii) the authorization of the performance of all obligations of the Company hereunder or thereunder, and (iii) the authorization, issuance (or reservation for issuance) and delivery of the Notes and the shares of Common Stock issuable upon conversion thereof (the “ Conversion Shares ” and, together with the Notes, the “ Securities ”). The Loan Documents, upon execution and delivery thereof by the Company, will constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability, relating to or affecting creditors’ rights generally and to general equitable principles.

(c)      Capitalization . Schedule 2(c) sets forth as of the date hereof (i) the authorized capital stock of the Company; (ii) the number of shares of capital stock issuable pursuant to the Company’s stock plans; and (iii) the number of shares of capital stock issuable and reserved for issuance pursuant to securities (other than the Notes) exercisable for, or convertible into or exchangeable for any shares of capital stock of the Company. All of the issued and outstanding shares of the Company’s capital stock have been duly authorized and validly issued and are fully paid, nonassessable and free of pre-emptive rights and were issued in full compliance with applicable state and federal securities law and any rights of third parties. Except as described on Schedule 2(c) , all of the issued and outstanding shares of capital stock of each Subsidiary have been duly authorized and validly issued and are fully paid, nonassessable and free of pre-emptive rights, were issued in full compliance with applicable state and federal securities law and any rights of third parties and are owned by the Company, beneficially and of record, subject to no Lien (as defined below). Except as described on Schedule 2(c) , no Person is entitled to pre-emptive or similar statutory or contractual rights with respect to any securities of the Company. Except as contemplated by the Loan Documents and except as described on Schedule 2(c) , there are no outstanding warrants, options, convertible securities or other rights, agreements or arrangements of any character under which the Company or any of its Subsidiaries is or may be obligated to issue any equity securities of any kind and except as contemplated by the Loan Documents, neither the Company nor any of its Subsidiaries is currently in negotiations for the issuance of any equity securities of any kind. Except as described on Schedule 2(c) and except for the Loan Documents, there are no voting agreements, buy-sell agreements, option or right of first purchase agreements or other agreements of any kind among the Company and any of the securityholders of the Company relating to the securities of the Company held by them. Except as described on Schedule 2(c) and except as contemplated under this Agreement, no Person has the right to require the Company to register any securities of the Company under the Securities Act of 1933, as amended (the “ 1933 Act ”), whether on a demand basis or in connection with the registration of securities of the Company for its own account or for the account of any other Person.

For purposes of this Agreement, “ Lien ” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities, in all cases, other than Permitted Liens (as defined in the Notes)

(d)      Governmental Approvals . No action, consent or approval of, registration or filing with or any other action by any federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body (collectively, “ Governmental Authority ” ) is or will be required in connection with the transactions contemplated hereby, except for (i) filings necessary to perfect liens created pursuant to the Loan Documents and (ii) such as have been made or obtained and are in full force and effect and NASDAQ listing requirements and post-sale filings pursuant to applicable state and federal securities laws which the Company undertakes to file within the applicable time periods.

(e)      Accuracy of Filings . Neither the Company’s most recent Annual Report on Form 10-K for the fiscal year ended March 31, 2016 (the “ 10-K ”) nor any of the Company ’ s reports, schedules, forms, statements and other documents filed with the Securities and Exchange Commission (the “ SEC ” ) since the filing of the 10-K (collectively, the “ SEC Reports ”), including, without limitation, the Company’s Quarterly Reports on Forms 10-Q, at the time of filing contained any untrue statement of a material fact or omitted to state a material fact required to make the statements contained therein, in light of the circumstances in which they were made, not misleading, except to the extent that such statements have been modified or superseded by later SEC Reports filed on a non-confidential basis filed prior to the date hereof.

(f)       No Material Adverse Effect . Since March 31, 2016, except as identified and described in the SEC Reports or as described in Schedule 2(f) , no Material Adverse Effect has occurred with respect to the business, assets, liabilities, operations, condition (financial or otherwise), or operating results of the Company or any Subsidiary, taken as a whole.

(g)      Title to Properties . The Company and each Subsidiary has good and marketable title to all real properties and all other properties and assets owned by it, in each case free from Liens that would materially affect the value thereof or materially interfere with the use made or currently planned to be made thereof by them; the Company and each Subsidiary holds any leased real or personal property under valid and enforceable leases with no exceptions that would materially interfere with the use made or currently planned to be made thereof by them.

(h)      Intellectual Property .

(i)      Schedule 2(h) sets forth all of the registered Intellectual Property (as defined below) of the Company. All Intellectual Property of the Company and its Subsidiaries necessary for the operation of the business as currently conducted or as presently proposed to be conducted is currently in material compliance with all legal requirements (including timely filings, proofs and payments of fees) and is valid and enforceable. No Intellectual Property of the Company or its Subsidiaries which is necessary for the conduct of Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted has been or is now involved in any cancellation, dispute or litigation, and, to the Company’s knowledge, no such action is threatened. No patent of the Company or its Subsidiaries has been or is now involved in any interference, reissue, re-examination or opposition proceeding.

For purposes of this Agreement, “ Intellectual Property ” means all of the following: (A) patents, patent applications, patent disclosures and inventions (whether or not patentable and whether or not reduced to practice); (B) trademarks, service marks, trade dress, trade names, corporate names, logos, slogans and Internet domain names, together with all goodwill associated with each of the foregoing; (C) copyrights and copyrightable works; (D) registrations, applications and renewals for any of the foregoing; and (E) proprietary computer software (including but not limited to data, data bases and documentation).

(ii)     All of the licenses and sublicenses and consent, royalty or other agreements concerning Intellectual Property which are necessary for the conduct of the Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted to which the Company or any Subsidiary is a party or by which any of their assets are bound (other than generally commercially available, non-custom, off-the-shelf software application programs having a retail acquisition price of less than $10,000 per license) (collectively, “ License Agreements ”) are valid and binding obligations of the Company or its Subsidiaries that are parties thereto and, to the Company’s knowledge, the other parties thereto, enforceable in accordance with their terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights generally, and, to the Company’s knowledge, there exists no event or condition which will result in a material violation or breach of or constitute (with or without due notice or lapse of time or both) a default by the Company or any of its Subsidiaries under any such License Agreement.

(iii)     The Company and its Subsidiaries own or have the valid right to use all of the Intellectual Property that is necessary for the conduct of the Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted and for the ownership, maintenance and operation of the Company’s and its Subsidiaries’ properties and assets, free and clear of all Liens, adverse claims or obligations to license all such owned Intellectual Property and trade secrets, confidential information and know-how (including but not limited to ideas, formulae, compositions, processes, procedures and techniques, research and development information, computer program code, performance specifications, support documentation, drawings, specifications, designs, business and marketing plans, and customer and supplier lists and related information) (collectively, “ Confidential Information ”), other than licenses entered into in the ordinary course of the Company’s and its Subsidiaries’ businesses. The Company and its Subsidiaries have a valid and enforceable right to use all third party Intellectual Property and Confidential Information used or held for use in the respective businesses of the Company and its Subsidiaries.

(iv)     To the knowledge of the Company, the conduct of the Company’s and its Subsidiaries’ businesses as currently conducted does not infringe or otherwise impair or conflict with (collectively, “ Infringe ”) any Intellectual Property rights of any third party or any confidentiality obligation owed to a third party, and, to the Company’s knowledge, the Intellectual Property and Confidential Information of the Company and its Subsidiaries which are necessary for the conduct of Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted are not being Infringed by any third party. There is no litigation or order pending or outstanding or, to the Company’s knowledge, threatened, that seeks to limit or challenge or that concerns the ownership, use, validity or enforceability of any Intellectual Property or Confidential Information of the Company and its Subsidiaries and the Company’s and its Subsidiaries’ use of any Intellectual Property or Confidential Information owned by a third party, and, to the Company’s knowledge, there is no valid basis for the same.

(v)     The consummation of the transactions contemplated hereby and by the other Loan Documents will not result in the alteration, loss, impairment of or restriction on the Company’s or any of its Subsidiaries’ ownership or right to use any of the Intellectual Property or Confidential Information which is necessary for the conduct of Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted.

(vi)     The Company and its Subsidiaries have taken reasonable steps to protect the Company’s and its Subsidiaries’ rights in their Intellectual Property and Confidential Information. Each employee, consultant and contractor who has had access to Confidential Information which is necessary for the conduct of Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted has executed an agreement to maintain the confidentiality of such Confidential Information and has executed appropriate agreements that are substantially consistent with the Company’s standard forms thereof. Except under confidentiality obligations, there has been no material disclosure of any of the Company’s or its Subsidiaries’ Confidential Information to any third party.

(i)        Compliance with Laws . Except as set forth on Schedule 2(i) , there are no actions, suits or proceedings at law or in equity or by or before any Governmental Authority now pending or, to the knowledge of the Company, threatened against or affecting the Company or any Subsidiary or any business, property or rights of any of the foregoing (i) that involve this Agreement or any Loan Document or (ii) as to which, if adversely determined, could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect in the Company or any Subsidiary. Neither the Company nor any Subsidiary or any of their respective properties or assets is in violation of, nor will the continued operation of their properties and assets as currently conducted violate, any law, rule or regulation (including any applicable environmental law, ordinance, code or approval) or any restrictions of record or agreements affecting the properties, or is in default with respect to any judgment, writ, injunction, decree or order of any Governmental Authority, where such violation or default could reasonably be expected to result in a Material Adverse Effect in the Company or any Subsidiary. The Company and each Subsidiary possess adequate certificates, authorities or permits issued by appropriate Governmental Authorities necessary to conduct the business now operated by it, except where such failure has not had and could not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate, and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Company or such Subsidiary, could reasonably be expected to have a Material Adverse Effect, individually or in the aggregate.

(j)        Tax Returns . The Company and each Subsidiary has timely prepared and filed (or timely filed for an extension for) all tax returns required to have been filed by the Company or such Subsidiary with all appropriate Governmental Authorities and timely paid all taxes shown thereon or otherwise owed by it, other than taxes being contested in good faith and for which adequate reserves have been made on the Company’s financial statements included in the SEC Reports. The charges, accruals and reserves on the books of the Company in respect of taxes for all fiscal periods are adequate in all material respects, and there are no material unpaid assessments against the Company or any Subsidiary nor, to the Company’s knowledge, any basis for the assessment of any additional taxes, penalties or interest for any fiscal period or audits by any federal, state or local taxing authority except for any assessment which is not material to the Company and its Subsidiaries, taken as a whole. All taxes and other assessments and levies that the Company or any Subsidiary is required to withhold or to collect for payment have been duly withheld and collected and paid to the proper Governmental Authority or third party when due, other than taxes being contested in good faith and for which adequate reserves have been made on the Company’s financial statements included in the SEC Reports. There are no tax Liens or claims pending or, to the Company’s knowledge, threatened against the Company or any Subsidiary or any of their respective assets or property. Except as described on Schedule 2(j) , there are no outstanding tax sharing agreements or other such arrangements between the Company and any Subsidiary or other corporation or entity.

(k)       Solvency . Immediately after the consummation of the transactions to occur on the Closing Date and immediately following the purchase of the Notes and after giving effect to the application of the proceeds thereof as of the date thereof, (i) the fair value of the assets of the Company and its Subsidiaries, at a fair valuation, will exceed its debts and liabilities, subordinated, contingent or otherwise; (ii) the present fair saleable value of the property of the Company and its Subsidiaries will be greater than the amount that will be required to pay the current probable liability of its debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; and (iii) in the reasonable judgment of the Company, each of the Company and its Subsidiaries will be able to pay its debts and liabilities then-outstanding at such time.

(l)        Rule 506 Compliance . To the Company’s knowledge, neither the Company nor any director, executive officer, other officer of the Company participating in the offering, any beneficial owner of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, and any promoter connected with the Company in any capacity on the date hereof (each, an “ Insider ”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the 1933 Act (a “ Disqualification Event ”), except for a Disqualification Event covered by Rule 506(d)(2)(i) or (d)(3) of the 1933 Act. The Company is not disqualified from relying on Rule 506 of Regulation D under the 1933 Act (“ Rule 506 ”) for any of the reasons stated in Rule 506(d) in connection with the issuance and sale of the Securities to the Purchasers pursuant to this Agreement. The Company has exercised reasonable care, including without limitation, conducting a factual inquiry that is appropriate in light of the circumstances, into whether any such disqualification under Rule 506(d) exists. The Company has furnished to each Purchaser, a reasonable time prior to the date hereof, a description in writing of any matters relating to the Company and the Insiders that would have triggered disqualification under Rule 506(d) but which occurred before September 23, 2013, in each case, in compliance with the disclosure requirements of Rule 506(e). The Company has exercised reasonable care, including without limitation, conducting a factual inquiry that is appropriate in light of the circumstances, into whether any such disqualification under Rule 506(d) would have existed and whether any disclosure is required to be made to the Purchasers under Rule 506(e). Any outstanding securities of the Company (of any kind or nature) that were issued in reliance on Rule 506 at any time on or after September 23, 2013 have been issued in compliance with Rule 506(d) and (e).

3.       Representations and Warranties of the Purchasers . Each Purchaser hereby represents and warrants to the Company that:

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

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

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

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

(e)      Disclosure of Information . Such Purchaser has had an opportunity to receive all information related to the Company requested by it and to ask questions of and receive answers from the Company regarding the Company, its business and the terms and conditions of the offering of the Securities. Such Purchaser acknowledges receipt of copies of the SEC Reports. Neither such inquiries nor any other due diligence investigation conducted by such Purchaser shall modify, limit or otherwise affect such Purchaser’s right to rely on the Company’s representations and warranties contained in this Agreement.

(f)       Restricted Securities . Such Purchaser understands that the Securities are characterized as “restricted securities” under the U.S. federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the 1933 Act only in certain limited circumstances.

(g)     Legends . It is understood that, except as provided below, certificates evidencing the Securities may bear the following or any similar legend:

(i)     “The securities represented hereby have not been registered with the Securities and Exchange Commission or the securities commission of any state in reliance upon an exemption from registration under the Securities Act of 1933, as amended, and, accordingly, may not be transferred unless (i) such securities have been registered for sale pursuant to the Securities Act of 1933, as amended, (ii) such securities may be sold pursuant to Rule 144, or (iii) the Company has received an opinion of counsel reasonably satisfactory to it that such transfer may lawfully be made without registration under the Securities Act of 1933, as amended.”

(ii)     If required by the authorities of any state in connection with the issuance of sale of the Securities, the legend required by such state authority.

(h)     Accredited Investor . Such Purchaser is an accredited investor as defined in Rule 501(a) of Regulation D, as amended, under the 1933 Act, as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act.

(i)       Rule 506 Compliance . Neither such Purchaser nor any of its directors, executive officers, other officers that may serve as a director or officer of any company in which it invests, general partners or managing members is subject to any Disqualification Event (as defined above), except for Disqualification Events covered by Rule 506(d)(2)(ii) or (iii) under the 1933 Act and disclosed in writing in reasonable detail to the Company.

4.      Conditions of the Purchasers’ Obligations at Closing . The obligations of the Purchasers to the Company under this Agreement are subject to the fulfillment of each of the following conditions, unless otherwise waived:

(a)      Representations and Warranties . The representations and warranties made by the Company in Section 2 hereof qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date, and, the representations and warranties made by the Company in Section 2 hereof not qualified as to materiality shall be true and correct in all respects at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all respects as of such earlier date. The Company shall have performed in all respects all obligations and covenants herein required to be performed by it on or prior to the Closing Date.

(b)      Qualifications . All authorizations, approvals or permits, if any, of any Governmental Authority that are required in connection with the lawful issuance and sale of the Securities pursuant to this Agreement shall be obtained and effective as of the Closing.

(c)      Deliveries . The Company shall have executed each Note, Security Agreement and Subordination Agreement and shall have made all deliveries required pursuant to Section 1(b)(ii) .

5.       Conditions of the Company’s Obligations at Closing . The obligations of the Company to the Purchasers under this Agreement are subject to the fulfillment of each of the following conditions, unless otherwise waived:

(a)      Representations and Warranties . The representations and warranties made by the Purchasers in Section 3 hereof, other than the representations and warranties contained in Sections 3(c), (d), (e), (f), (g) and (h) (the “ Investment Representations ”), shall be true and correct in all material respects when made, and shall be true and correct in all material respects on the Closing Date with the same force and effect as if they had been made on and as of said date. The Investment Representations shall be true and correct in all respects when made, and shall be true and correct in all respects on the Closing Date with the same force and effect as if they had been made on and as of said date. The Purchaser shall have performed in all material respects all obligations and covenants herein required to be performed by them on or prior to the Closing Date.

(b)     Deliveries . The Purchaser shall have executed and delivered the Security Agreement and Subordination Agreement and shall have delivered the Purchase Price for the Notes to the Company, in accordance with Section 1(b)(iii) .

6.       Covenants of the Company . The Company covenants and agrees with the Purchasers that, so long as this Agreement shall remain in effect and until all Liabilities under the Notes (as defined therein) have been satisfied by the Company, unless the Purchasers shall otherwise consent in writing:

(a)      Existence; Compliance with Laws . The Company and each Subsidiary shall (i) do or cause to be done all things reasonably necessary to preserve, renew and keep in full force and effect its legal existence; (ii) do or cause to be done all things reasonably necessary to obtain, preserve, renew, extend and keep in full force and effect the rights, licenses, permits, franchises, authorizations, patents, copyrights, trademarks and trade names material to the conduct of its business; maintain and operate such business in substantially the manner in which it is presently conducted and operated other than any change thereof that would not result in a Material Adverse Effect; comply in all material respects with all applicable laws, rules, regulations and decrees and orders of any Governmental Authority, whether now in effect or hereafter enacted; and at all times maintain and preserve all property material to the conduct of such business and keep such property in good repair, working order and condition; (iii) keep its insurable properties adequately insured at all times by financially sound and reputable insurers; maintain such other insurance, to such extent and against such risks, including fire and other risks insured against by extended coverage, as is customary with competitors in the same industry operating in similar locations, including public liability insurance against claims for personal injury or death or property damage occurring upon, in, about or in connection with the use of any properties owned, occupied or controlled by it; and maintain such other insurance as may be required by law; (iv) pay and discharge promptly when due (or otherwise escrow, bond or insure) all taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or in respect of its property, before the same shall become delinquent or in default, as well as all lawful claims for labor, materials and supplies or otherwise that, if unpaid, might give rise to a Lien upon such properties or any part thereof; provided , however , that such payment and discharge (or escrow, bonding or insurance) shall not be required with respect to any such tax, assessment, charge, levy or claim so long as the validity or amount thereof shall be contested in good faith by appropriate proceedings and the Company shall have set aside on its books adequate reserves with respect thereto in accordance with generally accepted accounting principles and such contest operates to suspend collection of the contested obligation, tax, assessment or charge and enforcement of a Lien and there is no risk of forfeiture of such property; (v) solely in the case of the Company, timely and accurately file, report and otherwise disclose all matters required by any Governmental Authority, including, without limitation, all reports and forms required pursuant to rules promulgated by the SEC.

(b)      Notices . The Company shall furnish to the Purchasers prompt written notice of the following: (i) any Event of Default or Default (each as defined in the Note), specifying the nature and extent thereof and the corrective action (if any) taken or proposed to be taken with respect thereto; (ii) the filing or commencement of, or any threat or notice of intention of any person or entity to file or commence, any action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority, against the Company or any Subsidiary that could reasonably be expected to result in a Material Adverse Effect; (iii) any loss, damage, or destruction to the real or personal properties (or any other assets) of the Company or any Subsidiary in the amount of $150,000 or more, whether or not covered by insurance; (iv) any notices received by the Company regarding any (A) alleged material default, (B) termination of a lease or eviction from any leased premises or (C) failure to pay rent or any other material monetary obligation, each with respect to any leased property (copies of which notices shall be delivered not later than five (5) days after receipt thereof by such person); (v) any development that has resulted in, or could reasonably be expected to result in, a Material Adverse Effect; and (vi) any change (A) in its corporate name, (B) in the jurisdiction of organization or formation, (C) in its identity or corporate structure or (D) in its Federal Taxpayer Identification Number. The Company agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the Uniform Commercial Code or otherwise that are required in order for the Purchaser to continue at all times following such change to have a valid, legal and perfected security interest in all the assets of the Company and the Subsidiaries.

(c)      Additional Collateral; Further Assurances . The Company shall execute any and all further documents, financing statements, agreements and instruments, and take all further action (including filing Uniform Commercial Code, United States Patent and Trademark Office and other financing statements not later than one (1) business day after the Closing Date) that may be required under applicable law, or that the Purchasers may reasonably request, in order to effectuate the transactions contemplated by the Loan Documents and in order to grant, preserve, protect and perfect the validity of the security interests created or intended to be created by the Notes and the other Loan Documents. Subject to any express provision of this Agreement to the contrary, the Company will cause any existing or subsequently acquired or organized subsidiary to become a guarantor by executing a guaranty in substantially the form attached hereto as Exhibit D and a joinder to each applicable Loan Document in favor of the Purchasers. In addition, from time to time, the Company shall, at its cost and expense and subject to the terms of the Notes and the Subordination Agreement, promptly secure the Notes by pledging or creating, or causing to be pledged or created, perfected security interests with respect to such of its assets and properties as the Purchasers shall designate. Such security interests and Liens will be created under the Loan Documents and other security agreements, mortgages, deeds of trust and other instruments and documents in form and substance satisfactory to the Purchasers, and the Company shall deliver or cause to be delivered to the Purchaser all such instruments and documents as the Purchaser shall reasonably request to evidence compliance with this Section 6(c) . The Company agrees to provide such evidence as the Purchaser shall reasonably request as to the perfection of each such security interest and Lien. In furtherance of the foregoing, the Company will give prompt notice to the Purchasers of the acquisition by it or any of its subsidiaries of any property (or any interest in property) having a value in excess of $100,000.

(d)      Indebtedness . The Company and the Subsidiaries shall not incur, create, assume or permit to exist any indebtedness for borrowed money in excess of $250,000 in the aggregate, other than indebtedness (i) created hereunder and under the other Loan Documents, (ii) up to a maximum aggregate borrowed amount of $14,500,000 under the Senior Credit Facility, (iii) constituting or arising in connection with a purchase money security interest arising in the ordinary course of business and consistent with the Company ’ s past practice, so long as the same is not a material obligation of the Company and the Subsidiaries, taken as a whole, (iv) constituting trade debt arising in the ordinary course of business and consistent with the Company ’ s past practices or (v) existing indebtedness for borrowed money under the junior secured convertible promissory notes, as amended, issued by the Company to certain of the Purchasers and their affiliates on March 11, 2015 and December 16, 2015.

(e)      Liens . The Company and the Subsidiaries shall not create, incur, assume or permit to exist any Lien on any property or assets now owned or hereafter acquired by it or on any income or revenues or rights in respect of any thereof, except Permitted Liens (as defined in the Note), Liens created hereunder and under the other Loan Documents, Liens for taxes not yet due or contested in compliance with this Agreement and Liens pursuant to customary security deposits under operating leases in the ordinary course of business.

(f)        Restrictive Agreements . The Company and the Subsidiaries shall not enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon its ability to create, incur or permit to exist any Lien upon any of its property or assets pursuant to any Loan Document, other than as required by the Senior Credit Facility and the Subordination Agreement.

(g)      Transactions with Affiliates . The Company and the Subsidiaries shall not, except for transactions between the Company and a Subsidiary, sell or transfer any property or assets to, or purchase or acquire any property or assets from, or otherwise engage in any other transactions with, any of its affiliates, except that the Company or a Subsidiary may engage in any of the foregoing transactions in the ordinary course of business at prices and on terms and conditions not less favorable to the Company or such Subsidiary than could be obtained on an arm ’ s-length basis from unrelated third parties.

(h)      Material Adverse Effect . The Company and the Subsidiaries shall not permit the occurrence of any Material Adverse Effect, and, in the event thereof, shall take all steps necessary and desirable, in the reasonable judgment of the Purchasers, to correct such Material Adverse Effect.

(i)       Unregistered Shares; Registration of Shares .

(i) The Purchasers acknowledge that the Securities have not been registered for issuance and resale. The Company agrees (promptly following the Closing Date, but no later than forty-five (45) days following the Closing Date) to file a Form S-3 or other applicable form (the “ Registration Statement ” ) including a resale prospectus covering sales of any Conversion Shares owned by the Purchasers and their affiliates, successors and assigns. The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable, and in any event no later than (A) five (5) business days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (B) the 90 ^th day after the Closing Date (the 120 ^th day if the SEC reviews the Registration Statement). The Company will pay all expenses associated with effecting the registration of the Conversion Shares, including filing and printing fees, the Company’s counsel and accounting fees and expenses, costs associated with clearing the Conversion Shares for sale under applicable state securities laws, listing fees, fees and expenses of one counsel to the Purchasers and the Purchasers’ other reasonable expenses in connection with the registration, but excluding discounts, commissions, fees of underwriters, selling brokers, dealer managers or similar securities industry professionals with respect to the Conversion Shares being sold.

(ii) The Company shall maintain the Registration Statement and the prospectuses included therein in effect for a period that will terminate upon the earlier of (i) the date on which all of the Conversion Shares covered by such Registration Statement, as amended from time to time, have been sold, and (ii) the Conversion Shares are eligible for resale pursuant to Rule 144 promulgated by the SEC. The Company further covenants to the Purchasers that upon request of the Purchaser, it shall enter into a registration rights agreement on customary terms reasonably and mutually acceptable to the parties, including the Company ’ s agreement to provide comfort letters and legal opinions in customary form as may be reasonably requested by the Purchaser; provided, however , that the terms and conditions of such registration rights agreement shall be substantially the same as those contained in the Registration Rights Agreement, dated as of February 6, 2015, between the Company and the investors named therein.

7.      Miscellaneous .

(a)      Successors and Assigns . The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign this Agreement without the prior written consent of the other party.

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

(c)      Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

(d)      Notices . Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient (i) upon receipt, when delivered personally or by courier, (ii) the next business day after sent, when sent by overnight delivery service, (iii) upon delivery if given by electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, or (iv) three (3) business days after being deposited in the U.S. mail as certified or registered mail, return receipt requested, with postage prepaid, if in each instance such notice is addressed to the party to be notified at such party ’ s address as set forth below or as subsequently modified by written notice.

If to the Company, addressed to:

Determine, Inc.

615 West Carmel Drive, Suite 100

Carmel, IN 46032

Attention: John K. Nolan

Fax: (650) 532-1540

E-mail: jnolan@determine.com

With a copy to:

DLA Piper LLP (US)

2000 University Avenue

East Palo Alto, CA 94303

Attention: Eric Wang

Fax: (650) 687-1205

E-mail: eric.wang@dlapiper.com

If to anPurchaser, addressed to:

Mr. Lloyd I. Miller, III

3300 South Dixie Highway, Suite 1-365

West Palm Beach, FL 33405

With a copy to:

Alimco Financial Corporation

10755 Scripps Poway Pkwy, #302

San Diego, CA 92131

Attention: Alan B. Howe, Interim CEO

and

O’Melveny & Myers LLP

Two Embarcadero Center, 28 ^th Floor

San Francisco, CA 94111

Attn: C. Brophy Christensen, Jr.

(e)      Amendments and Waivers . Any term of this Agreement may be amended or waived only with the written consent of the Company and Lloyd I. Miller, III.

(f)       Confidentiality . Each party hereto agrees that, except with the prior written permission of the other party or otherwise required by law, it shall at all times keep confidential and not divulge, furnish or make accessible to anyone any confidential information, knowledge or data concerning or relating to the business or financial affairs of the other party (or its affiliates) to which such party has been or shall become privy by reason of this Agreement or any other Loan Document, discussions or negotiations relating to this Agreement or any other Loan Document, or the performance of its obligations hereunder or thereunder. This Section does not apply to information that is entirely in the public domain, previously known to the recipient of the information (as evidenced by written, dated business records of such recipient), received lawfully from a third party, or independently developed without access to such information. Notwithstanding the foregoing, the parties agree that the Company shall (i) file a Current Report on Form 8-K describing the transactions contemplated under the Loan Documents and attaching copies of the Loan Documents and (ii) prior to the issuance of any press release with respect to the transactions contemplated hereby, provide such press release to the Purchasers for their review and approval, such approval not to be unreasonably withheld. In addition, the Company will make such other filings and notices in the manner and time required by the SEC or NASDAQ.

(g)      Severability . If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith, in order to maintain the economic position enjoyed by each party as close as possible to that under the provision rendered unenforceable. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.

(h)      Expenses . The parties hereto shall pay their own costs and expenses related to the transactions contemplated by this Agreement, except that the Company shall pay the reasonable fees and expenses of O’Melveny & Myers LLP, legal counsel to the Purchasers, with respect to the transactions contemplated by this Agreement, not to exceed $40,000 in the aggregate, regardless of whether the transactions contemplated hereby or thereby are consummated. If the Closing hereunder does not occur, then the Company shall reimburse the applicable portion of such fees and expenses not later than five (5) business days following notice by the Company or the Purchasers of their intent not to proceed with the transactions contemplated hereunder.

(i)      Entire Agreement . This Agreement and the Loan Documents constitute the entire agreement between the parties hereto pertaining to the purchase of the Notes.

(j)      Subordination Agreement . This Agreement and the Loan Documents (other than the Subordination Agreement) are subject to the Subordination Agreement. In the event of any conflict between the terms and condition of this Agreement or any Loan Document, on the one hand, and the Subordination Agreement, on the other hand, the terms and conditions of the Subordination Agreement shall govern and control .

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IN WITNESS WHEREOF, the parties have executed this Junior Secured Convertible Note Purchase Agreement as of the date first written above.

COMPANY:

DETERMINE, INC.

By:      /s/ John K. Nolan                                   

Name: John K. Nolan

Title: Chief Financial Officer

IN WITNESS WHEREOF, the parties have executed this Junior Secured Convertible Note Purchase Agreement as of the date first written above.

PURCHASERS:

MILFAM II L.P. , a Georgia limited partnership

By: MILFAM LLC

Its: General Partner

By:      /s/ Lloyd I. Miller, III                    

Name: Lloyd I. Miller, III

Title: Manager

ALIMCO FINANCIAL CORPORATION

By:      /s/ Alan B. Howe                              

Name: Alan B. Howe

Title: Interim Chief Executive Officer

EXHIBIT A

Form of Note

EXHIBIT B

Amended and Restated Security Agreement

EXHIBIT C

Second Amended and Restated Subordination Agreement

EXHIBIT D

Form of Guaranty

THIS GUARANTY (“ Guaranty ”) is made as of this [__] day of [__], 2016, by [____________], a [___________] (the “ Guarantor ”), in favor of MILFAM II L.P., a Georgia limited partnership, and Alimco Financial Corporation (collectively, the “ Lender ”), to guarantee all Obligations (as defined below) of Determine, Inc., a Delaware corporation and owner of one hundred percent (100%) of the equity of Guarantor (“ Debtor ”).

To secure the prompt and faithful payment and satisfaction of the Junior Secured Convertible Promissory Notes, dated as of December 27, 2016, and executed by Debtor in favor of Lender (the “ Notes ”), in the aggregate amount of Two Million Dollars ($2,000,000) due and owing to Lender (the “ Obligations ”), Guarantor unconditionally, irrevocably and absolutely guarantees the full and prompt payment and satisfaction of the Obligations when due, whether by acceleration or otherwise, and at all times thereafter. Capitalized terms not otherwise defined in this Guaranty shall have the meanings set forth in the Notes.

Lender may, from time to time, and in accordance with the terms of this Guaranty, the Notes, Note Agreement and other Loan Documents, and without notice to Guarantor, take any or all of the following actions: (a) retain or obtain a Lien against any property, including the Guarantor Collateral (as defined below), to secure any of the Obligations or this Guaranty; (b) subject to the terms of the Note Agreement, retain or obtain the primary or secondary obligation of any obligor or obligors, in addition to the Guarantor, with respect to any of the Obligations; (c) extend or renew for one or more periods all or any part of the Obligations, whether or not longer than the original periods, or modify or alter any of the terms or provisions (including, by way of example and not limitation, the interest rate, maturity, or installment amount) of any of the Obligations, or accelerate or exchange any of the Obligations, or release Debtor or compromise any of the Obligations of any guarantor or any obligor with respect to any of the Obligations; (d) release its security interest or encumbrance in, or surrender, sell, transfer, exchange, substitute, dispose of, or otherwise deal with all or any part of any collateral, including the Guarantor Collateral; (e) discharge, release, compound or settle with Debtor or any guarantor as to the Obligations; (f) file, or elect not to file, a proof of claim against the estate of any bankrupt, insolvent, incompetent or deceased Debtor, guarantor or other person or entity; or (g) apply any and all amounts received by Lender from whatever source on account of the Obligations toward the payment of the Obligations in such order as Lender may from time to time elect.

Subject to the terms of the Subordination Agreement and the Security Agreement, at any time after a default by Debtor pursuant to the Note or any Loan Document(s), Lender may sue Debtor or Guarantor or both to enforce the payment of any sum or for the performance of any of the Obligations, or for the recovery of damages, and without regard to the existence of additional causes of action. Guarantor shall pay Lender for all attorneys’ fees and expenses and costs of collection reasonably incurred by it in collecting any of the Obligations. The rights, remedies, and benefits provided to Lender shall be cumulative and shall not be exclusive of any other rights, remedies or benefits allowed by law, and may be exercised either successively or concurrently.

In connection with this Guaranty, and subject to any Permitted Liens and the terms of the Subordination Agreement, Guarantor hereby grants to Lender a continuing security interest in all assets of Guarantor whether now owned or hereafter acquired, including all proceeds therefrom (collectively, the “ Guarantor Collateral ”) to secure the payment of the Obligations, plus all interest, costs, expenses, and reasonable attorneys’ fees, which may be made or incurred by Lender in the disbursement, administration, and collection of such amounts, and in the protection, maintenance, and liquidation of the Guarantor Collateral. Other than in connection with any Permitted Liens or in accordance with the Subordination Agreement and the Security Agreement, Guarantor shall not sell, assign, transfer, pledge or otherwise dispose of or encumber any Guarantor Collateral to any third party while the Note is in effect without the prior written consent of Lender.

Guarantor shall execute and deliver to Lender, concurrently with the execution hereof, and at any time or times hereafter at the request of Lender, all financing statements, assignments, affidavits, reports, notices, schedules of accounts, letters of authority and all other documents that Lender may reasonably request, in form satisfactory to Lender, to perfect and maintain perfected Lender’s security interests in the Guarantor Collateral. In addition, Guarantor irrevocably authorizes Lender, its agents, attorneys, and representatives, to file financing statements and amendments thereto, at Guarantor’s expense, necessary to establish and maintain Lender’s perfected security interest in the Guarantor Collateral. In order to fully consummate all of the transactions contemplated hereunder, Guarantor shall make appropriate entries on its books and records disclosing Lender’s security interests in the Guarantor Collateral. Immediately upon payment or conversion of the Note, without further notice from Guarantor, Lender shall terminate any financing statements, assignments, affidavits, reports, notices, schedules of accounts, letters of authority and all other documents used to perfect and maintain perfected Lender’s security interests in the Guarantor Collateral.

If default is made in the performance or satisfaction of any of the Obligations and such default continues beyond any applicable cure periods, Lender may, at its option, and without further notice, but subject to the terms of the Subordination Agreement, declare the Obligations due and payable, or subject to any Permitted Liens and the Subordination Agreement, sell any collateral, including the Guarantor Collateral, or any part of it, or cause it to be sold at public or private sale, and Lender may become purchaser thereof at its option.

Guarantor waives demand, notice, protest, notice of acceptance of this Guaranty, notice of any loans made, extensions granted, renewals, collateral received or delivered, or other action taken in reliance on this Guaranty, all demands and notices in connection with the delivery, acceptance, performance, default or enforcement of any note, payment of which is guaranteed by this Guaranty, and all other demands and notices of any description.

This Guaranty is to be construed in accordance with and governed by the laws of the State of New York, without regard to principles of conflict of laws. Any term of this Guaranty may be amended and the observance of any term of this Guaranty may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the prior written consent of Lender. Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant to this Guaranty shall be made in accordance with Section 7(d) of the Note Agreement. If one or more provisions of this Guaranty are held to be unenforceable under applicable law, such provision shall be excluded from this Guaranty and the balance of the Guaranty shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms. The Guaranty may not be assigned without the prior written consent of Lender.

[Signature Page Follows]

Guarantor has executed this Guaranty as of the date set forth above.

GUARANTOR

[____________________]

By: _________________________________

Name: ______________________________

Its: _________________________________

Exhibit 10.2

THIS INSTRUMENT AND THE OBLIGATIONS EVIDENCED HEREBY ARE EXPRESSLY SUBORDINATED PURSUANT TO THAT CERTAIN SECOND AMENDED AND RESTATED SUBORDINATION AGREEMENT, DATED AS OF DECEMBER 27, 2016 (THE “SUBORDINATION AGREEMENT”), AMONG THE HOLDER OF THIS INSTRUMENT, THE MAKER OF THIS INSTRUMENT, AND WESTERN ALLIANCE BANK, AS SUCCESSOR IN INTEREST TO BRIDGE BANK, NATIONAL ASSOCIATION. EACH SUCCESSIVE HOLDER OF THIS INSTRUMENT OR ANY PORTION HEREOF, OR OF ANY RIGHTS OBTAINED HEREUNDER, BY ITS ACCEPTANCE HEREOF OR THEREOF, AGREES (1) TO BE BOUND BY THE TERMS OF THE SUBORDINATION AGREEMENT, AND (2) THAT IF ANY CONFLICT EXISTS BETWEEN THE TERMS OF THIS INSTRUMENT OR ANY DOCUMENT EXECUTED IN CONNECTION WITH THE DELIVERY OF THIS INSTRUMENT AND THE TERMS OF THE SUBORDINATION AGREEMENT, THE TERMS OF THE SUBORDINATION AGREEMENT SHALL GOVERN AND BE CONTROLLING.

THIS JUNIOR SECURED CONVERTIBLE PROMISSORY NOTE HAS BEEN ACQUIRED FOR INVESTMENT AND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES LAWS.

JUNIOR SECURED CONVERTIBLE PROMISSORY NOTE

FOR VALUE RECEIVED, Determine, Inc., a Delaware corporation (the “ Company ” ), promises to pay to the order of MILFAM II L.P., or its registered assigns ( “ Lender ” ), the principal sum of One Million Dollars ($1,000,000.00)   (the “ Principal Amount ” ) with interest on the outstanding Principal Amount accruing as set forth in Section 1 . Interest shall commence with the date hereof and shall continue on the outstanding principal of this Junior Secured Convertible Promissory Note (this “ Note ” ) as set forth in Section 1 until paid in accordance with the provisions hereof.

1.      Interest .

(a)   Interest shall accrue on the outstanding Principal Amount at the rate of ten percent (10%) per annum simple interest (computed on the basis of actual days elapsed and a fiscal year of 364 days).

(b)   Accrued interest shall be payable quarterly, in arrears, beginning on December 31, 2016, and thereafter on the last calendar day of each successive three (3) month period. Notwithstanding the foregoing, but provided the Company is not then in default pursuant to this Note or any other Loan Document, upon each quarterly interest payment date, the Company may elect to pay the accrued interest due on such date by capitalizing, compounding and adding to the unpaid Principal Amount the amount of interest accrued such quarter ( “ PIK Interest ” ); provided, however , that any such PIK Interest shall be deemed to have accrued at the rate of twelve percent (12%) per annum simple interest (computed on the basis of actual days elapsed and a fiscal year of 364 days). Amounts representing PIK Interest shall be treated as Principal Amount for all purposes under this Note and the Loan Documents and shall bear interest in accordance with this Section 1 . The obligation of the Company to pay all such PIK Interest so added to the Principal Amount shall be automatically evidenced by this Note. The PIK Interest election shall be made by the Company by written notice to Lender on or prior to the date such interest payment is due.

(c)   Upon any default pursuant to this Note or any other Loan Document, this Note shall bear interest at the rate of the lesser of (i) thirteen percent (13%) and (ii) such maximum rate of interest allowable under the laws of the State of New York (the “ Default Rate ” ).

2.    Junior Secured Convertible Note Purchase Agreement; Security .

(a) This Note is issued pursuant to, and subject in all respects to, the terms of that certain Junior Secured Convertible Note Purchase Agreement, dated as of December 27, 2016 (the “ Note Agreement ” ), by and among the Company, Lender and the other investors named therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Note Agreement or in the Amended and Restated Security Agreement, dated as of December 27, 2016 (the “ Security Agreement ”), by and among the Company, Lender and the other secured parties named therein.

(b) The indebtedness evidenced by this Note is secured by all of the assets of the Company, as further described in the Security Agreement.

3.    Maturity . The entire unpaid principal amount and all unpaid accrued interest (collectively, the “ Obligations ” ) shall become fully due and payable on the earlier of (i) the fifth (5th) anniversary of the date hereof, or (ii) the date of closing of a Change of Control (the “ Maturity Date ” ).

4.      Payments .

(a)   All payments of the Obligations shall be made in lawful money of the United States of America to Lender, at the address specified in the Note Agreement, or at such other address as may be specified from time to time by Lender in a written notice delivered to the Company. All payments shall be applied first to accrued interest, expenses or fees due to Lender pursuant to this Note or any other Loan Document, and thereafter to principal.

(b) The Obligations under this Note may be prepaid, or converted in accordance with Section 6(b) below, at the Company’s election prior to the Maturity Date.

5.     Use of Proceeds . The Company shall use the proceeds from this Note for working capital and general corporate purposes.

6.   Conversion .

(a) Subject to applicable NASDAQ listing rule limitations (including, if applicable, approval by the Company’s stockholders), at any time following the date of this Note and up to the Maturity Date, the then outstanding Obligations under this Note (or any portion thereof) may be converted into fully paid and nonassessable shares of Company Common Stock, $0.0001 par value per share (the “ Conversion Shares ”), at the sole election of Lender upon written notice to the Company (the “ Conversion Notice ”), which Conversion Notice shall state the proposed effective date of such conversion (which date shall be no fewer than ten (10) business days following the date of delivery of the Conversion Notice) (the “ Conversion Date ”). The Obligations hereunder shall convert at a conversion price equal to $3.00 per share, subject to adjustment for any stock dividend, stock split, combination or other similar recapitalization event with respect to the Company’s Common Stock (each a “ Recapitalization Event ”); provided, however , that if prior to the Maturity Date the Company offers and sells its Common Stock (or other securities that are convertible into or exercisable for shares of Common Stock) in a private placement primarily intended to raise capital at a price per share of Common Stock of $2.50 or less (subject to adjustment for any Recapitalization Event), then the conversion price of the Obligations under this Note shall be reduced to such Common Stock offer price plus $0.50 per share (the applicable conversion price with respect to a conversion under this Section 6(a) hereinafter is referred to as the “ Conversion Price ”).

(b) Notwithstanding the conversion rights set forth in Section 6(a) above, subject to applicable NASDAQ listing rule limitations (including, if applicable, approval by the Company’s stockholders), in the event that the closing bid price per share of Company Common Stock as traded on the principal securities exchange or securities market on which the Common Stock are then traded equals or exceeds $10.00 (subject to adjustment for any Recapitalization Event) for ten (10) Trading Days (as defined below) in any fifteen- (15-)Trading Day period, the then-outstanding Obligations under this Note (or any portion thereof) may be converted into Conversion Shares, at the sole election of the Company following delivery of the Conversion Notice to Lender, which Conversion Notice shall state the proposed Conversion Date (which date, for the sake of clarity, shall be no fewer than ten (10) business days following the date of delivery of the Conversion Notice) at a conversion price equal to the then-current Conversion Price.

(c) Notwithstanding anything in this Section 6 to the contrary, the Company shall not effect the conversion of this Note, and Lender shall not have the right to convert this Note, to the extent that the aggregate number of Conversion Shares issued upon conversion of this Note and the other Notes issued under the Note Agreement (together with any other securities issued by the Company that are deemed integrated into the issuance of the Notes under the Note Agreement pursuant to applicable NASDAQ listing rules) would be in excess of 19.99% of the shares of Company Common Stock outstanding immediately prior to the issuance of this Note. In the event the holders of the Notes issued under the Note Agreement elect to convert the Notes pursuant to Section 6(a) , and such Notes will not be fully convertible due to the limitations set forth in this Section 6(c) , the Company shall use its commercially reasonable efforts to obtain stockholder approval of the issuance of the Notes in accordance with NASDAQ listing rule 5635(d) as soon as reasonably practicable, including by calling a special meeting of stockholders. For purposes of this Section 6(c), the terms “commercially reasonable efforts” shall include, without limitation, the obligation of the Company take all action necessary to call a meeting of its stockholders (the “ Stockholders Meeting ”), which shall occur not later than 90 days after Lender’s request for the same (the “ Stockholders Meeting Deadline ”), for the purpose of seeking approval of the Company’s stockholders for, among other things, the issuance and sale of the Conversion Shares to Lender (the “ Proposal ”). In the event the Proposal is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “ Subsequent Stockholders Meeting ”) for the purpose of seeking approval of the Proposal, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after Lender’s request for the same, to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, the Company will promptly prepare and file with the SEC proxy materials (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Lender shall promptly furnish in writing to the Company such information relating to such Lender and its investment in the Company as the Company may reasonably request for inclusion in each Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, each a “ Proxy Statement ”) and any form of proxy to be sent or made available to the stockholders of the Company in connection with the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting, and each Proxy Statement shall not, on the date that such Proxy Statement (or any amendment thereof or supplement thereto) is first mailed or made available to stockholders or at the time of the Stockholders Meeting or any Subsequent Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting or, if applicable, any Subsequent Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective Affiliates, officers or directors that is required to be set forth in a supplement or amendment to the applicable Proxy Statement, in addition to the Company's obligations under the 1934 Act, the Company will promptly inform the Lender thereof.

(d) Upon the Conversion Date with respect to a conversion of this Note pursuant to either Section 6(a) or 6(b) above, Lender hereby agrees to deliver the original of this Note to the Company for cancellation (or a notice to the effect that the original Note has been lost, stolen or destroyed and an agreement acceptable to the Company whereby Lender agrees to indemnify the Company from any loss incurred by it in connection with this Note); provided, however , that upon the Conversion Date, this Note (or portion thereof) shall be deemed converted and of no further force and effect, whether or not it is delivered for cancellation as set forth in this sentence.

(e) On or before the second Trading Day following the Conversion Date (the “ Share Delivery Date ”), the Company shall, (i) provided that the Company’s transfer agent is participating in The Depository Trust Company (“ DTC ”) Fast Automated Securities Transfer Program (the “ FAST Program ”) and so long as the certificates therefor are not required to bear a legend regarding restriction on transferability, upon the request of Lender, credit such aggregate number of shares of Common Stock to which Lender is entitled pursuant to such exercise to Lender’s or its designee’s balance account with DTC through its Deposit Withdrawal Agent Commission system, or (ii), if the Company’s transfer agent is not participating in the FAST Program or if the certificates are required to bear a legend regarding restriction on transferability, issue and dispatch by overnight courier to the address as specified in the Conversion Notice or as provided by Lender to the Company, a certificate, registered in the Company’s share register in the name of Lender or its designee, for the number of shares of Common Stock to which Lender is entitled pursuant to such exercise. Upon the Conversion Date, Lender shall be deemed for all corporate purposes to have become the holder of record of the Conversion Shares with respect to which this Note (or portion thereof) has been converted, irrespective of the date such Conversion Shares are credited to the Holder’s DTC account or the date of delivery of the certificates evidencing such Conversion Shares, as the case may be.

For purposes of this Note, “ Trading Day ” means any day on which the Common Stock are traded on The NASDAQ Capital Market or, if such market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock are then traded; provided that “ Trading Day ” shall not include any day on which the Common Stock are scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock are suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York time).

(f) No fractional shares shall be issued upon conversion of this Note. In lieu of the Company issuing any fractional shares to Lender upon the conversion of this Note, the Company shall pay to Lender an amount equal to the product obtained by multiplying the Conversion Price by the fraction of a share not issued pursuant to the previous sentence.

7.  Subordination . The Obligations evidenced by this Note are hereby expressly subordinated in right of payment to the prior payment in full of all of the Company’s Senior Credit Facility and any Liens on property of the Company in favor of Lender are hereby expressly subordinated in priority to any Liens on the Company’s property in favor of any holder of debt under the Senior Credit Facility, in accordance with the Subordination Agreement. The Obligations evidenced by this Note are pari passu with the Obligations evidenced by those (a) Junior Secured Convertible Promissory Notes, dated as of March 11, 2015, as amended, in the aggregate principal amount of $3 million issued pursuant to the Junior Secured Convertible Note Purchase Agreement, dated as of March 11, 2015, by and among the Company and the investors named therein and (b) Junior Secured Convertible Promissory Notes, dated as of December 16, 2015, as amended, in the aggregate principal amount of $2.5 million issued pursuant to the Junior Secured Convertible Note Purchase Agreement, dated as of December 16, 2015, by and among the Company and the investors named therein.

8.    Default .

(a)   Events of Default . For purposes of this Note, any of the following events shall constitute an “ Event of Default ” :

(i)   The Company shall fail to pay when due any Obligations hereunder;

(ii)   Any representation or warranty of the Company under the Note Agreement, the other Loan Documents or any agreement ancillary thereto (collectively, the “ Ancillary Agreements ” ), as applicable, shall be untrue in any material respect as of the date made;

(iii)   The Company shall breach any covenant set forth in this Note or the Ancillary Agreements, taking into account applicable periods of notice and cure, if any; provided, however , that, in the event no grace or cure period is so provided, the Company shall have a period of (A) three (3) days after the earlier of the Company ’ s actual knowledge thereof and written notice of non-compliance to cure such non-compliance to the extent it relates to any monetary default and (B) twenty (20) days after the earlier of the Company ’ s actual knowledge thereof and written notice of non-compliance to cure any other non-compliance; provided that, in the event that any default described in clause (B) cannot reasonably be cured within such twenty (20) day period, then the Company shall have an additional ten (10) days in which to cure such non-compliance, so long as the Company continues to diligently pursue curing such non-compliance;

(iv) Any default occurs under the Senior Credit Facility and such default is not cured, or waived by the lender thereunder, within the time period, if any, provided under the Senior Credit Facility;

(v)   The Company makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts as they become due, or files a voluntary petition for bankruptcy, or files any petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, dissolution or similar relief under any present or future statute, law or regulation, or seeks or consents to or acquiesces in the appointment of any trustee, receiver or liquidator of the Company, or of all or any substantial part of the properties of the Company, or the Company or its respective directors or majority stockholders takes any action looking to the dissolution, liquidation or winding up of the Company;

(vi)   An involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Company under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or for a substantial part of the property or assets of the Company or (iii) the winding-up or liquidation of the Company or; and such proceeding or petition shall continue undismissed for thirty (30) days or an order or decree approving or ordering any of the foregoing shall be entered; or

(vii)   One or more judgments shall be rendered against the Company or and the same shall remain undischarged for a period of thirty (30) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of the Company or to enforce any such judgment and such judgment either (i) is for the payment of money in an aggregate amount in excess of $250,000   or (ii) is for injunctive relief and could reasonably be expected to result in a Material Adverse Effect;

(viii)   If any material portion of the Collateral (as defined in the Security Agreement) is attached, seized, subjected to a writ or distress warrant, or is levied upon, or comes into the possession of any trustee, receiver or person acting in a similar capacity and such attachment, seizure, writ or distress warrant or levy has not been removed, discharged or rescinded within fifteen (15) days, or if the Company is enjoined, restrained, or in any way prevented by court order from continuing to conduct all or any material part of its business affairs, or if a judgment or other claim becomes a lien upon any material portion of the Collateral, or if a notice of lien, levy, or assessment is filed of record with respect to any material portion of the Collateral by the United States Government, or any department, agency, or instrumentality thereof, or by any state, county, municipal, or governmental agency, and the same is not paid within fifteen (15)   days after the Company receives notice thereof;

(ix)   There shall occur any material event of loss, theft, damage or destruction of any Collateral for which there is less than 80% insurance coverage (subject to reasonable deductibles as determined by the Company and consistent with the Company ’ s past practices); or

(x)   The occurrence of any event (financial or otherwise) resulting in, or which will likely result in, a Material Adverse Effect in the Company, as determined by Lender’s Agent in his reasonable discretion, and remains uncured for a period of fifteen (15) days following the earlier of the Company ’ s knowledge of such event and written notice of such event by Lender’s Agent to the Company (or, such longer period of time as reasonable given the circumstances if such occurrence is not reasonably curable within such thirty (30) day period and provided that the Company is taking steps to cure such occurrence during such thirty (30) day period and thereafter diligently pursues to completion).

(b)     Consequences of Events of Default . Subject to the rights of Western Alliance Bank under the Senior Credit Facility, if any Event of Default shall occur for any reason, whether voluntary or involuntary, or continue beyond the expiration of any applicable cure period:

(i)   upon notice or demand, the Lender’s Agent may declare the outstanding indebtedness under this Note, together with all other amounts due or owing to Lender pursuant to any Ancillary Agreements, to be due and payable, whereupon each of the foregoing shall be and become immediately due and payable, and the Company shall immediately pay to Lender all such indebtedness, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Company, anything contained herein or in any Ancillary Agreement to the contrary notwithstanding; provided , however , that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Company under the United States Bankruptcy Code, then all indebtedness under this Note, together with all other amounts due or owing to Lender pursuant to any Ancillary Agreements, shall automatically be due immediately without notice of any kind;

(ii)   Lender’s Agent may exercise from time to time any rights and remedies available to him under applicable law, including without limitation the right to: (A) immediate possession of the Collateral by Lender’s Agent, (B) institute legal proceedings to foreclose upon the lien and security interest granted under the Security Agreement or for the sale of all Collateral, to recover judgment for all amounts then due and owing from the Company, and to collect the same out of any Collateral or the proceeds of any sale of the Collateral, and (C) peacefully enter upon any premises (whether it be the Lender’s Agent, his agents or attorneys, or an appointment of a receiver selected or appointed by Lender’s Agent to which the Company shall consent to in all respects) where Collateral may then be located, and take possession of all or any of it and/or render it unusable and without being responsible for loss or damage to such Collateral, hold, operate, sell, lease, or dispose of all or any Collateral at one or more public or private sales, leasings or other dispositions, at places and times and on terms and conditions as Lender may deem fit, without any previous demand or advertisement (unless such demand or advertisement is expressly required by law).

The Company agrees to pay Lender’s Agent all out-of-pocket costs and expenses reasonably incurred by Lender’s Agent and Lender in any effort to collect indebtedness under this Note and to exercise remedies under the Note Agreement or any Ancillary Agreement, including, without limitation, reasonable attorneys ’ fees, and to pay interest at the Default Rate on such costs and expenses to the extent not paid when demanded. Lender’s Agent may exercise any and all of its remedies under the Note Agreement or any Ancillary Agreement contemporaneously or separately from the exercise of any other remedies hereunder or under applicable law.

9.   Lost, Stolen, Destroyed or Mutilated Note . In case this Note shall be mutilated, lost, stolen or destroyed, the Company shall issue a new Note of like date, tenor and denomination and deliver the same in exchange and substitution for and upon surrender and cancellation of any mutilated Note, or in lieu of any Note lost, stolen or destroyed, upon receipt of evidence satisfactory to the Company of the loss, theft or destruction of such Note and an agreement from Lender to indemnify the Company against any claim that may be made against the Company on account of the mutilation, loss, theft or destruction of this Note.

10.   Governing Law . This Note is to be construed in accordance with and governed by the laws of the State of New York, without regard to principles of conflict of laws.

11.   Amendment and Waiver . Any term of this Note may be amended and the observance of any term of this Note may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consents of the Lender’s Agent and the Company.

12.   Notices . Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant to this Note shall be made in accordance with Section 7(d) of the Note Agreement.

13.   Severability . If one or more provisions of this Note are held to be unenforceable under applicable law, such provision shall be excluded from this Note and the balance of the Note shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.

14.   Successors and Assigns; Assignment . The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign this Agreement without the prior written consent of the other party.

15.   Remedies Cumulative; Failure or Indulgence Not a Waiver . The remedies provided in this Note shall be cumulative and in addition to all other remedies available under this Note, the Note Agreement and the Ancillary Agreements. No failure or delay on the part of Lender in the exercise of any power, right or privilege hereunder or under this Note, the Note Agreement or any Ancillary Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege.

16.   Payments . Whenever any payment of cash is to be made by the Company to Lender pursuant to this Note, such payment shall be made in lawful money of the United States of America by, at the Company ’ s option, a check drawn on the account of the Company and sent via overnight courier service to Lender at the address previously provided to the Company in writing (which address shall initially be the address for Lender as set forth in the Note Agreement), electronic funds transfer, or wire transfer of immediately available funds, to an account designated in writing by Lender. Whenever any payment to be made shall otherwise be due on a day which is not a business day, such payment shall be made on the immediately succeeding business day and such extension of time shall be included in the computation of accrued interest.

17.   Excessive Interest . Notwithstanding any other provision herein to the contrary, this Note is hereby expressly limited so that the interest rate charged hereunder shall at no time exceed the maximum rate permitted by applicable law. If, for any circumstance whatsoever, the interest rate charged exceeds the maximum rate permitted by applicable law, the interest rate shall be reduced to the maximum rate permitted, and if Lender shall have received an amount that would cause the interest rate charged to be in excess of the maximum rate permitted, such amount that would be excessive interest shall be applied to the reduction of the principal amount owing hereunder (without charge for prepayment) and not to the payment of interest, or if such excessive interest exceeds the unpaid balance of principal, such excess shall be refunded to the Company.

18.   Waiver of Notice . To the extent permitted by law, the Company hereby waives demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note or the Ancillary Agreements.

19.  Change of Control . In the event of a Change of Control occurring prior to the repayment or conversion of the Obligations under this Note pursuant to its terms, this Note, including all Obligations hereunder, shall be, at the option of Lender, either (i) repaid in cash as of the closing of such Change of Control or, (ii) subject to applicable NASDAQ listing rule limitations (including, if applicable, approval by the Company’s stockholders), converted into Conversion Shares at the then-current Conversion Price, to be issued to Lender immediately prior to the closing of such Change of Control. The Company shall provide at least 20 business days’ notice to Lender of the closing of a Change of Control.

“ Change of Control ” means (i) a direct or indirect merger or consolidation of the Company into or with another entity after which the stockholders of the Company immediately prior to such transaction do not own, immediately following the consummation of the transaction by virtue of their shares in the Company or securities received in exchange for such shares in connection with the transaction, a majority of the voting power of the surviving entity in proportions substantially similar to those that existed immediately prior to such transaction, (ii) the direct or indirect sale, transfer or issuance by the Company, or the sale or transfer by stockholders of the Company, in a transaction or series of related transactions, to a person or “group” within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended and Rule 13D thereunder, in either case, as a result of which more than 50% of the voting power of the Company is beneficially owned by such person or group , and (iii) the direct or indirect sale, transfer or other disposition (but not including a transfer or disposition by pledge or mortgage to a bona fide lender) of all or substantially all of the assets or intellectual property of the Company. Notwithstanding the foregoing, the following shall not be deemed a Change of Control: a merger effected exclusively for the purpose of changing the domicile of the Company.

[Signature Page Follows]

IN WITNESS WHEREOF, the Company has caused this Note to be duly executed by its officers, thereunto duly authorized as of the date first above written.

Exhibit 10.3

THIS INSTRUMENT AND THE OBLIGATIONS EVIDENCED HEREBY ARE EXPRESSLY SUBORDINATED PURSUANT TO THAT CERTAIN SECOND AMENDED AND RESTATED SUBORDINATION AGREEMENT, DATED AS OF DECEMBER 27, 2016 (THE “SUBORDINATION AGREEMENT”), AMONG THE HOLDER OF THIS INSTRUMENT, THE MAKER OF THIS INSTRUMENT, AND WESTERN ALLIANCE BANK, AS SUCCESSOR IN INTEREST TO BRIDGE BANK, NATIONAL ASSOCIATION. EACH SUCCESSIVE HOLDER OF THIS INSTRUMENT OR ANY PORTION HEREOF, OR OF ANY RIGHTS OBTAINED HEREUNDER, BY ITS ACCEPTANCE HEREOF OR THEREOF, AGREES (1) TO BE BOUND BY THE TERMS OF THE SUBORDINATION AGREEMENT, AND (2) THAT IF ANY CONFLICT EXISTS BETWEEN THE TERMS OF THIS INSTRUMENT OR ANY DOCUMENT EXECUTED IN CONNECTION WITH THE DELIVERY OF THIS INSTRUMENT AND THE TERMS OF THE SUBORDINATION AGREEMENT, THE TERMS OF THE SUBORDINATION AGREEMENT SHALL GOVERN AND BE CONTROLLING.

THIS JUNIOR SECURED CONVERTIBLE PROMISSORY NOTE HAS BEEN ACQUIRED FOR INVESTMENT AND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES LAWS.

JUNIOR SECURED CONVERTIBLE PROMISSORY NOTE

FOR VALUE RECEIVED, Determine, Inc., a Delaware corporation (the “ Company ” ), promises to pay to the order of Alimco Financial Corporation (formerly known as Alliance Semiconductor Corporation), or its registered assigns ( “ Lender ” ), the principal sum of One Million Dollars ($1,000,000.00)   (the “ Principal Amount ” ) with interest on the outstanding Principal Amount accruing as set forth in Section 1 . Interest shall commence with the date hereof and shall continue on the outstanding principal of this Junior Secured Convertible Promissory Note (this “ Note ” ) as set forth in Section 1 until paid in accordance with the provisions hereof.

1.       Interest .

(a)   Interest shall accrue on the outstanding Principal Amount at the rate of ten percent (10%) per annum simple interest (computed on the basis of actual days elapsed and a fiscal year of 364 days).

(b)   Accrued interest shall be payable quarterly, in arrears, beginning on December 31, 2016, and thereafter on the last calendar day of each successive three (3) month period. Notwithstanding the foregoing, but provided the Company is not then in default pursuant to this Note or any other Loan Document, upon each quarterly interest payment date, the Company may elect to pay the accrued interest due on such date by capitalizing, compounding and adding to the unpaid Principal Amount the amount of interest accrued such quarter ( “ PIK Interest ” ); provided, however , that any such PIK Interest shall be deemed to have accrued at the rate of twelve percent (12%) per annum simple interest (computed on the basis of actual days elapsed and a fiscal year of 364 days). Amounts representing PIK Interest shall be treated as Principal Amount for all purposes under this Note and the Loan Documents and shall bear interest in accordance with this Section 1 . The obligation of the Company to pay all such PIK Interest so added to the Principal Amount shall be automatically evidenced by this Note. The PIK Interest election shall be made by the Company by written notice to Lender on or prior to the date such interest payment is due.

(c)   Upon any default pursuant to this Note or any other Loan Document, this Note shall bear interest at the rate of the lesser of (i) thirteen percent (13%) and (ii) such maximum rate of interest allowable under the laws of the State of New York (the “ Default Rate ” ).

2.    Junior Secured Convertible Note Purchase Agreement; Security .

(a) This Note is issued pursuant to, and subject in all respects to, the terms of that certain Junior Secured Convertible Note Purchase Agreement, dated as of December 27, 2016 (the “ Note Agreement ” ), by and among the Company, Lender and the other investors named therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Note Agreement or in the Amended and Restated Security Agreement, dated as of December 27, 2016 (the “ Security Agreement ”), by and among the Company, Lender and the other secured parties named therein.

(b) The indebtedness evidenced by this Note is secured by all of the assets of the Company, as further described in the Security Agreement.

3.   Maturity . The entire unpaid principal amount and all unpaid accrued interest (collectively, the “ Obligations ” ) shall become fully due and payable on the earlier of (i) the fifth (5th) anniversary of the date hereof, or (ii) the date of closing of a Change of Control (the “ Maturity Date ” ).

4.     Payments .

(a)   All payments of the Obligations shall be made in lawful money of the United States of America to Lender, at the address specified in the Note Agreement, or at such other address as may be specified from time to time by Lender in a written notice delivered to the Company. All payments shall be applied first to accrued interest, expenses or fees due to Lender pursuant to this Note or any other Loan Document, and thereafter to principal.

(b) The Obligations under this Note may be prepaid, or converted in accordance with Section 6(b) below, at the Company’s election prior to the Maturity Date.

5.   Use of Proceeds . The Company shall use the proceeds from this Note for working capital and general corporate purposes.

6.   Conversion .

(a) Subject to applicable NASDAQ listing rule limitations (including, if applicable, approval by the Company’s stockholders), at any time following the date of this Note and up to the Maturity Date, the then outstanding Obligations under this Note (or any portion thereof) may be converted into fully paid and nonassessable shares of Company Common Stock, $0.0001 par value per share (the “ Conversion Shares ”), at the sole election of Lender upon written notice to the Company (the “ Conversion Notice ”), which Conversion Notice shall state the proposed effective date of such conversion (which date shall be no fewer than ten (10) business days following the date of delivery of the Conversion Notice) (the “ Conversion Date ”). The Obligations hereunder shall convert at a conversion price equal to $3.00 per share, subject to adjustment for any stock dividend, stock split, combination or other similar recapitalization event with respect to the Company’s Common Stock (each a “ Recapitalization Event ”); provided, however , that if prior to the Maturity Date the Company offers and sells its Common Stock (or other securities that are convertible into or exercisable for shares of Common Stock) in a private placement primarily intended to raise capital at a price per share of Common Stock of $2.50 or less (subject to adjustment for any Recapitalization Event), then the conversion price of the Obligations under this Note shall be reduced to such Common Stock offer price plus $0.50 per share (the applicable conversion price with respect to a conversion under this Section 6(a) hereinafter is referred to as the “ Conversion Price ”).

(b) Notwithstanding the conversion rights set forth in Section 6(a) above, subject to applicable NASDAQ listing rule limitations (including, if applicable, approval by the Company’s stockholders), in the event that the closing bid price per share of Company Common Stock as traded on the principal securities exchange or securities market on which the Common Stock are then traded equals or exceeds $10.00 (subject to adjustment for any Recapitalization Event) for ten (10) Trading Days (as defined below) in any fifteen- (15-)Trading Day period, the then-outstanding Obligations under this Note (or any portion thereof) may be converted into Conversion Shares, at the sole election of the Company following delivery of the Conversion Notice to Lender, which Conversion Notice shall state the proposed Conversion Date (which date, for the sake of clarity, shall be no fewer than ten (10) business days following the date of delivery of the Conversion Notice) at a conversion price equal to the then-current Conversion Price.

(c) Notwithstanding anything in this Section 6 to the contrary, the Company shall not effect the conversion of this Note, and Lender shall not have the right to convert this Note, to the extent that the aggregate number of Conversion Shares issued upon conversion of this Note and the other Notes issued under the Note Agreement (together with any other securities issued by the Company that are deemed integrated into the issuance of the Notes under the Note Agreement pursuant to applicable NASDAQ listing rules) would be in excess of 19.99% of the shares of Company Common Stock outstanding immediately prior to the issuance of this Note. In the event the holders of the Notes issued under the Note Agreement elect to convert the Notes pursuant to Section 6(a) , and such Notes will not be fully convertible due to the limitations set forth in this Section 6(c) , the Company shall use its commercially reasonable efforts to obtain stockholder approval of the issuance of the Notes in accordance with NASDAQ listing rule 5635(d) as soon as reasonably practicable, including by calling a special meeting of stockholders. For purposes of this Section 6(c), the terms “commercially reasonable efforts” shall include, without limitation, the obligation of the Company take all action necessary to call a meeting of its stockholders (the “ Stockholders Meeting ”), which shall occur not later than 90 days after Lender’s request for the same (the “ Stockholders Meeting Deadline ”), for the purpose of seeking approval of the Company’s stockholders for, among other things, the issuance and sale of the Conversion Shares to Lender (the “ Proposal ”). In the event the Proposal is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “ Subsequent Stockholders Meeting ”) for the purpose of seeking approval of the Proposal, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after Lender’s request for the same, to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, the Company will promptly prepare and file with the SEC proxy materials (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Lender shall promptly furnish in writing to the Company such information relating to such Lender and its investment in the Company as the Company may reasonably request for inclusion in each Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, each a “ Proxy Statement ”) and any form of proxy to be sent or made available to the stockholders of the Company in connection with the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting, and each Proxy Statement shall not, on the date that such Proxy Statement (or any amendment thereof or supplement thereto) is first mailed or made available to stockholders or at the time of the Stockholders Meeting or any Subsequent Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting or, if applicable, any Subsequent Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective Affiliates, officers or directors that is required to be set forth in a supplement or amendment to the applicable Proxy Statement, in addition to the Company's obligations under the 1934 Act, the Company will promptly inform the Lender thereof.

(d) Upon the Conversion Date with respect to a conversion of this Note pursuant to either Section 6(a) or 6(b) above, Lender hereby agrees to deliver the original of this Note to the Company for cancellation (or a notice to the effect that the original Note has been lost, stolen or destroyed and an agreement acceptable to the Company whereby Lender agrees to indemnify the Company from any loss incurred by it in connection with this Note); provided, however , that upon the Conversion Date, this Note (or portion thereof) shall be deemed converted and of no further force and effect, whether or not it is delivered for cancellation as set forth in this sentence.

(e) On or before the second Trading Day following the Conversion Date (the “ Share Delivery Date ”), the Company shall, (i) provided that the Company’s transfer agent is participating in The Depository Trust Company (“ DTC ”) Fast Automated Securities Transfer Program (the “ FAST Program ”) and so long as the certificates therefor are not required to bear a legend regarding restriction on transferability, upon the request of Lender, credit such aggregate number of shares of Common Stock to which Lender is entitled pursuant to such exercise to Lender’s or its designee’s balance account with DTC through its Deposit Withdrawal Agent Commission system, or (ii), if the Company’s transfer agent is not participating in the FAST Program or if the certificates are required to bear a legend regarding restriction on transferability, issue and dispatch by overnight courier to the address as specified in the Conversion Notice or as provided by Lender to the Company, a certificate, registered in the Company’s share register in the name of Lender or its designee, for the number of shares of Common Stock to which Lender is entitled pursuant to such exercise. Upon the Conversion Date, Lender shall be deemed for all corporate purposes to have become the holder of record of the Conversion Shares with respect to which this Note (or portion thereof) has been converted, irrespective of the date such Conversion Shares are credited to the Holder’s DTC account or the date of delivery of the certificates evidencing such Conversion Shares, as the case may be.

For purposes of this Note, “ Trading Day ” means any day on which the Common Stock are traded on The NASDAQ Capital Market or, if such market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock are then traded; provided that “ Trading Day ” shall not include any day on which the Common Stock are scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock are suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York time).

(f) No fractional shares shall be issued upon conversion of this Note. In lieu of the Company issuing any fractional shares to Lender upon the conversion of this Note, the Company shall pay to Lender an amount equal to the product obtained by multiplying the Conversion Price by the fraction of a share not issued pursuant to the previous sentence.

7.   Subordination . The Obligations evidenced by this Note are hereby expressly subordinated in right of payment to the prior payment in full of all of the Company’s Senior Credit Facility and any Liens on property of the Company in favor of Lender are hereby expressly subordinated in priority to any Liens on the Company’s property in favor of any holder of debt under the Senior Credit Facility, in accordance with the Subordination Agreement. The Obligations evidenced by this Note are pari passu with the Obligations evidenced by those (a) Junior Secured Convertible Promissory Notes, dated as of March 11, 2015, as amended, in the aggregate principal amount of $3 million issued pursuant to the Junior Secured Convertible Note Purchase Agreement, dated as of March 11, 2015, by and among the Company and the investors named therein and (b) Junior Secured Convertible Promissory Notes, dated as of December 16, 2015, as amended, in the aggregate principal amount of $2.5 million issued pursuant to the Junior Secured Convertible Note Purchase Agreement, dated as of December 16, 2015, by and among the Company and the investors named therein.

8.   Default .

(a)    Events of Default . For purposes of this Note, any of the following events shall constitute an “ Event of Default ” :

(i)   The Company shall fail to pay when due any Obligations hereunder;

(ii)   Any representation or warranty of the Company under the Note Agreement, the other Loan Documents or any agreement ancillary thereto (collectively, the “ Ancillary Agreements ” ), as applicable, shall be untrue in any material respect as of the date made;

(iii)   The Company shall breach any covenant set forth in this Note or the Ancillary Agreements, taking into account applicable periods of notice and cure, if any; provided, however , that, in the event no grace or cure period is so provided, the Company shall have a period of (A) three (3) days after the earlier of the Company ’ s actual knowledge thereof and written notice of non-compliance to cure such non-compliance to the extent it relates to any monetary default and (B) twenty (20) days after the earlier of the Company ’ s actual knowledge thereof and written notice of non-compliance to cure any other non-compliance; provided that, in the event that any default described in clause (B) cannot reasonably be cured within such twenty (20) day period, then the Company shall have an additional ten (10) days in which to cure such non-compliance, so long as the Company continues to diligently pursue curing such non-compliance;

(iv) Any default occurs under the Senior Credit Facility and such default is not cured, or waived by the lender thereunder, within the time period, if any, provided under the Senior Credit Facility;

(v)   The Company makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts as they become due, or files a voluntary petition for bankruptcy, or files any petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, dissolution or similar relief under any present or future statute, law or regulation, or seeks or consents to or acquiesces in the appointment of any trustee, receiver or liquidator of the Company, or of all or any substantial part of the properties of the Company, or the Company or its respective directors or majority stockholders takes any action looking to the dissolution, liquidation or winding up of the Company;

(vi)   An involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Company under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or for a substantial part of the property or assets of the Company or (iii) the winding-up or liquidation of the Company or; and such proceeding or petition shall continue undismissed for thirty (30) days or an order or decree approving or ordering any of the foregoing shall be entered; or

(vii)   One or more judgments shall be rendered against the Company or and the same shall remain undischarged for a period of thirty (30) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of the Company or to enforce any such judgment and such judgment either (i) is for the payment of money in an aggregate amount in excess of $250,000   or (ii) is for injunctive relief and could reasonably be expected to result in a Material Adverse Effect;

(viii)   If any material portion of the Collateral (as defined in the Security Agreement) is attached, seized, subjected to a writ or distress warrant, or is levied upon, or comes into the possession of any trustee, receiver or person acting in a similar capacity and such attachment, seizure, writ or distress warrant or levy has not been removed, discharged or rescinded within fifteen (15) days, or if the Company is enjoined, restrained, or in any way prevented by court order from continuing to conduct all or any material part of its business affairs, or if a judgment or other claim becomes a lien upon any material portion of the Collateral, or if a notice of lien, levy, or assessment is filed of record with respect to any material portion of the Collateral by the United States Government, or any department, agency, or instrumentality thereof, or by any state, county, municipal, or governmental agency, and the same is not paid within fifteen (15)   days after the Company receives notice thereof;

(ix)   There shall occur any material event of loss, theft, damage or destruction of any Collateral for which there is less than 80% insurance coverage (subject to reasonable deductibles as determined by the Company and consistent with the Company ’ s past practices); or

(x)   The occurrence of any event (financial or otherwise) resulting in, or which will likely result in, a Material Adverse Effect in the Company, as determined by Lender’s Agent in his reasonable discretion, and remains uncured for a period of fifteen (15) days following the earlier of the Company ’ s knowledge of such event and written notice of such event by Lender’s Agent to the Company (or, such longer period of time as reasonable given the circumstances if such occurrence is not reasonably curable within such thirty (30) day period and provided that the Company is taking steps to cure such occurrence during such thirty (30) day period and thereafter diligently pursues to completion).

(b)   Consequences of Events of Default . Subject to the rights of Western Alliance Bank under the Senior Credit Facility, if any Event of Default shall occur for any reason, whether voluntary or involuntary, or continue beyond the expiration of any applicable cure period:

(i)   upon notice or demand, the Lender’s Agent may declare the outstanding indebtedness under this Note, together with all other amounts due or owing to Lender pursuant to any Ancillary Agreements, to be due and payable, whereupon each of the foregoing shall be and become immediately due and payable, and the Company shall immediately pay to Lender all such indebtedness, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Company, anything contained herein or in any Ancillary Agreement to the contrary notwithstanding; provided , however , that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Company under the United States Bankruptcy Code, then all indebtedness under this Note, together with all other amounts due or owing to Lender pursuant to any Ancillary Agreements, shall automatically be due immediately without notice of any kind;

(ii)   Lender’s Agent may exercise from time to time any rights and remedies available to him under applicable law, including without limitation the right to: (A) immediate possession of the Collateral by Lender’s Agent, (B) institute legal proceedings to foreclose upon the lien and security interest granted under the Security Agreement or for the sale of all Collateral, to recover judgment for all amounts then due and owing from the Company, and to collect the same out of any Collateral or the proceeds of any sale of the Collateral, and (C) peacefully enter upon any premises (whether it be the Lender’s Agent, his agents or attorneys, or an appointment of a receiver selected or appointed by Lender’s Agent to which the Company shall consent to in all respects) where Collateral may then be located, and take possession of all or any of it and/or render it unusable and without being responsible for loss or damage to such Collateral, hold, operate, sell, lease, or dispose of all or any Collateral at one or more public or private sales, leasings or other dispositions, at places and times and on terms and conditions as Lender may deem fit, without any previous demand or advertisement (unless such demand or advertisement is expressly required by law).

The Company agrees to pay Lender’s Agent all out-of-pocket costs and expenses reasonably incurred by Lender’s Agent and Lender in any effort to collect indebtedness under this Note and to exercise remedies under the Note Agreement or any Ancillary Agreement, including, without limitation, reasonable attorneys ’ fees, and to pay interest at the Default Rate on such costs and expenses to the extent not paid when demanded. Lender’s Agent may exercise any and all of its remedies under the Note Agreement or any Ancillary Agreement contemporaneously or separately from the exercise of any other remedies hereunder or under applicable law.

9.   Lost, Stolen, Destroyed or Mutilated Note . In case this Note shall be mutilated, lost, stolen or destroyed, the Company shall issue a new Note of like date, tenor and denomination and deliver the same in exchange and substitution for and upon surrender and cancellation of any mutilated Note, or in lieu of any Note lost, stolen or destroyed, upon receipt of evidence satisfactory to the Company of the loss, theft or destruction of such Note and an agreement from Lender to indemnify the Company against any claim that may be made against the Company on account of the mutilation, loss, theft or destruction of this Note.

10.   Governing Law . This Note is to be construed in accordance with and governed by the laws of the State of New York, without regard to principles of conflict of laws.

11.   Amendment and Waiver . Any term of this Note may be amended and the observance of any term of this Note may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consents of the Lender’s Agent and the Company.

12.   Notices . Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant to this Note shall be made in accordance with Section 7(d) of the Note Agreement.

13.   Severability . If one or more provisions of this Note are held to be unenforceable under applicable law, such provision shall be excluded from this Note and the balance of the Note shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.

14.   Successors and Assigns; Assignment . The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign this Agreement without the prior written consent of the other party.

15.   Remedies Cumulative; Failure or Indulgence Not a Waiver . The remedies provided in this Note shall be cumulative and in addition to all other remedies available under this Note, the Note Agreement and the Ancillary Agreements. No failure or delay on the part of Lender in the exercise of any power, right or privilege hereunder or under this Note, the Note Agreement or any Ancillary Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege.

16.   Payments . Whenever any payment of cash is to be made by the Company to Lender pursuant to this Note, such payment shall be made in lawful money of the United States of America by, at the Company ’ s option, a check drawn on the account of the Company and sent via overnight courier service to Lender at the address previously provided to the Company in writing (which address shall initially be the address for Lender as set forth in the Note Agreement), electronic funds transfer, or wire transfer of immediately available funds, to an account designated in writing by Lender. Whenever any payment to be made shall otherwise be due on a day which is not a business day, such payment shall be made on the immediately succeeding business day and such extension of time shall be included in the computation of accrued interest.

17.   Excessive Interest . Notwithstanding any other provision herein to the contrary, this Note is hereby expressly limited so that the interest rate charged hereunder shall at no time exceed the maximum rate permitted by applicable law. If, for any circumstance whatsoever, the interest rate charged exceeds the maximum rate permitted by applicable law, the interest rate shall be reduced to the maximum rate permitted, and if Lender shall have received an amount that would cause the interest rate charged to be in excess of the maximum rate permitted, such amount that would be excessive interest shall be applied to the reduction of the principal amount owing hereunder (without charge for prepayment) and not to the payment of interest, or if such excessive interest exceeds the unpaid balance of principal, such excess shall be refunded to the Company.

18.   Waiver of Notice . To the extent permitted by law, the Company hereby waives demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note or the Ancillary Agreements.

19.  Change of Control . In the event of a Change of Control occurring prior to the repayment or conversion of the Obligations under this Note pursuant to its terms, this Note, including all Obligations hereunder, shall be, at the option of Lender, either (i) repaid in cash as of the closing of such Change of Control or, (ii) subject to applicable NASDAQ listing rule limitations (including, if applicable, approval by the Company’s stockholders), converted into Conversion Shares at the then-current Conversion Price, to be issued to Lender immediately prior to the closing of such Change of Control. The Company shall provide at least 20 business days’ notice to Lender of the closing of a Change of Control.

“ Change of Control ” means (i) a direct or indirect merger or consolidation of the Company into or with another entity after which the stockholders of the Company immediately prior to such transaction do not own, immediately following the consummation of the transaction by virtue of their shares in the Company or securities received in exchange for such shares in connection with the transaction, a majority of the voting power of the surviving entity in proportions substantially similar to those that existed immediately prior to such transaction, (ii) the direct or indirect sale, transfer or issuance by the Company, or the sale or transfer by stockholders of the Company, in a transaction or series of related transactions, to a person or “group” within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended and Rule 13D thereunder, in either case, as a result of which more than 50% of the voting power of the Company is beneficially owned by such person or group , and (iii) the direct or indirect sale, transfer or other disposition (but not including a transfer or disposition by pledge or mortgage to a bona fide lender) of all or substantially all of the assets or intellectual property of the Company. Notwithstanding the foregoing, the following shall not be deemed a Change of Control: a merger effected exclusively for the purpose of changing the domicile of the Company.

[Signature Page Follows]

IN WITNESS WHEREOF, the Company has caused this Note to be duly executed by its officers, thereunto duly authorized as of the date first above written.

Exhibit 10.4

Amended and Restated Security Agreement

This Amended and Restated Security Agreement, dated as of December 27, 2016 (this “ Security Agreement ”), is made by and among Determine, Inc., a Delaware corporation formerly known as Selectica, Inc. (“ Grantor ”), Lloyd I. Miller, III as “ Lenders’ Agent ,” and the parties listed on the signature pages hereto (each a “ Lender ” or “ Secured Party ” and, collectively, the “ Lenders ” or “ Secured Parties ”).

Recitals

A.      Certain of the Secured Parties (the “ Existing Lenders ”) are parties to that certain Amended and Restated Security Agreement, dated as of December 16, 2015 (the “ Prior Agreement ”), with Grantor, entered into in connection with the sale and issuance by Grantor of Junior Secured Convertible Promissory Notes, dated March 11, 2015 and December 16, 2015, each as amended, to the Existing Lenders in the aggregate principal amount of $5.5 million (the “ Existing Loans ”).

B.      Certain of the Secured Parties has agreed to make certain additional loans to Grantor pursuant to that certain Junior Secured Convertible Note Purchase Agreement, dated as of December 27, 2016, by and among Grantor and such Secured Parties (as the same may from time to time be amended, modified or supplemented or restated, the “ December 2016 Purchase Agreement ”), such advances and financial accommodation being referred to herein as the “ Additional Loans ” and, together with the Existing Loans, the “ Loans .”

C.      In order to induce the Secured Parties to make the Additional Loans under the December 2016 Purchase Agreement, the Company and the Existing Lenders desire to amend and restate the Prior Agreement to add such Additional Loans as secured obligations hereunder, as more fully set forth below.

D.      Each Secured Party acknowledges that the security interest granted hereunder will, upon perfection thereof, be a second priority lien on the subject assets and that the rights of the Lenders’ Agent and Secured Parties will in all respects be subject to the first priority security position granted to Western Alliance Bank, as successor in interest to Bridge Bank, National Association (“ Bank ”) under that certain Amended and Restated Business Financing Agreement, dated as of July 25, 2014, as amended (the “ Senior Credit Facility ”), between Grantor and Bank, and the Second Amended and Restated Subordination Agreement to be executed and delivered by Lenders’ Agent in favor of Bank.

E.      Each Secured Party is willing to make the Additional Loans to Grantor, and consents to execution and delivery by Lenders’ Agent of the Second Amended and Restated Subordination Agreement, but only upon the condition, among others, that Grantor shall have granted the security interest set forth herein and executed and delivered to such Secured Party this Security Agreement.

Agreement

Now, Therefore , for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and in order to induce the Secured Parties to make the Additional Loans under the Additional Purchase Agreement, the Prior Agreement is hereby amended and restated as set forth herein, and the parties hereby represent, warrant, covenant and agree as follows:

1.     Defined Terms . When used in this Security Agreement the following terms shall have the meanings set forth below (such meanings being equally applicable to both the singular and plural forms of the terms defined). Any other capitalized term used in this Security Agreement but not defined herein shall have the meaning ascribed to it under the Purchase Agreements.

“ Bankruptcy Code ” means Title XI of the United States Code.

“ Collateral ” shall have the meaning assigned to such term in Section 2 of this Security Agreement.

“ Contracts ” means all contracts (including any customer, vendor, supplier, service or maintenance contract), leases, licenses, undertakings, purchase orders, permits, franchise agreements or other agreements (other than any right evidenced by Chattel Paper, Documents or Instruments), whether in written or electronic form, in or under which Grantor now holds or hereafter acquires any right, title or interest, including, without limitation, with respect to an Account, any agreement relating to the terms of payment or the terms of performance thereof.

“ Copyright License ” means any agreement, whether in written or electronic form, in which Grantor now holds or hereafter acquires any interest, granting any right in or to any Copyright or Copyright registration (whether Grantor is the licensee or the licensor thereunder) including, without limitation, licenses pursuant to which Grantor has obtained the exclusive right to use a copyright owned by a third party.

“ Copyrights ” means all of the following now owned or hereafter acquired or created (as a work for hire for the benefit of Grantor) by Grantor or in which Grantor now holds or hereafter acquires or receives any right or interest, in whole or in part: (a) all copyrights, whether registered or unregistered, held pursuant to the laws of the United States, Australia, any State or Province thereof or any other country; (b) registrations, applications, recordings and proceedings in the United States Copyright Office or in any similar office or agency of the United States or any other country; (c) any continuations, renewals or extensions thereof; (d) any registrations to be issued in any pending applications, and shall include any right or interest in and to work protectable by any of the foregoing which are presently or in the future owned, created or authorized (as a work for hire for the benefit of Grantor) or acquired by Grantor, in whole or in part; (e) prior versions of works covered by copyright and all works based upon, derived from or incorporating such works; (f) income, royalties, damages, claims and payments now and hereafter due and/or payable with respect to copyrights, including, without limitation, damages, claims and recoveries for past, present or future infringement; (g) rights to sue for past, present and future infringements of any copyright; and (h) any other rights corresponding to any of the foregoing rights throughout the world.

“ Event of Default ” has the meaning set forth in the Notes.

“ Intellectual Property ” means any intellectual property, in any medium, of any kind or nature whatsoever, now or hereafter owned or acquired or received by Grantor or in which Grantor now holds or hereafter acquires or receives any right or interest, and shall include, in any event, any Copyright, Trademark, Patent, trade secret, customer list, internet domain name (including any right related to the registration thereof), proprietary or confidential information, mask work, source, object or other programming code, invention (whether or not patented or patentable), technical information, procedure, design, knowledge, know-how, software, data base, data, skill, expertise, recipe, experience, process, model, drawing, material or record.

“ Lenders’ Agent ” means Lloyd I. Miller, III.

“ License ” means any Copyright License, Patent License, Trademark License or other license of rights or interests, whether in-bound or out-bound, whether in written or electronic form, now or hereafter owned or acquired or received by Grantor or in which Grantor now holds or hereafter acquires or receives any right or interest, and shall include any renewals or extensions of any of the foregoing thereof .

“ Lien ” has the meaning set forth in the Purchase Agreements.

“ Loan Documents ” means the Purchase Agreements, the Notes, this Security Agreement and the Subordination Agreement.

“ Loans ” means the Existing Loans and the Additional Loans.

“ Notes ” means, collectively, the Junior Secured Convertible Promissory Notes issued under the Purchase Agreements evidencing the Loans.

“ Patent License ” means any agreement, whether in written or electronic form, in which Grantor now holds or hereafter acquires any interest, granting any right with respect to any invention on which a Patent is in existence (whether Grantor is the licensee or the licensor thereunder).

“ Patents ” means all of the following in which Grantor now holds or hereafter acquires any interest: (a) all letters patent of the United States, Australia or any other country, all registrations and recordings thereof and all applications for letters patent of the United States, Australia or any other country, including, without limitation, registrations, recordings and applications in the United States Patent and Trademark Office or in any similar office or agency of the United States, any state or any other country; (b) all reissues, divisions, continuations, renewals, continuations-in-part or extensions thereof; (c) all petty patents, divisionals and patents of addition; (d) all patents to issue in any such applications; (e) income, royalties, damages, claims and payments now and hereafter due and/or payable with respect to patents, including, without limitation, damages, claims and recoveries for past, present or future infringement; and (f) rights to sue for past, present and future infringements of any patent.

“ Permitted Lien ” means: (i) any liens arising under Grantor’s Senior Credit Facility; (ii) purchase money security interests to secure purchase money indebtedness of Grantor, so long as such security interests arise or are created (A) in the ordinary course of business and consistent with past practices and (B) substantially contemporaneously with the purchase or acquisition by Grantor of the respective property or assets to which such security interests relate and the incurrence of the respective purchase money indebtedness which such security interests secure, secure only the respective purchase money indebtedness so incurred by Grantor to enable Grantor to so purchase or acquire such property or assets, and no other indebtedness, and encumber only the respective property or assets so purchased or acquired, and no other property or assets of Grantor; (iii) any liens arising in connection with capital leases or equipment financing arrangements of Grantor; (iv) liens acquired with liabilities assumed by Grantor in connection with acquisitions of existing businesses, business divisions, or assets, in whole or in part after the date hereof; (v) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, processor’s, landlord’s liens or other like liens arising in the ordinary course of business that are not overdue for a period of more than thirty (30) days or which are being contested in good faith by appropriate proceedings; (vi) liens arising in connection with worker’s compensation, unemployment insurance, old age pensions and social security benefits and similar statutory obligations (excluding liens arising under ERISA), provided that no enforcement proceedings in respect of such liens are pending and provisions have been made for the payment of such liens on the books of such person as may be required by generally accepted accounting principles; (vii) liens of an immaterial nature for taxes, fees, assessments or other governmental charges or levies, either not delinquent or being contested in good faith by appropriate proceedings; (viii) licenses or sublicenses granted to others in the ordinary course of business if such are otherwise permitted hereunder and do not interfere in any material respect with Grantor’s business; and (ix) (A) liens incurred in the ordinary course of business to secure the performance of statutory obligations arising in connection with progress payments or advance payments due under contracts with the United States government or any agency thereof entered into in the ordinary course of business and (B) liens incurred or deposits made in the ordinary course of business to secure the performance of statutory obligations, bids, leases, fee and expense arrangements with trustees and fiscal agents, trade contracts, surety and appeal bonds, performance bonds and other similar obligations (exclusive of obligations incurred in connection with the borrowing of money, any lease-purchase arrangements or the payment of the deferred purchase price of property), provided, that in each case full provision for the payment of all such obligations;

provided, however , that, notwithstanding the foregoing, and only following the date that all Senior Debt (as defined in the Subordination Agreement) has been paid in full in cash and Bank’s obligation to lend under the Senior Credit Facility has terminated, a Permitted Lien shall not include any lien, encumbrance or other interest which would cause, or could reasonably be expected to cause, a Material Adverse Effect.

“ Prior Purchase Agreements ” means the (i) Junior Secured Convertible Note Purchase Agreement, dated as of March 11, 2015, by and among Grantor and certain of the Existing Lenders and (ii) Junior Secured Convertible Note Purchase Agreement, dated as of December 16, 2015, by and among Grantor and certain of the Existing Lenders.

“ Pro Rata ” means, as to any Secured Party at any time, the percentage equivalent at such time of such Secured Party’s aggregate unpaid principal amount of Loans, divided by the combined aggregate unpaid principal amount of all Loans of all Secured Parties.

“ Purchase Agreements ” means, together, the December 2016 Agreement and the Prior Purchase Agreements.

“ Secured Obligations ” means (a) the obligation of Grantor to repay the Secured Parties all of the unpaid principal amount of, and accrued interest on (including any interest that accrues after the commencement of bankruptcy) the Loans and (b) the obligation of Grantor to pay any fees, costs and expenses of the Secured Parties under Section 6(b) hereof or pursuant to any other provision of a Loan Document.

“ Trademark License ” means any agreement, whether in written or electronic form, in which Grantor now holds or hereafter acquires any interest, granting any right in and to any Trademark or Trademark registration (whether Grantor is the licensee or the licensor thereunder).

“ Trademarks ” means any of the following in which Grantor now holds or hereafter acquires any interest: (a) any trademarks, tradenames, corporate names, company names, business names, trade styles, service marks, logos, other source or business identifiers, prints and labels on which any of the foregoing have appeared or appear, designs and general intangibles of like nature, now existing or hereafter adopted or acquired, all registrations and recordings thereof and any applications in connection therewith, including, without limitation, registrations, recordings and applications in the United States Patent and Trademark Office or in any similar office or agency of the United States, any state or any other country (collectively, the “ Marks ”); (b) any reissues, extensions or renewals thereof; (c) the goodwill of the business symbolized by or associated with the Marks; (d) income, royalties, damages, claims and payments now and hereafter due and/or payable with respect to the Marks, including, without limitation, damages, claims and recoveries for past, present or future infringement; and (e) rights to sue for past, present and future infringements of the Marks.

“ UCC ” means the Uniform Commercial Code as the same may from time to time be in effect in the State of California (and each reference in this Security Agreement to an Article thereof (denoted as a Division of the UCC as adopted and in effect in the State of California) shall refer to that Article (or Division, as applicable) as from time to time in effect, which in the case of Article 9 shall include and refer to Revised Article 9 from and after the date Revised Article 9 became effective in the State of California); provided, however, in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of the Secured Parties’ security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of California, the term “ UCC ” shall mean the Uniform Commercial Code (including the Articles thereof) as in effect at such time in such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection or priority and for purposes of definitions related to such provisions.

In addition, the following terms shall be defined terms having the meaning set forth for such terms in the UCC: “Account” (including health-care-insurance receivables), “Account Grantor”, “Chattel Paper” (including tangible and electronic chattel paper), “Commercial Tort Claims”, “Commodity Account”, “Deposit Account”, “Documents”, “Equipment” (including all accessions and additions thereto), “Fixtures”, “General Intangibles” (including payment intangibles and software), “Instrument”, “Inventory” (including all goods held for sale or lease or to be furnished under a contract of service, and including returns and repossessions), “Investment Property” (including securities and securities entitlements), “Letter-of-Credit Right” (whether or not the letter of credit is evidenced by a writing), “Payment Intangibles”, “Proceeds”, “Promissory Notes”, “Securities Account”, and “Supporting Obligations”. Each of the foregoing defined terms shall include all of such items now owned, or hereafter acquired, by Grantor.

2.     Grant of Security Interest . As collateral security for the full, prompt, complete and final payment and performance when due (whether at stated maturity, by conversion, acceleration or otherwise) of all the Secured Obligations and to induce the Secured Parties to cause the Additional Loans to be made, Grantor hereby assigns, conveys, mortgages, pledges, hypothecates and transfers to Lenders’ Agent for the benefit of the Secured Parties, and hereby grants to the Lenders’ Agent for the benefit of Secured Parties, a security interest in all of Grantor’s right, title and interest in, to and under the following, whether now owned or hereafter acquired, (all of which being collectively referred to herein as the “ Collateral ”), subject to the first-position rights of Bank under the Senior Credit Facility and the Subordination Agreement:

(a)      All Accounts of Grantor;

(b)      All Chattel Paper of Grantor;

(c)      All Commercial Tort Claims of Grantor;

(d)      All Contracts of Grantor;

(e)      All Deposit Accounts of Grantor;

(f)      All Documents of Grantor;

(g)      All Equipment of Grantor;

(h)      All Fixtures of Grantor;

(i)       All General Intangibles of Grantor , including, without limitation, Payment Intangibles, all Intellectual Property, Copyrights, Patents, Trademarks, Licenses, designs, drawings, technical information, marketing plans, customer lists, trade secrets, proprietary or confidential information, inventions (whether or not patentable), procedures, know-how, models and data;

(j)       All Instruments of Grantor, including, without limitation, Promissory Notes;

(k)      All Inventory of Grantor;

(l)       All Investment Property of Grantor;

(m)      All Letter-of Credit Rights of Grantor;

(n)      All Supporting Obligations of Grantor;

(o)      All property of Grantor held by any Secured Party, or any other party for whom any Secured Party is acting as agent hereunder, including, without limitation, all property of every description now or hereafter in the possession or custody of or in transit to any Secured Party or such other party for any purpose, including, without limitation, safekeeping, collection or pledge, for the account of Grantor, or as to which Grantor may have any right or power;

(p)      All other goods and personal property of Grantor, wherever located, whether tangible or intangible, and whether now owned or hereafter acquired, existing, leased or consigned by or to Grantor;

(q)      All of the Grantor’s books and records including ledgers, federal and state tax returns, records regarding the Grantor’s assets or liabilities, the Collateral, business operations or financial condition, and all computer programs or storage or any equipment containing such information relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing; and

(r)      To the extent not otherwise included, all Proceeds of each of the foregoing and all accessions to, substitutions and replacements for and rents, profits and products of each of the foregoing.

3.     Pledge of Subsidiaries . In addition, and without limiting any other rights of the Secured Parties pursuant to this Security Agreement, to secure the prompt payment and satisfaction of the Notes, all obligations and liabilities of Grantor under the Purchase Agreements and all interest, reasonable costs and expenses, and reasonable attorneys’ fees which may be made or incurred by the Lender in the disbursement, administration, and collection of such amounts, following the written demand of the Lender, Grantor shall pledge, assign and grant a security interest to the Lender in all of Grantor’s right, title and interest to the equity securities of each of the subsidiaries of Grantor (and any subsidiary of Grantor acquired after the date hereof), which are set forth on Schedule A , as the same shall be amended from time to time (each a “ Subsidiary ” and, collectively, the “ Subsidiaries ”), including all attendant rights in equity, economic, voting or otherwise, together with all distributions of capital, income, cash-flow, profits and all other fees and payments of any nature whatsoever arising from said interest(s) and any interest on any of the foregoing and all fees, accounts, contract rights, claims, advances and loans payable to Grantor by any Subsidiary, and all collateral therefor, and all proceeds of the foregoing, which, collectively, shall be incorporated into the Collateral; provided, however , that Grantor may not pledge, assign or grant such right, title and interest to the equity securities of the Subsidiaries to the Lenders until after all Senior Debt has been paid in full in cash and Bank’s obligation to lend under the Senior Credit Facility has terminated. Following a written demand of the Lenders’ Agent under this Section 3, Grantor shall execute and deliver to the Lenders such instruments and documents, including certificates representing the pledged securities of the Subsidiaries, as the Lenders’ Agent may deem reasonably necessary or advisable to perfect the rights of the Lenders under this Section 3.

4.     Representations And Warranties . Grantor hereby represents and warrants to the Secured Parties that:

(a)      Except for the security interest granted to the Secured Parties under this Security Agreement and Permitted Liens, Grantor is the sole legal and equitable owner of, and holds marketable title to, each item of the Collateral in which it purports to grant a security interest hereunder.

(b)      No effective security agreement, financing statement, equivalent security or lien instrument or continuation statement covering all or any part of the Collateral exists, except such as may have been filed by Grantor in favor of the Secured Parties pursuant to this Security Agreement and except for Permitted Liens.

(c)      This Security Agreement creates a legal and valid security interest on and in all of the Collateral in which Grantor now has rights; this Security Agreement and the other Loan Documents are the legal, valid and binding obligations of Grantor and are enforceable in accordance with their terms.

(d)      This Security Agreement is effective to create in favor of the Secured Parties a legal, valid and enforceable security interest in all right, title and interest of the Grantor in the Collateral, and the Lender’s Agent, for the benefit of the Secured Parties, has (or within ten (10) days following the Closing Date will have) a fully perfected security interest in all right, title and interest in all of the Collateral, subject to no other Liens (other than Permitted Liens).

(e)      All filings, registrations, recordings and other actions necessary or appropriate to create, preserve and perfect the security interest granted by Grantor to the Secured Parties hereby in respect of the Collateral have been accomplished, and the security interest granted to the Secured Parties pursuant to this Security Agreement in and to the Collateral creates a valid and, together with all such filings, registrations, recordings and other actions, a perfected security interest therein prior to the rights of all other Persons therein and subject to no other Liens (other than Permitted Liens), and the Secured Parties and Lender’s Agent are entitled to all the rights, priorities and benefits afforded by the UCC or other relevant law as enacted in any relevant jurisdiction to perfected security interests, in each case to the extent that the Collateral consists of the type of property in which a security interest may be perfected by possession or control (within the meaning of the UCC), by filing a financing statement under the UCC as enacted in any relevant jurisdiction.

(f)      Grantor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and is located in Delaware for purposes of the UCC; Grantor is duly qualified to do business and in good standing in each state in which it conducts its business.

(g)      Grantor’s chief executive office, principal place of business, and the place where Grantor maintains its records concerning the Collateral are presently located at the addresses set forth on the signature page hereof.

(h)      The name and address of each depository institution at which Grantor maintains any Deposit Account and the account number and account name of each such Deposit Account is listed on Schedule B attached hereto.

(i)      The information set forth on Schedules A and B is true and accurate.

(j)      None of the execution and delivery of this Security Agreement or the other Loan Documents, the consummation of the transactions contemplated hereby and thereby or the performance of the obligations of Grantor hereunder or thereunder will result in, no constitute a breach of, applicable law, the organizational documents of Grantor or any Subsidiary, the provisions of any judgment or order of any governmental body or authority or any agreement to which Grantor or any Subsidiary is a party.

(k)      All action on the part of Grantor and its directors and officers necessary for the authorization, execution, delivery and performance of this Security Agreement (and all other Loan Documents) has been taken; Grantor has full right, power and authority to enter into and perform its obligations under each of the Loan Documents.

(l)       The representations and warranties of Grantor contained in this Security Agreement will survive the execution and delivery of this Security Agreement and the other Loan Documents and the making of the Loans until the Secured Obligations are indefeasibly repaid in full and all other obligations of the Grantor hereunder and under the other Loan Documents have terminated.

5.     Covenants . Grantor covenants and agrees with the Secured Parties that from and after the date of this Security Agreement and until the Secured Obligations have been performed and paid in full:

5.1     Limitation on Liens on Collateral . Grantor shall not, directly or indirectly, create, permit or suffer to exist, and shall defend the Collateral against and take such other action as is necessary to remove, any Lien on the Collateral, except (a) Permitted Liens and (b) the Lien granted to the Secured Parties under this Security Agreement. Further, Grantor shall not sell, assign, pledge, dispose of or transfer in any manner any interest in the Collateral to any party other than the Secured Parties and Bank and other than (i) in the ordinary course of business, (ii) non-exclusive licenses and similar arrangements for the use of the property of such Grantor in the ordinary course of business, other licenses that would not result in a legal transfer of title of the licensed property but that may be exclusive, or licenses or transfers under such Grantor’s source code escrow arrangements, (iii) sales or disposal of surplus, worn-out or obsolete equipment and (iv) transfers of other assets of any Grantor that do not in the aggregate exceed Two Hundred and Fifty Thousand Dollars ($250,000) in the aggregate for all Grantors during any fiscal year of Grantors.

5.2     Taxes and Assessments . Grantor shall pay when due all taxes, assessments and other charges lawfully levied or assessed upon the Collateral, and if such taxes or other assessments remain unpaid after the date fixed for the payment of the same, except to the extent and so long as (i) the same are being contested in good faith and by appropriate proceedings in a manner that will not cause any material adverse effect upon the Collateral, or the loss of any right of redemption from any sale thereunder and (ii) Grantor shall have set aside on its books adequate reserves with respect thereto; provided , however , if any lien, other than a Permitted Lien, shall be claimed which might possibly create a valid obligation having priority over the rights granted to the Secured Parties herein, the Secured Parties shall have the right, but not the obligation, with one day’s prior written notice to Grantor, pay such taxes, assessments, charges or claims, and the amount thereof shall be added to the obligations under the Note

5.3     Further Assurances . At any time and from time to time, upon the written request of the Lenders’ Agent, and at the sole expense of Grantor, Grantor shall promptly and duly execute and deliver any and all such further instruments and documents and take such further action as the Lenders’ Agent may reasonably deem necessary or desirable for the Lenders collectively to obtain the full benefits of this Security Agreement, including, without limitation, executing, delivering and causing to be filed any financing or continuation statements (including “in lieu” continuation statements) under the UCC with respect to the security interests granted hereby and obtaining deposit account control agreements in form satisfactory to the Lenders’ Agent with respect to the Deposit Accounts listed on Schedule B . Grantor also hereby authorizes Lenders’ Agent to file any such financing or continuation statement (including “in lieu” continuation statements) without the signature of Grantor. Grantor approves, authorizes and ratifies any filings or recordings made by or on behalf of the Lenders in connection with the perfection of the security interest in favor of the Secured Parties, whether the same is by Lenders’ Agent or by any individual Lender. Grantor shall pay all filing, registration and recording fees or re-filing, re-registration and re-recording fees, and all reasonable expenses incident to the execution of and acknowledgement of this Security Agreement and all federal, state, county and municipal stamp taxes and other taxes, duties, imports, assessments and charges arising out of or in connection with the execution and delivery of this Security Agreement and any agreement supplemental hereto and any instruments of further assurance. Grantor shall, promptly upon request, provide to the Lenders’ Agent all information and evidence he may reasonably request concerning the Collateral to enable the Lenders to administer or enforce the provisions of this Security Agreement.

5.4     Power of Attorney . Grantor hereby irrevocably appoints the Lender’s Agent as its attorney-in-fact, with full power and authority in its place and stead and in its name or in the Secured Parties’ name to do any or all of the following after the occurrence and during the continuance of a Grantor default under any Loan Document: (a) endorse its name on any checks, notes, acceptances, money orders, drafts or other forms of payment or security that may come into the Secured Parties’ possession; (b) receive, endorse and collect all checks and other orders for the payment of money made payable to Grantor representing any dividend or distribution payable in respect of the Collateral; (c) collect any Collateral; and (d) take all actions and do all things necessary to carry out the terms of this Security Agreement, and all related documents. The powers conferred on the Lender’s Agent hereunder are solely to protect the Secured Parties’ interests in the Collateral and shall not impose any duty upon it to exercise such powers. Neither the Secured Parties nor Lender’s Agent will be liable for any acts or omissions or for any error of judgment or mistake of fact or law relating to the foregoing actions. This power of attorney is coupled with any interest and is irrevocable by Grantor. Notwithstanding the foregoing, this power of attorney may not be exercised until all Senior Debt (as defined in the Subordination Agreement) has been paid in full in cash, and Bank has released its lien on the Collateral.

5.5     Consents . Grantor will promptly upon the written request by Lender’s Agent, and in any event within thirty (30) days after such written request, use its commercially reasonable efforts to obtain a waiver or consent, in a form reasonably satisfactory to Lender’s Agent, from (i) each landlord from whom Grantor now or hereafter may lease real property where any existing or future Collateral is located and (ii) any bailee in possession of Collateral, in each case if such Collateral has an aggregate fair market value of not less than Twenty-Five Thousand Dollars ($25,000.00), indicating that such bailee or landlord holds such Collateral for the benefit of the Secured Parties and shall act upon the instructions of the Lender’s Agent, without the further consent of such Grantor.

5.6     Insurance . Grantor will at all times maintain insurance, at Grantor’s own expense, to the extent required in the Purchase Agreements, if specified, and, in any case, consistent with its prior practices and industry standards. Except to the extent otherwise permitted to be retained by Grantor or applied by Grantor pursuant to the terms of the Loan Documents, Lender’s Agent shall, at the time any proceeds of such insurance are distributed to the Secured Parties, apply such proceeds in accordance with Section 7 hereof. Grantor assumes all liability and responsibility in connection with the Collateral acquired by it and the liability of Grantor to pay the Secured Obligations shall in no way be affected or diminished by reason of the fact that such Collateral may be lost, destroyed, stolen, damaged or for any reason whatsoever unavailable to Grantor.

5.7     Existence . Grantor will maintain its existence and good standing in the State of Delaware and its qualification and good standing as a foreign corporation in each jurisdiction in which such qualification is required by applicable law. Grantor will not change its legal name or the location of its principal business office without the prior written consent of Lender’s Agent.

6.     Events of Default. The following shall constitute Events of Default under this Security Agreement:

(a)      The failure of any representation or warranty made by Grantor to be true and correct; and

(b)      The occurrence of any Event of Default under the Purchase Agreements or the Note evidencing any Lender’s Loan.

7.     Rights and Remedies upon Default. Beginning on the date on which any Event of Default shall have occurred and while such Event of Default is continuing, and subject to the rights of Bank under the Senior Credit Facility and the Subordination Agreement:

(a)      At the sole and absolute discretion of the Lenders’ Agent and for the benefit of the Secured Parties, the Lenders’ Agent may exercise in addition to all other rights and remedies granted to it under this Security Agreement all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, Grantor expressly agrees that in any such event the Lenders’ Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Grantor or any other person, may (i) reclaim, take possession, recover, store, maintain, finish, repair, prepare for sale or lease, shop, advertise for sale or lease and sell or lease (in the manner provided herein) the Collateral, and in connection with the liquidation of the Collateral and collection of the accounts receivable pledged as Collateral, use any Trademark, Copyright, or process used or owned by Grantor and (ii) forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any exchange or broker’s board or at any Secured Party’s offices or elsewhere at such prices as it may deem commercially reasonable, for cash or on credit or for future delivery without assumption of any credit risk. Grantor further agrees, at the Lenders’ Agent’s request, to assemble its Collateral and make it available to the Lenders’ Agent for the benefit of the Secured Parties at places which the Lenders’ Agent shall reasonably select, whether at Grantor’s premises or elsewhere. The Secured Parties shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 6(d), below, with Grantor remaining liable for any deficiency remaining unpaid after such application. Grantor agrees that the Secured Parties need not give more than ten (10) days’ notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters.

(b)      Grantor also agrees to pay all fees, costs and expenses of the Secured Parties, including, without limitation, reasonable attorneys’ fees, incurred in connection with the enforcement of any of its rights and remedies hereunder.

(c)      Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law or under the Senior Credit Facility) of any kind in connection with this Security Agreement or any Collateral.

(d)      The Proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be received by the Lenders’ Agent and distributed by Lenders’ Agent to the Secured Parties to be applied to the Secured Obligations in the following order of priorities:

First , to the reasonable costs, fees and expenses incurred by Lenders’ Agent but not yet paid in connection with the sale, disposition or other realization on the Collateral, including all fees, costs, expenses, liabilities in connection therewith, including reasonable attorneys’ fees;

Second the extent that any Secured Party has advanced to the Lenders’ Agent any amount in connection with the sale, disposition or other realization on the Collateral, then to each Secured Party in an amount sufficient to pay in full the reasonable costs of such Secured Party actually advanced by such Secured Party in connection with such sale, disposition or other realization, including all fees, costs, expenses, liabilities and advances incurred or made by any Secured Party in connection therewith, including, without limitation, reasonable attorneys’ fees;

Third , to the Secured Parties in amounts proportional to the Pro Rata share of the then unpaid Secured Obligations of each Secured Party;

Fourth , upon payment in full of the Secured Obligations, to the holder of any subordinate security interest, judgment lien or other similar encumbrance affecting the Collateral, in accordance with the UCC, otherwise applicable law or as a court of competent jurisdiction may direct; and

Finally , thereafter to Grantor or its representatives, in accordance with the UCC or as a court of competent jurisdiction may direct.

(e)     The costs of enforcing or pursuing any right or remedy hereunder, including without limitation any repossession, sale, possession and management (including, without limitation, reasonable attorneys’ fees), and distribution shall be borne Pro Rata by the Secured Parties to the extent that such costs, fees and expenses are not paid by Grantor and without prejudice to the right of Lenders’ Agent to recover the same from Grantor as provided in this Security Agreement, the Purchase Agreements and the Notes. Each Secured Party shall pay to the Lenders’ Agent promptly upon demand therefor, its Pro Rata share of all such costs.

8.     Miscellaneous.

8.1     Waivers; Amendments . None of the terms or provisions of this Security Agreement may be waived, altered, modified or amended except by an instrument in writing, duly executed by Grantor and the Lenders’ Agent; provided , however that Schedule A shall be deemed automatically amended to add the name of any Subsidiary acquired by Grantor after the date hereof without any executed writing required.

8.2     Termination of this Security Agreement . This Security Agreement shall automatically terminate upon the earlier of the conversion or payment and performance in full of the Secured Obligations.

8.3     Successor and Assigns . This Security Agreement and all obligations of Grantor hereunder shall be binding upon the successors and assigns of Grantor, and shall, together with the rights and remedies of the Secured Parties hereunder, inure to the benefit of the Secured Parties and their respective successors and assigns. Grantor shall not be permitted to sell, assign, transfer or otherwise convey its rights or obligations hereunder.

8.4     Counterparts; Facsimile . This Security Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. This Security Agreement and each other agreement or instrument entered into in connection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto, to the extent signed and delivered by means of electronic mail or a facsimile machine, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No party hereto or to any such agreement or instrument shall raise the use of electronic mail or a facsimile machine to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of electronic mail or a facsimile machine as a defense to the formation or enforceability of a contract and each such party forever waives any such defense.

8.5     Governing Law . In all respects, including all matters of construction, validity and performance, this Security Agreement and the Secured Obligations arising hereunder shall be governed by, and construed and enforced in accordance with, the laws of the State of New York applicable to contracts made and performed in such state, without regard to the conflict of laws provisions of the State of New York or of any other state.

8.6     Entire Agreement . This Security Agreement (including its exhibits and together with the other Loan Documents) constitutes the full and entire understanding and agreement among the parties with regard to the subjects hereof (and thereof) and supersedes any prior written or oral agreement, including, without limitation, the Prior Agreement.

8.7     Severability . Should any provision of this Security Agreement be held by any court of competent jurisdiction to be void or unenforceable, such defect shall not affect the remainder of this Security Agreement, which shall continue in full force and effect.’

8.8     Subordination Agreement . This Security Agreement and the Loan Documents (other than the Subordination Agreement) are subject to the Subordination Agreement. In the event of any conflict between the terms and condition of this Security Agreement or any Loan Document (other than the Subordination Agreement), on the one hand, and the Subordination Agreement, on the other hand, the terms and conditions of the Subordination Agreement shall govern and control.

[ Signature pages follow ]

In Witness Whereof , each of the parties hereto has caused this Security Agreement to be executed and delivered by its duly authorized officer on the date first set forth above.

Schedule A

Subsidiaries

Schedule B

List of Deposit Accounts

Exhibit 10.5

SECOND AMENDED AND RESTATED SUBORDINATION AGREEMENT

This SECOND AMENDED AND RESTATED SUBORDINATION AGREEMENT, dated as of December 27, 2016 (this “Agreement”), is between each of the undersigned creditors (each, a “Creditor” and, collectively, “Creditors”), and WESTERN ALLIANCE BANK, an Arizona corporation, as successor in interest to Bridge Bank, National Association (“Lender”), with reference to the following facts:

R E C I T A L S

A.     DETERMINE, INC., a Delaware corporation formerly known as Selectica, Inc. (“Borrower”) has requested and/or obtained certain credit accommodations from Lender (as defined in the Business Financing Agreement) which are or may be from time to time secured by assets and property of Borrower. As used herein, “Business Financing Agreement” means that certain Amended and Restated Business Financing Agreement, dated as of July 25, 2014, among Borrower, Selectica Sourcing Inc., a Delaware corporation, and Lender, as amended to date and as may be further amended or restated from time to time. All initially capitalized terms used but not defined herein have the meanings given to such terms in the Business Financing Agreement.

B.     Each Creditor has extended loans or other credit accommodations to Borrower, and/or may extend loans or other credit accommodations to Borrower from time to time, or Borrower may otherwise be indebted or liable to a Creditor.

C.     The Creditors are party to that certain Amended and Restated Subordination Agreement, dated as of December 16, 2015 (the “Prior Agreement”), with Lender, and in connection with additional financial accommodations made by the Creditors to Borrower, the parties hereto desire to amend and restate the Prior Agreement as set forth herein.

D.     Creditors and Borrower are entering into that certain Junior Secured Convertible Note Purchase Agreement, dated as of essentially even date herewith, pursuant to which Borrower will issue to (i) Alimco Financial Corporation (formerly known as Alliance Semiconductor Corporation) that certain Junior Secured Convertible Promissory Note in the principal amount of $1,000,000, and (ii) MILFAM II L.P. that certain Junior Secured Convertible Promissory Note in the principal amount of $1,000,000 (collectively, the “Additional Subordinated Debt”).

E.     In order to induce Lender to consent to the issuance of the Additional Subordinated Debt, Creditors have agreed to enter into this Second Amended and Restated Subordination Agreement.

F.     In order to induce Lender to continue to extend credit to Borrower and, at any time or from time to time, at Lender’s option, to make such further loans, extensions of credit, or other accommodations to or for the account of Borrower, or to extend credit upon any instrument or writing in respect of which Borrower may be liable in any capacity, or to grant such renewals or extension of any such loan, extension of credit, or other accommodation as Lender may deem advisable, each Creditor is willing to subordinate: (i) all of each Borrower’s indebtedness and obligations to such Creditor, whether presently existing or arising in the future (the “Subordinated Debt”) to all of Borrower’s indebtedness and obligations to Lender now existing or hereafter arising under or in connection with the Business Financing Agreement, the other Loan Documents, including, without limitation, all Advances, Finance Charges, fees, interest, expenses, bank product obligations, Letter of Credit obligations, and swap obligations, together with all costs of collecting such obligations, including reasonable attorneys’ fees (the “Senior Debt”), including, without limitation, all interest, fees and other charges accruing on the Senior Debt after the commencement by or against Borrower of any Insolvency Proceeding, regardless of whether allowed in such Insolvency Proceeding; and (ii) all of each Creditor’s Liens pursuant to the Subordinated Debt, if any, in the Collateral (as defined below) to all of Lender’s Liens in the Collateral pursuant to the Senior Debt. For purposes of this Agreement, “Collateral” shall mean all the assets of Borrower, including the accounts, including health care receivables, chattel paper, general intangibles, inventory, equipment, instruments, including promissory notes, deposit accounts, investment property, documents, letter of credit rights, and any commercial tort claim of Borrower.

NOW, THEREFORE, THE PARTIES HEREBY AMEND AND RESTATE THE PRIOR AGREEMENT AND AGREE AS FOLLOWS:

1.     Each Creditor subordinates any Lien that such Creditor may have in the Collateral to Lender’s Lien in the Collateral. Notwithstanding the respective dates of attachment or perfection of the Lien of each Creditor and the Lien of Lender, the Lien of Lender in the Collateral shall at all times be prior to any Lien of Creditor in the Collateral.

2.     All Subordinated Debt is subordinated in right of payment to all Senior Debt of Borrower to Lender.

3.     No Creditor will demand or receive from Borrower (and Borrower will not pay to any Creditor) all or any part of the Subordinated Debt, by way of payment, prepayment, setoff, lawsuit or otherwise, nor will any Creditor exercise any remedy with respect to the Collateral, nor will any Creditor accelerate the Subordinated Debt, or commence, or cause to commence, prosecute or participate in any administrative, legal or equitable action against Borrower, until such time as all the Senior Debt is fully paid in cash. Nothing in the foregoing paragraph shall prohibit any Creditor from converting all or any part of the Subordinated Debt into equity securities of Borrower or from refinancing the Subordinated Debt solely with the proceeds of additional Subordinated Debt. Notwithstanding the foregoing, Borrower may make, and each Creditor may receive, cash payments (but no prepayments) of interest or principal when due on any outstanding Subordinated Debt if, and only if, Borrower has first demonstrated in writing to Lender’s reasonable satisfaction, that both immediately before and immediately after giving effect to such proposed payment on a pro forma basis, no Default or Event of Default has occurred and is continuing, or will result therefrom.

4.     Each Creditor shall promptly deliver to Lender in the form received (except for endorsement or assignment by such Creditor where required by Lender) for application to the Senior Debt any payment, distribution, security or proceeds received by such Creditor with respect to the Subordinated Debt other than in accordance with this Agreement.

5.     In the event of Borrower’s insolvency, reorganization or any case or proceeding under any bankruptcy or insolvency law or laws relating to the relief of debtors, these provisions shall remain in full force and effect, and Lender’s claims against Borrower and the estate of Borrower shall be paid in full before any payment is made to Creditor.

6.     Until the Senior Debt is fully paid in cash, each Creditor irrevocably appoints Lender as such Creditor’s attorney-in-fact, and grants to Lender a power of attorney with full power of substitution, in the name of such Creditor or in the name of Lender, for the use and benefit of Lender, with notice to such Creditor, to perform at Lender’s option the following acts in any bankruptcy, insolvency or similar proceeding involving Borrower: (i) to file the appropriate claim or claims in respect of the Subordinated Debt on behalf of such Creditor if such Creditor does not do so prior to 30 days before the expiration of the time to file claims in such proceeding and if Lender elects, in its sole discretion, to file such claim or claims; and (ii) to accept or reject any plan of reorganization or arrangement on behalf of such Creditor and to otherwise vote such Creditor’s claims in respect of any Subordinated Debt in any manner that Lender deems appropriate for the enforcement of its rights hereunder; provided that Lender shall not be entitled to release, forgive or reduce any amount owing on the Subordinated Debt and that each Creditor may receive and retain Reorganization Subordinated Securities. As used herein, “Reorganization Subordinated Securities” means (a) any equity securities issued in substitution of all or any portion of the Subordinated Debt that are subordinated in right of payment to the Senior Debt (or any notes or other securities issued in substitution of all or any portion of the Senior Debt), and (b) any notes or other debt securities issued in substitution of all or any portion of the Subordinated Debt that are subordinated to the Senior Debt (or any notes or other securities issued in substitution of all or any portion of the Senior Debt) to the same extent that the Subordinated Debt is subordinated to the Senior Debt pursuant to the terms of this Agreement, which equity or debt securities have been provided for by a plan of reorganization that has been approved by final order of a court. All Reorganization Subordinated Securities shall be on terms reasonably satisfactory to Lender, and shall constitute Subordinated Debt that is subject to the terms of this Agreement.

7.     Creditors shall have the option to purchase all Senior Debt in accordance with the terms and conditions set forth in this Section 7.

(a)     Upon the occurrence and during the continuation of a Triggering Event (as herein after defined), Creditors shall have the right, but not the obligation, upon 5 Business Days' advance written notice (a "Purchase Notice") to Lender, to acquire from Lender all (but not less than all) of the right, title, and interest of Lender in and to the Senior Debt and the Loan Documents; provided that Lender remains obligated to sell the Senior Debt to Creditors pursuant to the terms and conditions of this Section 7. As used herein, “Triggering Event” means (i) an Event of Default under Section 7.1(d) or 7.1(e) of the Business Financing Agreement, (ii) the acceleration of the Senior Debt, or (iii) the exercise due to any Event of Default of any remedies by Lender under Section 7.2 of the Financing Agreement or under any other Loan Document, including any action to foreclose on any of the Collateral (“Enforcement Action”). Lender shall give Creditors prompt notice of the occurrence of any Triggering Event described in clause (ii) or (iii) of the definition thereof set forth in the prior sentence and the amount of the Senior Debt as of the date of such Triggering Event (the "Trigger Notice").

(b)     Any Creditor(s) desiring to purchase all of the Senior Debt shall deliver a Purchase Notice that:

(i)     is signed by such Creditor(s),

(ii)    states that it is a Purchase Notice under this Section 7,

(iii)   states that such Creditor(s), acting together, are irrevocably electing to purchase all of the Senior Debt in accordance with this Section 7,

(iv)   designates a date (“Purchase Date”) on which the purchase will occur, that is (x) at least five but not more than fifteen Business Days after Lender's receipt of the Purchase Notice, and (y) not more than 90 days after the Triggering Event.

A Purchase Notice will be ineffective if it is received by Lender after the occurrence giving rise to the Triggering Event is waived, cured, or otherwise ceases to exist; provided that if a Triggering Event is waived, cured, or otherwise ceases to exist and thereafter a subsequent Triggering Event shall occur, then the procedures set forth in this Section 7 shall apply de novo.

(c)     After its receipt of a Purchase Notice, Lender shall forbear from exercising any Enforcement Action (except to the extent reasonably necessary to protect Lender against any loss or damage that may be occasioned by Exigent Circumstances) during the period from the date of Lender’s receipt of such Purchase Notice until the first to occur of (i) payment of the purchase price for the Senior Debt pursuant to Section 7(e)(i) below and (ii) the Purchase Date. As used herein, the term "Exigent Circumstances" shall mean the occurrence or existence of any one or more of the following events or conditions:

(i)     an Insolvency Proceeding is commenced by or against Borrower (other than by Lender),

(ii)    a fraud, concealment of assets, or material misrepresentation has been made or committed by Borrower,

(iii)   Borrower withholds from Lender any collections of Receivables or other proceeds of Collateral in violation of any Loan Document,

(iv)   a Person (other than Lender) holding a Lien upon any of the Collateral shall commence any action, suit, proceeding or self-help remedy to enforce such Lien, or

(v)    any other event or circumstance occurs or exists that, in the reasonable judgment of Lender, materially and imminently threatens Lender's ability promptly to realize upon all or any material part of the Collateral, such as, without limitation, fraudulent removal, concealment or abscondment thereof, destruction (to the extent not covered by insurance) or material waste of any of the Collateral.

(d)     Lender shall advise the purchasing Creditor(s) of the full amount of all the Senior Debt (other than indemnification obligations for which no claim or demand for payment has been made at such time, and other than Senior Debt cash collateralized in accordance with Section 7(e)(ii) below) then outstanding and unpaid on the Business Day immediately preceding the Purchase Date, including interest calculated in accordance with Section 7(f) below (the "Purchase Price").

(e)     On the Purchase Date, Lender shall (subject to the terms and conditions set forth in this Section 7) sell the Senior Debt and the Loan Documents to the purchasing Creditor(s), and such Creditor(s) shall:

(i)     pay to Lender for the ratable account of Lender, as the purchase price therefor, the Purchase Price in immediately available funds,

(ii)    furnish cash collateral to Lender for the ratable benefit of Issuer and Lender in such amounts as Lender determines is reasonably necessary to secure Lender, Issuer and Lender in respect of (A) any issued and outstanding Letters of Credit (but not in any event in an amount not greater than 105% of the aggregate undrawn amount of such Letters of Credit) (such cash collateral shall be applied to the reimbursement of any drawing under a Letter of Credit as and when such drawing is paid and, if a Letter of Credit expires undrawn, the cash collateral held by Lender in respect of such Letter of Credit shall be remitted to the purchasing Creditor(s)), (B) Bank Product Obligations (including contingent obligations) existing on the date of purchase and included in Senior Debt (such cash collateral shall be applied to the reimbursement of the Bank Product Obligations as and when such obligations become due and payable and, at such time as all of the Bank Product Obligations are paid in full, the remaining cash collateral held by Lender in respect of Bank Product Obligations shall be remitted to such Creditor(s)), and (C) the Retained Interest (as defined below) to the extent that Lender has knowledge that any third party claims, demands, actions, suits, proceedings, investigations, liabilities, fines, costs, penalties, or damages that are the subject of the indemnification provisions of the Business Financing Agreement have then been asserted or threatened, and

(iii)   to the extent incurred up to the Purchase Date, reimburse Lender for all expenses to the extent earned or due and payable in accordance with the Loan Documents (including the reimbursement of reasonable attorneys' fees, financial examination expenses, and appraisal fees) up to the Purchase Date, provided that it is agreed that (A) Lender shall reimburse such Creditor(s) to the extent any such expenses are ultimately paid to Lender by Borrower and (B) Borrower shall be liable to such Creditor(s) for such expenses paid by such Creditor(s) to Lender.

(f)     The Purchase Price and cash collateral shall be remitted by wire transfer of federal funds to such bank account of Lender as Lender may designate in writing to the purchasing Creditor(s) for such purpose. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the purchasing Creditor(s) to the bank account designated by Lender are received in such bank account prior to 2:00 p.m., Pacific time, and interest shall be calculated to and including such Business Day if the amounts so paid by such Creditor(s) to the bank account designated by Lender are received in such bank account later than 2:00 p.m., Pacific time.

(g)     Such purchase shall be effected by the execution and delivery of a customary form of assignment and acceptance agreement reasonably acceptable to the purchasing Creditor(s) and Lender and shall be expressly made without representation or warranty of any kind by Lender as to the Senior Debt so purchased, or otherwise, and without recourse to Lender, except that Lender shall represent and warrant: (i) that the amount quoted by Lender as the Purchase Price represents the amount shown as owing with respect to the Senior Debt as reflected on its books and records, (ii) it owns, or has the right to transfer to the purchasing Creditor(s), the rights being transferred, and (iii) such transfer will be free and clear of Liens.

(h)     [Reserved].

(i)     In the event that the purchasing Creditor(s) exercise and consummate the purchase option set forth in this Section 7, this Agreement shall terminate (except for this Section 7(i)), but Lender shall retain its indemnification rights under the Loan Documents for actions or other matters arising on or prior to the date of such purchase, including any asserted or threatened third party claims, demands, actions, suits, proceedings, investigations, liabilities, fines, costs, penalties, or damages that are the subject of the indemnification provisions of the Business Financing Agreement (the "Retained Interest").

8.     Except as otherwise provided in Section 9(b) below, each Creditor shall immediately affix a legend to the instruments evidencing the Subordinated Debt stating that the instruments are subject to the terms of this Agreement. No amendment of the documents evidencing or relating to the Subordinated Debt shall directly or indirectly modify the provisions of this Agreement in any manner which might terminate or impair the subordination of the Subordinated Debt or the subordination of the Lien that such Creditor may have in the Collateral as described in Section 1. By way of example, such instruments shall not be amended to (i) increase the rate of interest with respect to the Subordinated Debt, or (ii) accelerate the payment of the principal or interest or any other portion of the Subordinated Debt, other than in an event of default thereunder.

9.     Borrower shall deliver to Lender true and correct copies of all instruments evidencing such Subordinated Debt bearing the conspicuous legend required by Section 8 above.

10.     This Agreement shall remain effective for so long as Borrower owes any amounts to Lender. If, at any time after payment in full of the Senior Debt, any payments of the Senior Debt must be disgorged by Lender for any reason (including, without limitation, the bankruptcy of Borrower), this Agreement and the relative rights and priorities set forth herein shall be reinstated as to all such disgorged payments as though such payments had not been made and each Creditor shall immediately pay over to Lender for the account of itself all payments received with respect to the Subordinated Debt to the extent that such payments would have been prohibited hereunder. At any time and from time to time, without notice to Creditors, Lender may take such actions with respect to the Senior Debt as Lender, in its sole discretion, may deem appropriate, including, without limitation, terminating advances to Borrower, extending the time of payment, increasing applicable interest rates, renewing, compromising or otherwise amending the terms of any documents affecting the Senior Debt and any collateral securing the Senior Debt, and enforcing or failing to enforce any rights against Borrower or any other person; provided that Lender shall not increase the principal amount of the Senior Debt beyond $13,500,000, and any increase in principal beyond such amount shall not be subject to this Agreement. Subject to the foregoing proviso, no such action or inaction shall impair or otherwise affect Lender’s rights hereunder. Each Creditor waives the benefits, if any, of California Civil Code Sections 2809, 2810, 2819, 2845, 2847, 2848, 2849, 2850, 2899 and 3433.

11.     This Agreement shall bind any successors or assignees of each Creditor and shall benefit any successors or permitted assigns of Lender. This Agreement is solely for the benefit of Creditors, Lender, and not for the benefit of Borrower or any other party. Each Creditor further agrees that if Borrower is in the process of refinancing a portion of the Senior Debt with a new lender, and if the new lender makes a request of such Creditor, such Creditor shall enter into a new subordination agreement with the new lender on substantially the terms and conditions of this Agreement.

12.     All notices shall be given to Lender and Creditors at the addresses or faxes set forth in this Section 12 and shall be deemed to have been delivered and received: (a) one (1) calendar day after deposit with an overnight mail or messenger service; or (b) on the same date of confirmed transmission if sent by hand delivery, telecopy, telefax or telex.

13.     This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

14.     This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to conflicts of law principles. Each Creditor and Lender submit to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California. EACH CREDITOR AND LENDER WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN.

15.     REFERENCE PROVISION.

(a)     In the event the Jury Trial waiver is not enforceable, the parties elect to proceed under this Judicial Reference Provision.

(b)     With the exception of the items specified in the subsection (c) below, any controversy, dispute or claim (each, a “Claim”) between the parties arising out of or relating to this Agreement or any other document, instrument or agreement between the undersigned parties (collectively in this Section, the “Loan Documents”), will be resolved by a reference proceeding in California in accordance with the provisions of Sections 638 et seq. of the California Code of Civil Procedure (“CCP”), or their successor sections, which shall constitute the exclusive remedy for the resolution of any Claim, including whether the Claim is subject to the reference proceeding. Except as otherwise provided in the Loan Documents, venue for the reference proceeding will be in the state or federal court in the county or district where the real property involved in the action, if any, is located or in the state or federal court in the county or district where venue is otherwise appropriate under applicable law (the “Court”).

(c)     The matters that shall not be subject to a reference are the following: (i) nonjudicial foreclosure of any security interests in real or personal property, (ii) exercise of self-help remedies (including, without limitation, set-off), (iii) appointment of a receiver and (iv) temporary, provisional or ancillary remedies (including, without limitation, writs of attachment, writs of possession, temporary restraining orders or preliminary injunctions). This reference provision does not limit the right of any party to exercise or oppose any of the rights and remedies described in clauses (i) and (ii) or to seek or oppose from a court of competent jurisdiction any of the items described in clauses (iii) and (iv). The exercise of, or opposition to, any of those items does not waive the right of any party to a reference pursuant to this reference provision as provided herein.

(d)     The referee shall be a retired judge or justice selected by mutual written agreement of the parties. If the parties do not agree within ten (10) days of a written request to do so by any party, then, upon request of any party, the referee shall be selected by the Presiding Judge of the Court (or his or her representative). A request for appointment of a referee may be heard on an ex parte or expedited basis, and the parties agree that irreparable harm would result if ex parte relief is not granted. Pursuant to CCP § 170.6, each party shall have one peremptory challenge to the referee selected by the Presiding Judge of the Court (or his or her representative).

(e)     The parties agree that time is of the essence in conducting the reference proceedings. Accordingly, the referee shall be requested, subject to change in the time periods specified herein for good cause shown, to (i) set the matter for a status and trial-setting conference within fifteen (15) days after the date of selection of the referee, (ii) if practicable, try all issues of law or fact within one hundred twenty (120) days after the date of the conference and (iii) report a statement of decision within twenty (20) days after the matter has been submitted for decision.

(f)     The referee will have power to expand or limit the amount and duration of discovery. The referee may set or extend discovery deadlines or cutoffs for good cause, including a party’s failure to provide requested discovery for any reason whatsoever. Unless otherwise ordered based upon good cause shown, no party shall be entitled to “priority” in conducting discovery, depositions may be taken by either party upon seven (7) days written notice, and all other discovery shall be responded to within fifteen (15) days after service. All disputes relating to discovery which cannot be resolved by the parties shall be submitted to the referee whose decision shall be final and binding.

(g)     Except as expressly set forth herein, the referee shall determine the manner in which the reference proceeding is conducted including the time and place of hearings, the order of presentation of evidence, and all other questions that arise with respect to the course of the reference proceeding. All proceedings and hearings conducted before the referee, except for trial, shall be conducted without a court reporter, except that when any party so requests, a court reporter will be used at any hearing conducted before the referee, and the referee will be provided a courtesy copy of the transcript. The party making such a request shall have the obligation to arrange for and pay the court reporter. Subject to the referee’s power to award costs to the prevailing party, the parties will equally share the cost of the referee and the court reporter at trial.

(h)     The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a court proceeding, including without limitation motions for summary judgment or summary adjudication. The referee shall issue a decision at the close of the reference proceeding which disposes of all claims of the parties that are the subject of the reference. Pursuant to CCP § 644, such decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court and any such decision will be final, binding and conclusive. The parties reserve the right to appeal from the final judgment or order or from any appealable decision or order entered by the referee. The parties reserve the right to findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trial or a different judgment, which new trial, if granted, is also to be a reference proceeding under this provision.

(i)     If the enabling legislation which provides for appointment of a referee is repealed (and no successor statute is enacted), any dispute between the parties that would otherwise be determined by reference procedure will be resolved and determined by arbitration. The arbitration will be conducted by a retired judge or justice, in accordance with the California Arbitration Act §1280 through §1294.2 of the CCP as amended from time to time. The limitations with respect to discovery set forth above shall apply to any such arbitration proceeding.

(j)     THE PARTIES RECOGNIZE AND AGREE THAT ALL CONTROVERSIES, DISPUTES AND CLAIMS RESOLVED UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS OR HER OWN CHOICE, EACH PARTY KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, AGREES THAT THIS REFERENCE PROVISION WILL APPLY TO ANY CONTROVERSY, DISPUTE OR CLAIM BETWEEN OR AMONG THEM ARISING OUT OF OR IN ANY WAY RELATED TO, THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.

16.     This Agreement represents the entire agreement with respect to the subject matter hereof, and supersedes all prior negotiations, agreements and commitments. Creditors are not relying on any representations by Lender or Borrower in entering into this Agreement, and each Creditor has kept and will continue to keep itself fully apprised of the financial and other condition of Borrower; provided, however, that, as of the date hereof, to the knowledge of each of Lender and Borrower, no default, event of default or Triggering Event exists with respect to the Senior Debt. This Agreement may be amended only by written instrument signed by the party asserted to be bound thereby.

17.     In the event of any legal action to enforce the rights of a party under this Agreement, the party prevailing in such action shall be entitled, in addition to such other relief as may be granted, all reasonable costs and expenses, including reasonable attorneys’ fees, incurred in such action.

18.     Lender and Creditors hereby agree that, effective upon the execution and delivery of this Agreement by each such party, the terms and provisions of the Prior Agreement shall be and hereby are amended, restated and superseded in their entirety by the terms and provisions of this Agreement. Nothing herein contained shall be construed as a substitution or novation of the obligations of Creditors outstanding under the Prior Agreement, which obligations shall remain in full force and effect, except to the extent that the terms thereof are modified hereby or by instruments executed concurrently herewith. Nothing expressed or implied in this Agreement shall be construed as a release or other discharge of Creditors from any of their obligations or liabilities under the Prior Agreement.

[ signature pages to follow ]

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

SECOND AMENDED AND RESTATED SUBORDINATION AGREEMENT

SECOND AMENDED AND RESTATED SUBORDINATION AGREEMENT

The undersigned approve the terms of this Agreement.

LOAN PARTIES :

DETERMINE, INC.,

a Delaware corporation

SECOND AMENDED AND RESTATED SUBORDINATION AGREEMENT

Exhibit 10.6

Amendment to Junior Secured C onvertible Promissory N otes

This Amendment to Junior Secured Convertible Promissory Notes (this “ Amendment ”) is made and entered into as of December 27, 2016, by and between Determine, Inc., a Delaware corporation (the “ Company ”), and Lloyd I. Miller, III (the “ Lenders’ Agent ” and, together with the Company, the “ Parties ”). Capitalized terms used in this Amendment but not otherwise defined herein shall have the meanings ascribed to them in the Existing Notes (as defined below).

Recitals

A.      The Parties previously entered into the (i) Junior Secured Convertible Note Purchase Agreement, dated as of March 11, 2015, pursuant to which the Company sold to certain Lenders Junior Secured Convertible Promissory Notes in the aggregate principal amount of $3 million, which promissory notes were amended by the Second Purchase Agreement (as defined in this Recital A) (the “ March 2015 Notes ”) and (ii) Junior Secured Convertible Note Purchase Agreement, dated as of December 16, 2016 (the “ Second Purchase Agreement ”), pursuant to which the Company sold to certain Lenders Junior Secured Convertible Promissory Notes in the aggregate principal amount of $2.5 million (the “ December 2015 Notes ” and, collectively with the March 2015 Notes, the “ Existing Notes ”).

B.      Certain of the Lenders have agreed to make certain additional loans to the Company pursuant to a Junior Secured Convertible Note Purchase Agreement, dated as of December 27, 2016, by and among the Company and such Lenders.

C.      In order to induce such Lenders to make such additional loans to the Company, the Company and the Lenders’ Agent desire to amend the Existing Notes, as more fully set forth below.

D.      Pursuant to Section 11 of the Existing Notes, any provision of the Existing Notes may be amended, waived or modified with the written consent of the Company and the Lenders’ Agent, which such amendment, waiver or modification shall be binding upon the Company and all Lenders.

Agreement

NOW, THEREFORE, in consideration of the mutual promises set forth herein, and for other consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows:

(a)     Section 1(b) of each December 2015 Note is hereby amended to add the following paragraph at the end of Section 1(b):

“Notwithstanding the foregoing, beginning with the first quarterly interest payment due on December 31, 2016, and continuing until the Maturity Date, the PIK Right described above shall be of no further force and effect and shall be superseded by the following provisions: Provided the Company is not then in default pursuant to this Note or any other Loan Document, upon each quarterly interest payment date on and after December 31, 2016, the Company may elect to pay the accrued interest due on such date by capitalizing, compounding and adding to the unpaid Principal Amount the amount of interest accrued such quarter (“ PIK Interest ”); provided, however , that any such PIK Interest shall be deemed to have accrued at the rate of ten percent (10%) per annum simple interest (computed on the basis of actual days elapsed and a fiscal year of 364 days). Amounts representing PIK Interest shall be treated as Principal Amount for all purposes under this Note and the Loan Documents and shall bear interest in accordance with this Section 1. The obligation of the Company to pay all such PIK Interest so added shall be automatically evidenced by this Note. The PIK Interest election shall be made by the Company by written notice to Lender on or prior to the date such interest payment is due.”

(b)     Section 6(a) of each of the December 2015 Notes is hereby amended and restated in its entirety to read as follows:

“(a) Subject to applicable NASDAQ listing rule limitations (including, if applicable, approval by the Company’s stockholders), at any time following the date of this Note and up to the Maturity Date, the then outstanding Obligations under this Note (or any portion thereof) may be converted into fully paid and nonassessable shares of Company Common Stock, $0.0001 par value per share (the “ Conversion Shares ”), at the sole election of Lender upon written notice to the Company (the “ Conversion Notice ”), which Conversion Notice shall state the proposed effective date of such conversion (which date shall be no fewer than ten (10) business days following the date of delivery of the Conversion Notice) (the “ Conversion Date ”). The Obligations hereunder shall convert at a conversion price equal to $3.00 per share, subject to adjustment for any stock dividend, stock split, combination or other similar recapitalization event with respect to the Company’s Common Stock (each a “ Recapitalization Event ”); provided, however , that if prior to the Maturity Date the Company offers and sells its Common Stock (or other securities that are convertible into or exercisable for shares of Common Stock) in a private placement primarily intended to raise capital at a price per share of Common Stock of $2.50 or less (subject to adjustment for any Recapitalization Event), then the conversion price of the Obligations under this Note shall be reduced to such Common Stock offer price plus $0.50 per share (the applicable conversion price with respect to a conversion under this Section 6(a) hereinafter is referred to as the “ Conversion Price ”).”

(c)     A new Section 19 is hereby added to each December 2015 Note, as follows:

“19.      Change of Control . In the event of a Change of Control occurring prior to the repayment or conversion of the Obligations under this Note pursuant to its terms, this Note, including all Obligations hereunder, shall be, at the option of Lender, either (i) repaid in cash as of the closing of such Change of Control or, (ii) subject to applicable NASDAQ listing rule limitations (including, if applicable, approval by the Company’s stockholders), converted into Conversion Shares at the then-current Conversion Price, to be issued to Lender immediately prior to the closing of such Change of Control. The Company shall provide at least 20 business days’ notice to Lender of the closing of a Change of Control.”

“‘ Change of Control ’ means (i) a direct or indirect merger or consolidation of the Company into or with another entity after which the stockholders of the Company immediately prior to such transaction do not own, immediately following the consummation of the transaction by virtue of their shares in the Company or securities received in exchange for such shares in connection with the transaction, a majority of the voting power of the surviving entity in proportions substantially similar to those that existed immediately prior to such transaction, (ii) the direct or indirect sale, transfer or issuance by the Company, or the sale or transfer by stockholders of the Company, in a transaction or series of related transactions, to a person or “group” within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended and Rule 13D thereunder, in either case, as a result of which more than 50% of the voting power of the Company is beneficially owned by such person or group , and (iii) the direct or indirect sale, transfer or other disposition (but not including a transfer or disposition by pledge or mortgage to a bona fide lender) of all or substantially all of the assets or intellectual property of the Company. Notwithstanding the foregoing, the following shall not be deemed a Change of Control: a merger effected exclusively for the purpose of changing the domicile of the Company.”

(a)     Section 1(b) of each March 2015 Note is hereby amended to add the following paragraph at the end of Section 1(b):

“Notwithstanding the foregoing, beginning with the first quarterly interest payment due on December 11, 2016, and continuing until the Maturity Date, the PIK Right described above shall be of no further force and effect and shall be superseded by the following provisions: Provided the Company is not then in default pursuant to this Note or any other Loan Document, upon each quarterly interest payment date on and after December 11, 2016, the Company may elect to pay the accrued interest due on such date by capitalizing, compounding and adding to the unpaid Principal Amount the amount of interest accrued such quarter (“ PIK Interest ” ); provided, however , that any such PIK Interest shall be deemed to have accrued at the rate of ten percent (10%) per annum simple interest (computed on the basis of actual days elapsed and a fiscal year of 364 days). Amounts representing PIK Interest shall be treated as Principal Amount for all purposes under this Note and the Loan Documents and shall bear interest in accordance with this Section 1 . The obligation of the Company to pay all such PIK Interest so added shall be automatically evidenced by this Note. The PIK Interest election shall be made by the Company by written notice to Lender on or prior to the date such interest payment is due.”

(b)     A new Section 19 is hereby added to each March 2015 Note, as follows::

“19.      Change of Control . In the event of a Change of Control occurring prior to the repayment or conversion of the Obligations under this Note pursuant to its terms, this Note, including all Obligations hereunder, shall be, at the option of Lender, either (i) repaid in cash as of the closing of such Change of Control or, (ii) subject to applicable NASDAQ listing rule limitations (including, if applicable, approval by the Company’s stockholders), converted into Conversion Shares at the then-current Conversion Price, to be issued to Lender immediately prior to the closing of such Change of Control. The Company shall provide at least 20 business days’ notice to Lender of the closing of a Change of Control.”

“‘ Change of Control ’ means (i) a direct or indirect merger or consolidation of the Company into or with another entity after which the stockholders of the Company immediately prior to such transaction do not own, immediately following the consummation of the transaction by virtue of their shares in the Company or securities received in exchange for such shares in connection with the transaction, a majority of the voting power of the surviving entity in proportions substantially similar to those that existed immediately prior to such transaction, (ii) the direct or indirect sale, transfer or issuance by the Company, or the sale or transfer by stockholders of the Company, in a transaction or series of related transactions, to a person or “group” within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended and Rule 13D thereunder, in either case, as a result of which more than 50% of the voting power of the Company is beneficially owned by such person or group , and (iii) the direct or indirect sale, transfer or other disposition (but not including a transfer or disposition by pledge or mortgage to a bona fide lender) of all or substantially all of the assets or intellectual property of the Company. Notwithstanding the foregoing, the following shall not be deemed a Change of Control: a merger effected exclusively for the purpose of changing the domicile of the Company.”

3.      Continuing Effect . Except as expressly amended hereby, all terms and conditions of the Existing Notes shall remain in full force and effect and shall apply to this Amendment; provided, however , that the Lenders’ Agent acknowledges and agrees that this Amendment will have effect with respect to the interest payments due on December 11, 2016 and December 31, 2016 under the March 2015 Notes and December 2015 Notes, respectively, even if the effective date of this Amendment is after one or both such interest payment due dates.

4.      Governing Law . This Amendment shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflict of laws.

5.      Counterparts; Facsimile . This Amendment may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.

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IN WITNESS WHEREOF, the undersigned parties have executed this Amendment to Junior Secured Convertible Promissory Notes as the date first set forth above.

Exhibit 10.7

THIRD AMENDMENT TO 2015 GUARANTY FEE AGREEMENT AND

SECOND AMENDMENT TO 2016 GUARANTY FEE AGREEMENT

This Third Amendment to 2015 Guaranty Fee Agreement and Second Amendment to 2016 Guaranty Fee Agreement (this “ Amendment ”), dated as of December 27, 2016 (the “ Amendment Date ”), is entered into by and among each of Determine, Inc., a Delaware corporation (the “ Company ”), Lloyd I. Miller, III (“ Mr. Miller ”), MILFAM II L.P. (“ MILFAM ”) and Alimco Financial Corporation (formerly known as Alliance Semiconductor Corporation) (“ ALF C ” and, together with Mr. Miller and MILFAM, the “ Guarantors ”). Capitalized terms used but not otherwise defined herein shall have the meaning assigned to them in the Fee Agreements (as defined below).

The Company, Mr. Miller and MILFAM are parties to the Guaranty Fee Agreement, effective as of March 11, 2015, as amended by Amendment to Guaranty Fee Agreement, effective as of February 3, 2016, and as amended by Second Amendment to 2015 Guaranty Fee Agreement and Amendment to 2016 Guaranty Fee Agreement, dated as of April 22, 2016 (as amended, the “ 2015 Fee Agreement ”), pursuant to which the Company agreed to pay certain fees to Mr. Miller and MILFAM in exchange for the debt Guaranties provided by Mr. Miller and MILFAM contemplated thereunder.

The Company and ALFC are parties to the Guaranty Fee Agreement, dated as of February 3, 2016, as amended by Second Amendment to 2015 Guaranty Fee Agreement and Amendment to 2016 Guaranty Fee Agreement, dated as of April 22, 2016 (as amended, the “ 2016 Fee Agreement ” and, together with the 2015 Fee Agreement, the “ Fee Agreements ”) pursuant to which the Company agreed to pay certain fees to ALFC in exchange for the debt Guaranty provided by ALFC contemplated thereunder.

Certain of the Guarantors have agreed to guarantee additional borrowed amounts under the credit facility provided to the Company by Western Alliance Bank, as successor in interest to Bridge Bank, National Association, and in connection with such additional guaranty, the Company and the Guarantors desire to amend the Fee Agreements and pay certain accrued fees thereunder with shares of Company stock, as more fully set forth in this Amendment.

NOW, THEREFORE, in consideration of the foregoing and of the mutual promises and covenants contained herein, the Company and the Guarantors hereby agree as follows:

1.      Amendment of 2015 Fee Agreement Monthly Fee . Section 1(b) of the 2015 Fee Agreement is hereby further amended to include the following paragraph at the end of Section 1(b):

“Notwithstanding the foregoing, effective on January 1, 2017, for the remaining term of this Agreement, the Monthly Fee shall equal (i) 10% of the Guaranteed Amount divided by (ii) 12. The aggregate amount of the unpaid Monthly Fees shall be payable in cash on the Payment Date. The Monthly Fees shall accrue, without interest, on the first business day of each month during the term of this Agreement.”

2.      Amendment of 2016 Fee Agreement Monthly Fee . Section 1(b)(iii) of the 2016 Fee Agreement is hereby amended and restated in its entirety to read as follows:

“(iii)     Notwithstanding the foregoing, effective on January 1, 2017, for the remaining term of this Agreement, the Monthly Fee shall equal (i) 10% of the Guaranteed Amount divided by (ii) 12. The aggregate amount of the unpaid Monthly Fees shall be payable in cash on the Payment Date. The applicable Monthly Fees shall accrue, without interest, on the first business day of each month during the term of this Agreement.”

3.      Payment Shares .

a.      Payment of Certain Accrued Fee s . The Company and the Guarantors agree that, effective upon the Amendment Date, $524,000 (the “ Payment Amount ”) of the Monthly Fees previously accrued under the Fee Agreements, as amended hereby, is hereby paid and satisfied in full by the issuance to the Guarantors of 277,248 fully paid and nonassessable shares of Company common stock, $0.0001 par value per share (the “ Payment Shares ”). The Payment Shares shall be issued to the Guarantors in such amounts as set forth on Exhibit A to this Amendment. As soon as reasonably practicable following the Amendment Date, the Company shall cause its transfer agent to deliver certificates to the Guarantors, registered in such name or names as the Guarantors may designate, representing the Payment Shares. The Guarantors hereby waive any notice period under the Fee Agreements in connection with the payment of the Payment Amount with the Payment Shares.

b.      Representations and Warranties of the Guarantors . Each Guarantor hereby represents and warrants to the Company that:

i.      Organization and Existence . Such Guarantor, if such Guarantor is an entity, is a validly existing corporation, limited partnership or limited liability company and has all requisite corporate, partnership or limited liability company power and authority, and if such Guarantor is a natural person, all requisite power and authority, to invest in the Payment Shares pursuant to this Amendment.

ii.     Authorization . The execution, delivery and performance by such Guarantor of this Amendment has been duly authorized and will constitute the valid and legally binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability, relating to or affecting creditors’ rights generally.

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

iv.    Investment Experience . Such Guarantor acknowledges that it can bear the economic risk and complete loss of its investment in the Payment Shares and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment contemplated hereby.

v.     Restricted Securities . Such Guarantor understands that the Payment Shares are characterized as “restricted securities” under the U.S. federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the 1933 Act only in certain limited circumstances.

vi.    Legends . It is understood that certificates evidencing the Payment Shares may bear the following or any similar legend:

“The securities represented hereby have not been registered with the Securities and Exchange Commission or the securities commission of any state in reliance upon an exemption from registration under the Securities Act of 1933, as amended, and, accordingly, may not be transferred unless (i) such securities have been registered for sale pursuant to the Securities Act of 1933, as amended, (ii) such securities may be sold pursuant to Rule 144, or (iii) the Company has received an opinion of counsel reasonably satisfactory to it that such transfer may lawfully be made without registration under the Securities Act of 1933, as amended.”

If required by the authorities of any state in connection with the issuance of sale of the Payment Shares, the legend required by such state authority.

vii.   Accredited Investor . Such Guarantor is an accredited investor as defined in Rule 501(a) of Regulation D, as amended, under the 1933 Act, as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act.

4.      Miscellaneous .

a.      Effect on Fee Agreements . Except as amended hereby, the 2015 Fee Agreement and the 2016 Fee Agreement shall remain in full force and effect. For the avoidance of doubt, all previously accrued Monthly Fees and other amounts in excess of the Payment Amount continue to be outstanding and payable by the Company pursuant to the Fee Agreements.

b.      Further Instruments . The parties agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Amendment and to effect the issuance of the Payment Shares.

c.      Notice . All notices and communications required or permitted hereunder shall be given as set forth in the Fee Agreements.

d.      Successors and Assigns . This Amendment, and the obligations and rights of the parties hereunder, shall be binding upon and inure to the benefit of the parties’ respective heirs, personal representatives, successors and assigns.

e.      Governing Law . This Amendment shall be governed by and construed in accordance with the laws of the State of New York (without regard to the principles of conflicts of laws of any jurisdiction).

f.      Entire Agreement . This Amendment, along with the Fee Agreements (as amended hereby), shall constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof, and any and all other written or oral agreements existing between the parties hereto are expressly canceled.

g.      Counterparts . This Amendment may be executed in any number of counterparts, each of which shall be an original, but all of which together shall be deemed to constitute one instrument.

[Remainder of Page Intentionally Left Blank]

IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment to 2015 Guaranty Fee Agreement and Second Amendment to 2016 Guaranty Fee Agreement as of the date first written above.