Exhibit 10.5


 


 


 


EMPLOYMENT AGREEMENT


 


THIS EMPLOYMENT
AGREEMENT (the “Agreement”) is entered into as of October 1, 2021 (the “Effective Date”), between Agora Digital
Holdings, Inc., a Nevada corporation (“Agora” or the “Company”), and M Britt Swann (the “Executive”).


 


WHEREAS, in its business,
the Company has acquired and developed certain trade secrets, including, but not limited to, proprietary processes, sales methods and
techniques, and other like confidential business and technical information, including but not limited to, technical information, design
systems, pricing methods, pricing rates or discounts, processes, procedures, formulas, designs of computer software, or improvements,
or any portion or phase thereof, whether patented, or not, or unpatentable, that is of any value whatsoever to the Company, as well as
information relating to the Company’s Services (as defined below), information concerning proposed new Services, market feasibility
studies, proposed or existing marketing techniques or plans (whether developed or produced by the Company or by any other person or entity
for the Company), other Confidential Information (as defined below), and information about the Company’s executives, officers, and
directors, which necessarily will be communicated to the Executive by reason of his employment by the Company; and


 


WHEREAS, the Company
has strong and legitimate business interests in preserving and protecting its investment in the Executive, its trade secrets and Confidential
Information, and its substantial, significant, or key, relationships with vendors, and, each, as defined below, whether actual or prospective;
and


 


WHEREAS, the Company
desires to preserve and protect its legitimate business interests further by restricting competitive activities of the Executive during
the term of this Agreement and for a reasonable time following the termination of this Agreement; and


 


WHEREAS, the Company
desires to continue to employ the Executive and to ensure the continued availability to the Company of the Executive’s services,
and the Executive is willing to accept such employment and render such services, all upon and subject to the terms and conditions contained
in this Agreement.


 


NOW, THEREFORE,
in consideration of the premises and the mutual covenants set forth in this Agreement, and intending to be legally bound, the Company
and the Executive agree as follows:


 


1. Representations
and Warranties. The Executive hereby represents and warrants to the Company that he (i) is not subject to any non-solicitation or
non-competition agreement affecting his employment with the Company (other than any prior agreement with the Company or its affiliates),
(ii) is not subject to any confidentiality or nonuse/nondisclosure agreement affecting his employment with the Company (other than any
prior agreement with the Company or its affiliates), and (iii) has brought to the Company no trade secrets, confidential business information,
documents, or other personal property of a prior employer, except with respect to Ecoark Holdings, Inc. (“ZEST”).


 






     


     


    

 


2.
Term of Employment.


 


(a) Term.
The Company hereby employs the Executive, and the Executive hereby accepts employment with the Company for a period of three years commencing
as of the Effective Date (such period, as it may be extended or renewed, the “Term”), unless sooner terminated in accordance
with the provisions of Section 6. The Term shall be automatically renewed for successive one-year terms unless notice of non-renewal is
given by either party at least 30 days before the end of the Term.


 


(b) Continuing
Effect. Notwithstanding any termination of this Agreement, at the end of the Term or otherwise, the provisions of Sections 6(e), 7,
8, 9, 10, 12 15, 18, 19, and 22 shall remain in full force and effect and the provisions of Section 9 shall be binding upon the legal
representatives, successors and assigns of the Executive.


 


3.
Duties.


 


(a) General
Duties. The Executive shall serve as the President of the Company’s subsidiary Bitstream Mining LLC (“Bitstream”),
with duties and responsibilities that are customary for such an executive. The Executive shall report to the Company’s Chief Executive
Officer (“CEO”). The Executive shall also perform services for such subsidiaries of the Company as may be necessary. The Executive
shall use his best efforts to perform his duties and discharge his responsibilities pursuant to this Agreement competently, carefully
and faithfully. In determining whether or not the Executive has used his best efforts hereunder, the Executive’s and the Company’s
delegation of authority and all surrounding circumstances shall be taken into account and the best efforts of the Executive shall not
be judged solely on the Company’s earnings or other results of the Executive’s performance, except as specifically provided
to the contrary by this Agreement. The Executive shall, if requested, also serve as a member of the Board of the Company or as an officer
or director of any affiliates of the Company for no additional compensation, except with respect to any Employment Agreement with ZEST.


 


(b) Devotion
of Time. Subject to Section 3(a) and the last sentence of this Section 3(b), the Executive shall devote such time, attention and energies
to the affairs of the Company and its subsidiaries and affiliates as are necessary to perform his duties and responsibilities pursuant
to this Agreement. The Executive shall not enter the employ of or serve as a consultant to, or in any way perform any services with or
without compensation to, any other persons, business, or organization, without the prior consent of the Board. Notwithstanding the above,
the Executive shall be permitted to devote a limited amount of his time, to professional, charitable or similar organizations, including,
but not limited to, serving as a non-executive director or committee member or as an advisor to a board of directors or committee of any
company or organization provided that such activities do not interfere with the Executive’s performance of his duties and responsibilities
as provided hereunder. Pending the closing of the Company’s initial public offer (“IPO”), the Executive shall continue
his employment with ZEST which shall pay the Executive the compensation required under any Employment Agreement between ZEST and the Executive
(the “ZEST Agreement”). Following the closing of the IPO, the Executive shall resign his employment and all positions with
ZEST. The Executive may also be required to perform transitional services as an advisor to ZEST after the IPO.


 






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(c) Location
of Office. The Executive’s principal business office shall be in metropolitan San Antonio, Texas. However, the Executive’s
duties shall include all necessary business travel.


 


(d) Adherence
to Inside Information Policies. The Executive acknowledges that the Company will be publicly-held and, as a result, the Company will
implement inside information policies designed to preclude its executive officers and those of its subsidiaries from violating the federal
securities laws by trading on material, non-public information or passing such information on to others in breach of any duty owed to
the Company, or any third party. The Executive will abide by the Company’s inside information policies as they are adopted and modified,
and shall promote these policies internally and promptly execute any agreements generally distributed by the Company to its employees
requiring such employees to abide by these policies.


 


4.
Compensation and Expenses.


 


(a) Salary.
For the services of the Executive to be rendered under this Agreement, the Company shall pay the Executive an annual salary of $230,000.00
(the “Base Salary”), less such deductions as shall be required to be withheld by applicable law and regulations payable in
accordance with the Company’s customary payroll practices. The Executive’s Base Salary shall be reviewed at least annually
by the Board and the Board may, but shall not be required to, increase the Base Salary during the Term. However, the Executive’s
Base Salary may not be decreased during the Term. As provided in Section 3(b), Agora shall pay any additional compensation owed under
this Agreement. ZEST shall continue to be responsible for the Executive’s compensation under the ZEST Agreement through the closing
of Agora’s IPO.


 


(b) Target
Bonus. In addition to the Annual Base Salary, the Executive shall be eligible to earn cumulative target bonuses (the “Target
Bonus”) up to 250% of the Executive’s Annual Base Salary based on the following terms and conditions:


 


(1) A
one-time bonus of 25% of the Executive’s Annual Base Salary upon the successful achievement by Bitstream of a continuous minimum
run rate of at least $4,000,000 in revenue per month.


 


(2) A
one-time bonus of 50% of the Executive’s Annual Base Salary upon the successful achievement by Bitstream of a continuous minimum
run rate of at least $6,000,000 in revenue per month.


 


(3) A
one-time bonus of 75% of the Executive’s Annual Base Salary upon the successful achievement by Bitstream of a continuous minimum
run rate of at least $8,000,000 in revenue per month.


 


(4) A
one-time bonus of 100% of the Executive’s Annual Base Salary upon the successful achievement by Bitstream of a continuous minimum
run rate of at least $10,000,000 in revenue per month.


 




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(5) Upon
the successful achievement of all of the Target Bonuses in sections 4(b)(1), 4(b)(2), 4(b)(3), and 4(b)(4), the Executive will earn a
one-time stock bonus (the “Stock Bonus”) equal to 125% of the Executive’s equity grant in section 4(d)


 


Executive will receive a $25,000 guaranteed prepaid
bonus on December 15th during each year of the Term. Any prepaid bonuses will be deducted at the time of payment from any earned
Target Bonuses in sections 4(b)(1), 4(b)(2), 4(b)(3), and 4(b)(4) so that the total Target Bonuses available to be paid to the Executive
is a maximum of 250% of the Executive’s base salary.


 


(c) Expenses.
In addition to any compensation received pursuant to this Section 4, the Company will reimburse or advance funds to the Executive for
all reasonable documented travel (including travel expenses incurred by the Executive related to his travel to the Company’s offices),
entertainment and miscellaneous expenses incurred in connection with the performance of his duties under this Agreement, provided that
the Executive properly provides a written accounting of such expenses to the Company in accordance with the Company’s practices.
Such reimbursement or advances will be made in accordance with policies and procedures of the Company in effect from time to time relating
to reimbursement of, or advances to, its executive officers.


 


(d) Equity
Grant. Under the 2021 Equity Incentive Plan (the “Plan”), the Executive shall receive a grant of 250,000 shares of restricted
common stock (the “Stock Grant”) of the Company granted as of the Effective Date of this Agreement (the “Grant Date”).
As a condition of the grant, the Executive shall execute the Company’s Restricted Stock Agreement. The Stock Grant will be valued
as of the Grant Date based on a methodology and guidance as discussed with the Company’s external tax counsel. The Executive shall
have the ability to assign the Stock Grant to entity of his choice, so long that the entity is subject to the same requirements by the
Securities and Exchange Commission (the “SEC”) for changes in beneficial ownership reporting and disclosure.


 


The Stock Grant shall vest in 3 equal increments
based on the following terms and conditions:


 


		(i)	33.33% or 83,334 shares shall vest on the 1-year anniversary of the Effective Date
of this Agreement;



 


		(ii)	33.33% or 83,333 shares shall vest upon the Company’s subsidiary, Bitstream
Mining LLC (“Bitstream”) successfully deploying at least a 20-megawatt (“MW”) power contract in
the State of Texas; and



 


		(iii)	33.33% or 83,333 shares shall vest upon Bitstream successfully deploying at least
a 40-megawatt (“MW”) power contract in the State of Texas.



 


5.
Benefits.


 


(a) Paid
Time Off. For each 12-month period during the Term, the Executive shall be entitled to 4 weeks of Paid Time Off without loss of compensation
or other benefits to which he is entitled under this Agreement, to be taken at such times as the Executive may select and the affairs
of the Company may permit. Any unused days will not be carried over to the next 12 month period. Accrued but unused paid time off during
the current calendar year with a separation event shall be paid at the Executive’s base rate of pay when used or upon termination
of employment.


 




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(b) Fringe
Benefit and Perquisites. During the Term, the Executive shall be entitled to fringe benefits and perquisites consistent with the practices
of the Company, and to the extent the Company provides similar benefits or perquisites (or both) to similarly situated executives of the
Company.


 


(c) Employee
Benefits. During the Term, the Executive shall be entitled to participate in all employee benefit plans, practices and programs maintained
by the Company, as in effect from time to time (collectively, “Employee Benefit Plans”), on a basis which is no less favorable
than is provided to other similarly situated executives of the Company, to the extent consistent with applicable law and the terms of
the applicable Employee Benefit Plans. The Company reserves the right to amend or cancel any Employee Benefit Plans at any time in its
sole discretion, subject to the terms of such Employee Benefit Plan and applicable law. Notwithstanding the foregoing, during the Term,
the Company shall provide the Executive with health insurance covering the Executive and family dependents.


 


6.
Termination.


 


(a) Death
or Disability. Except as otherwise provided in this Agreement, this Agreement shall automatically terminate upon the death or disability
of the Executive. For purposes of this Section 6(a), “disability” shall mean (i) the Executive is unable to engage in his
customary duties by reason of any medically determinable physical or mental impairment that can be expected to result in death, or last
for a continuous period of not less than 12 months; (ii) the Executive is, by reason of any medically determinable physical or mental
impairment that can be expected to result in death, or last for a continuous period of not less than 12 months, receiving income replacement
benefits for a period of not less than three months under an accident and health plan covering employees of the Company; or (iii) the
Executive is determined to be totally disabled by the Social Security Administration. Any question as to the existence of a disability
shall be determined by the written opinion of the Executive’s regularly attending physician (or his guardian) (or the Social Security
Administration, where applicable). In the event that the Executive’s employment is terminated by reason of Executive’s death
or disability, the Company shall pay the following to the Executive or his personal representative: (i) any accrued but unpaid Base Salary
for services rendered to the date of termination, (ii) accrued but unpaid expenses required to be reimbursed under this Agreement, (iii)
any earned but unpaid bonuses for any prior period and his annual bonus prorated to date of termination (to the extent the Compensation
Committee has set a formula and it can be calculated), and (v) all equity awards previously granted to the Executive under the Plan or
similar plan shall thereupon become fully vested, and the Executive or his legally appointed guardian, as the case may be, shall have
up to two years from the date of termination to exercise all such previously granted options, provided that in no event shall any option
be exercisable beyond its term. The Executive (or his estate) shall receive the payments provided herein at such times as he would have
received them if there was no death or disability. Additionally, if the Executive’s employment is terminated because of disability,
any benefits (except perquisites) to which the Executive may be entitled pursuant to Section 5(b) hereof shall continue to be paid or
provided by the Company, as the case may be, for one year, subject to the terms of any applicable plan or insurance contract and applicable
law, provided that such benefits are exempt from Section 409A of the Code by reason of Treasury Regulation 1.409A-1(a)(5) or otherwise.
In the event all or a portion of the benefits to which the Executive was entitled pursuant to Section 5(b) hereof are subject to 409A
of the Code, the Executive shall not be entitled to the benefits that are subject to Section 409A of the Code subsequent to the “applicable
21⁄2 month period” (as such term is defined under Treasury Regulation Section 1.409A-1(b)(4)(i)(A)).


 




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(b) Termination
by the Company for Cause or by the Executive Without Good Reason. The Company may terminate the Executive’s employment pursuant
to the terms of this Agreement at any time for Cause (as defined below) by giving the Executive written notice of termination. Such termination
shall become effective upon the giving of such notice. Upon any such termination for Cause, or in the event the Executive terminates his
employment with the Company without Good Reason (as defined in Section 6(c)), then the Executive shall have no right to compensation,
or reimbursement under Section 4, or to participate in any Executive benefit programs under Section 5, except as may otherwise be provided
for by law, for any period subsequent to the effective date of termination. For purposes of this Agreement, “Cause” shall
mean: (i) the Executive is convicted of, or pleads guilty or nolo contendere to, a felony related to the business of the Company; (ii)
the Executive, in carrying out his duties hereunder, has acted with gross negligence or intentional misconduct resulting, in any case,
in material harm to the Company; (iii) the Executive misappropriates Company funds or otherwise defrauds the Company including a material
amount of money or property; (iv) the Executive breaches his fiduciary duty to the Company resulting in material profit to him, directly
or indirectly; (v) the Executive materially breaches any agreement with the Company and fails to cure such breach within 10 days of receipt
of notice, unless the act is incapable of being cured; (vi) the Executive breaches any provision of Section 8 or Section 9; (vii) the
Executive becomes subject to a preliminary or permanent injunction issued by a United States District Court enjoining the Executive from
violating any securities law administered or regulated by the SEC; (viii) the Executive becomes subject to a cease and desist order or
other order issued by the SEC after an opportunity for a hearing; (ix) the Executive refuses to carry out a resolution adopted by the
Company’s Board at a meeting in which the Executive was offered a reasonable opportunity to argue that the resolution should not
be adopted; or (x) the Executive abuses alcohol or drugs in a manner that interferes with the successful performance of his duties.


 


(c) Termination
by the Company Without Cause, Termination by Executive for Good Reason or Automatic Termination Upon a Change of Control or at the end
of a Term after the Company provides notice of Non-Renewal.


 


(1) This
Agreement may be terminated: (i) by the Executive for Good Reason (as defined below), (ii) by the Company without Cause, (iii) upon any
Change of Control event in either Agora or Bitstream as defined in Treasury Regulation Section 1.409A-3(i)(5) provided, that, within 12
months of the Change of Control event (A) the Company terminates the Executive’s employment, fails to obtain an agreement from any
successor to the Company to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would
be required to perform if no succession had taken place, or changes his title or duties, or (B) the Executive terminates his employment
or (iv) at the end of a Term after the Company provides the Executive with a formal notice in writing of non-renewal.


 




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(2) In
the event this Agreement is terminated by the Executive for Good Reason or by the Company without Cause, the Executive shall be entitled
to the following:


 


(A) any
accrued but unpaid Base Salary for services rendered to the date of termination;


 


(B)
any accrued but unpaid expenses required to be reimbursed under this Agreement;


 


(C) a
severance payment (“Severance Amount”) equal to 12 months of the then Base Salary;


 


(D) the
Executive or his legally appointed guardian, as the case may be, shall have up to one year from the date of termination to exercise all
such previously granted options, provided that in no event shall any option be exercisable beyond its Term;


 


(E) all
equity awards previously granted to the Executive under the Plan or similar plan shall thereupon become fully vested; and


 


(F) any
benefits (except perquisites) to which the Executive was entitled pursuant to Section 5(b) hereof shall continue to be paid or provided
by the Company, as the case may be, for six months, subject to the terms of any applicable plan or insurance contract and applicable law
provided that such benefits are exempt from Section 409A of the Code by reason of Treasury Regulation 1.409A-1(a)(5) or otherwise. In
the event all or a portion of the benefits to which the Executive was entitled pursuant to Section 5(b) hereof are subject to 409A of
the Code, the Executive shall not be entitled to the benefits that are subject to Section 409A of the Code subsequent to the “applicable
2 1⁄2 month period” (as such term is defined under Treasury Regulation Section 1.409A-1(b)(4)(i)(A)).


 


(3) In
the event of a Change of Control during the Term, the Executive, subject to the termination of employment or change in title as outlined
in Section 6(c)(1), shall be entitled to receive each of the provisions of Section 6(c)(2)(A) – (F) above except that (i) the Severance
Amount shall equal to 18 months of the then Base Salary; (ii) the Executive shall receive 100% of the existing Target Bonus, if any, for
that fiscal year; and (iii) the benefits under Section 6(c)(2)(F) shall continue for an 18 month period provided that such benefits are
exempt from Section 409A of the Code by reason of Treasury Regulation 1.409A-1(a)(5) or otherwise. In the event all or a portion of the
benefits under Section 6(c)(2)(F) are subject to 409A of the Code, the Executive shall not be entitled to the benefits that are subject
to Section 409A of the Code subsequent to the “applicable 2 1⁄2 month period” (as such term is defined under Treasury
Regulation Section 1.409A-1(b)(4)(i)(A)).


 




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(4) In
the event this Agreement is terminated at the end of a Term after the Company provides the Executive with notice of non-renewal and the
Executive remains employed until the end of the Term, the Executive shall be entitled to the following:


 


(A) any
accrued but unpaid Base Salary for services rendered to the date of termination;


 


(B)
any accrued but unpaid expenses required to be reimbursed under this Agreement;


 


(C)
a Severance Amount equal to twelve months of the then Base Salary;


 


(D)
all equity awards previously granted to the Executive under the Company’s Plan or similar plan shall become fully vested;


 


(E) the
Executive or his legally appointed guardian, as the case may be, shall have up to two years from the date of termination to exercise all
such previously granted options, provided that in no event shall any option be exercisable beyond its Term; and


 


(F) any
benefits (except perquisites) to which the Executive was entitled pursuant to Section 5(b) hereof shall continue to be paid or provided
by the Company, as the case may be, for twelve months, subject to the terms of any applicable plan or insurance contract and applicable law
provided that such benefits are exempt from Section 409A of the Code by reason of Treasury Regulation 1.409A-1(a)(5) or otherwise. In
the event all or a portion of the benefits to which the Executive was entitled pursuant to Section 5(b) hereof are subject to 409A of
the Code, the Executive shall not be entitled to the benefits that are subject to Section 409A of the Code subsequent to the “applicable
2 1⁄2 month period” (as such term is defined under Treasury Regulation Section 1.409A-1(b)(4)(i)(A)).


 


Provided, however, that the Executive
shall only be entitled to receive each of the provisions of this Section 6(c)(4)(A)-(F) if the Executive is willing and able (i) to execute
a new agreement providing terms and conditions substantially similar to those in this Agreement and (ii) to continue providing such services,
and therefore, the Company’s non-renewal of the Term will be considered an “involuntary separation from service” within
the meaning of Treasury Regulation Section 1.409A-1(n).


 


(5) In
the event of a termination for Good Reason, without Cause, or non-renewal by the Company, the payment of the Severance Amount shall be
made at the same times as the Company pays compensation to its employees over the applicable monthly period and any other payments owed
under Section 6(c) shall be promptly paid. Provided, however, that any balance of the Severance Amount remaining due on the “applicable
21⁄2 month period” (as such term is defined under Treasury Regulation Section 1.409A-1(b)(4)(i)(A)) after the end of the tax
year in which the Executive’s employment is terminated or the Term ends shall be paid on the last day of the applicable 21⁄2
month period. The payment of the Severance Amount and the acceleration of vesting shall be conditioned on the Executive signing an Agreement
and General Release (in the form which is attached as Exhibit A) which releases the Company or any of its affiliates (including
its officers, directors and their affiliates) from any liability under this Agreement or related to the Executive’s employment with
the Company provided that (x) the payment of the Severance Amount is made on or before the 90th day following the Executive’s termination
of employment; (y) such Agreement and General Release is executed by the Executive, submitted to the Company, and the statutory period
during which the Executive is entitled to revoke the Agreement and General Release under applicable law has expired on or before that
90th day; and (z) in the event that the 90 day period begins in one taxable year and ends in a second taxable year, then the payment of
the Severance Amount shall be made in the second taxable year. Upon any Change of Control event, all payments owed under Section 6(c)(3)
shall be paid immediately.


 






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(d) Any
termination made by the Company under this Agreement shall be approved by the Board.


 


(e) Upon (1) voluntary
or involuntary termination of the Executive’s employment or (2) the Company’s request at any time during the Executive’s
employment (provided it does not interfere with his ability to perform his duties and responsibilities hereunder), the Executive shall
(i) provide or return to the Company any and all Company property, including keys, key cards, access cards, security devices, employer
credit cards, network access devices, computers, cell phones, smartphones, manuals, work product, thumb drives or other removable information
storage devices, and hard drives, and all Company documents and materials belonging to the Company and stored in any fashion, including
but not limited to those that constitute or contain any Confidential Information or work product, that are in the possession or control
of the Executive, whether they were provided to the Executive by the Company or any of its business associates or created by the Executive
in connection with his employment by the Company; and (ii) delete or destroy all copies of any such documents and materials not
returned to the Company that remain in the Executive’s possession or control, including those stored on any non-Company devices,
networks, storage locations and media in the Executive’s possession or control.


 


7. Indemnification.
As provided in an Indemnification Agreement which the Company and the Executive have previously entered into, a copy of which is annexed
as Exhibit B, the Company shall indemnify the Executive, to the maximum extent permitted by applicable law, against all costs,
charges and expenses incurred or sustained by him in connection with any claim, action, suit or proceeding to which he may be made a party
by reason of him being an officer, director or employee of the Company or of any subsidiary or affiliate of the Company. The Company shall
provide, at its expense, directors and officers insurance for the Executive in amounts and for a term consistent with industry standards.


 


8.
Non-Competition Agreement.


 


(a) Competition
with the Company. Until termination of his employment and for a period of one year commencing on the date of termination, the
Executive (individually or in association with, or as a shareholder, director, officer, consultant, employee, partner, joint
venturer, manager, member, or otherwise, of or through any person, firm, corporation, partnership, limited liability company,
association or other entity) shall not, directly or indirectly, act as an employee or officer (or comparable position) of, owning an
interest in, or providing Services as defined in Section 9(a) for a direct competitor (either now or in the future) of the Company
(any, a “Competitor”).


 






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(b) Solicitation
of Employees. During the period in which the provision of Section 8(a) shall be in effect, the Executive agrees that he shall not,
directly or indirectly, request, recommend or advise any employee of the Company to terminate his or her employment with the Company,
for the purposes of providing services for a Competitor, or solicit for employment or recommend to any third party the solicitation for
employment of any individual who was employed by the Company or any of its subsidiaries and affiliates at any time during the one year
period preceding the Executive’s termination of employment.


 


(c) Non-disparagement.
The Executive agrees that, after the end of his employment, he will refrain from making, in writing or orally, any unfavorable comments
about the Company, its operations, policies, or procedures that would be likely to injure the Company’s reputation or business prospects;
provided, however, that nothing herein shall preclude the Executive from responding truthfully to a lawful subpoena or other compulsory
legal process or from providing truthful information otherwise required by law.


 


(d) No
Payment. The Executive acknowledges and agrees that no separate or additional payment will be required to be made to him in consideration
of his undertakings in this Section 8, and confirms he has received adequate consideration for such undertakings.


 


(e) References.
References to the Company in this Section 8 shall include the Company’s subsidiaries and affiliates.


 


9.
Non-Disclosure of Confidential Information.


 


(a) Confidential
Information. For purposes of this Agreement, “Confidential Information” includes, but is not limited to, trade secrets,
processes, policies, procedures, techniques, designs, drawings, know-how, show-how, technical information, specifications, computer software
and source code, information and data relating to the development, research, testing, costs, marketing, and uses of the Services (as defined
herein), the Company’s budgets and strategic plans, and the identity and special needs of the Company’s employees, customers,
vendors, and suppliers, databases, data, and all technology relating to the Company’s businesses, systems, methods of operation,
leads, marketing and advertising materials, methods and manuals and forms, all of which pertain to the activities or operations of the
Company, the names, home addresses and all telephone numbers and e-mail addresses of the Company’s directors, employees, officers,
executives, and former executives. In addition, Confidential Information also includes the names of employees and contact persons for
customers, vendors and suppliers including the identity of and telephone numbers, e-mail addresses and other addresses of such persons.
Confidential Information also includes, without limitation, Confidential Information received from the Company’s subsidiaries and
affiliates. For purposes of this Agreement, the following will not constitute Confidential Information (i) information which is or subsequently
becomes generally available to the public through no act or fault of the Executive, (ii) information set forth in the written records
of the Executive prior to disclosure to the Executive by or on behalf of the Company which information is given to the Company in writing
as of or prior to the date of this Agreement, and (iii) information which is lawfully obtained by the Executive in writing from a third
party (excluding any affiliates of the Executive) who lawfully acquired the confidential information and who did not acquire such confidential
information or trade secret, directly or indirectly, from the Executive or the Company or its subsidiaries or affiliates and who has not
breached any duty of confidentiality. As used herein, the term “Services” shall include all services offered for sale and
marketed by the Company during the Term. Services also includes any other services which the Company has taken concrete steps to offer
for sale, but has not yet commenced selling or marketing, during or prior to the Term. Services also include any services disclosed in
the Company’s latest Registration Statement, Form 10-K, Form 10-Q or Form 8-K (or successor form) filed with the Securities and
Exchange Commission (the “SEC”).


 






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(b) Legitimate
Business Interests. The Executive recognizes that the Company has legitimate business interests to protect and as a consequence, the
Executive agrees to the restrictions contained in this Agreement because they further the Company’s legitimate business interests.
These legitimate business interests include, but are not limited to (i) trade secrets; (ii) valuable confidential business, technical,
and/or professional information that otherwise may not qualify as trade secrets, including, but not limited to, all Confidential Information;
(iii) substantial, significant, or key relationships with specific prospective or existing customers, vendors or suppliers; (iv) Student
goodwill associated with the Company’s business; and (v) specialized training relating to the Company’s technology, Services,
methods, operations and procedures. Notwithstanding the foregoing, nothing in this Section 9(b) shall be construed to impose restrictions
greater than those imposed by other provisions of this Agreement.


 


(c) Confidentiality.
During the Term of this Agreement and following termination of employment, for any reason, the Confidential Information shall be held
by the Executive in the strictest confidence and shall not, without the prior express written consent of the Company, be disclosed to
any person other than in connection with the Executive’s employment by the Company. The Executive further acknowledges that such
Confidential Information as is acquired and used by the Company or its subsidiaries or affiliates is a special, valuable and unique asset.
The Executive shall exercise all due and diligent precautions to protect the integrity of the Company’s Confidential Information
and to keep it confidential whether it is in written form, on electronic media, oral, or otherwise. The Executive shall not copy any Confidential
Information except to the extent necessary to his employment nor remove any Confidential Information or copies thereof from the Company’s
premises except to the extent necessary to his employment. All records, files, materials and other Confidential Information obtained by
the Executive in the course of his employment with the Company are confidential and proprietary and shall remain the exclusive property
of the Company. The Executive shall not, except in connection with and as required by his performance of his duties under this Agreement,
for any reason use for his own benefit or the benefit of any person or entity other than the Company or disclose any such Confidential
Information to any person, firm, corporation, association or other entity for any reason or purpose whatsoever without the prior express
written consent of an executive officer of the Company (excluding the Executive).


 






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(d) References.
References to the Company in this Section 9 shall include the Company’s subsidiaries and affiliates.


 


(e) Whistleblowing.
Nothing contained in this Agreement shall be construed to prevent the Executive from reporting any act or failure to act to the SEC or
other governmental body or prevent the Executive from obtaining a fee as a “whistleblower” under Rule 21F-17(a) under the
Securities Exchange Act of 1934 or other rules or regulations implemented under the Dodd-Frank Wall Street Reform Act and Consumer Protection
Act.


 


(f) Notice
of Immunity Under the Economic Espionage Act of 1996, as amended by the Defend Trade Secrets Act of 2016. Notwithstanding any other
provision of this Agreement:


 


(1)
The Executive will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade
secret that:


 


(A) is
made (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (2) solely
for the purpose of reporting or investigating a suspected violation of law; or


 


(B) is
made in a complaint or other document filed under seal in a lawsuit or other proceeding.


 


(2) If
the Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, the Executive may disclose the
Company’s trade secrets to the Executive’s attorney and use the trade secret information in the court proceeding if the Executive:


 


(A)
files any document containing trade secrets under seal; and


 


(B)
does not disclose trade secrets, except pursuant to court order.


 


10.
Equitable Relief.


 


(a) The
Company and the Executive recognize that the services to be rendered under this Agreement by the Executive are special, unique and of
extraordinary character, and that in the event of the breach by the Executive of the terms and conditions of this Agreement or if the
Executive, without the prior express consent of the Board, shall take any action in violation of Section 8 and/or Section 9, the Company
shall be entitled to institute and prosecute proceedings in any court of competent jurisdiction referred to in Section 10(b) below, to
enjoin the Executive from breaching the provisions of Section 8 and/or Section 9.


 






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(b) Any
action arising from or under this Agreement must be commenced only in the appropriate state or federal court located in New York County,
New York. The Executive and the Company irrevocably and unconditionally submit to the exclusive jurisdiction of such courts and agree
to take any and all future action necessary to submit to the jurisdiction of such courts. The Executive and the Company irrevocably waive
any objection that they now have or hereafter may have to the laying of venue of any suit, action or proceeding brought in any such court
and further irrevocably waive any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient
forum. Final judgment against the Executive or the Company in any such suit shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment, a certified or true copy of which shall be conclusive evidence of the fact and the amount of any liability of
the Executive or the Company therein described, or by appropriate proceedings under any applicable treaty or otherwise.


 


11. Conflicts
of Interest. While employed by the Company, the Executive shall not, unless approved by the Compensation Committee, directly or indirectly:


 


(a) participate
as an individual in any way in the benefits of transactions with any of the Company’s customers, vendors, or suppliers, including,
without limitation, having a financial interest in the Company’s customers, vendors, or suppliers, or making loans to, or receiving
loans, from, the Company’s customers, vendors, or suppliers;


 


(b) realize
a personal gain or advantage from a transaction in which the Company has an interest or use information obtained in connection with the
Executive’s employment with the Company for the Executive’s personal advantage or gain; or


 


(c) accept
any new offer during the Term to serve as an officer, director, partner, consultant, manager with, or to be employed in a professional,
technical, or managerial capacity by, a person or entity which does business with the Company other than ZEST.


 


12. Inventions,
Ideas, Processes, and Designs. All inventions, ideas, processes, programs, software, and designs (including all improvements) (i)
conceived or made by the Executive during the course of his employment with the Company (whether or not actually conceived during regular
business hours) and for a period of six months subsequent to the termination (whether by expiration of the Term or otherwise) of such
employment with the Company, and (ii) related to the business of the Company, shall be disclosed in writing promptly to the Company and
shall be the sole and exclusive property of the Company, and the Executive hereby assigns any such inventions to the Company. An invention,
idea, process, program, software, or design (including an improvement) shall be deemed related to the business of the Company if (a) it
was made with the Company’s funds, personnel, equipment, supplies, facilities, or Confidential Information, (b) results from work
performed by the Executive for the Company, or (c) pertains to the current business or demonstrably anticipated research or development
work of the Company. The Executive shall cooperate with the Company and its attorneys in the preparation of patent and copyright applications
for such developments and, upon request, shall promptly assign all such inventions, ideas, processes, and designs to the Company. The
decision to file for patent or copyright protection or to maintain such development as a trade secret, or otherwise, shall be in the sole
discretion of the Company, and the Executive shall be bound by such decision. The Executive hereby irrevocably assigns to the Company,
for no additional consideration, the Executive’s entire right, title and interest in and to all work product and intellectual property
rights, including the right to sue, counterclaim and recover for all past, present and future infringement, misappropriation or dilution
thereof, and all rights corresponding thereto throughout the world. Nothing contained in this Agreement shall be construed to reduce or
limit the Company’s rights, title or interest in any work product or intellectual property rights so as to be less in any respect
than the Company would have had in the absence of this Agreement. If applicable, the Executive shall provide as a schedule to this Agreement,
a complete list of all inventions, ideas, processes, and designs, if any, patented or unpatented, copyrighted or otherwise, or non-copyrighted,
including a brief description, which he made or conceived prior to his employment with the Company and which therefore are excluded from
the scope of this Agreement. References to the Company in this Section 12 shall include the Company, its subsidiaries and affiliates.


 






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13. Indebtedness.
If, during the course of the Executive’s employment under this Agreement, the Executive becomes indebted to the Company for any
reason, the Company may, if it so elects, and if permitted by applicable law, set off any sum due to the Company from the Executive and
collect any remaining balance from the Executive unless the Executive has entered into a written agreement with the Company.


 


14. Assignability.
The rights and obligations of the Company under this Agreement shall inure to the benefit of and be binding upon the successors and assigns
of the Company, provided that such successor or assign shall acquire all or substantially all of the securities or assets and business
of the Company. The Executive’s obligations hereunder may not be assigned or alienated and any attempt to do so by the Executive
will be void.


 


15.
Severability.


 


(a) The
Executive expressly agrees that the character, duration and geographical scope of the non-competition provisions set forth in this Agreement
are reasonable in light of the circumstances as they exist on the date hereof. Should a decision, however, be made at a later date by
a court of competent jurisdiction that the character, duration or geographical scope of such provisions is unreasonable, then it is the
intention and the agreement of the Executive and the Company that this Agreement shall be construed by the court in such a manner as to
impose only those restrictions on the Executive’s conduct that are reasonable in the light of the circumstances and as are necessary
to assure to the Company the benefits of this Agreement. If, in any judicial proceeding, a court shall refuse to enforce all of the separate
covenants deemed included herein because taken together they are more extensive than necessary to assure to the Company the intended benefits
of this Agreement, it is expressly understood and agreed by the parties hereto that the provisions of this Agreement that, if eliminated,
would permit the remaining separate provisions to be enforced in such proceeding shall be deemed eliminated, for the purposes of such
proceeding, from this Agreement.


 


(b) If
any provision of this Agreement otherwise is deemed to be invalid or unenforceable or is prohibited by the laws of the state or jurisdiction
where it is to be performed, this Agreement shall be considered divisible as to such provision and such provision shall be inoperative
in such state or jurisdiction and shall not be part of the consideration moving from either of the parties to the other. The remaining
provisions of this Agreement shall be valid and binding and of like effect as though such provisions were not included.


 






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16. Notices
and Addresses. All notices, offers, acceptance and any other acts under this Agreement (except payment) shall be in writing, and shall
be sufficiently given if delivered to the addressees in person, by FedEx or similar receipted delivery, or next business day delivery
to the addresses detailed below (or to such other address, as either of them, by notice to the other may designate from time to time),
or by e-mail delivery (in which event a copy shall immediately be sent by FedEx or similar receipted delivery), as follows:


 


	To the Company:	
    Agora Digital Holdings, Inc.

    303 Pearl Parkway, Suite 200

    San Antonio, TX 78215

    Attention: Brad Hoagland, CEO

    Email: bhoagland@agoradigital.com

	 	 
	With a copy to:	
    Nason, Yeager, Gerson, Harris & Fumero, P.A.

    Attn: Michael D. Harris, Esq.

    3001 PGA Blvd., Suite 305

    Palm Beach Gardens, Florida 33410

    Email: mharris@nasonyeager.com

	 	 
	To the Executive:	Email: bswann@agoradigital.com


 


17. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall
constitute one and the same instrument. The execution of this Agreement may be by actual or facsimile signature.


 


18. Attorneys’
Fees. In the event that there is any controversy or claim arising out of or relating to this Agreement, or to the interpretation,
breach or enforcement thereof, and any action or proceeding is commenced to enforce the provisions of this Agreement, the prevailing party
shall be entitled to reasonable attorneys’ fees, costs and expenses (including such fees and costs on appeal).


 


19. Governing
Law. This Agreement shall be governed or interpreted according to the internal laws of the State of Nevada without regard to choice
of law considerations and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract,
tort, or otherwise, shall also be governed by the laws of the State of Nevada without regard to choice of law considerations.


 


20. Entire
Agreement. This Agreement constitutes the entire Agreement between the parties and supersedes all prior oral and written agreements
between the parties hereto with respect to the subject matter hereof. Neither this Agreement nor any provision hereof may be changed,
waived, discharged or terminated orally, except by a statement in writing signed by the party or parties against which enforcement or
the change, waiver discharge or termination is sought.


 






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21. Section
and Paragraph Headings. The section and paragraph headings in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.


 


22.
Section 409A Compliance.


 


(a) This
Agreement is intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), or an
exemption thereunder. This Agreement shall be construed and administered in accordance with Section 409A. Notwithstanding any other provision
of this Agreement to the contrary, payments provided under this Agreement may only be made upon an event and in a manner that complies
with Section 409A or an applicable exemption. Any payments under this Agreement that may be excluded from Section 409A either as separation
pay due to an involuntary separation from service (including a voluntary separation from service for good reason that is considered an
involuntary separation for purposes of the separation pay exception under Treasury Regulation 1.409A-1(n)(2)) or as a short-term deferral
shall be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, each installment payment provided under
this Agreement shall be treated as a separate payment. Any payments to be made under this Agreement upon a termination of employment shall
only be made if such termination of employment constitutes a “separation from service” under Section 409A. Notwithstanding
the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A
and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest, or other expenses that may be incurred
by the Executive on account of non-compliance with Section 409A.


 


(b) Notwithstanding
any other provision of this Agreement, if at the time of the Executive’s termination of employment, the Executive is a “specified
employee”, determined in accordance with Section 409A, any payments and benefits provided under this Agreement that constitute “nonqualified
deferred compensation” subject to Section 409A (e.g., payments and benefits that do not qualify as a short-term deferral or as a
separation pay exception) that are provided to the Executive on account of the Executive’s separation from service shall not be
paid until the first payroll date to occur following the six-month anniversary of the Executive’s termination date (“Specified
Employee Payment Date”). The aggregate amount of any payments that would otherwise have been made during such six-month period shall
be paid in a lump sum on the Specified Employee Payment Date without interest and thereafter, any remaining payments shall be paid without
delay in accordance with their original schedule. If the Executive dies during the six-month period, any delayed payments shall be paid
to the Executive’s estate in a lump sum upon the Executive’s death.


 


(c) To
the extent required by Section 409A, each reimbursement or in-kind benefit provided under this Agreement shall be provided in accordance
with the following:


 


(1) the
amount of expenses eligible for reimbursement, or in-kind benefits provided, during each calendar year cannot affect the expenses eligible
for reimbursement, or in-kind benefits to be provided, in any other calendar year;


 






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(2) any
reimbursement of an eligible expense shall be paid to the Executive on or before the last day of the calendar year following the calendar
year in which the expense was incurred; and


 


(3)
any right to reimbursements or in-kind benefits under this Agreement shall not be subject to liquidation or exchange for another benefit.


 


(d) In
the event the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i)
of the Code at the time of the Executive’s separation from service, then to the extent any payment or benefit that the Executive
becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation
subject to Section 409A as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and
such benefit shall not be provided until the date that is the earlier of (i) six months and one day after the Executive’s separation
from service, or (ii) the Executive’s death (the “Six Month Delay Rule”).


 


(1) For
purposes of this subparagraph, amounts payable under the Agreement should not provide for a deferral of compensation subject to Section
409A to the extent provided in Treasury Regulation Section 1.409A-1(b)(4) (e.g., short-term deferrals), Treasury Regulation Section 1.409A-1(b)(9)
(e.g., separation pay plans, including the exception under subparagraph (iii)), and other applicable provisions of the Treasury Regulations.


 


(2) To
the extent that the Six Month Delay Rule applies to payments otherwise payable on an installment basis, the first payment shall include
a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of the Six
Month Delay Rule, and the balance of the installments shall be payable in accordance with their original schedule.


 


(3) To the extent
that the Six Month Delay Rule applies to the provision of benefits (including, but not limited to, life insurance and medical
insurance), such benefit coverage shall nonetheless be provided to the Executive during the first six months following his
separation from service (the “Six Month Period”), provided that, during such Six-Month Period, the Executive pays to the
Company, on a monthly basis in advance, an amount equal to the Monthly Cost (as defined below) of such benefit coverage. The Company
shall reimburse the Executive for any such payments made by the Executive in a lump sum not later than 30 days following the sixth
month anniversary of the Executive’s separation from service. For purposes of this subparagraph, “Monthly Cost”
means the minimum dollar amount which, if paid by the Executive on a monthly basis in advance, results in the Executive not being
required to recognize any federal income tax on receipt of the benefit coverage during the Six Month Period.


 


(e) The
parties intend that this Agreement will be administered in accordance with Section 409A. To the extent that any provision of this Agreement
is ambiguous as to its compliance with Section 409A, the provision shall be read in such a manner so that all payments hereunder comply
with Section 409A. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary
to fully comply with Section 409A and all related rules and regulations in order to preserve the payments and benefits provided hereunder
without additional cost to either party.


 


(f) The
Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this
Agreement are determined to constitute deferred compensation subject to Section 409A but do not satisfy an exemption from, or the conditions
of, such Section.


 


[Signature Page To Follow]


 




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IN WITNESS WHEREOF, the Company and the
Executive have executed this Agreement as of the date and year first above written.


 


	 	Agora Digital Holdings, Inc.
	 	 
	 	By:	/s/ Brad Hoagland
	 	Name:  	Brad Hoagland
	 	Title:	Chief Executive Officer
	 	 
	 	Executive:
	 	 
	 	/s/ M Britt Swann
	 	Name:	M Britt Swann


 


Signature Page to Employment Agreement