Exhibit 10.1


 


RESTRICTED STOCK UNIT AGREEMENT


 


This Restricted Stock Unit
Agreement (this “Agreement”), entered into as of October 7, 2021 (the “Grant Date”), sets forth the terms and
conditions of an award (this “Award”) of restricted stock units (“RSUs”) granted by Ecoark Holdings, Inc., a Nevada
corporation (the “Company”), to Peter Mehring (the “Recipient”).


 


1.
Definition and Incorporation of Certain Terms. This Award is made pursuant to the Company's 2017 Omnibus Incentive Plan
(the “Plan”) and the equity award granted hereunder shall be made from the pool of equity awards authorized under the Plan.
The terms of the Plan are otherwise incorporated in this Agreement. Capitalized terms used in this Agreement that are not defined in this
Agreement have the meanings as used or defined in the Plan. The Recipient hereby acknowledges receipt of the Plan.


 


2.  Award.
Effective as of the Grant Date, the Recipient was granted 63,996 RSUs. In consideration for the Award, the Recipient hereby cancels
672,499 stock options as evidenced by Exhibit A.


 


3.  Vesting.


 


(a)
The RSUs will vest in 12 quarterly increments of 5,333 each (except that the last increment shall be 5,335) with the first vesting
date being November 4, 2021, as detailed on Schedule A. All RSUs shall immediately vest upon (i) the Recipient ceasing to be an
employee, advisor, director or consultant for the Company, or (ii) upon the Company or its wholly-owned subsidiary, Zest Labs, Inc., a
Delaware corporation (“ZEST”), incurring a Change of Control.


 


(b)
Vested RSUs shall be paid out in the form of shares of the Company's Common Stock with delivery of the Common Stock occurring upon
the vesting dates or if vesting occurs upon a Change of Control immediately prior to the occurrence of such Change of Control.


 


4.  Rights.
The Recipient will receive no benefit or adjustment to the RSUs with respect to any cash or stock dividend, or other distributions
except as provided for in the Plan. Further, the Recipient will have no voting rights with respect to the RSUs until the shares of
Common Stock are delivered.


 


5.  Restriction
on Transfer. The Recipient shall not sell, transfer, pledge, hypothecate or otherwise dispose of any RSUs prior to the
applicable vesting date.


 


6.  Reservation
of Right to Terminate Relationship. Nothing contained in this Agreement shall restrict the right of the Company to terminate the
relationship of the Recipient at any time, with or without cause.


 


7.  Tax
Payments. The Company shall pay the federal and state income taxes (the “Taxes”) of the Recipient, and the Recipient
shall have the right in his sole discretion to direct the Company to pay such Taxes by withholding of a number of shares of Common
Stock equal to the quotient of the Taxes divided by the Fair Market Value of the Common Stock as of the date of vesting.


 


8.  409A
Compliance. The provisions of this Agreement and the issuance of the shares of Common Stock in respect of the RSUs is intended
to comply with the short-term deferral exception as specified in Treas. Reg. § 1.409A-1(b)(4).


 






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9.  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, as follows:


 


	 	The Recipient:	To the Recipient
    at the address on the signature page of this Agreement.
	 	 	 	 
	 	The Company	Ecoark Holdings, Inc. 	 
	 		303 Pearl Parkway	 
	 		Suite 200	 
	 		San Antonio, TX 78215	 
	 		Email: ____________________	 
	 	 	 	 
	 	with a copy to:	Michael D. Harris, Esq.	
	 		Nason, Yeager, Gerson,
    Harris & Fumero, P.A.	 
	 		3001 PGA Boulevard, Suite
    305	 
	 		Palm Beach Gardens, Florida
    33410	 
	 		Email:
    _____________________	 



 


or to such other
address as either of them, by notice to the other may designate from time to time.


 


10.  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.


 


11.  Attorney’s
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 a reasonable attorney's fee, costs and expenses


 


12.  Severability.
If any term or condition of this Agreement shall be invalid or unenforceable to any extent or in any application, then the remainder
of this Agreement, and such term or condition except to such extent or in such application, shall not be affected hereby and each
and every term and condition of this Agreement shall be valid and enforced to the fullest extent and in the broadest application
permitted by law.


 


13.  Entire
Agreement. This Agreement represents the entire agreement and understanding between the parties and supersedes all prior
negotiations, understandings, representations (if any), and agreements made by and between the parties. Each party specifically
acknowledges, represents and warrants that they have not been induced to sign this Agreement.


 






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14.  Governing
Law; Exclusive Jurisdiction. This Agreement and any dispute, disagreement, or issue of construction or interpretation arising
hereunder whether relating to its execution, its validity, the obligations provided therein or performance shall be governed or
interpreted according to the internal laws of the State of Nevada without regard to choice of law considerations. Any action arising
out of or related to this Agreement shall only be brought in the state or federal courts located in Las Vegas, Nevada. The parties
agree not to raise any objection to the venue including whether it is an inconvenient forum in the federal courts.


 


15.  Headings.
The headings in this Agreement are for the purpose of convenience only and are not intended to define or limit the construction of
the provisions hereof


 


[Signature Page to Follow]


 






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	 		 	Ecoark Holdings, Inc.  
	 	 	 	 	 
	 	 	 	By:	/s/ Randy May
	 		 	 	Randy May
	 	 	 	 	Chief Executive Officer
	 	 	 	 	 
	By:	/s/ Peter Mehring	 	 	 
	 	Peter Mehring	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	Email: 		 	 	 



 






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Exhibit A – Evidence of cancelled stock options


Schedule A – RSU vesting schedule


 


 


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