Exhibit 10.9


 


EMPLOYMENT AGREEMENT


 


This Employment Agreement
(this “Agreement”) is made and entered into as of March 27, 2020 (the “Effective Date”) between
BANNER MIDSTREAM CORP (the “Company”), and Jay Puchir (the “Executive”).


 


RECITALS


 


WHEREAS, the Executive and
the Company each desire that the Executive be employed by the Company as a senior executive and provide services to the Company and certain
other members of the Company Group (as defined below), which may include, without limitation, responsibilities as a director, manager
or officer of certain members of the Company Group;


 


WHEREAS, pursuant to a acquisition
transaction taking effective on or about the Effective Date (the “Acquisition”), pursuant to the terms of an Agreement
and Plan of Acquisition dated effective on or about March 27, 2020 (the “Acquisition Agreement”), the Company (as the surviving
entity of such Acquisition) became a wholly-owned subsidiary of Ecoark Holdings, Inc. (“Holdings”);


 


WHEREAS, the Executive and
the Company each desire to enter into this Agreement to replace any prior understandings, whether written or oral, with respect to the
Executive’s employment, effective as of the Effective Date, to provide certain minimum compensation and severance benefits to the
Executive in return for the Executive’s continued loyalty and performance as well as the Executive’s agreement to be bound
by the covenants set forth in this Agreement; and


 


WHEREAS, the term “Company
Group” means Holdings, together with each of its subsidiaries operating in the same or similar business industry, including
the Company.


 


NOW, THEREFORE, in consideration
of the mutual promises herein contained and other good and valuable consideration, the parties hereto hereby agree as follows:


 


 1. Position and Duties.




 


a. During
the Term (as defined below), the Executive shall serve as Chairman and Chief Executive Officer of Banner Midstream Corp presiding over
the Company and its wholly owned subsidiaries, as well as the Principal Accounting Officer of Ecoark Holdings Inc. As Chairman and Chief
Executive Officer of Banner Midstream Services Corp the Executive shall report to Randy May, the Chairman and Chief Executive Officer
of Ecoark Holdings Inc. As Principal Accounting Officer of Ecoark Holdings Inc., the Executive shall report to Brad Hoagland, Principal
Financial Officer of Ecoark Holdings Inc. The Executive shall perform such duties as may be specified from time to time by, the Board
of Directors of Holdings (the “Board”). At all times, the Executive shall abide by all directions of the Board and
shall abide by the Company Group’s rules and procedures in force during the course of the Executive’s employment with the
Company.


 






     


     


    

 


b. During
the Term, and excluding any periods of disability, vacation and sick leave to which the Executive is entitled, the Executive agrees to
devote his full professional attention, time, energies, interests and abilities to the business and affairs of the Company Group. The
Executive may also devote a reasonable amount of time to civic and personal responsibilities, as long as any such responsibilities do
not interfere with the Executive’s duties and responsibilities to the Company. Absent advance disclosure of other employment, and
receipt of written approval for such employment from the Board, the Executive is specifically restricted from being employed by any other
company, other than a member of the Company Group, while under the Company’s employ pursuant to this Agreement.


 


c. On
the Effective Date, Holdings agrees to accelerate the vesting of any and all unvested stock options as specified in the Consulting Agreement
(the “Consulting Agreement”) made and entered into to be effective as of May 15, 2019 by and between Holdings and the
Executive. The parties acknowledge and agree that this Agreement replaces and supersedes the any prior employment agreement between the
parties (or their predecessors or affiliates) (the “Prior Agreements”), and that such Prior Agreements are no longer
of any force or effect other than the aforementioned fully vested stock options from the Consulting Agreement. In consideration of the
Company’s payment and other obligations under this Agreement, Executive hereby agrees to completely and forever release and discharge
each member of the Company Group and its respective affiliates, stockholders, officers, directors, employees, attorneys, agents, successors,
and assigns from any and all claims of any kind, demands, causes of action, or suits at law or in equity, contract or tort, which he has
or may have of whatsoever kind or nature to the Effective Date, whether known or unknown, anticipated or unanticipated, past or present,
contingent or fixed relating to any Prior Agreements or Executive’s employment by the Company or its predecessors or affiliates
prior to the date hereof (collectively, the “Claims”), including without limitation any Claims for compensation, wages,
bonuses, commissions due, fringe benefits, accrued vacation, severance pay, back pay, legal fees, costs, or expenses, whether arising
pursuant to any Prior Agreements or otherwise, but specifically excluding any claims relating to accrued and unpaid benefits arising under
the Company’s welfare benefit and qualified retirement plans through the Effective Date.


 


2. Compensation.


 


a. Annual
Base Salary and Salary Review. The Executive’s “Annual Base Salary” shall be $180,000.00 per year and shall
be reviewed by the Board from time to time and may be adjusted upward in accordance with the other terms of this Agreement, at the discretion
of the Board or, if applicable, a committee established by the Board which has been delegated responsibility for executive compensation
matters (the “Committee”). The Annual Base Salary shall be payable in installments, less legally required withholdings,
consistent with the Company’s payroll procedures in effect from time to time, provided that such installments shall be no less frequent
than monthly.


 






    2


     


    

 


b. Annual
Bonus. In addition to the Annual Base Salary, commencing in the calendar year 2020, the Executive shall be eligible to earn, for each
complete calendar year ending during the Term, an annual bonus of up to 30% of the Executive’s Annual Base Salary based on terms
and conditions, including the financial performance of the Company as well as individual performance goals, as set forth in a bonus plan
that is to be established, approved, administered and determined in all respects in the sole discretion of the Board or, if applicable,
the Committee (the “Annual Bonus”). For the calendar year 2020, the Executive shall be eligible to earn a pro rata
Annual Bonus for the partial calendar year running from the Effective Date to December 31, 2020. To earn any bonus under this Section
2(b), in addition to meeting any criteria for earning a bonus that may be established and approved by the Board, the Executive must
be actively employed by the Company and in good standing on the date that the annual bonus is paid by the Company, except as may be otherwise
provided in Section 7 of this Agreement.


 


c. Stock
Option Grant


 


The Company shall grant to Executive a non-qualified stock option (“NQSO”)
to purchase up to 250,000 shares of Common Stock (the "Option") in the Company with an exercise price based on the closing share
price of the Company’s Common Stock on the Effective Date of the Agreement.


 


The Option will be scheduled to vest as follows:


 


		(i)	10% or 25,000 options shall vest on April 15, 2020



 


		(ii)	10% or 25,000 options shall vest on May 15, 2020



 


		(iii)	10% or 25,000 options shall vest on June 15, 2020



 


		(iv)	10% or 25,000 options shall vest on July 15, 2020



 


		(v)	10% or 25,000 options shall vest on August 15, 2020



 


		(vi)	10% or 25,000 options shall vest on September 15, 2020



 


		(vii)	10% or 25,000 options shall vest on October 15, 2020



 


		(viii)	10% or 25,000 options shall vest on November 15, 2020



 


		(ix)	10% or 25,000 options shall vest on December 15, 2020



 


		(x)	10% or 25,000 options shall vest on January 15, 2021



 


 


		i.	Cashless exercise provision. 



 


Upon execution of this agreement, the Consultant will have
the ability to perform a cashless exercise of any of the aforementioned stock options in as agreed in the related Notice of Stock Option
Grant to this provision.


 


		ii.	Change in control provision. 



 


Upon execution of this agreement, any unvested stock options
shall accelerate vesting and all shall vest upon a change in control of the Company via the sale of 50.1% or more of the voting stock
of the Company to an unaffiliated party or the sale of 50.1% or more of the voting stock of Zest Labs, Inc. to an unaffiliated party.


 


		iii.	Lawsuit provision. 



 


Upon execution of this agreement, any unvested stock options
shall accelerate vesting and all shall vest upon either a successful verdict or a settlement of the ongoing lawsuit of ZEST LABS, INC.
f/k/a INTELLEFLEX CORPORATION; and ECOARK HODLINGS, INC. v. WALMART INC. f/k/a WAL-MART STORES, INC.


 






    3


     


    

 


3. Fringe
Benefits.


 


a. Medical
and Insurance. During the Term, the Executive and the Executive’s dependents shall be eligible to participate in all insurance,
welfare, retirement savings and disability benefit plans, practices, policies and programs as are maintained by the Company from time
to time, and subject to the terms and eligibility requirements of such plans, practices, policies and programs. Notwithstanding the foregoing,
the Company reserves the right to modify, change, or terminate any particular welfare or benefit plan, practice, program or policy in
its sole discretion.


 


b. Expenses.
During the Term, the Executive will be reimbursed for all reasonable and documented business expenses incurred by the Executive in
accordance with the Company’s expense reimbursement policies, practices and procedures then in effect, including the expenses related
to the Executive’s individual cell phone plan and any work-related travel expenses. In order to qualify for reimbursement, the Executive’s
expenses shall be (i) submitted within thirty (30) days of being incurred, (ii) substantiated by invoices and receipts, and (iii) supported
by a sufficient business purpose.


 


4. Paid
Leave.


 


a. Paid
Time Off. During the Term, the Executive shall be entitled to twenty (20) days of paid time off per each calendar year in accordance
with the plans, policies, programs and practices of the Company then in effect for executive employees, with such paid time off to be
taken when the Executive’s absence shall not disrupt or otherwise harm the Company. In the event no Company plan or policy governs
paid time off, the Executive shall accrue paid time off on a pro rata basis on each Company pay day, subject to a maximum accrual cap
of thirty (30) days per year. Accrued but unused paid time off shall be carried over from year to year, and shall be paid at the Executive’s
base rate of pay when used or upon termination of employment.


 


b. Sick
Leave and Holidays. The Executive shall receive paid sick leave and holidays under applicable law and the guidelines for such leave
in effect from time to time for the Company’s executive employees.


 


5. Conflicting
Activities. During the Term, the Executive shall not engage in any activity that conflicts with the Company Group’s best
interests, in each case as determined by the Board in its reasonable discretion.


 


6. Confidentiality.
Other than in connection with Protected Activity (as defined below), during the Term, the Executive shall not disclose any provisions
or terms of this Agreement to any person at the Company, any person or entity that does business with the Company or any person or entity
that is affiliated with the Company, except that the Executive may disclose any such information in order for Executive to evidence or
enforce his rights under this Agreement, as required by subpoena or court order, or to an attorney or tax or financial adviser to the
extent necessary to obtain professional advice. In addition, the Executive may disclose such information to members of the Executive’s
immediate family as long as such family members agree to be bound by the confidentiality provisions of this Agreement.


 






    4


     


    

 


7. Geographic
Location. Executive, shall be permitted to work full-time as his primary work location, when not traveling on business travel,
in one of the 3 following locations:


 


a. The
Company’s office in Frisco, Texas


 


b. The
Executive’s home office in McKinney, Texas or a surrounding area within 50 miles of the Company’s office in Frisco, Texas


 


c. The
Executive’s home office at his primary or secondary residence within the State of Colorado per the Executive’s pre-existing
plans to move to that State for family reasons at any time per decision of the Executive within this Agreement term.


 


8. Term
and Termination.


 


a. Term.1
The term of the Executive’s employment under this Agreement shall be for an initial period of one (1) year from the Effective Date
of this Agreement (the “Initial Period”), following which, the term of the Executive’s employment under
this Agreement shall automatically renew for one (1)-year periods (each, a “Renewal Period”), unless either party gives
notice of non-renewal at least ninety (90) days prior to the end of the Initial Period or any Renewal Period, as applicable, or unless
earlier terminated pursuant to this Section 7. For purposes of this Agreement, the “Term” shall include
the Initial Period and any subsequent Renewal Period(s).


 


b. Termination
by Consent. The Executive’s employment may be terminated at any time during the Term by the parties’ mutual agreement,
expressed in writing.


 


c. Termination
by the Executive. The Executive may terminate his employment at any time during the Term and for any reason (including for Good Reason,
as provided below) upon thirty (30) days’ prior written notice to the Company. Upon such voluntary termination, the Company’s
only obligation to the Executive shall be payment of any accrued unpaid salary, accrued earned and unpaid bonus for any completed calendar
year, accrued benefits and accrued unused vacation time earned through the date of termination (the “Accrued Compensation”);
provided, however, that if the Executive terminates his employment for Good Reason, Executive shall be entitled to the Severance Compensation
described in Section 7(d) below. At any time after the Executive notifies the Company of his intent to resign, the Company may relieve
the Executive of all or some of his responsibilities with the Company or cease to require the Executive’s presence in the office
and, provided that the Company continues to pay the Executive his Annual Base Salary and benefits through the end of the thirty (30)-day
notice period, the Company’s decision to limit the Executive’s, or relieve the Executive of his, responsibilities or cease
to require the Executive’s presence in the office shall not constitute a termination of the Executive by the Company.


 






    5


     


    

 


“Good Reason”
shall mean, any of the following occurring without the Executive’s approval:


 


		(i)	A material reduction of the Executive’s Annual Base Salary (it being understood that such reduction
of the Executive’s Annual Base Salary must be by at least 20% in order to constitute a material reduction for purposes of this provision);



 


		(ii)	A material breach of the terms of this Agreement by the Company.



 


For the Executive’s termination of his employment
to be for Good Reason, the Executive must notify the Company in writing of the event giving rise to Good Reason within thirty (30) days
following the occurrence of the event (or, if later, thirty (30) days following the Executive’s knowledge of occurrence of the event),
the event must remain uncured after the expiration of thirty (30) days following the delivery of written notice of such event to the Company
by the Executive, and the Executive must resign effective no later than thirty (30) days following the Company’s failure to cure
the event and must give at least thirty (30) days’ advance written notice prior to the Executive’s effective date of resignation.


 


d. Termination
by the Company without Cause. The Board may in its sole discretion cause the Company to terminate the Executive’s employment
at any time during the Term without Cause (as defined below) and upon thirty (30) days’ prior written notice to the Executive, with
the Company’s only obligations being the payment of the Accrued Compensation and, subject to the conditions described in this paragraph
Section 7(d), the severance compensation specified in this Section 7(d). If (i) the Company terminates the Executive’s
employment during the Term without Cause, or if the Executive terminates his employment for Good Reason, as provided in Section 7(c) above,
(ii) the Executive executes a general release in the form attached as Exhibit A hereto (and the Executive does not subsequently
revoke such release) and (iii) the Executive continues to comply in all material respects with his obligations under Section 8
of this Agreement, then the Company shall (conditioned upon such timely execution, delivery and non-revocation of the foregoing release)
pay the Executive (x) severance compensation (the “Severance Compensation”) equal to the Annual Base Salary
otherwise due to the Executive for a period equal to the longer of: (A) the remaining period of the Initial Period or any Renewal Period
(as applicable) then in effect; or (B) three (3) months,2
which Severance Compensation, if any, shall be paid commencing with the first regular payroll date following fifty-two (52) days after
the Executive’s last day of employment and otherwise paid at the same times as payments would have been made if the Executive had
remained employed by the Company through such applicable severance period; provided, however, that the first such payment
shall include all payments the Executive would have received prior to the expiration of such statutory revocation period had there been
no termination of employment, and (y) a lump sum cash payment equal to six (6) times the “applicable percentage” of the
monthly COBRA premium cost applicable to the Executive if the Executive (or his dependents) were to elect COBRA coverage in connection
with such termination (the “COBRA Payment”), with such amount to be paid on the date that Severance Compensation payments
commence. The payments in this Section 7(d) shall be subject to the provisions of Section 7(g) below.


 






    6


     


    

 


e. Termination
by the Company for Cause. The Company may terminate the Executive’s employment for “Cause” at any time during
the Term effective immediately, with the Company’s only obligation being the payment of the Accrued Compensation and without liability
for Severance Compensation of any kind, if the Company or the Board reasonably determines that any of the following has occurred:


 


(i) the
Executive materially breaches any term of Section 8(b) or breaches any term of Sections 8(d), (e) or (g) of
this Agreement;


 


(ii) the
Executive materially breaches any term of this Agreement other than Sections 8(b), (d), (e) or (g), or materially
violates any written Company Group policy, procedure or guideline, unless such breach or violation is remedied within thirty (30) days
after the Executive’s receipt of written notice thereof from the Company;


 


(iii) the
Executive fails to promptly disclose to the Board any material information or material developments known to the Executive, in each case,
that could reasonably be expected to have a material impact on the business of the Company Group;


 


(iv) the
Executive refuses or fails to follow (other than by reason of disability) any lawful direction of the Board consistent with the terms
of this Agreement, unless such refusal or failure is remedied within thirty (30) days after the Executive’s receipt of written notice
thereof from the Company; provided, that, the Executive shall have only one (1) opportunity to cure such refusal or failure (it
being acknowledged that to the extent the Executive uses his good faith efforts to attempt to follow a lawful direction, the failure to
accomplish or fulfill such direction shall not be a grounds for termination for Cause absent the occurrence of one of the other events
in this Section 7(e));


 


(v) the
Executive engages in any of the following forms of misconduct:


 


A. commission
of any felony or commission of any misdemeanor involving personal dishonesty of the Executive or moral turpitude;


 


B. fraud,
dishonesty, embezzlement, material theft or material misappropriation of the Company Group’s property;


 


C. excessive
or inappropriate use of alcohol in violation of Company policy which impairs the Executive’s ability to successfully perform his
duties and responsibilities or any illegal use of an illicit drug in violation of Company policy;


 


D. discriminatory
or harassing behavior with any employee, agent or consultant of any member of the Company Group in violation of Company policy or federal,
state, or local law; or


 


E. willful
misconduct or gross neglect of the Executive’s duties and responsibilities that is reasonably likely to result in any material injury
to the economic or ethical welfare or the public image of any member of the Company Group, unless such misconduct or neglect is remedied
(if able to be remedied) within thirty (30) days after the Executive’s receipt of written notice thereof from the Company; provided,
that, the Executive shall have only one (1) opportunity to remedy such misconduct or neglect;


 


(vi) The
Company (prior to the Acquisition taking effect) breach any material covenant representation, or warranty under the Acquisition Agreement,
or any representation or warranty made by the Company under the Acquisition Agreement proves to be inaccurate or incorrect in any material
respect.


 






    7


     


    

 


f. Termination
by Death or Disability. The Executive’s employment shall terminate automatically upon the Executive’s death during the
Term, with the Company’s only obligation being the payment of the Accrued Compensation, and without liability for Severance Compensation
of any kind. In addition, if the date of termination occurs after December 31st but prior to the date annual bonuses are paid by the Company
for the previous calendar year, and provided the Executive (or his estate) (i) executes a general release in the form attached
as Exhibit A hereto (and the Executive (or his estate) does not subsequently revoke such release) and (ii) continues to comply
with the Executive’s obligations under Section 8 of this Agreement, then the Company shall pay to the Executive (or
his estate) an amount equal to the amount of the accrued, earned and unpaid annual bonus, if any and determined in accordance with Section
2(b), that would have been earned by the Executive for the immediately preceding calendar year had the Executive remained employed
by the Company through the date that annual bonuses are paid to employees generally, with such bonus to be paid as a lump sum on the first
payroll date following fifty-two (52) days after the Executive’s last day of employment. If the Company determines in good faith
that the Disability of the Executive has occurred during the Term (pursuant to the definition of Disability set forth below), then the
Company may provide to the Executive written notice of its intention to terminate the Executive’s employment. In such event, the
Executive’s employment with the Company shall terminate effective on the thirtieth (30th) day after receipt of such notice by the
Executive, with the Company’s only obligation being the payment of the Accrued Compensation and without liability for Severance
Compensation of any kind; provided, that, within the thirty (30) days after the receipt by the Executive of notice of the Company’s
intention to terminate the Executive’s employment, the Executive shall not have returned to full-time performance of the Executive’s
duties. For purposes of this Agreement, “Disability” shall mean the Executive’s failure or inability to perform
the Executive’s duties with the Company on a full-time basis for ninety (90) consecutive business days, or for an aggregate of one-hundred
eighty (180) days in any twelve (12) month period, due to mental or physical illness or condition. The payments in this Section
7(f) shall be subject to the provisions of Section 7(g) below.


 


g. Limitations
under Code Section 409A.


 


(i) If
at the time of the Executive’s separation from service, (A) the Executive is a specified employee (within the meaning of Section
409A of the Internal Revenue Code of 1986, as amended (the “Code”), and using the identification methodology selected
by the Company from time to time), and (B) the Company makes a good faith determination that an amount payable hereunder constitutes
deferred compensation (within the meaning of Section 409A of the Code), the payment of which is required to be delayed pursuant to
the six (6)-month delay rule set forth in Section 409A of the Code in order to avoid additional taxes or interest under Section 409A
of the Code, then the Company will not pay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on
the first business day after such six (6)-month period, together with interest for the period of delay, compounded annually, equal to
the prime rate (as published in the Wall Street Journal) in effect as of the dates the payments should otherwise have been provided.


 


(ii) It
is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax or interest
imposed pursuant to Section 409A of the Code. To the extent such potential payments or benefits could reasonably be expected to become
subject to such Section 409A of the Code, the parties shall cooperate to amend this Agreement with the goal of giving the Executive the
economic benefits described herein in a manner that does not result in such tax being imposed.


 


(iii) With
respect to payments under this Agreement, for purposes of Section 409A of the Code, each severance payment will be considered one of a
series of separate payments, and each such payment shall be a separately identifiable and determinable amount.


 


(iv) For
purposes of determining the timing of any payment of Severance Compensation, the Executive will be deemed to have a termination of employment
only upon a “separation from service” within the meaning of Section 409A of the Code.


 






    8


     


    

 


(v) Any
amount that the Executive is entitled to be reimbursed under this Agreement will be reimbursed to the Executive as promptly as practicable,
and, in any event, not later than the last day of the calendar year following the year in which the expenses were incurred.


 


(vi) For
purposes of this Agreement, each payment of Severance Compensation is intended to be excepted from Section 409A of the Code to the maximum
extent provided under Section 409A of the Code as follows: (A) each payment that is scheduled to be made following the Executive’s
termination of employment and within the applicable two and one-half (21⁄2)-month period specified in Treasury Regulations Section
1.409A-1(b)(4) is intended to be excepted under the short-term deferral exception as specified in Treasury Regulations Section 1.409A-1(b)(4)
and (B) each payment that is not otherwise excepted under the short-term deferral exception is intended to be excepted under the voluntary
separation pay exception as specified in Treasury Regulations Section 1.409A-1(b)(9)(iii) or the exception for limited payments described
in Treasury Regulations Section 1.409A-1 (b)(9)(v)(D). The Executive shall have no right to designate the date of any payment of Severance
Compensation to be made hereunder.


 


9. Restrictive
Covenants.


 


a. The
Executive acknowledges that his employment as a senior officer of the Company creates a relationship of confidence and trust between the
Executive and the Company with respect to the Confidential Information. The Executive further acknowledges: (i) the highly competitive
nature of the businesses of the members of the Company Group, (ii) that the Executive has been instrumental in building the business,
reputation and trade secrets of the Company Group; (iii) that the Executive has been privy to the Confidential Information during
his employment with the Company prior the date of this Agreement and will continue to receive Confidential Information from the Company
and other members of the Company Group provided that the Executive signs this Agreement; and (iv) that the Executive is a member
of senior management of the Company. For these reasons, the Executive acknowledges that he would be uniquely positioned to damage the
Company Group’s business interests in the event the Executive were to become affiliated with any Competitive Business (as defined
below) during the Term. Further, the Executive understands and acknowledges that the restrictions contained in this Section 8,
and in particular the covenants prohibiting competition and solicitation, were negotiated by the Company at the request of Holdings (which
made a very significant investment by its acquisition of the Company) in order to protect Holdings’ investment in light of the Executive’s
position as a key person to the business of the Company Group and in order to protect the Confidential Information. Finally, the Executive
acknowledges that the significant and substantial compensation, bonuses, and severance structure outlined in this Agreement were offered
to the Executive to ensure that the Executive was adequately compensated for the agreed-upon restrictions on the Executive’s ability
to compete with the members of the Company Group. Accordingly, it is agreed that the restrictions contained in this Section 8 are
reasonable and necessary for the protection of the interests of the members of the Company Group and that any violation of these restrictions
would cause substantial and irreparable injury to Holdings, the Company and the other members of the Company Group. In the event any of
the covenants of Section 8 are breached, Holdings, the Company and the other members of the Company Group shall be entitled, in
addition to any other remedies and damages available, to seek injunctive relief to restrain the violation of such covenants by the Executive
or by any person or persons acting for or with the Executive in any capacity whatsoever. If any court shall determine that the duration,
geographic limitations, subject or scope of any restriction contained in this Section 8 is unenforceable, it is the intention of
the parties that neither this Section 8 nor this Agreement shall thereby be terminated but shall be deemed amended to the extent
required to make it valid and enforceable, such amendment to apply only with respect to the operation of this Section 8 in
the jurisdiction of the court that has made the adjudication.


 






    9


     


    

 


b. Protection
of Confidential Information.


 


(i) Definition
of Confidential Information. “Confidential Information” means all nonpublic information (whether in paper or electronic
form, or contained in the Executive’s memory, or otherwise stored or recorded) relating to or arising from the Company’s or
any other member of the Company Group’s business no matter when developed or shared with the Executive, including, without limitation,
trade secrets used, developed or acquired by the Company or any other member of the Company Group in connection with its business. Without
limiting the generality of the foregoing, “Confidential Information” shall specifically include (A) all information
concerning the manner and details of the Company’s and any other member of the Company Group’s operation, organization and
management; financial information or documents and nonpublic policies, procedures and other printed, written or electronic material generated
or used in connection with the Company’s and any other member of the Company Group’s business; (B) all proprietary information
of the Company Group, including but not limited to the Company Group’s intellectual property, technical plans and information, products
in development, specifications, scientific procedures and techniques, materials, trade secrets and formulations; (C) the Company’s
and any other member of the Company Group’s business plans and strategies, including but not limited to the identities of and information
acquired regarding actual or potential acquisition targets of the Company or any member of the Company Group; (D) the identities
of the Company’s and any other member of the Company Group’s customers and the specific individual customer representatives
with whom the Company or such member of the Company Group works and the details of the Company’s or any other member of the Company
Group’s relationship with such customers and customer representatives; (E) the identities of distributors, contractors and
vendors utilized in the Company’s or any other member of the Company Group’s business and the details of the Company’s
or any other member of the Company Group’s relationships with such distributors, contractors and vendors; (F) the nature of
fees and charges made to the Company’s and any other member of the Company Group’s customers; (G) nonpublic forms, contracts
and other documents used in the Company’s or any other member of the Company Group’s business; (H) all information concerning
the Company’s or any other member of the Company Group’s employees, agents and contractors, including without limitation such
persons’ compensation, benefits, skills, abilities, experience, knowledge and shortcomings, if any; (I) the nature and content
of computer software used in the Company’s or any other member of the Company Group’s business, whether proprietary to the
Company or such other member of the Company Group or used by the Company or any other member of the Company Group under license from a
third party; and (J) all other information of a confidential or proprietary nature concerning the Company’s or any other member
of the Company Group’s concepts, prospects, customers, employees, agents, contractors, earnings, products, intellectual property,
services, equipment, systems or prospective and executed contracts and other business arrangements.


 


A. Exceptions
to Confidential Information. “Confidential Information” does not include information that is in the public domain
through no wrongful act on the part of the Executive. Moreover, pursuant to 18 U.S.C. § 1833(b), an individual may not be held liable
under any criminal or civil federal or state trade secret law for disclosure of a trade secret: (i) made in confidence to a government
official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation
of law or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual
suing an employer for retaliation based on the reporting of a suspected violation of law may disclose a trade secret to his or her attorney
and use the trade secret information in the court proceeding, so long as any document containing the trade secret is filed under seal
and the individual does not disclose the trade secret except pursuant to a court order.


 






    10


     


    

 


(ii) Executive’s
Use of Confidential Information. Except in connection with and in furtherance of the Executive’s work on the Company Group’s
behalf, the Executive shall not, without the Company’s prior written consent, either during or at any time after Executive’s
employment with the Company, directly or indirectly: (A) use any Confidential Information for any purpose; or (B) disclose or otherwise
communicate any Confidential Information to any person or entity. The Executive understands that nothing in this Section 8(b)(ii)
specifically, or this Agreement generally, prevents the Executive from engaging in Protected Activity, as described below.


 


(iii) Records
Containing Confidential Information. “Confidential Records” means all documents and other records, whether in paper,
electronic or other form, that contain or reflect any Confidential Information. All Confidential Records prepared by or provided to the
Executive are and shall remain the Company’s or another member of the Company Group’s property. Except in connection with
and in furtherance of the Executive’s work on the Company Group’s behalf, with the Company’s prior written consent,
or while engaging in Protected Activity, the Executive shall not, at any time, directly or indirectly: (A) copy or use any Confidential
Record for any purpose; or (B) show, give, sell, disclose or otherwise communicate any Confidential Record or the contents of any Confidential
Record to any person or entity. Upon the termination of the Executive’s employment with the Company, or upon the Company’s
request, the Executive shall immediately deliver to the Company or its designee (and shall not keep in the Executive’s possession
or deliver to any other person or entity) all Confidential Records and all other Company Group property in the Executive’s possession
or control. Notwithstanding the foregoing, the Executive (A) may retain a copy of the Confidential Information to the extent such
retention is required to demonstrate compliance with law, regulatory authority or other applicable judicial or governmental order, or
to comply with a bona fide document retention policy, and (B) shall not be obligated to destroy electronically stored Confidential
Information to the extent that it is contained in an archived computer system backup; provided that, in each case, any Confidential
Information that is retained or that is not destroyed (including any oral Confidential Information) shall remain confidential and subject
to the terms of this Agreement.


 


c. Protected
Activity. The Executive understands that nothing in this Agreement shall in any way limit or prohibit the Executive from engaging
in any Protected Activity. For purposes of this Agreement, “Protected Activity” means filing a charge or complaint
with, reporting possible violations of law to, communicating or cooperating with, or otherwise participating in any investigation or proceeding
that may be conducted by any federal, state or local government agency, self-regulatory organization or commission, including the Securities
and Exchange Commission, the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration and the National
Labor Relations Board (each, a “Government Agency”), or taking other actions protected under federal or state
whistleblower law (including receiving a whistleblower award). The Executive understands that in connection with such Protected Activity,
the Executive is permitted to disclose documents or other information as permitted by law, and without giving notice to, or receiving
authorization from, the Company. Notwithstanding such right, in making any such disclosures or communications, the Executive agrees to
take all reasonable precautions to prevent any unauthorized use or disclosure of any information that may constitute Confidential Information
to any parties other than as permitted above. The Executive further understands that “Protected Activity” does not
include the disclosure of any Company attorney-client privileged communications. The Executive further acknowledges that the Company has
provided the Executive with notice in compliance with the Defend Trade Secrets Act of 2016 regarding immunity from liability for limited
disclosures of trade secrets, as set forth in Section 8(b)(i)(A) of this Agreement.


 






    11


     


    

 


d. Non-Competition
and Non-Solicitation of Customers. During the Executive’s employment with the Company, and following the date of the Executive’s
termination of employment with the Company (for any reason) for a period equal to twelve (12) months after the date of the Executive’s
termination of employment for any reason, the Executive shall not (nor shall the Executive cause, encourage or provide assistance to anyone
else to), directly or indirectly:


 


(i) Engage,
in any U.S. State or any foreign jurisdiction that any member of the Company Group conducts business or provides services, in any manner,
whether as an employee, consultant, director, owner, agent or otherwise, in any “Competitive Business,” defined as
a business that is engaged in either (A) developing, providing or supplying equipment, instrumentation, products, or solutions for energy
production and/or delivery, or (B) any other business in which any member of the Company Group is engaged, or has formed an intention
to engage and has taken material steps towards engaging in;


 


(ii) Solicit
any customers or clients of any member of the Company Group on behalf of a Competitive Business, or attempt to persuade any such actual
customer or client to discontinue or curtail such customer’s or client’s business with any member of the Company Group;


 


(iii) strategically
target vendors, suppliers or customers of the Company Group, which individually or in the aggregate are material to any member of the
Company Group or to the Company Group as a whole, with the intention that such vendors, suppliers or customers substantially reduce or
discontinue their business dealings with any member of the Company Group or the Company Group as a whole;


 


(iv) Divert
or attempt to divert from any member of the Company Group any business in which any member of the Company Group has been actively engaged
or interfere with any relationship between any member of the Company Group and any of its clients; or


 


(v) Misappropriate,
divert for the benefit of the Executive or any other person, organization or entity, or attempt to so misappropriate or divert, any potential
business opportunities or acquisition targets of the Company Group.


 


e. Inventions.


 


(i) Definition
of Company Inventions. “Company Inventions” means any and all ideas, processes, trade secrets, trademarks and service
marks, inventions, discoveries and improvements to any of the foregoing, that the Executive learns of, conceives, develops or creates
alone or with others during the Executive’s employment with the Company (whether or not conceived, developed or created during regular
working hours) that directly or indirectly arise from or relate to: (A) any member of the Company Group’s business, products
or services; or (B) work performed for any member of the Company Group by the Executive or any other employee, agent or contractor
of any member of the Company Group; or (C) the use of any member of the Company Group’s property or time; or (D) access
to Confidential Information or Confidential Records.


 






    12


     


    

 


(ii) Disclosure
of Company Inventions. At the Company’s request, the Executive shall promptly disclose to the Company or its designee, in a
manner specified by the Company in its sole discretion, all Company Inventions of which the Executive has any knowledge, irrespective
of whether that knowledge is complete or incomplete, and irrespective of whether any such Company Invention or any aspect thereof has
been described in or committed to writing, in whole or part, by any other person.


 


(iii) Assignment.
The Executive hereby assigns to the Company his entire right, title and interest in all Company Inventions, which shall be the sole and
exclusive property of the Company whether or not subject to patent, copyright, trademark or trade secret protection. The Executive also
acknowledges that all original works of authorship that are made by the Executive (solely or jointly with others), within the scope of
the Executive’s employment with the Company, and that are protectable by copyright, are “works made for hire,” as that
term is defined in the United States Copyright Act (17 U.S.C. §§ 101, et seq.). To the extent that any such works, by
operation of law, cannot be “works made for hire,” the Executive hereby assigns to the Company all right, title and interest
in and to such works and to any related copyrights.


 


(iv) Additional
Instruments. The Executive shall promptly execute, acknowledge and deliver to the Company all additional instruments or documents
deemed at any time by the Company, in its sole reasonable discretion, to be necessary to carry out the intentions of this Section 8(f).
If the Company is unable, after reasonable effort, to secure the Executive’s signature on any document needed to apply for or prosecute
any patent, copyright or other right or protection relating to a Company Invention, then the Executive hereby designates and appoints
the Company and its duly authorized officers and agents as the Executive’s agent and attorney-in-fact, to act for and on the Executive’s
behalf to execute, verify and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance
of patents, copyrights and other rights and protections thereof with the same legal force and effect as if executed by him. Such appointment
shall be irrevocable and coupled with an interest.


 


(v) Notwithstanding
anything to the contrary in this Agreement, the Company Inventions shall not include, and the Executive shall be the sole and exclusive
owner of all rights in and to, any invention that the Executive developed entirely on his own time without using any member of the Company
Group’s equipment, supplies, facilities, or trade secret information, except for those inventions that either:


 


(1) Relate at the time of conception
or reduction to practice of the invention to any member of the Company Group’s business, or actual or demonstrably anticipated research
or development of the employer; or


 


(2) Result from any work performed
by the Executive for any member of the Company Group.


 


(vi) The
Executive shall promptly advise the Company in writing of any inventions that the Executive believes meet the criteria in Section 8(e)(v).
The Executive shall not include or incorporate any elements from any patentable inventions or copyrightable materials that meet the criteria
of Section 8(e)(v) into any Company Inventions and, to the extent that the Executive does so, the Executive hereby grants to the Company
a nonexclusive, royalty-free, perpetual, irrevocable, transferable worldwide license (with the right to grant and authorize sublicenses)
to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform
and otherwise exploit such inventions or elements of such inventions, without restriction, including, without limitation, as part of or
in connection with such invention, and to practice any method related thereto.


 






    13


     


    

 


f. Non-disparagement.
During the Executive’s employment with the Company and thereafter, the Executive shall not, and shall cause its affiliates not to,
make to any person any false, disparaging or derogatory comments about the Company Group or the Company Group’s affiliates, business
affairs, clients, contractors, partners, managers, officers, employees, counsel, accountants, financial advisors or other authorized representatives.
Nothing in this Section 8(f) will prevent Executive from giving truthful and non-malicious testimony if properly subpoenaed or otherwise
required to testify under oath.


 


g. The
parties acknowledge and agree that a failure by the Company to pay compensation to the Executive shall not be deemed a breach of this
Agreement if such failure is in response to the Executive’s breach in any material respect of Section 8 of this Agreement.


 


10. Successors
and Assigns. The Company, its successors and assigns may in their sole discretion assign this Agreement to any person or entity,
with or without the Executive’s consent. This Agreement thereafter shall bind, and inure to the benefit of, the Company’s
successors or assigns. The Executive shall not assign either this Agreement or any right or obligation arising hereunder.


 


11. Disputes.
Any action arising from or relating any way to this Agreement, or otherwise arising from or relating to the Executive’s employment
with the Company, shall be tried only in the state or federal courts situated in Dallas, Texas. The parties consent to the exclusive jurisdiction
and venue in those courts to the greatest extent possible under law.


 


12. Miscellaneous.


 


a.  Governing
Law.  This Agreement, and all other disputes or issues arising from or relating in any way to the Company’s relationship with
the Executive, shall be governed by the internal laws of the State of Texas, irrespective of the choice of law rules of any jurisdiction.


 


b.  Withholdings.
All payments made or payable under this Agreement shall be subject to customary or legally required withholdings, and the Executive
authorizes the Company to make deductions for the same from any amounts owed to the Executive.


 


c.  Severability.
If any court of competent jurisdiction declares any provision of this Agreement invalid or unenforceable, the remainder of this Agreement
shall remain fully enforceable. To the extent that any court concludes that any provision of this Agreement is void or voidable, the court
shall reform such provision(s) to render the provision(s) enforceable, but only to the extent absolutely necessary to render the provision(s)
enforceable.


 


d.  Integration.
This Agreement constitutes the entire agreement of the parties and a complete acquisition of prior negotiations and agreements and,
except as provided in Section 11(c), shall not be modified by word or deed, except in a writing signed by the Executive and the
Company following approval by the Board.


 






    14


     


    

 


e.  Waiver.
 No provision of this Agreement shall be deemed waived, nor shall there be an estoppel against the enforcement of any such provision,
except by a writing signed by the party charged with the waiver or estoppel and delivery thereof to the other party. No waiver shall be
deemed continuing unless specifically stated therein, and the written waiver shall operate only as to the specific term or condition waived,
and not for the future or as to any act other than that specifically waived.


 


f.  Construction.
 Headings in this Agreement are for convenience only and shall not control the meaning of this Agreement. Whenever applicable, masculine
and neutral pronouns shall equally apply to the feminine genders; the singular shall include the plural and the plural shall include the
singular. The parties have reviewed and understand this Agreement, and each has had a full opportunity to negotiate this Agreement’s
terms and to consult with counsel of their own choosing. Therefore, the parties expressly waive all applicable common law and statutory
rules of construction that any provision of this Agreement should be construed against the Agreement’s drafter, and agree that this
Agreement and all amendments thereto shall be construed as a whole, according to the fair meaning of the language used.


 


g.  Third
Party Beneficiaries. Except as otherwise expressly provided herein, nothing expressed or referred to in this Agreement will be construed
to give any person other than the parties to this Agreement (and their successors and assigns) any legal or equitable right, remedy or
claim under or with respect to this Agreement or any provision of this Agreement, except that each member of the Company Group (other
than the Company) is an intended third party beneficiary of the provisions of Section 8 of this Agreement and shall be entitled
to enforce such provisions against the Executive.


 


h.  Survival.
The provisions of Sections 1, 2, 3, 4, 5 and 7 shall continue in effect only during the Term, and shall terminate and be
of no further force and effect upon expiration of the Term or termination of this Agreement, except with respect to any obligations the
Company may have pursuant to Section 7 based on the nature of and reason for the termination of the Executive’s employment
with the Company. The provisions of Sections 6, 8, 9, 10 and 11 shall each survive the Term and any termination of this
Agreement and remain in full force and effect until fully performed in accordance with their respective terms.


 






    15


     


    

 


i.  Notices.
Except as otherwise expressly provided herein, all notices, demands and other communications to be given or delivered under or by reason
of the provisions of this Agreement shall be in writing and shall be deemed to have been given (i) when personally delivered, (ii) when
transmitted via telecopy (or other facsimile device) to the number set forth below or transmitted by electronic mail if the sender on
the same day sends a confirming copy of such notice by a recognized overnight delivery service (charges prepaid), or (iii) the day following
the day (except if not a business day, then the next business day) on which the same has been delivered prepaid to a reputable national
overnight air courier service, in each case to the respective party at the address set forth below, or at such other address as such party
may specify by written notice to the other party hereto:


 


Notices to the Company:


 


 Ecoark Holdings, Inc.


5899
Preston Road, Ste 505


Frisco, TX 75034

Attention: William B. Hoagland, CFA, Principal Financial Officer


	Email:	 	 



 





	Notices to the Executive:	 
	 	 
	 	 






Attention: Jay Puchir





	Email:	 	 


  


j.  Fees
and Expenses. All fees and expenses incurred in connection with this Agreement shall be paid by the party incurring such fees and
expenses. Notwithstanding the foregoing, in the event that it becomes necessary for any of the parties hereto to retain legal counsel
to enforce such party’s rights under this Agreement and such party substantially prevails on all issues or claims presented in such
enforcement, all reasonable and documented out-of-pocket costs and expenses, including attorneys’ fees, shall be borne by the other
party hereto with respect to whom the enforcing party shall have enforced its rights.


 


k.  Counterparts.
This Agreement may be executed in counterparts, each of which shall constitute an original but all of which, when taken together, shall
constitute one instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or in “pdf”
or similar electronic format shall be effective as delivery of a manually executed counterpart of this Agreement.


 


[SIGNATURES FOLLOW]


 




    16


     


    

 


IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be duly executed and effective as of the date first above written.


 


	Executive:	 	ECOARK HOLDINGS, INC.
	 	 	 	 	 
	/s/ Jay Puchir	 	By:	/s/ Randy
    May
	Print Name: Jay Puchir	 	Print Name: Randy May
	As its: Principal Accounting Officer	 	As its: Chairman & Chief Executive Officer
	 	 	 	 	 
	BANNER MIDSTREAM CORP	 	 	 
	 	 	 	 	 
	By:	/s/ Jay Puchir	 	 	 
	Print Name: Jay Puchir	 	 	 
	As its: Chairman & Chief Executive Officer	 	 	 



  


[Signature Page to Employment Agreement]


 




    17


     


    

 


Exhibit A


 


Form of General Release


 


This General Release (“Release”)
is between BANNER ENERY SERVICES CORP. (the “Company”), and Jay Puchir (the “Executive”) (each a
“Party,” and together, the “Parties”) and shall be effective on the day that the Executive signs
it (the “Effective Date”).


 


Recitals


 


WHEREAS, the Executive and
the Company are parties to an Employment Agreement dated March [*], 2020 to which this Release is appended as Exhibit A (the “Employment
Agreement”);


 


WHEREAS, capitalized terms
used but not defined in this Release shall have the meanings ascribed to such terms in the Employment Agreement;


 


WHEREAS, the Executive wishes
to receive the severance benefits or other payments specified in Section 7(d) OR Section 7(f) of the Employment Agreement
(the “Severance Benefits”); and


 


WHEREAS, the Executive and
the Company wish to resolve, except as specifically set forth herein, all claims between them arising from or relating to any act or omission
predating the Effective Date defined above.


 


NOW, THEREFORE, in consideration
of the mutual promises herein contained and other good and valuable consideration, the Parties hereto hereby agree as follows:


 


1. Confirmation
of Severance Benefits Obligation. The Company shall pay or provide to the Executive all of the Severance Benefits, as, when and
on the terms and conditions specified in the Employment Agreement.


 


		2.	General Release.



 


a. General
Release. Except for any rights granted under this Release, the Executive, for himself, and for the Executive’s heirs,
assigns, executors and administrators, hereby releases, remises and forever discharges the Company, its parents, subsidiaries, affiliates,
divisions, predecessors, successors and assigns and the directors, officers, partners, attorneys, shareholders, members, administrators,
employees, agents, representatives, employment benefit plans, plan administrators, fiduciaries, trustees, insurers and re-insurers of
each such released entity (collectively, the “Releasees”), of and from all claims, causes of action, covenants, contracts,
agreements, promises, damages, disputes, demands and all other manner of actions whatsoever, at law or in equity, that the Executive ever
had, may have had, now has or that his heirs, assigns, executors or administrators hereinafter can, shall or may have, whether known or
unknown, asserted or unasserted, suspected or unsuspected, as a result of the Executive’s employment with the Company, the termination
of that employment, the termination of the Employment Agreement or any act or omission which has occurred at any time up to and including
the date of the execution of this Release (the “Released Claims”).


 






     


     


    

 


b. Released
Claims. The Released Claims include, but are not limited to, any claims for monetary damages; any claims related to the Executive’s
employment with Company, the Company Group or their subsidiaries, affiliates or related entities; any claims related to the termination
of such employment; any claims to severance or similar benefits under contract or otherwise; any claims to expenses, attorneys’
fees or other indemnities; any claims based on actions or failure to act on or before the date of this Release; any claims for other personal
remedies or damages sought in any legal proceeding or charge filed with any court or federal, state or local agency either by the Executive
or by a person claiming to act on the Executive’s behalf or in the Executive’s interest. The Executive understands that the
Released Claims might have arisen under many different local, state and federal statutes, regulations, case law or common law doctrines.
The Executive hereby specifically, but without limitation, agrees to release all of the Releasees from any and all claims under the following:


 


(i) Antidiscrimination
laws, such as Title VII of the Civil Rights Act of 1964, as amended, and Executive Order 11246 (which prohibit discrimination based on
race, color, national origin, religion, or sex); Section 1981 of the Civil Rights Act of 1866 (which prohibits discrimination based on
race or color); the Americans with Disabilities Act and Sections 503 and 504 of the Rehabilitation Act of 1973 (which prohibit discrimination
based upon disability); the Age Discrimination in Employment Act, as amended, 29 U.S.C. Section 621 et seq. (which prohibits discrimination
on the basis of age); the Equal Pay Act (which prohibits paying men and women unequal pay for equal work); any state or local law in the
State of California prohibiting discrimination on the basis of protected characteristics including race, color, religion, ancestry, sex,
gender, age, sexual orientation, gender identity or gender expression, marital status, national origin, and physical or mental disability);
any State of California law that prohibits the payment of unequal pay to men and women who perform equal work; or any other local, state
or federal statute, regulation, common law or decision concerning discrimination, harassment, or retaliation on these or any other grounds
or otherwise governing the employment relationship.


 


(ii) Other
employment laws, such as the federal Worker Adjustment and Retraining Notification Act of 1988 and any similar California law (known as
WARN laws, which require that advance notice be given of certain workforce reductions); the Executive Retirement Income Security Act of
1974 (which, among other things, protects employee benefits); the Fair Labor Standards Act of 1938 (which regulates wage and hour matters)
and any similar wage and hour laws of the State of California; the Family and Medical Leave Act of 1993 (which requires employers to provide
leaves of absence under certain circumstances) and any similar California law; and any other federal, state, or local statute, regulation,
common law or decision relating to employment, such as veterans’ reemployment rights laws or any other aspect of employment.


 


(iii) Other
laws of general application, such as any federal, state, or local law enforcing express or implied employment or other contracts or covenants;
any other federal, state or local laws providing relief for alleged wrongful discharge, physical or personal injury, breach of contract,
emotional distress, fraud, negligent misrepresentation, defamation, invasion of privacy, violation of public policy and similar or related
claims; common law claims under any tort, contract or other theory now or hereafter recognized, and any other federal, state, or local
statute, regulation, common law or decision otherwise regulating employment.


 






    2


     


    

 


c. No
Waiver of Certain Rights. By signing this Release, the Executive does not release or waive any judicially or statutorily mandated
right to participate by testifying truthfully in state or federal administrative proceeding before the Equal Employment Opportunity Commission
or similar state agency, acknowledging that the Executive has no right to recover any monetary benefits or compensation in connection
with such proceedings or any other claim that is non-waivable by law. Similarly, notwithstanding any provision to the contrary in this
Release, by signing this Release the Executive does not waive (i) his right to the Severance Benefits and any rights arising under this
Release; (ii) any vested rights under any pension, retirement, profit sharing or similar plan; (iii) the Executive’s rights, if
any, to indemnification or defense under any statute, the Company’s, its parents’ or its subsidiaries’ organizational
documents, including such entity’s operating agreement or any policy or procedure of the Company or any of its parents or subsidiaries,
or under any insurance contract; (iv) any rights the Executive has as a member of the Company; or (v) any other right that cannot be waived
by private agreement.


 


d. Representations
and Warranties. The Executive agrees that this Release is intended to be interpreted in the broadest possible manner in favor of the
Releasees, to include all actual or potential legal claims that the Executive may have against any of the Releasees, except as specifically
provided otherwise in this Release. The Executive expressly represents and warrants that he has not to date filed or instituted any claim
or proceeding before any court, agency or other tribunal regarding the Executive’s employment with the Company (or any of its affiliates,
subsidiaries or related entities), the terms or conditions of that employment or any alleged violation of state, federal or local law
or regulation by the Company (or any of its affiliates, subsidiaries or related entities) or the agents or employees of the Company (or
any of its affiliates, subsidiaries or related entities) relating to the matters being released by this Release. The Executive represents
and warrants that the Executive is not party to any pending lawsuits or other actions or proceedings of any sort against any of the parties
released by this Release. The Executive represents and warrants that the Executive has not assigned, transferred or purported to assign
or transfer to any other person or entity any rights, claims or causes of action released and discharged by this Release, and no other
person or entity has any interest in the matters released and discharged by this Release, except as disclosed by the terms of this Release.


 


e. Waiver
of Unknown Claims. The Executive agrees that this Release will cover all claims of every nature and kind whatsoever, known or unknown,
suspected or unsuspected, past or present, which the Executive may have against the Releasees as of the date the Executive signs this
Release, despite the fact that California Civil Code Section 1542 and similar laws of other states may provide otherwise. The Executive
expressly waives any right or benefit available to the Executive in any capacity under the provisions of California Civil Code Section 1542
and similar laws of other states, which provides as follows:


 


A general release does not extend to
claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release
and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.


 






    3


     


    

 


f. Release
of Age Discrimination Claims. The Executive agrees and acknowledges that the Executive: (i) understands the language used in this
Release and the Release’s legal effect; (ii) will receive compensation under this Release to which the Executive would not have
been entitled without signing this Release; (iii) has been advised by the Company to consult with an attorney before signing this Release;
and (iv) will be given up to [twenty one (21)] calendar days to consider whether to sign this Release. For a period of seven (7) days
after the Executive signs this Release, the Executive may, in the Executive’s sole discretion, rescind this Release, by delivering
a written notice of rescission to the Board. If the Executive rescinds this Release within seven (7) calendar days after signing it, this
Release shall be void, all actions taken pursuant to this Release shall be reversed and neither this Release nor the fact of or circumstances
surrounding its execution shall be admissible for any purpose whatsoever in any proceeding between the Parties, except in connection with
a claim or defense involving the validity or effective rescission of this Release. If the Executive does not rescind this Release within
seven (7) calendar days after signing, this Release shall become final, binding and irrevocable.


 


3. Acknowledgment
Concerning Earned Wages. The Executive acknowledges that the Company paid the Executive for all earned, unpaid wages and all accrued,
unused paid time off, less applicable withholdings, through the last day of the Executive’s employment, and that the Executive is
entitled to no further payments for wages, compensation, benefits, bonuses, equity or any other type of compensation or benefit, except
for the Severance Benefits that the Executive will receive if the Executive signs and does not revoke this Release.


 


4. Trade
Secrets and Confidential Business Information. The Executive acknowledges that under Section 8 of the Employment Agreement,
the Executive assumed certain obligations relating to the Confidential Information, nondisparagement and certain covenants relating to
interference, including but not limited to the non-solicitation of customers and noncompetition (the “Confidential Information
Provisions”). The Executive acknowledges that, notwithstanding any other provision of this Release, the Confidential Information
Provisions shall survive the execution of this Release to the extent provided by the Employment Agreement and that the Parties’
rights and duties thereunder shall not in any way be affected by this Release. The Executive also covenants that the Executive will immediately
return any and all documents and other property of any member of the Company Group constituting a trade secret or other confidential information
in the Executive’s possession, custody or control, and represents and warrants that the Executive will not retain any copies or
originals of any such property of the members of the Company Group. The Executive further warrants and represents that the Executive has
never violated the Confidential Information Provisions, and covenants that the Executive will not do so in the future. Finally, the Executive
covenants that the Executive will return any and all property of the members of the Company Group, including but not limited to identification,
access cards or keys, and electronic equipment.


 


5. Denial
of Liability. The Parties understand and agree that this Release shall not be construed as an admission of liability on the part
of any person or entity, liability being expressly denied.


 






    4


     


    

 


 6. Miscellaneous.




 


a. Governing
Law. This Release shall be governed by the internal laws of the State of Texas, irrespective of the choice of law rules of any jurisdiction.


 


b. Severability.
In the event that a court of competent jurisdiction enters a final judgment holding invalid any provision of this Release, the remainder
of this Release shall be fully enforceable.


 


c. Modification.
This Release shall not be modified except in a writing signed by the Parties.


 


d. Waiver.
No term or condition of this Release shall be deemed to have been waived, nor shall there be an estoppel against the enforcement of any
provision of this Release, except by a writing signed by the Party charged with the waiver or estoppel. No waiver of any breach of this
Release shall be deemed a waiver of any later breach of the same provision or any other provision of this Release.


 


e. Construction.
The Parties acknowledge that they have reviewed this Release in its entirety and have had a full and fair opportunity to negotiate its
terms and to consult with counsel of their own choosing concerning the meaning and effect of this Release. Each Party therefore waives
all applicable rules of construction that any provision of this Release should be construed against its drafter, and agrees that all provisions
of this Release shall be construed as a whole, according to the fair meaning of the language used.


 


f. Disputes.
Every dispute arising from or relating to this Release shall be tried only in the state or federal courts situated in Dallas, Texas. The
Parties consent to venue in those courts, and agree that those courts shall have personal jurisdiction over them in, and subject matter
jurisdiction concerning, any such action.


 


g. Survival.
The parties expressly acknowledge that Sections 6, 8 and 9 shall survive the execution of this Release and the parties’ respective
obligations under those sections shall continue in full force and effect in accordance with their terms.


 


h. Third
Party Beneficiaries. Each Releasee under Section 2(a) is intended to be a third-party beneficiary of Section 2 of this
Release, and each shall have the right to directly enforce the terms of this Release.


 


i. Counterparts.
This Release may be executed in counterparts, each of which shall be given the same force and effect as the original. Delivery of an executed
counterpart of a signature page to this Agreement by facsimile or in “pdf” or similar electronic format shall be effective
as delivery of a manually executed counterpart of this Release.


 






    5


     


    

 


IN WITNESS WHEREOF, the Parties
hereto have caused this Release to be duly executed and effective as of the date indicated below.


 


	Executive:	 	ECOARK HOLDINGS, INC. 
	 	 	 	 	 
	 	 	 	By:	            
	Print Name: Jay Puchir	 	Print Name: Randy May
	 	 	 	As its: Chairman & Chief Executive Officer
	 	 	 	 
	BANNER MIDSTREAM CORP 	 	 	 
	 	 	 	 	 
	By:	           	 	 	 
	Print Name: Jay Puchir	 	 	 
	As its: Chairman & Chief Executive Officer	 	 	 



 


 


6