UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported):   March 28, 2017

 

Ecoark Holdings, Inc.

(Exact Name of Registrant as Specified in Charter)

 

Nevada   000-53361     39-2075693

(State or other jurisdiction

of incorporation)

  (Commission File Number)  

(IRS Employer

Identification No.)

     

 

 3333 S Pinnacle Hills Parkway, Suite 220, Rogers AR

  72758
(Address of principal executive offices)   (Zip Code)

 

Registrant’s telephone number, including area code: (479) 259-2977

 

N/A
(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

 

 

 

Item 3.02. Unregistered Sales of Equity Securities.

 

On March 31, 2017, Ecoark Holdings, Inc. (the “Company”) issued 22 holders (the “Holders”) of convertible notes (the “Notes”) 832,588 shares of the Company’s common stock, par value $0.001 per share (the “Conversion Shares”), in connection with conversions at the election of the Holders pursuant to the terms of the Notes. The Holders converted an aggregate of $3,700,000 of principal amount of Notes and approximately $18,000 in accrued interest on the Notes at a weighted average price of $4.47 per share. The issuance of the Conversion Shares pursuant to the conversion of the Notes is exempt from registration under the Securities Act of 1933, as amended, pursuant to the provisions of Section 3(a)(9) thereof as the Notes were exchanged by the Company with the existing Holders and no commission or other remuneration was paid or given directly or indirectly for soliciting such exchange. $600,000 in principal amount of Notes remains to be converted. Jay Puchir, the Company’s Chief Executive Officer, and Gary Metzger, one of the Company’s directors, converted $100,000 and $500,000 of Notes, respectively. Pursuant to the terms of the Notes, the Company issued the converting Holders, other than Messrs. Puchir and Metzger, an aggregate of 310,000 warrants, exercisable until December 31, 2018, to purchase the Company’s common stock at $7.50 per share.

 

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

On March 28, 2017, Randy May, the Company’s Chief Executive relinquished his role as Chief Executive Officer to concentrate on his role as Chairman of the Company’s Board of Directors (the “Board”). The Company then appointed Jay Puchir, 41, as the Company’s Chief Executive Officer. Prior to his appointment as the Chief Executive Officer, Mr. Puchir, who originally joined the Company in December 2016, was the Company’s Director of Finance, Treasurer and Secretary. As Director of Finance, Mr. Puchir led the Company’s treasury function, financial planning & analysis. Mr. Puchir started his career as an auditor at PricewaterhouseCoopers and a consultant at Ernst & Young, ultimately earning the position of Senior Manager at Ernst & Young. Immediately prior to joining the Company, he held the role of Associate Chief Financial Officer with HCA and from March 2010 to February 2016 he served as both the Accounting Manager and Director of Finance / Controller at The Citadel. Mr. Puchir is a licensed Certified Public Accountant.  Mr. Puchir has also served on a part-time basis as the Chief Financial Officer of Trend Discovery Capital Management from July 2014 to March 2017. He received his Bachelor of Arts from the University of North Carolina at Chapel Hill and his Master of Business Administration from Rutgers University. 

 

Also, on March 28, 2017, the Company appointed Charles Rateliff, 64, as the Company’s Chief Financial Officer and Treasurer. Prior to his appointment as the Company’s Chief Financial Officer and Treasurer, Mr. Rateliff was appointed to the Company’s Board in May 2016. Mr. Rateliff served as the Treasurer and Senior Vice President of Wal-Mart Stores, Inc. until 2005. Since then, he has been an independent consultant for several private investment firms. After receiving an MBA from the University of Arkansas, Mr. Rateliff was hired as an internal auditor for Walmart and within five years was promoted to Assistant Treasurer and then Treasurer. Over the course of Mr. Rateliff’s career at Walmart he worked across different departments including compliance, risk management, profit sharing and associate benefits.  Charles Rateliff is replacing Yash Puri, the Company’s former Chief Financial Officer who resigned in January 2017.

 

Both Mr. Puchir and Mr. Rateliff shall receive annual salaries of $200,000 and shall receive an equity grant of 300,000 shares which shall be either granted as restricted shares, options or another form of grant after the Company’s Board and shareholders approve an incentive plan in 2017.

 

Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

 

On March 28, 2017, the Company’s Board increased the size of the Board to nine members to enable the Company to reestablish a majority of independent members on the Board. The Board’s nominating committee is conducting a search for new members.

 

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Item 8.01. Other Events.

 

On March 29, 2017, the Company issued a press release regarding the matters described above under Item 5.02 and 5.03 of this Current Report on Form 8-K. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

 

The information in this Item 8.01 of this Current Report on Form 8-K, including Exhibit 99.1 attached hereto, shall not be deemed “filed” for purposes of Section 18 of the United States Securities Exchange Act of 1934 (the “ Exchange Act ”) or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the United States Securities Act of 1933 or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing.

 

Item 9.01. Financial Statements and Exhibits.

 

(d)  

Exhibit
No.

 

Description.

     
    4.1   Form of Warrant Agreement of Ecoark Holdings, Inc.
     
    99.1   Press Release, dated March 29, 2017

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

Date:   April 3, 2017   ECOARK HOLDINGS, INC.
     
  By: /s/ Jay Puchir
  Name: Jay Puchir
  Title: Chief Executive Officer

 

 

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Exhibit 4.1

 

NEITHER THIS WARRANT NOR ANY OF THE SECURITIES ISSUABLE HEREUNDER HAVE BEEN REGISTERED UNDER THE SECURITIES ACT (AS DEFINED BELOW), OR APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT, OR (B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED

 

ECOARK HOLDINGS, INC.

COMMON STOCK PURCHASE WARRANT

 

No. ________   Issue Date: __________, 2017

 

THIS CERTIFIES THAT, for value received, the Holder is entitled to purchase, and ECOARK HOLDINGS, INC. , a Nevada corporation (the “ Company ”), promises and agrees to sell and issue to the Holder, at any time, or from time to time, during the Exercise Period (as defined in Section 2), up to ___________ shares of the Company’s common stock, par value $0.001 per share (the “ Common Stock ”), at the Exercise Price, subject to the provisions and limitations and upon the terms and conditions hereinafter set forth.

 

1. Definitions of Certain Terms .

 

(a) “ Business Day ” means a day on which banks are open for business in the city of New York.

 

(b) “ Commission ” means the U.S. Securities and Exchange Commission.

 

(c) “ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

(d) “ Exercise Price ” means the price at which the Holder may purchase one share of Common Stock upon exercise of this Warrant as determined from time to time pursuant to the provisions hereof. The initial Exercise Price is $7.50 per share, subject to adjustment as provided herein.

 

(e) “ Expiration Date ” means December 31, 2018.

 

(f) “ Holder ” means a record holder of the Warrant.

 

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

 

(h) “ Warrant ” means this Common Stock purchase warrant and any warrant or warrants hereafter issued as a consequence of the exercise or transfer of this warrant in whole or in part.

 

2. Exercise of Warrant .

 

(a) Manner of Exercise .

 

(i) This Warrant may be exercised, in whole or in part, at any time or from time to time, during the period from the Issue Date until 5:30 p.m., New York time, on the Expiration Date (the “ Exercise Period ”), for ________ fully paid and non-assessable shares of Common Stock (the “ Warrant Shares ”), for an exercise price per share equal to the Exercise Price, by delivery to the Company at its headquarters, or at such other place as is designated in writing by the Company, of:

 

(1) a duly executed Notice of Exercise, substantially in the form of Attachment I attached hereto and incorporated by reference herein;

 

(2) this Warrant; and

 

 

 

 

(3) payment of an amount in cash equal to the product of the Exercise Price multiplied by the number of Warrant Shares being purchased upon such exercise, with such payment being in the form of a wire transfer of immediately available U.S. funds to an account designated in writing by the Company.

 

The date on which the Company receives the Notice of Exercise, this Warrant, and the Exercise Price payable with respect to the Warrant Shares being purchased shall be deemed to be the date of exercise (the “ Date of Exercise ”).

 

(b) Company Warrant Call . Commencing on Issue Date, the Company shall have the right, subject to satisfaction of the conditions in this Section 2(b), to cause the exercise of this Warrant (“ Mandatory Exercise ”). If the Company elects to require the Mandatory Exercise of this Warrant, the Company shall deliver prior written notice to the Holder at least ten (10) business days (“ Mandatory Exercise Notice ”) prior to the effective date (“ Mandatory Exercise Effective Date ”) of such Mandatory Exercise. In order to effectuate a Mandatory Exercise, the closing price, for the 30 consecutive trading days prior to the date of the Mandatory Exercise Notice, shall be equal to or in excess of $9.00 (as adjusted for stock splits, stock combinations and the like occurring from and after the Issue Date) and the average daily trading volume (as reported on Bloomberg) of the Common Stock over the 30 consecutive trading period was not less than 90,000 shares on the trading market on which the Common Stock is listed or designated for quotation. If the Company elects to require the Mandatory Exercise of this Warrant, then the Holder must exercise all, but not less than all, of this Warrant for all of the then-remaining Warrant Shares for cash as further set forth herein. In the event that the holder does not exercise the Warrant, the holder shall forfeit any rights under the Warrant, including the right to exercise the Warrant to the extent not previously exercised and the Warrant shall be treated as canceled for all purposes.

 

(c) Delivery of Certificates . Certificates for Warrant Shares purchased hereunder shall be transmitted by the transfer agent of the Company to the Holder by crediting the account of the Holder’s prime broker with the Depository Trust Company (“ DTC ”) through its Deposit Withdrawal Agent Commission system if the Company is a participant in such system and such Warrant Shares are eligible for delivery in such a manner, and otherwise by physical delivery to the address specified by the Holder in the Notice of Exercise within three Business Days from the delivery to the Company of the Notice of Exercise, surrender of this Warrant and payment of the aggregate Exercise Price as set forth above (the “ Delivery Period ”). This Warrant shall be deemed to have been exercised on the date on which this Warrant is surrendered and payment of the Exercise Price is received by the Company. The Warrant Shares shall be deemed to have been issued, and Holder or any other person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date on which all of the criteria described in the immediately preceding sentence have occurred, irrespective of the date of delivery of such certificate or certificates, except that, if the date of such surrender and payment is a date when the stock transfer books of the Company are closed, such person shall be deemed to have become the holder of such shares at the close of business on the next succeeding date on which the stock transfer books are open. If fewer than all of the Warrant Shares purchasable under the Warrant are purchased, the Company will, upon such partial exercise, execute and deliver to the Holder a new Warrant (dated as of the Issue Date), in the same form and tenor as this Warrant, evidencing that portion of the Warrant not exercised.

 

(d) No Fractional Shares . If a fractional share of Warrant Shares would, but for the provisions of this Section 2(d) , be issuable upon exercise of the rights represented by this Warrant, the Company shall round a fractional share to be delivered to Holder up to the next whole share.

 

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3. Adjustments in Certain Events . The number, class, and price of Warrant Shares for which this Warrant may be exercised are subject to adjustment from time to time upon the happening of certain events as follows:

 

(a) Subdivisions, Combinations and Other Issuances . If the outstanding shares of the Company’s Common Stock are divided into a greater number of shares, by forward stock split or otherwise, or a dividend in stock is paid on the Common Stock, then the number of shares of Warrant Shares for which the Warrant is then exercisable will be proportionately increased and the Exercise Price will be proportionately reduced. Conversely, if the outstanding shares of Common Stock are combined into a smaller number of shares of Common Stock, by reverse stock split or otherwise, then the number of Warrant Shares for which the Warrant is then exercisable will be proportionately reduced and the Exercise Price will be proportionately increased. The increases and reductions provided for in this Section 3(a) will be made with the intent and, as nearly as practicable, the effect that neither the percentage of the total equity of the Company obtainable on exercise of the Warrants nor the price payable for such percentage upon such exercise will be affected by any event described in this Section 3(a) .

 

(b) Merger, Consolidation, Reclassification, Reorganization, Etc . In case of any change in the Common Stock through merger, consolidation, reclassification, reorganization, partial or complete liquidation, purchase of all or substantially all the assets of the Company, or other change in the capital structure of the Company, then, as a condition of such change, lawful and adequate provision will be made so that the Holder will have the right thereafter to receive upon the exercise of the Warrant the kind and amount of shares of stock or other securities or property to which he would have been entitled if, immediately prior to such event, he had held the number of Warrant Shares obtainable upon the exercise of the Warrant. In any such case, appropriate adjustment will be made in the application of the provisions set forth herein with respect to the rights and interest thereafter of the Holder, to the end that the provisions set forth herein will thereafter be applicable, as nearly as reasonably may be, in relation to any shares of stock or other property thereafter deliverable upon the exercise of the Warrant. The Company will not permit any change in its capital structure to occur unless the issuer of the shares of stock or other securities to be received by the Holder, if not the Company, agrees to be bound by and comply with the provisions of this Warrant.

 

(c) If securities of the Company or securities of any subsidiary of the Company are distributed pro rata to holders of Common Stock, such number of securities will be distributed to the Holder or its assignee upon exercise of its rights hereunder as such Holder or assignee would have been entitled to if this Warrant had been exercised prior to the record date for such distribution.

 

4. No Rights as a Stockholder . Nothing contained in this Agreement shall be construed as conferring upon the Holder any rights whatsoever as a stockholder of the Company, either at law or in equity, including without limitation, or Holders the right to vote or to consent or to receive notice as a stockholder in respect of any meetings of stockholders for the election of directors the right to receive dividends or any other matter.

 

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5. Restrictions on Transfer; Legends .

 

(a) Registration or Exemption Required . Assuming the accuracy of the representations and warranties of the Holder contained in herein, this Warrant has been issued in a transaction exempt from the registration requirements of the Securities Act by virtue of Section 4(a)(2) of the Securities Act and Regulation D promulgated thereunder and exempt from state registration or qualification under applicable state laws. The Holder acknowledges that he has been advised by the Company that this Warrant and the Warrant Shares issuable upon exercise thereof have not been registered under the Securities Act. Neither this Warrant nor the Warrant Shares may be pledged, transferred, sold or assigned except pursuant to an effective registration statement or an exemption to the registration requirements of the Securities Act and applicable state laws. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this Warrant shall not be registered pursuant to an effective registration statement under the Securities Act and under applicable state securities or blue sky laws, the Company may require, as a condition of allowing such transfer (i) that the Holder or transferee of this Warrant, as the case may be, furnish to the Company a written opinion of counsel (which opinion shall be in form, substance and scope customary for opinions of counsel in comparable transactions) to the effect that such transfer may be made without registration under the Securities Act and under applicable state securities or blue sky laws, (ii) that the holder or transferee execute and deliver to the Company an investment letter in form and substance acceptable to the Company and (iii) that the transferee be an “accredited investor” as defined in Rule 501(a) promulgated under the Securities Act or a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act.

 

(b) Representations of Holder . The Holder represents and warrants that he has acquired this Warrant and will acquire the Warrant Shares for his own account for investment and not with a view to the sale or distribution thereof or the granting of any participation therein, and that he has no present intention of distributing or selling to others any of such interest or granting any participation therein. The Holder acknowledges that the Warrant and Warrant Shares must be held indefinitely unless a subsequent disposition thereof is registered under the Securities Act or registered or qualified under any applicable state securities or “blue-sky” laws or is exempt from registration and/or qualification. The Holder has no need for liquidity in its investment in the Company, and is able to bear the economic risk of such investment for an indefinite period and to afford a complete loss thereof. The Holder is an “accredited investor” as such term is defined in Rule 501 (the provisions of which are known to the Holder) promulgated under the Securities Act.

 

(c) Restrictive Legend . The Holder understands that until such time as the Warrant Shares have been registered under the Securities Act, or otherwise may be sold pursuant to Rule 144 under the Securities Act or an exemption from registration under the Securities Act without any restriction as to the number of securities as of a particular date that can then be immediately sold, this Warrant and the Warrant Shares, as applicable, shall bear a restrictive legend in substantially the form set forth on the cover page of this Warrant (and a stop-transfer order may be placed against transfer of the certificates for such securities in accordance with the applicable provisions of the Exchange Agreement).

 

(d) Disposition of Warrant or Warrant Shares . With respect to any offer, sale or other disposition of this Warrant or any Warrant Shares prior to registration of such Warrant Shares, the Holder agrees to give written notice to the Company prior thereto, describing briefly the manner thereof, together with evidence, reasonably satisfactory to the Company (which shall include such representation of the transferee regarding investment intent as the Company may request, to the effect that such offer, sale or other disposition may be effected without registration or qualification (under the Securities Act as then in effect or any federal or state securities law then in effect) of this Warrant or such Warrant Shares and indicating whether or not under the Securities Act certificates for this Warrant or Warrant Shares to be sold or otherwise disposed of require any restrictive legend as to applicable restrictions on transferability in order to ensure compliance with such law. Upon receiving such written notice and reasonably satisfactory evidence, the Company, as promptly as practicable but no later than three (3) days after receipt of the written notice, shall notify the Holder that the Holder may sell or otherwise dispose of this Warrant or Warrant Shares, all in accordance with the terms of the notice delivered to the Company. If the Company determines that the evidence is not reasonably satisfactory to the Company, the Company shall so notify the Holder promptly with details thereof after such determination has been made. Notwithstanding the foregoing, any Warrant Shares may be offered, sold or otherwise disposed of in accordance with Rule 144 under the Act and in compliance with the applicable statutory resale restrictions imposed by state securities laws, provided that the Company shall have been furnished with such information as the Company may reasonably request to provide a reasonable assurance that the provisions of Rule 144 and the applicable resale restrictions imposed by state securities laws have been satisfied. Each certificate representing this Warrant or the Warrant Shares thus transferred shall bear a legend as to the applicable restrictions on transferability in order to ensure compliance with such laws, unless pursuant to an opinion of counsel for the Holder, such legend is not required in order to ensure compliance with such laws. The Company may issue stop transfer instructions to its transfer agent in connection with such restrictions.

 

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(e) Removal of Restrictive Legends . The certificates evidencing the Warrant Shares shall not contain any legend restricting the transfer thereof: (A) while a registration statement covering the sale or resale of the Warrant Shares is effective under the Securities Act and such legend removal is permitted under applicable securities laws (including compliance with the prospectus delivery requirements of the Securities Act), or (B) following any sale of such Warrant Shares pursuant to Rule 144, or (C) if such Warrant Shares are eligible for sale under Rule 144(b)(1), or (D) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission) and the Company shall have received an opinion of counsel to the Holder in form reasonably acceptable to the Company to such effect (collectively, the “ Unrestricted Conditions ”). The Company shall cause its counsel to issue a legal opinion to its transfer agent if required by the transfer agent to effect the issuance of the Warrant Shares, as applicable, without a restrictive legend or removal of the legend hereunder. The Company agrees that at such time as the Unrestricted Conditions are met, it will, no later than three (3) Trading Days following the delivery by the Holder to the Company or the transfer agent of a certificate representing Warrant Shares, issued with a restrictive legend, deliver or cause to be delivered to such Holder a certificate (or electronic transfer) representing such Warrant Shares that is free from all restrictive and other legends.

 

(f) Notwithstanding anything else herein, the Holder agrees that provided that the Company enters into the Definitive Agreement and consummates the initial closing as contemplated by such Definitive Agreement, then prior to the date that is the three (3) year anniversary date of the initial closing under such Definitive Agreement, the Holder shall not, to its knowledge, transfer all or any portion of this Warrant or any of the Warrant Shares to any other person or entity, which person or entity is either (i) the beneficial holder of more than 4.99% of the Common Stock of the Company or (ii) would become, by reason of such transfer, the beneficial holder of more than 4.99% of the Common Stock of the Company.

 

6. Notices; Adjustments . All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified; (ii) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not, then on the next business day; (iii) two (2) Business Days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) Business Day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the Company or to Holder, as applicable, at the respective addresses set forth on the signature page to the Exchange Agreement or at such other address(es) as they may designate, respectively, by ten (10) days advance written notice to the other party hereto.

 

7. Non-Circumvention . The Company hereby covenants and agrees that the Company will not, by amendment of its certificate of incorporation, bylaws or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, and will at all times in good faith carry out all the provisions of this Warrant and take all action as may be reasonably required to protect the rights of the Holder.

 

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8. Governing Law . This Warrant shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of law principles, and notwithstanding the fact that one or more counterparts hereof may be executed outside of the state, or one or more of the obligations of the parties hereunder are to be performed outside of the state.

 

9. Loss, Theft, Destruction or Mutilation of Warrant . Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and, in the case of loss, theft, or destruction, of indemnity reasonably satisfactory to it, and, if mutilated, upon surrender and cancellation of this Warrant, the Company will execute and deliver a new Warrant, having terms and conditions identical to this Warrant, in lieu hereof.

 

10. Modification and Waiver of Warrants . This Warrant may only be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder. No waivers of any term, condition or provision of this Warrant, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such term, condition or provision.

 

11. Successors . This Warrant shall be binding and inure to the benefit of the parties and their respective successors and assigns hereunder; provided that this Warrant may be assigned by Holder only in compliance with the conditions specified in and in accordance with all of the terms of this Warrant. This Warrant does not create and shall not be construed as creating any rights enforceable by any other person or corporation.

 

12. Headings . The headings used in this Warrant are used for convenience only and are not to be considered in construing or interpreting this Warrant.

 

13. Saturdays, Sundays, Holidays . If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall be a Saturday or a Sunday or shall be a legal holiday in the State of New York, then such action may be taken or such right may be exercised on the next succeeding day not a legal holiday.

 

14. Severability . If any provision of this Warrant shall be held to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provisions of this Warrant.

 

15. Execution and Counterparts . This Warrant may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute only one instrument. Any one of such counterparts shall be sufficient for the purpose of proving the existence and terms of this Warrant, and no party shall be required to produce an original or all of such counterparts in making such proof.

 

16. Acceptance . Receipt of this Warrant by the Holder shall constitute acceptance of and agreement to all of the terms and conditions contained herein.

 

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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed and delivered as of the Issue Date by an officer thereunto duly authorized.

 

  ECOARK HOLDINGS, INC.
     
  By:                
  Name:  
  Title:  
   
  Address for Notice:
   
  3333 Pinnacle Hills Parkway I Suite 220
  Rogers, AR 72758

 

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ATTACHMENT I

NOTICE OF EXERCISE

 

The undersigned hereby elects to purchase, pursuant to the provisions of the Common Stock Warrant issued by ECOARK HOLDINGS, INC. as of             , 2017, and held by the undersigned, the original of which is attached hereto, and (check the applicable box):

 

Tenders herewith payment of the Exercise Price in the form of cash, via wire transfer of immediately available funds, in the amount of $         for                  shares of Common Stock.

 

If this box is checked, as long as the Company’s transfer agent participates in the DTC Fast Automated Securities Transfer program (“FAST”), and except as otherwise provided in the next following sentence, the Company shall effect delivery of the shares of Common Stock to the Holder by crediting to the account of the Holder or its nominee at DTC (as specified in this Exercise Notice) with the number of shares of Common Stock required to be delivered. In the event that the Company’s transfer agent is not a participant in FAST, or if the shares of Common Stock are not otherwise eligible for delivery through FAST, the Company shall effect delivery of the shares of Common Stock by delivering to Holder or its nominee physical certificates representing such shares.

 

Information for Delivery of uncertificated Shares by DWAC:

 

Account Number:    
Account Name:    
DTC Number:    

 

If this box is checked, the Holder requests delivery of physical certificates representing the Warrant Shares and requests that such certificates be delivered to the following address:

 

Name:

Address:

Tax I.D. No. or Social Security No.:

 

If such number of shares shall not be all the shares purchasable upon the exercise of the Warrants evidenced by this Warrant, a new warrant certificate for the balance of such Warrants remaining unexercised shall be registered in the name of and delivered to:

 

Name:

Address:

Tax I.D. No. or Social Security No.:

 

  HOLDER:
   
   
  Name:  
  Title:  
  Date:                     

 

 

 

 

ATTACHMENT II

 

[FORM OF ASSIGNMENT]

 

(To be executed by the registered holder if such holder

desires to transfer the Warrant Certificate.)

 

FOR VALUE RECEIVED, the undersigned Holder of this Warrant hereby sells, assigns and transfers the foregoing Warrant and all rights evidenced thereby to

 

Name:        
     
Address:        
         
Tax ID No.:        

 

and does hereby irrevocably constitute and appoint                                          , Attorney, to transfer the within Warrant Certificate on the books of Ecoark Holdings, Inc., with full power of substitution.

 

NOTE: The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatever. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Warrant.

 

Dated:                       Holder:  
     
     
     
     
     
     
    (Signature)

 

Exhibit 99.1

 

In Preparation for Nasdaq Uplisting, Ecoark Holdings Appoints Jay Puchir CEO and Adds Former Walmart Treasurer Charles Rateliff as CFO

 

Restructuring to Streamline Parent Company and Focus Key Subsidiaries on Profitability; Founder Randy May to Remain Chairman of the Board

 

ROGERS, AR--(Marketwired - March 29, 2017) - Ecoark Holdings, Inc . (“Ecoark” or “Ecoark Holdings”) (OTCQX: EARK) today announced several key organizational changes to streamline parent company operations and focus key subsidiaries on attaining profitability as the company prepares to complete its application for uplisting on the Nasdaq Capital Market. As part of the restructure, the Ecoark board of directors has unanimously voted to appoint Jay Puchir CEO of Ecoark Holdings. Ecoark Founder Randy May will remain Chairman of the Board after nominating Jay Puchir to assume the CEO role. The company also elected former Walmart Treasurer Charles Rateliff CFO and Treasurer of Ecoark Holdings. The company’s CFO position has remained vacant since former CFO Yash Puri resigned in January 2017.

 

“Over the past 12 months, as a post-merger public company, we’ve successfully focused on fundraising and growth through acquisition. As we prepare for this critical next stage of the company and uplisting to Nasdaq, we’re proud to promote Jay as our new CEO to develop and execute our strategic growth plan and ensure we deliver maximum shareholder value,” commented Randy May, former CEO of Ecoark Holdings. “During his time as director of finance, secretary, and treasurer, Jay has been invaluable in helping Ecoark and our subsidiaries begin to adopt industry best practices. I’m looking forward to continuing to work closely with him as we enter this exciting next phase of the company’s maturation.”

 

Key Organizational Changes


In addition to appointing Jay Puchir CEO and Charles Rateliff CFO, Ecoark Holdings also announced two additional executive changes:

 

· COO Roshan Weerasinghe was appointed as CEO, Pioneer Products, an Ecoark subsidiary, to focus full time on business development and not corporate operations; and
     
· SVP of Business Development Gregg Hames will transition to his new role as VP of Professional Services, Zest Labs, an Ecoark subsidiary, moving from his role at Ecoark.

 

“Ecoark has rapidly and successfully transitioned from the development stage to a highly valuable collection of revenue-producing subsidiaries that solve major business challenges. We’re currently focused on improving our fundamentals, increasing sales through growth and acquisitions, and attaining profitability to maximize shareholder value,” said Puchir. “The fact that Charles is coming out of retirement to become CFO demonstrates his confidence in the company and the huge market opportunity in front of us. I’m looking forward to the opportunity to lead this highly dynamic organization with disruptive technologies through one of the most exciting processes in business.”

 

Jay Puchir has held executive roles at several companies prior to joining Ecoark Holdings. Most recently, he led Ecoark’s financial planning and analysis, treasury and secretary functions, and worked with the Corporate Controller with financial reporting. Jay began his career as an auditor and consultant with one of the Big 4 accounting firms, ultimately earning the position of Senior Manager. He then held the role of the Director of Finance/Controller at a state college, and then Associate Chief Financial Officer within a Fortune 100 healthcare organization. A licensed Certified Public Accountant, Jay received his Bachelor of Arts from the University of North Carolina at Chapel Hill and his Master of Business Administration from Rutgers University.

 

 

 

 

Charles Rateliff retired in 2005 from Walmart Stores as a Senior Vice President after a 25-year career. Following his retirement, he served as an independent consultant to several private investment groups. After receiving an MBA from the University of Arkansas, he was hired as an internal auditor for Walmart and within five years was promoted to Assistant Treasurer and later on, Treasurer. Over the course of his career at Walmart, Charles worked across several departments including compliance, risk management, profit sharing and associate benefits. Charles has been an independent member of the Ecoark Board of Directors since May 2016.

 

In addition to the aforementioned executive changes, the Board voted to increase the number of Directors from seven to nine and will immediately begin searching for two additional independent Directors to fill the vacancies.

 

About Ecoark Holdings Inc.

 

Founded in 2011, Ecoark Holdings, Inc. is a growth-oriented company based in the retail and logistics hub of Northwest Arkansas. Ecoark’s portfolio of technology solutions increase operational visibility and improve organizational transparency for a wide range of corporate clients.

 

Ecoark’s technologies fight waste in Operations, Logistics and Supply Chains across the evolving global economy. The company’s portfolio of companies and technologies work to integrate people, processes and data in order to overcome ingrained operational hurdles and create new revenue streams.

 

Ecoark’s vision is to expose the cycles of waste that reduce efficiency and cost effectiveness across the business landscape. Its strategically acquired subsidiaries have anticipated and responded to key economic factors impacting every business today. Ecoark addresses these vital economic factors through four active subsidiaries, Zest Labs, Eco3d, Pioneer Products, and Magnolia Solar. For more information, please visit www.ecoarkusa.com .

 

Forward Looking Statement

 

This release contains forward-looking statements, including, without limitation, statements concerning our business and possible or assumed future results of operations. Our actual results could differ materially from those anticipated in the forward-looking statements for many reasons including: our ability to continue as a going concern; adverse economic changes affecting markets we serve; competition in our markets and industry segments; our timing and the profitability of entering new markets; greater than expected costs, customer acceptance of our products or difficulties related to our integration of the businesses we may acquire; and other risks and uncertainties as may be detailed from time to time in our public announcements and SEC filings. Although we believe the expectations reflected in the forward-looking statements are reasonable, they relate only to events as of the date on which the statements are made, and our future results, levels of activity, performance or achievements may not meet these expectations. We do not intend to update any of the forward-looking statements after the date of this document to conform these statements to actual results or to changes in our expectations, except as required by law.

 

Media Contact

 

Matthew Bretzius
FischTank Marketing and PR
Matt@fischtankpr.com

Investor Relations Contact

 

Randy May II
Investor Relations
479-259-2984
rsmay@ecoarkusa.com