Ecoark Holdings, Inc. (Form: 8-K, Received: 08/11/2021 16:07:00)

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) August 5, 2021

Ecoark Holdings, Inc.

(Exact name of registrant as specified in its charter)

Nevada		000-53361		30-0680177
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

303 Pearl Parkway Suite 200, San Antonio, TX		78215
(Address of principal executive offices)		(Zip Code)

Registrant’s telephone number, including area code: 1-800-762-7293

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 (see General Instruction A.2. below):

☐	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))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Securities registered pursuant to Section 12(b) of the Act:

Title of Each Class		Trading Symbol(s)		Name of each exchange on which registered
Common Stock		ZEST		The Nasdaq Stock Market LLC (The Nasdaq Capital Market)

Item 3.02 Unregistered Sales of Equity Securities.

To the extent required by Item 3.02 of Form 8-K the information set forth in Item 5.02 of this Current Report on Form 8-K is incorporated herein by reference.

Item 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers.

(e)

On August 5, 2021, Ecoark Holdings, Inc. (the “Company”) granted Peter Mehring, President and director of the Company and CEO and President of Zest Labs, Inc., 272,252 restricted stock units (“RSUs”) in exchange for cancellation of 672,499 previously issued stock options (the “Options”), of which 100,875 remained unvested. The RSUs were granted under the Ecoark Holdings, Inc. 2017 Omnibus Incentive Plan (the “2017 Plan”). Each RSU represents a contingent right to receive one share of the Company’s common stock. The grant of the RSUs and the cancellation of the Options were approved by the Compensation Committee. The RSUs will vest in 12 equal quarterly increments with the first vesting date being November 4, 2021, and all RSUs will immediately vest upon (i) Mr. Mehring ceasing to be an employee, advisor, director or consultant for the Company, or (ii) upon a “change of control” of the Company or its wholly-owned subsidiary, Zest Labs, Inc., as defined under the 2017 Plan. Additionally, the Company agreed to grant Mr. Mehring 63,998 RSUs upon the approval by the shareholders of the Company of an increase in the number of shares of common stock authorized for issuance under the 2017 Plan.

The issuance of the RSUs was not registered under the Securities Act of 1933 (the “Securities Act”) in reliance on exemption from registration under Section 4(a) of the Securities Act and Rule 506(b) promulgated thereunder, as Mr. Mehring is an “accredited investor” within the meaning of Rule 501 under the Securities Act.

The foregoing description of the RSUs does not purport to be complete and is qualified in its entirety by reference to the Restricted Stock Unit Agreement, dated August 5, 2021, between the Company and Peter Mehring, a copy of which is filed as exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits

(d) Exhibits.

Exhibit No.		Exhibit
10.1		Restricted Stock Unit Agreement, dated August 5, 2021, between the Company and Peter Mehring*

*	Exhibits and/or Schedules have been omitted. The Company hereby agrees to furnish to the Securities and Exchange Commission upon request any omitted information.

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.

August 11, 2021	Ecoark Holdings, Inc.

	By:	/s/ Randy S. May
		Randy S. May Chief Executive Officer

Exhibit 10.1

RESTRICTED STOCK UNIT AGREEMENT

This Restricted Stock Unit Agreement (this “Agreement”), entered into as of August 5, 2021 (the “Grant Date”), sets forth the terms and conditions of an award (this “Award”) of restricted stock units (“RSUs”) granted by Ecoark Holdings, Inc., a Nevada corporation (the “Company”), to Peter Mehring (the “Recipient”).

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

2. Award. Effective as of the Grant Date, the Recipient was granted 272,252 RSUs. In addition, upon shareholder approval of an increase in the Plan (or a new Equity Incentive Plan), the Company shall grant the Recipient an additional 63,998 RSUs (“Additional RSUs”). These Additional RSUs will be subject to an agreement substantially similar to this Agreement. In consideration for the Award, the Recipient hereby cancels 672,499 stock options as evidenced by Exhibit A.

3. Vesting.

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

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

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

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

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

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

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

9. Notices and Addresses. All notices, offers, acceptance and any other acts under this Agreement (except payment) shall be in writing, and shall be sufficiently given if delivered to the addressees in person, by FedEx or similar receipted delivery, as follows:

The Recipient:		To the Recipient at the address on the signature page of this Agreement.

The Company		Ecoark Holdings, Inc.
		303 Pearl Parkway
		Suite 200
		San Antonio, TX 78215
		Email: _____________________

with a copy to:		Michael D. Harris, Esq.
		Nason, Yeager, Gerson, Harris & Fumero, P.A.
		3001 PGA Boulevard, Suite 305
		Palm Beach Gardens, Florida 33410
		Email: _____________________

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

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

11. Attorney’s Fees. In the event that there is any controversy or claim arising out of or relating to this Agreement, or to the interpretation, breach or enforcement thereof, and any action or proceeding is commenced to enforce the provisions of this Agreement, the prevailing party shall be entitled to a reasonable attorney’s fee, costs and expenses

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

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

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

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

[Signature Page to Follow]

	Ecoark Holdings, Inc.

	By:	/s/ Randy May
		Randy May
		Chief Executive Officer

By:	/s/ Peter Mehring
	Peter Mehring

_____________________

Email: ________________

Exhibit A – Evidence of cancelled stock options

Schedule A – RSU vesting schedule