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) November 22, 2022
| 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
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
| 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 1.01 Entry into a Material Definitive Agreement.
On November 22, 2022, Ecoark Holdings, Inc. (the “Company”) entered into an agreement with Ault Lending, LLC formerly known as Digital Power Lending, LLC (the “Holder”) to amend the Certificate of Designations of Rights, Preferences and Limitations (the “Certificate”) of Series A Convertible Redeemable Preferred Stock (the “Series A”) previously issued to the Holder to: (i) increase the stated value of the Series A from $10,000 to $10,833.33; (ii) provide for the dividends payable under the Series A to be payable in common stock rather than cash effective beginning November 1, 2022, and (iii) reduce the conversion price of the Series A from $2.10 to the lesser of (1) $1.00 and (2) the higher of (A) 80% of the 10-day daily volume weighted average price and (B) $0.25.
The foregoing description of the agreement does not purport to be complete and is qualified in its entirety by reference to the form thereof, a copy of which is filed as Exhibit 10.1, to this Current Report on Form 8-K and is incorporated herein by reference.
The terms of the Certificate and prior amendments thereto were previously disclosed on the Company’s Current Reports on Form 8-K filed on June 9, 2022, June 27, 2022, and July 15, 2022.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit No. | Exhibit | |
| 10.1 | Agreement between Ecoark Holdings, Inc. and Ault Lending, LLC* | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
*Certain schedules and other attachments have been omitted. The Company undertakes to furnish the omitted schedules and attachments to the Securities and Exchange Commission upon request.
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.
| November 29, 2022 | Ecoark Holdings, Inc. | |
| By: | /s/ Randy S. May. | |
| Randy S. May Chief Executive Officer | ||
Exhibit 10.1
Ecoark Holdings, Inc.
November 22, 2022
Via Email: [Todd@Bitnile.com]
BitNile Holdings Inc.
11411 Southern Highlands Pkwy, Suite 240
Las Vegas, NV, 89141
Attention: Mr. Todd Ault, Executive Chairman
| Re: | Series A Amendment |
Dear Todd:
Confirming our recent telephone conversation, in exchange for $100 and other good and valuable consideration including your prior agreement to cancel the Ault Lending, LLC (“Ault Lending”) Warrant issued to it on June 8, 2022, Ecoark Holdings, Inc. agrees to amend the Series A Convertible Redeemable Stock issued to it on June 8, 2022 by increasing the stated value by $1 million, reducing the conversion price to the lesser of $1 or a discount of 20% to the 10-day trailing VWAP, subject to a floor of $0.25. In addition, all dividends shall only be paid in common stock and not cash. A copy of the Third Amendment to the Certificate of Designation of Rights, Preferences and Limitations of Designation of Rights, Preferences and Limitations of Series A Convertible Redeemable Preferred Stock is attached as Exhibit A.
Please have the manager or other authorized person to execute this letter agreement on behalf of Ault Lending.
| Sincerely yours, | |
| /s/ Randy S. May | |
| Randy May, CEO |
We hereby agree to the foregoing:
/s/ David Katzoff
Manager