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 28, 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 accounting standards provided pursuant to Section 13(a) of the Exchange 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 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On November 28, 2022, following approval of the Board of Directors of Ecoark Holdings, Inc. (the “Company”) and agreement between the Company and the holder as previously disclosed, the Company filed a Third Certificate of Amendment (the “Certificate of Amendment”) to the Certificate of Designations of Rights, Preferences and Limitations of Series A Convertible Redeemable Preferred Stock (the “Series A”) with the Nevada Secretary of State 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 Certificate of Amendment 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 3.1 to this Current Report on Form 8-K and is incorporated herein by reference.
The terms of the Series A 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, July 15, 2022 and November 29, 2022.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit No. | Exhibit | |
| 3.1 | Third Certificate of Amendment to the Certificate of Designation for the Series A Convertible Redeemable Preferred Stock | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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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.
| November 30, 2022 | Ecoark Holdings, Inc. | |
| By: | /s/ Randy S. May. | |
| Randy S. May Chief Executive Officer | ||
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Exhibit 3.1
ECOARK HOLDINGS, INC.
THIRD CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF DESIGNATIONS OF RIGHTS, PREFERENCES AND LIMITATIONS
OF
SERIES A CONVERTIBLE REDEEMABLE PREFERRED STOCK
November 28, 2022
Pursuant to Section 78.1955 of the Nevada Revised Statutes (the “NRS”) and Article IV of the Articles of Incorporation, as amended (the “Articles”) of Ecoark Holdings, Inc. (the “Corporation”):
WHEREAS, on June 8, 2022, following the approval of the Board of Directors of the Corporation (the “Board”), the Corporation filed with the Secretary of State of the State of Nevada, the Certificate of Designation of the Rights, Preferences and Limitations of Series A Convertible Preferred Stock (as amended, the “Certificate”); and
WHEREAS, it is the desire of the Board to amend the Certificate; and
WHEREAS, the Board, pursuant to the authority conferred upon it by Article IV of the Articles and in accordance with Section 78.1955 of the NRS, adopted the following resolutions:
RESOLVED, that that the Certificate be amended as follows:
(A) The definition of “Stated Value” under Section 1(a) is amended by deleting “$10,000” and replacing it with “$10,833.33.”
(B) Section 3(a) of the Certificate is amended to read in its entirety as follows:
(a) Dividend Rate. Effective November 1, 2022, Holders of shares of the Series A Preferred Stock are entitled to receive, when, as and if declared by the Board, out of funds legally available for the payment of dividends, dividends payable only in shares of Common Stock of the Company at an annual rate of 12.60%, which is equivalent to $1,365 per annum per share, based on the Stated Value (the “Dividend Rate”) with the number of shares of Common Stock to be determined by dividing the Dividend Rate by the Conversion Price in effect as of each applicable Dividend Payment Date, during the Fixed Term (as defined below). The Dividend Rate shall accrue from, and including, the Issuance Date to, but not including, November 1, 2024, provided, that no dividends shall be payable after the date that the Holder no longer holds any shares of Series A Preferred Stock (the “Fixed Term”). Provided, however, that no dividend shall be paid if such payment would cause the Holder to exceed the Maximum Percentage, in which case the dividends shall be cumulative to the extent not payable on any applicable Dividend Payment Date pursuant to this sentence.
(C) The last sentence of Section 6(a) of the Certificate, which provides the definition of “Conversion Price,” is amended by deleting “$2.10” and replacing it with “the lesser of (i) $1.00 and (ii) the higher of (A) 80% of the 10-day VWAP and (B) $0.25.”
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IN WITNESS WHEREOF, Ecoark Holdings, Inc. has caused this Certificate of Amendment to be signed by the undersigned as of the date first written above.
| ECOARK HOLDINGS, INC. | ||
| By: | /s/ Randy May | |
| Name: | Randy May | |
| Title: | Chief Executive Officer | |
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