Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On December 29, 2020, Ecoark Holdings, Inc., a Nevada corporation (the
"Company"), filed with the Nevada Secretary of State a Certificate of Amendment
to Articles of Incorporation (the "Certificate of Amendment") to decrease the
total number of authorized shares of common stock, par value $0.001 per share
(the "Common Stock"), from 40,000,000 shares to 30,000,000 shares, in each case
on a post reverse-split basis. The Certificate of Amendment was effective upon
filing. Following the effectiveness of the Certificate of Amendment, the Company
is authorized to issue 35,000,000 shares of capital stock, consisting of (i)
30,000,000 shares of Common Stock, and (ii) 5,000,000 shares of "blank check"
preferred stock, par value $0.001 per share, with designations, rights and
preferences as may be determined from time to time by the Board of Directors.
Except as specified otherwise, the share amounts in this Current Report on Form
8-K give effect to the recently implemented 1-for-5 reverse stock split of the
issued and outstanding shares of Common Stock (the "Reverse Split") and a
simultaneous proportionate reduction of the number of shares of Common Stock the
Company is authorized to issue, as discussed in more detail in the Current
Report on Form 8-K filed on December 16, 2020.
The Certificate of Amendment and the reduction in the number of authorized
shares of Common Stock contemplated by the Certificate of Amendment had been
previously approved by the Board of Directors of the Company and by the
Company's stockholders at the special meeting of stockholders held on December
29, 2020 (the "Special Meeting").
The foregoing description of the Certificate of Amendment and the transactions
contemplated thereby does not purport to be complete and is qualified in its
entirety by reference to the Certificate of Amendment filed as Exhibit 3.1 to
this Current Report on Form 8-K and incorporated herein by reference.
Item 5.07 Submission of Matters to a Vote of Security Holders.
On December 29, 2020, the Special Meeting was held. The following proposals were
submitted to a vote by the Company's stockholders at the Special Meeting: (i)
the ratification of the amendment to the Articles of Incorporation of the
Company to increase the number of shares of Common Stock the Company is
authorized to issue from 20,000,000 shares to 40,000,000 shares, on a
post-Reverse Split basis (the "Authorized Capital Increase") (Proposal 1); (ii)
approval of an amendment to the Articles of Incorporation to decrease the number
of shares of Common Stock the Company is authorized to issue from 40,000,000
shares to 30,000,000 shares, on a post-Reverse Split basis, if the Authorized
Capital Increase is ratified (Proposal 2); (iii) approval of an amendment to the
Articles of Incorporation to increase the number of shares of Common Stock the
Company is authorized to issue from 20,000,000 shares to 30,000,000 shares, on a
post-Reverse Split basis, if the Authorized Capital Increase is not ratified
(Proposal 3), and (iv) approval of an adjournment of the Special Meeting to a
later date or time, if necessary, to permit further solicitation and vote of
proxies if, based upon the tabulated vote at the time of the Special Meeting,
there are not sufficient votes to approve any of the other proposals before the
Special Meeting (Proposal 4). All of these proposals were described in more
detail in the Company's revised definitive proxy statement filed with the
Securities and Exchange Commission (the "SEC") on December 11, 2020.
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As of the close of business on December 2, 2020, the record date for the Special
Meeting (the "Record Date"), there were 107,857,616 shares (or approximately
21,571,524 shares on a post-Reverse Split basis) of Common Stock outstanding.
Each holder of record of the Common Stock as of the Record Date was entitled to
one vote for each share held, except that pursuant to Section NRS 78.0296 of the
Nevada Revised Statutes, for purposes of the ratification of the Authorized
Capital Increase (Proposal 1), we were required to disregard the voting power of
all shares of Common Stock issued in excess of 100,000,000 shares (or 20,000,000
shares on a post-Reverse Split basis) (the "Disregarded Shares") when
determining the total number of our outstanding shares entitled to vote on the
ratification of the Authorized Capital Increase (Proposal 1) and the total
number of shares that need to be voted in favor of such ratification to make the
same effective.
90,065,139 shares (or approximately 18,013,028 shares on a post-Reverse Split
basis), including 7,000,051 Disregarded Shares (or approximately 16,613,018 on a
post-Reverse Split basis), were represented in person or by proxy at the Special
Meeting, and therefore a quorum was present.
Each of the matters submitted to a vote of the Company's stockholders at the
Special Meeting was approved by the requisite vote of the Company's
stockholders, except for the proposals rendered moot as discussed below. Set
forth below are the voting results on each matter submitted to the stockholders
at the Special Meeting. The voting results on Proposal 1 take into account, as
required by Section NRS 78.0296 of the Nevada Revised Statutes, our disregarding
for all purposes the votes represented by the shares of Common Stock issued
following the Authorized Capital Increase submitted for ratification by the
stockholders at the Special Meeting.
The voting results set forth below, including the number of votes cast for or
against each proposal and the number of abstentions, are presented on a
pre-Reverse Split basis.
Proposal 1. The Company's stockholders ratified the Authorized Capital Increase.
Votes For Votes Against Abstentions
81,229,910 1,574,216 260,962
The number of votes cast for or against this Proposal 1 and the number of
abstentions, exclude a total of 7,000,051 votes attributable to the Disregarded
Shares.
Proposal 2. The Company's stockholders approved an amendment to the Articles of
Incorporation to decrease the number of shares of Common Stock the Company is
authorized to issue from 40,000,000 shares to 30,000,000 shares.
Votes For Votes Against Abstentions
88,571,688 1,249,173 244,278
Because based on the tabulated preliminary voting results there were sufficient
votes at the time of the Special Meeting for Proposal 1 and Proposal 2 to be
approved, Proposal 3 or Proposal 4 were rendered moot and no vote was taken on
these proposals at the Special Meeting.
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Item 9.01 Financial Statements and Exhibits
(d) Exhibits.
Exhibit No. Exhibit
3.1 Certificate of Amendment to Articles of Incorporation
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