Item 1.01 Entry Into a Material Definitive Agreement.
On January 24, 2023, Ecoark Holdings, Inc. (the "Company") entered into an
At-The-Market Issuance Sales Agreement (the "Agreement") with Ascendiant Capital
Markets, LLC ("Ascendiant"), pursuant to which the Company may issue and sell
from time to time, through Ascendiant shares of the Company's common stock, par
value $0.001 per share (the "Shares"), with offering proceeds of up to
$3,500,000.
Sales of the Shares, if any, may be made by any method permitted by law deemed
to be an "at-the-market" offering as defined in Rule 415 of the Securities Act
of 1933 (the "Securities Act"), including without limitation sales made directly
on or through The Nasdaq Capital Market, the trading market for the Company's
common stock, on any other existing trading market in the United States for the
Company's common stock, to or through a market maker, directly to Ascendiant as
principal for its account in negotiated transactions at market prices prevailing
at the time of sale or at prices related to such prevailing market prices, in
privately negotiated transactions, in block trades, or through a combination of
any such methods of sale. Ascendiant will use commercially reasonable efforts to
sell on the Company's behalf all of the Shares requested to be sold by the
Company, consistent with its normal trading and sales practices, subject to the
terms of the Agreement. Under the Agreement, Ascendiant will be entitled to
compensation of 3% of the gross proceeds from the sales of the Shares sold under
the Agreement. The Company also agreed to reimburse Ascendiant for certain
specified expenses, including the fees and disbursements of its legal counsel,
in an amount not to exceed $30,000 as well as up to $2,500 for each quarterly
and annual bring-down while the Agreement is ongoing.
The Shares are being offered and sold pursuant to a prospectus supplement filed
with the Securities and Exchange Commission (the "SEC") on January 24, 2023 and
the accompanying base prospectus which is part of the Company's effective
Registration Statement on Form S-3 (File No. 333-249532) (the "Registration
Statement"). Investors should read the Registration Statement, the base
prospectus and the prospectus supplement and all documents incorporated therein
by reference.
The Agreement contains representations, warranties and covenants customary for
the transactions of this kind.
This Current Report on Form 8-K does not constitute an offer to sell or a
solicitation of an offer to buy any securities. The Registration Statement
relating to these securities has been filed with the SEC and has been declared
effective.
The foregoing description of the Agreement and the transactions contemplated
thereby does not purport to be complete and is qualified in its entirety by
reference to the full text of the Agreement filed as Exhibit 1.1 to this Current
Report on Form 8-K and incorporated herein by reference.
A copy of the opinion of Nason, Yeager, Gerson, Harris & Fumero, P.A. relating
to the validity of the shares of common stock issued in the offering is attached
as Exhibit 5.1 hereto.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. Exhibit Description
1.1 At-The-Market Issuance Sales Agreement dated January 24, 2023 between
Ecoark Holdings, Inc. and Ascendiant Capital Markets, LLC*
Opinion of Nason, Yeager, Gerson, Harris & Fumero, P.A., regarding the
5.1 validity of the securities to be issued.
Consent of Nason, Yeager, Gerson, Harris & Fumero, P.A. (included in
23.1 Exhibit 5.1).
Cover Page Interactive Data File (embedded within the Inline XBRL
104 document)
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* Certain schedules and other attachments have been omitted. The Company
undertakes to furnish the omitted schedules and attachments to the SEC upon
request.
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