Item 1.01 Entry into a Material Definitive Agreement.

On March 6, 2023, Ecoark Holdings, Inc. (the "Company") entered into an Amendment (the "Amendment") to the Share Exchange Agreement (the "Agreement") dated as of February 8, 2023 by and among Ault Alliance, Inc. ("AAI"), the owner of approximately 86% of BitNile.com, Inc. ("BitNile.com"), providing for the acquisition of all of the outstanding shares of capital stock of BitNile.com, in exchange for (i) 8,637.5 shares of newly designated Series B Convertible Preferred Stock of the Company issued to AAI (which as amended is subject to upward adjustment ad more fully described below) (the "Series B"), and (ii) 1,362.5 shares of newly designated Series C Convertible Preferred Stock of the Company to be issued to the to the minority shareholders of BitNile.com (the "Series C," and together with the Series B, the "Preferred Stock"). The original terms of the Agreement and each series of Preferred Stock previously disclosed in the Company's Current Report on Form 8-K filed by the Company on February 14, 2023. The Preferred Stock is convertible at $0.25 per share and is not convertible until the first day after the record date for seeking shareholder approval discussed in this Report. See "Reduction of Preferred Stock Voting Rights" below for a description of the voting rights of the Preferred Stock.

The parties closed on the Agreement with the amended terms which are summarized below on March 6, 2023 (the "Closing"). As a result of the Closing, BitNile.com became a wholly-owned subsidiary of the Company. As previously disclosed, BitNile.com's principal business entails the development and operation of a metaverse platform, the beta for which launched on March 1, 2023.

The Company's Board of Directors received an opinion from an independent broker-dealer that the issuance of the Preferred Stock was fair to the Company's shareholders from a financial point of view.

The amended terms of the Agreement and the Preferred Stock are as follows:

Negative Working Capital Adjustment

Pursuant to the Amendment, a new provision was added to the Agreement which provides that the extent that the Company has negative working capital at Closing, such deficiency be remedied by the issuance to AAI, within 15 business days of Closing, such number of additional shares of Series B having a stated value equal to any such negative working capital, rounded up to nearest $100.

AAI Executive Bonus Pool

Pursuant to the Amendment, a new provision was added to the Agreement which requires that as of the Closing, the Company shall have established a bonus pool pursuant to which, upon the date that BitNile.com shall have generated $100 million of revenue in the aggregate, the Company shall pay a bonus in the aggregate amount of $25 million to three executives of AAI in the following proportions: (i) $10 million, (ii) $10 million and (iii) $5 million. Such bonus payments will be payable in cash, provided, however, that if in AAI's reasonable determination the payment of the foregoing bonus payments would materially and adversely impact the Company's cash position, AAI shall direct the Company to make such payments in shares of common stock. The number of shares of common stock issuable by the Company shall in such case be determined by dividing the amount of the bonus payment by the closing sale price of the common stock on the trading day immediately preceding AAI's determination.

Indemnification in Connection with Spin-Offs

Pursuant to the Amendment, a new provision was added to the Agreement which provides that, to the extent that either of the record dates for the Company's planned spin-offs of White River Energy Corp and Wolf Energy Service, Inc. is changed from September 30, 2022 and such change results litigation against the Company for failure to spin off securities of such entities to the holders of shares of the Company's common stock of record prior to the change of a record date, which litigation ultimately results in a final and non-appealable judgment by a court of competent jurisdiction in favor of such holders, then the Company shall issue to AAI, within five business days, such number of additional shares of Series B having a stated value equal to any (i) damages or legal fees awarded to the plaintiffs, (ii) the actual expenses of its counsel(s), (iii) the cost of the Company's counsel engaged to defend any such action, (iv) any other litigation-related costs, and (v) any costs provided for in any settlement agreement with the plaintiffs, all rounded up to nearest $100.





                                       1





Warrants in BitNile.com

Pursuant to the Amendment, a new provision was added to the Agreement to reflect that BitNile.com had issued warrants to two entities entitling each of them to . . .

Item 2.01 Completion of Acquisition or Disposition of Assets.

The information set forth in Item 1.01 above concerning the Closing of the Agreement as amended and the Company's acquisition of BitNile.com pursuant thereto is incorporated into this Item 2.01 by reference.

Item 3.02 Unregistered Sales of Equity Securities.

The information set forth in Item 1.01 above concerning the Closing of the Agreement as amended and issuance of shares of Preferred Stock of the Company thereunder is incorporated into this Item 3.02 by reference. The transaction was exempt from registration pursuant to Section 4(a)(2) of the Securities Act of 1933 and Rule 506 promulgated thereunder as a transaction not involving a public offering.

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Pursuant to the Agreement, effective at the Closing the Company's Board of Directors fixed the number of directors at five and appointed Henry Nisser as a director to fill the vacancy. In connection with and effective upon the Closing, Mr. Nisser was also appointed as President and General Counsel of the Company. Mr. Nisser's five-year business experience is set forth below.

Mr. Nisser has served as a director of AAI since September 17, 2020 and was appointed as AAI's Executive Vice President and General Counsel on May 1, 2019. On January 19, 2021, Mr. Nisser resigned as Executive Vice President and was appointed as AAI's President. Mr. Nisser is the Executive Vice President and General Counsel of Avalanche International, Corp. Mr. Nisser has served as the President, General Counsel and on the board of directors of ADTC, an NYSE listed SPAC, since its incorporation in February 2021. From December 15, 2021 through March 16, 2022, Mr. Nisser served as Chief Executive Officer and on the board of directors of Imperalis Holding Corp. Mr. Nisser has served on the board of directors of Alzamend Neuro, Inc., a biotechnology firm dedicated to finding the treatment, prevention and cure for Alzheimer's Disease, since September 1, 2020 and has served as its Executive Vice President and General Counsel since May 1, 2019. From October 31, 2011 through April 26, 2019, Mr. Nisser was an associate and subsequently a partner with Sichenzia Ross Ference LLP, a law firm based in New York City.

Mr. Nisser is one of the three AAI executive officers entitled to participate in the bonus provided for by the Amendment in the amount of $5 million if the threshold is met. He acquired 150 shares of Series C in exchange for his shares of BitNile.com common stock.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

On March 6, 2023, in connection with the Agreement and the Closing thereof, the Company filed Certificates of Designation for the Series B and the Series C with the Secretary of State of the State of Nevada, and on March 7, 2023, the Company filed amendments to the Series B and C Certificates of Designation to give effect to the Voting Rights Formula, as well as to add a beneficial ownership limitation to the Series C.

The amendments to the Certificates of Designation of the Series B and the Series C are filed as Exhibits 4.3 and 4.4, respectively, to this Current Report on Form 8-K.

Item 9.01 Financial Statements and Exhibits.





(d) Exhibits.




Exhibit No.   Exhibit Description
10.1            Form of Amendment to Share Exchange Agreement*
4.1             Form of Certificate of Designations of Rights, Preferences and
              Limitations of Series B Convertible Preferred Stock
4.2             Form of Certificate of Designations of Rights, Preferences and
              Limitations of Series C Convertible Preferred Stock
4.3             Form of Certificate of Amendment to the Form of Certificate of
              Designations of Rights, Preferences and Limitations of Series B
              Convertible Preferred Stock
4.4             Form of Certificate of Amendment to the Form of Certificate of
              Designations of Rights, Preferences and Limitations of Series C
              Convertible Preferred Stock
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.


                                       3

© Edgar Online, source Glimpses