Preliminary Proxy Statement

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULESchedule 14A

(Rule 14a-101)

Proxy Statement Pursuant to Section 14(a) of the Securities

Exchange Act of 1934 (Amendment

(Amendment No. )

Filed by the Registrant ☒

Filed by a party other than the Registrant ☐

Check the appropriate box:

Ecoark Holdings, Inc.Inc

(Name of Registrant as Specified In Its Charter)

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

Payment of Filing Fee (Check all boxes that apply):

Ecoark Holdings, Inc.

303 Pearl Parkway Suite 200

San Antonio, TX 78215

(800) 762-7293

NOTICE OF SPECIAL MEETING OF STOCKHOLDERS

To the stockholders of Ecoark Holdings, Inc.:

We are pleased to invite you to attend a Specialthe 2022 Annual Meeting of the Stockholders (the “Special“Annual Meeting”) of Ecoark Holdings, Inc., a Nevada corporation (“Ecoark” or the “Company”), which will be held at 1:00 p.m., Eastern Time, on October 6, 2021,September 9, 2022, virtually via live webcast at www.virtualshareholdermeeting.com/ZEST2021SM,ZEST2022, for the following purposes:

The Company’s Board of Directors (the “Board”) has fixed the close of business on August 16, 2021July 22, 2022 as the date (the “Record Date”) for a determination of the stockholders entitled to notice of, and to vote at, the SpecialAnnual Meeting or any adjournment or postponement thereof.

Important notice regarding the availability of proxy materials for the SpecialAnnual Meeting to be held on September 9, 2022:

October 6, 2021:

The Notice andThis Proxy Statement and the Company’s Form 10-K are available at www.proxyvote.com.

This Notice of Special Meeting and the accompanying proxy statement are first being mailed on or about August 24, 2021 to our stockholders of record entitled to vote at the Special Meeting.

The Special Meeting will be accessible through the Internet. You can attend our Special Meeting by visiting www.virtualshareholdermeeting.com/ZEST2021SM. The Special Meeting will be conducted via live webcast. To be admitted to the Special Meeting, you must enter the control number found on your proxy card or voting instruction form you previously received. We have adopted a virtual format for our Special Meeting to protect the health and well-being of our employees, directors, and stockholders in light of the ongoing COVID-19 pandemic. Additionally, we believe that a virtual meeting allows us to make participation accessible for stockholders from any geographic location with Internet connectivity.REVIEW THE PROXY STATEMENT AND VOTE IN FOUR WAYS:

		VIA THE INTERNET IN ADVANCE Visit www.proxyvote.com.				BY MAIL Sign, date, and return the enclosed proxy card or voting instruction form.
		BY TELEPHONE Call the telephone number on your proxy card or voting instruction form.				AT THE MEETING Attend the annual meeting virtually. See page 2 for additional details on how to attend.

Whether or not you plan to attend the SpecialAnnual Meeting, it is important that you vote your shares. Regardless of the number of shares you own, please promptly vote your shares by telephone (before the SpecialAnnual Meeting) or Internet or, if you have received printed copies of the proxy materials, by marking, signing and dating the proxy card and returning it to the Company in the postage paid envelope provided.

Table of Contents

Ecoark Holdings, Inc.

303 Pearl Parkway Suite 200

San Antonio, TX 78215

(800) 762-7293

SPECIAL2022 ANNUAL MEETING OF STOCKHOLDERS

PROXY STATEMENT

ThisThese proxy statement (the “Proxy Statement”) ismaterials are being made availablesent to the holders of shares of voting stock of Ecoark Holdings, Inc., a Nevada corporation (“Ecoark” or the “Company”) in connection with the solicitation of proxies by our Board of Directors (the “Board”) for use at a Specialthe 2022 Annual Meeting of Stockholders of the Company which will be held at 1:00 p.m., Eastern Time, on October 6, 2021September 9, 2022 (the “Special“Annual Meeting”). The SpecialAnnual Meeting will be a virtual only meeting via live webcast over the Internet. You will be able to attend the SpecialAnnual Meeting, vote your shares and submit your questions during the SpecialAnnual Meeting by visiting www.virtualshareholdermeeting.com/ZEST2021SM.ZEST2022. There will not be a physical meeting location. The notice of Internet availability ofThese proxy materials isare first being mailed on or about August 24, 2021July __, 2022 to our stockholders of record entitled to vote at the SpecialAnnual Meeting. A copy of our Form 10-K for the year ended March 31, 2022 is being mailed concurrently with this Proxy Statement.

What matters will be voted on at the SpecialAnnual Meeting?

The four proposals that are to be considered and voted on at the SpecialAnnual Meeting are as follows:

Who is entitled to vote at the SpecialAnnual Meeting?

The Board has fixed the close of business on August 16, 2021July 22, 2022 as the record date (the “Record Date”) for a determination of the stockholders entitled to notice of, and to vote at, the SpecialAnnual Meeting.

As of the Record Date, the voting power of the Company consisted of 26,349,09926,364,099 shares of common stock,Common Stock, par value $0.001 per share (the “Common Stock”).share. This does not include any votes for which the Purchaser is entitled to under the Series A and shares of Common Stock issued pursuant to the Agreement, which is not entitled to vote at the Annual Meeting.

Each holder of record of Common Stock as of the Record Date is entitled to one vote for each share held. All stockholders are encouraged to vote at the SpecialAnnual Meeting, as further described herein.

What is the difference between holding shares as a record holder and as a beneficial owner?owner holding your shares in street name?

If your shares are registered in your name with the Company’s transfer agent, PhiladelphiaPacific Stock Transfer, Inc., you are the “record holder” of those shares. If you are a record holder, these proxy materials have been provided directly to you by the Company.

If your shares are held in a stock brokerage account, a bank or other holder of record, you are considered the “beneficial owner” of those shares held in “street name.” If your shares are held in street name, these proxy materials have been forwarded to you by that organization. As the beneficial owner, you have the right to instruct this organization on how to vote your shares.

Who may attend the SpecialAnnual Meeting and how do I attend?

Record holders and beneficial owners may attend the SpecialAnnual Meeting. The SpecialAnnual Meeting will be held entirely online via live webcast.

Set forth below is a summary of the information you need to attend the virtual SpecialAnnual Meeting:

Stockholders may vote electronically and submit questions online while attending the virtual SpecialAnnual Meeting.

How do I vote?

Record Holder

If you vote by Internet or phone, please DO NOT mail your proxy card.

Beneficial Owner (Holding Shares in Street Name)

If you are a beneficial owner, you must follow the voting procedures of your nominee included with your proxy materials. If your shares are held by a nominee and you intend to vote at the Special Meeting, please be ready to demonstrate proof of your beneficial ownership as of the Record Date (such as your most recent account statement as of the Record Date, a copy of the voting instruction form provided by your broker, bank, trustee or nominee, or other similar evidence of ownership) and a legal proxy from your nominee authorizing you to vote your shares.

What constitutes a quorum?

To carry on the business of the SpecialAnnual Meeting, we must have a quorum. Pursuant to our bylaws, as amended by the Board on August 24, 2021, aA quorum is present when the holders of at least one-thirda majority of the voting power, as of the Record Date, are represented in person or by proxy.

In order to ensure that the voting results fairly represent the views of all our stockholders to the fullest extent permitted by applicable law, a quorum will be deemed present at the Annual Meeting if the holders of a majority of shares of Common Stock outstanding as of the Record Date are represented in person or by proxy.

Shares owned by the Company are not considered outstandingentitled to vote or considered to be present at the SpecialAnnual Meeting. Broker non-votes and abstentions are counted as present for the purpose of determining the existence of a quorum.

What happens if the Company is unable to obtain a quorum?

If a quorum is not present to transact business at the SpecialAnnual Meeting or if we do not receive sufficient votes in favor of the proposals by the date of the SpecialAnnual Meeting, the persons named as proxies may propose one or more adjournments of the SpecialAnnual Meeting to permit solicitation of proxies.

Which proposals are considered “Routine” or “Non-Routine”?

Proposals 1 and 43 are “routine” proposals.considered a non-routine proposal. Proposals 2, 4 and 35 are “non-routine.”considered routine proposals.

What is a “broker non-vote”?

If your shares are held in street name, you must instruct the organization which holds your shares how to vote your shares. If you do not provide voting instructions, your shares will not be voted on any non-routine proposal. This vote is called a “broker non-vote.” Broker non-votes do not count as a vote “FOR” or “AGAINST” any of the proposals submitted to a vote at the SpecialAnnual Meeting.

If you are a stockholder of record, and you sign and return a proxy card without giving specific voting instructions, the proxy holders will vote your shares in the manner recommended by the Board on all matters presented in this Proxy Statement and as the proxy holders may determine in their discretion with respect to any other matters properly presented for a vote at the SpecialAnnual Meeting. If your shares are held in street name and you do not provide specific voting instructions to the organization that holds your shares, the organization may generally vote at its discretion on routine matters, but not on non-routine matters. If you sign your proxy card but do not provide instructions on how your broker should vote, your broker will vote your shares as recommended by the Board on any non-routine matter.

How Many Votes are Needed for Each Proposal to Pass and what is the effect of a Broker Non-Vote or Abstention?

How many votes are needed for each proposal to pass?

Under Nevada law, the affirmative vote of the holders of a majority of the voting power is required to approve an amendment to the Articles of Incorporation to increase the authorized Common Stock (Proposal 1).

Under our bylaws, the votes cast “FOR” must exceed the votes cast “AGAINST” the increase in the number of shares of Common Stock authorized for issuance under the 2017 Plan (Proposal 2).

Under our bylaws, the votes cast “FOR” must exceed the votes cast “AGAINST” the exchange of stock options for restricted stock units (Proposal 3).

Under our bylaws, the votes cast “FOR” must exceed the votes cast “AGAINST” the adjournment of the Special Meeting (Proposal 4).

Is broker discretionary voting allowed and what is the effect of broker non-votes?

What is the effect of abstentions?

4

What are the voting procedures?

You may vote in favor of each proposal or against each proposal, or in favor of some proposals and against others, or you may abstain from voting on any of these proposals. You should specify your respective choices on the accompanying proxy card or your voting instruction form.

Is my proxy revocable?

Record Holders. You may revoke your proxy and reclaim your right to vote up to and including the day of the SpecialAnnual Meeting by giving written notice to the Corporate Secretary of the Company, by delivering a proxy card dated after the date of the proxy or by voting in person atduring the SpecialAnnual Meeting. All written notices of revocation and other communications with respect to revocations of proxies should be addressed to: Ecoark Holdings, Inc., 303 Pearl Parkway Suite 200, San Antonio, TX 78215, Attention: Corporate Secretary.

Beneficial Owners. If you are the beneficial owner of shares held in street name, you must follow the instructions provided by your broker, bank, or other holder of record for changing or revoking your proxy. Beneficial owners, other than plan participants as outlined below, may also attend and vote online during the Annual Meeting, which will replace any previous votes.

Who is paying the expenses involved in preparing and mailing this proxy statement?

All of the expenses involved in preparing, assembling and mailing these proxy materials and all costs of soliciting proxies will be paid by the Company. In addition to the solicitation by mail, proxies may be solicited by the Company’s officers and regular employees by telephone or in person. Such persons will receive no compensation for their services other than their regular salaries. Arrangements will also be made with brokerage houses and other custodians, nominees and fiduciaries to forward solicitation materials to the beneficial owners of the shares held of record by such persons, and we may reimburse such persons for reasonable out of pocket expenses incurred by them in so doing. We have retained Innisfree M&A Incorporated to assist in proxy solicitation for a fee of $15,000 and $5.50 for each telephone contact plus expenses.

Could other matters be decided at the SpecialAnnual Meeting?

Other than the items of business described in this Proxy Statement, no other matters will be presented for action by the stockholders at the SpecialAnnual Meeting.

What is “householding” and how does it affect me?

Record holders who have the same address and last name will receive only one copy of their proxy materials, unless we are notified that one or more of these record holders wishes to continue receiving individual copies. This procedure will reduce the Company’s printing costs and postage fees. Stockholders who participate in householding will continue to receive separate proxy cards.

If you are eligible for householding, but you and other record holders with whom you share an address, receive multiple copies of these proxy materials, or if you hold the Company’s Common Stock in more than one account, and in either case you wish to receive only a single copy of each of these documents for your household, please contact the Company’s Corporate Secretary at: Ecoark Holdings, Inc., 303 Pearl Parkway Suite 200, San Antonio, TX 78215, Attention: Corporate Secretary.

If you participate in householding and wish to receive a separate copy of these proxy materials, or if you do not wish to continue to participate in householding and prefer to receive separate copies of these documents in the future, please contact the Company’s Corporate Secretary as indicated above. Beneficial owners can request information about householding from their brokers, banks or other holders of record.

Do I have dissenters’ (appraisal) rights?

Dissenters’ or appraisalAppraisal rights are not available to the Company’s stockholders with any of the proposals brought before the SpecialAnnual Meeting.

Can a Stockholder Present a Proposal To Be Considered At the 2023 Annual Meeting?

If you wish to submit a proposal to be considered at the 2023 annual meeting of stockholders (the “Next Annual Meeting”), the following is required: 

A nomination or other proposal will be disregarded if it does not comply with the above procedures. All proposals and nominations should be sent to our Corporate Secretary at Ecoark Holdings, Inc., 303 Pearl Parkway Suite 200, San Antonio, TX 78215, Attention: Corporate Secretary.

We reserve the right to amend our Bylaws and any change will apply to the Next Annual Meeting unless otherwise specified in the amendment.

Interest of Officers and Directors in Matters to Be Acted Upon

Except in the election to our Board of nominees set forth herein, none of the officers or directors have any direct interest in any of the matters to be acted upon at the Annual Meeting. However, to the extent that approval of Proposal 1 will permit Ecoark to effect all planned spin-offs, the nominees will benefit to the extent they own our Common Stock or Common Stock equivalents as of the record dates for each spin-off. While the beneficial ownership of the board nominees may change, stockholders should review the section of this Proxy Statement beginning at page 29 which reflects beneficial ownership as of the Record Date for the Annual Meeting.

The Board Recommends that THE STOCKholders Vote “FOR”“FOR” Proposals 1, 2, 3, AND 4.4, and 5.

PROPOSAL 1.

APPROVAL OF AN AMENDMENT TO ARTICLESNASDAQ 20% ISSUANCE PROPOSAL

Overview of the Private Placement

On June 8, 2022, we entered into a Securities Purchase Agreement (the “Agreement”) with the Purchaser pursuant to which we sold the Purchaser 1,200 shares of Series A Convertible Redeemable Preferred Stock (the “Series A”), 102,881 shares of Common Stock (the “Commitment Shares”) and a warrant to purchase shares of Common Stock (the “Warrant,” and together with the Series A and the Commitment Shares, the “Securities”) for a total purchase price of $12,000,000.

The Purchaser is a subsidiary of BitNile Holdings, Inc. [NYSE American: NILE] (“BitNile”).

The material terms of the Series A and the Warrant are summarized below, which descriptions do not purport to be complete and are summarized in their entirety by the Warrant and the Certificate of Designation of the Series A (the “Series A Certificate”), which have been filed as exhibits to the Company’s Current Report on Form 8-K filed on June 9, 2022 disclosing the Agreement and the transactions contemplated thereby. In addition, the Company and the Purchaser subsequently agreed to amend the Warrant (the “Amended Warrant”) and the Series A Certificate. Copies of the Amended and Restated Warrant and the Second Amendment to the Series A Certificate have been filed with the SEC on July 15, 2022.

Series A

Conversion Rights

Each share of Series A has a stated value of $10,000 and is convertible into shares of Common Stock (the “Conversion Shares”) at a conversion price of $2.10 per share, subject to certain adjustment provisions. The holder’s conversion of the Series A is subject to a beneficial ownership limitation of 19.9% of the issued and outstanding Common Stock as of any applicable date, unless and until we obtain stockholder and Nasdaq approval for the conversion of more than that amount in order to comply with Nasdaq rules (the “Nasdaq Beneficial Ownership Limitation”). In addition, the conversion rights in general do not become effective until the first day after the Record Date for the Annual Meeting seeking such stockholder approval. The shares of Series A as amended are also subject to a 4.99% beneficial ownership limitation, which may be increased to up to 9.9% by the holder by giving 61 days’ notice to the Company (either, a “Beneficial Ownership Limitation”).

Voting Rights

The Series A is entitled to vote with the Common Stock as a single class on an as-converted basis, subject to applicable law and the Nasdaq Rules. The Beneficial Ownership Limitation applies to voting of the Series A as well as the conversion. In addition, as long as the holder continues to hold at least 25% of the shares of Series A issued to it on the issuance date, the holder is entitled to elect a number of directors to our Board equal to a percentage determined by (i) the number of Series A beneficially owned by the holder, calculated on an “as converted” basis, (ii) divided by the sum of the number of shares of Common Stock outstanding plus the number of Conversion Shares issuable on an “as converted” basis. Any such director(s) so elected may only be removed without cause by the affirmative vote of the holder. Initially, the Purchaser may designate one director. As of the Record Date, the Purchaser has not designated a director. If prior to the Annual Meeting it does so, our Board will increase the number of directors and appoint the Purchaser’s designee. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Series A), exclusively and voting together as a single class, are entitled to elect the balance of the total number of our directors. The Purchaser is not eligible to vote at the Annual Meeting on the Nasdaq 20% Issuance Proposal to approve the issuance of more than 19.9% of shares outstanding on any applicable conversion date.

Dividend Rights

The holder of shares of the Series A is entitled to receive cumulative cash dividends at an annual rate of 12.6% of the stated value, which is equivalent to $1,260 per year per share, payable monthly beginning on the issuance date and continuing until the earlier of (a) June 8, 2024, and (b) the date on which the holder no longer holds any shares of Series A. If we fail to make one or more dividend payments, whether or not consecutive, a default dividend rate of 18% per annum will apply until all accumulated dividend payments have been made.

Liquidation Rights

The shares of Series A have a liquidation preference over the Common Stock and any subsequent series of junior preferred stock of $1,200 per share of Series A, plus accrued but unpaid dividends.

Redemption

At any time beginning on or after June 8, 2024, the holder of Series A may cause us to redeem some or all of the shares of Series A it holds at a redemption price of $1,200 per share, plus any accumulated and unpaid dividends thereon.

Negative Covenants and Approval Rights

The Series A Certificate subjects us to negative covenants restricting our ability to take certain actions without prior approval from the holder(s) of a majority of the outstanding shares of Series A for as long as the holder(s) continue to hold at least 25% (or such higher percentage as set forth in the Series A Certificate) of the Series A shares issued on the closing date under the Agreement. These restrictive covenants include the following actions by us, subject to certain exceptions and limitations:

The above and other negative covenants in the Series A Certificate do not apply to a reverse merger with an entity with securities quoted on a market operated by OTC Markets or listed on a national securities exchange approved by the SEC.

Warrant

The Amended Warrant provides the Purchaser or its assignees (together, the “Holder”) with the right to purchase a number of shares of Common Stock as would enable the Holder together with its affiliates to beneficially own 49% of our Common Stock (the “Warrant Shares”) calculated on a fully diluted basis at an exercise price of $0.001 per share, including the Commitment Shares and Conversion Shares unless sold. Subject to stockholder approval, the Amended Warrant will vest and become exercisable if on June 8, 2024: (i) the Holder (together with its affiliates) beneficially owns less than 50% of our outstanding Common Stock (on a fully diluted basis) and (ii) the Company has failed to complete the following spin-offs to our security holders or to any other subsidiary of our equity ownership of our three principal subsidiaries: Agora Digital Holdings, Inc., or their principal subsidiaries (“Agora”), Banner Midstream Corp. (“Banner Midstream”) and Zest Labs, Inc. or their principal subsidiaries (together, the “Distributions”). Provided, we must retain 20% of our Common Stock of Agora. The Amended Warrant may be exercised on a cashless basis and expires on June 8, 2027. In the event that the Company or its transfer agent fails to issue the shares of Common Stock within three business days following delivery of a notice of exercise, the Amended Warrant provides that the Company must pay the Holder a fee of $2.4 million.

Registration Rights

Pursuant to the Agreement, we agreed to register the sale by the Purchaser of up to 5,246,456 shares of Common Stock, representing the Commitment Shares issued at the closing plus 5,143,575 of the Conversion Shares (the number of Conversion Shares not precluded by the Nasdaq Beneficial Ownership Limitation). This amount equals 19.9% of our outstanding Common Stock immediately prior to the closing. We have registered the sale by filing a prospectus supplement pursuant to our registration statement on Form S-3 (File No. 333-249532), which became effective on December 29, 2020, and the base prospectus included therein.

Nasdaq Rule 5635

Our Common Stock is listed on Nasdaq, and as a result, we are subject to Nasdaq’s Listing Rules, including Nasdaq Listing Rule 5635. Below is an overview of the relevant provisions of Nasdaq Listing Rule 5635 as they relate to the Private Placement and the Nasdaq 20% Issuance Proposal. The overview does not purport to be complete and is qualified in its entirety by the full text of the Rule’s provisions, which are available on the Nasdaq’s Listing Center website at https://listingcenter.nasdaq.com/rulebook/nasdaq/rules.

Nasdaq Rule 5635(d)

Nasdaq Rule 5635(d) requires stockholder approval prior to an issuance of securities in connection with a transaction other than a public offering involving the sale, issuance or potential issuance by a listed company of Common Stock equal to 20% or more of the Common Stock, or 20% or more of the voting power, that was outstanding before the issuance for less than the lower of the closing price of such Common Stock as of the date of execution of the definitive agreement with respect to such transaction and the average closing price for the five trading days immediately preceding such date. The provisions in (i) the Series A Certificate that prevent the issuance of shares of our Common Stock upon conversion if such issuance will result in such holders beneficially owning in excess of 19.99% of our Common Stock prior to stockholder approval pursuant to the Nasdaq Beneficial Ownership Limitation and (ii) the Amended Warrant that prevent exercise of the Amended Warrant prior to stockholder approval to the extent the issuance of Warrant Shares pursuant to such exercise, when combined with the issuances of shares of Common Stock upon conversion pursuant to the Series A Certificate, would be in excess of the Nasdaq Beneficial Ownership Limitation, are both required under Nasdaq Rule 5635(d). The 19.9% limitation is based upon the number of shares of Common Stock outstanding as of any given conversion date and excludes Common Stock previously sold.

We are seeking stockholder approval for the sale and issuance of such shares of Common Stock upon conversion and Warrant Shares in connection with the Private Placement pursuant to Nasdaq Rule 5635(d) without regard to the Nasdaq Beneficial Ownership Limitation.

Nasdaq Rule 5635(b)

Nasdaq Listing Rule 5635(b) requires stockholder approval prior to an issuance of securities that will result in a “change of control” of a listed company, which for Nasdaq purposes is generally deemed to occur when, as a result of an issuance, an investor or a group of investors acquires, or has the right to acquire, 20% or more of the outstanding equity or voting power of the company and such ownership or voting power would be the company’s largest ownership position. If the Amended Warrant vests, the Holder would become the beneficial owner of 49% of the outstanding shares of our Common Stock . Further, in the event we issue additional shares of Common Stock in a financing transaction or otherwise to a person or entity other than the Holder of the Amended Warrant or its affiliates or the Purchaser transfers or sells its shares of Common Stock to a non-affiliate, and the Amended Warrant subsequently vests, the number of Warrant Shares subject to the Amended Warrant will increase. As a result, our issuance of Common Stock pursuant to the Amended Warrant, if exercised, would result in a “change of control” for purposes of Nasdaq Listing Rule 5635(b).

Similarly, because of the Conversion Shares underlying the Series A, absent the Nasdaq Beneficial Ownership Limitation, our issuance of the Series A would constitute a “change of control” because a single entity would beneficially own over 20% of our outstanding Common Stock, which is a greater ownership position than any of our stockholders prior to the Private Placement.

Accordingly, we are seeking stockholder approval pursuant to Nasdaq Listing Rule 5635(b) to permit the issuance of 570,711 Conversion Shares and the Warrant Shares underlying the Amended Warrant underlying the Series A in excess of the 20% maximum under Rule 5635(b), after taking into account the Commitment Shares issued to the Purchaser and the Conversion Shares that are below the Nasdaq Beneficial Ownership Limitation contained in the Series A.

Consequences if Stockholder Approval is Not Obtained

If approval for the Nasdaq 20% Issuance Proposal is not obtained at the Annual Meeting, and in any event within 75 days of the filing of our Annual Report on Form 10-K for the fiscal year ended March 31, 2022, or by September 20, 2022, we are obligated under the Agreement to call a meeting every two months thereafter to seek stockholder approval until the earlier of the date on which stockholder approval is obtained or the Warrant Shares are no longer outstanding.

We may issue the Purchaser up to 5,246,456 shares of Common Stock without stockholder approval under Nasdaq Rules. Thus, we may not issue 570,711 Conversion Shares underlying the Series A (the “Excess Shares”) or any Warrant Shares until we receive stockholder approval. However, because the Nasdaq Beneficial Ownership Limitation is based on shares of Common Stock outstanding as of any applicable conversion date and excludes Common Stock sold, it is possible that the Excess Shares may be issuable even if our stockholders do not approve Proposal 1. Under Nasdaq Rules, the Purchaser may not vote on the Nasdaq 20% Issuance Proposal. In addition, to avoid tracing of the Conversion Shares, the Purchaser is prohibited from converting the Series A until after the Record Date for stockholders eligible to vote at the Annual Meeting. Because the Conversion Shares have been issued, the Purchaser has agreed not to vote the Commitment Shares.

If we fail to obtain approval for the Nasdaq 20% Issuance Proposal, the Nasdaq Beneficial Ownership Limitation contained in the Series A will remain in effect, and the Holder of the Amended Warrant cannot exercise the Amended Warrant pursuant to Nasdaq Rule 5635.

Our planned Distributions described above are based upon an expectation that an affiliate of the Purchaser will sell a business or assets to us in exchange for some consideration. We have no understanding with the Purchaser or its affiliates. This will result in a change of control and may also require Nasdaq approval.

Description of Proposal

We are seeking stockholder approval as required by Nasdaq Rule 5635 (as described above) to enable us to issue a number of shares our Common Stock in connection with the Private Placement that exceeds 20% of our outstanding Common Stock as of any applicable conversion date, which includes 570,711 additional Conversion Shares and the Warrant Shares. The shares of our Common Stock that could be issued pursuant to the conversion of the Series A and the Amended Warrant consist of:

Related Parties

Except for the Private Placement, the Purchaser has not had any material relationship with us within the past three years. However, the Purchaser (or a designee) has the right to participate up to 25% in any future oil wells we drill at its election. Discussions with BitNile management about future drilling and participation rights are ongoing. Additionally, as described above, the Purchaser may initially designate one director of the Company.

Vote Required

The affirmative vote of the Holders of a majority of votes cast on the proposal, which includes those present in person or represented by proxy and entitled to vote on the matter and excludes the voting power underlying the Securities acquired in the Private Placement, is necessary to approve the Nasdaq 20% Issuance Proposal in accordance with Nasdaq Marketplace Rule 5635(e)(4). Broker non-votes will not affect whether this proposal is approved, but abstentions will have the same effect as a vote against the proposal. Although Nevada law is unclear, we are treating abstentions as votes cast.

Anticipated and Potential Effects of this Proposal

The issuance of the shares of our Common Stock which are the subject of the Nasdaq 20% Issuance Proposal will result in an increase in the number of shares our Common Stock outstanding. This will result in a decrease to the respective ownership and voting percentage interests of our other stockholders. Our market value and our future earnings per share, if any, may be reduced.

Because we have registered the Purchaser’s sale of 5,143,575 of the Conversion Shares and the 102,881 Commitment Shares, the addition of up to 5,246,456 freely-traded shares into the market could have an adverse effect on the trading price of our stock and/or result in increased trading volatility.

If the Nasdaq 20% Issuance Proposal is approved, it could also result in the subsequent issuance of a total of 26,746,343 shares, consisting of (i) the 570,711 Excess Shares over the Nasdaq Beneficial Ownership Limitation in the Series A, plus (ii) 26,175,632 Warrant Shares, after giving effect to the issuance of the Commitment Shares and assuming no other issuances of our Common Stock occur, which would be extremely dilutive to our other stockholders and could also adversely affect the market price and trading volatility of our Common Stock. This number of Warrant Shares assumes all Commitment Shares and Conversion Shares have not been sold since they must be included with the Warrant Shares in calculating the 49%.

If the Amended Warrant vests and the Holder then exercises the Amended Warrant in full to purchase the Warrant Shares, it would result in the Holder beneficially owning 49% of the outstanding shares of our Common Stock following the exercise. Such ownership would represent the largest ownership position in our Company. As a result, the Holder could be able to exert significant influence over matters requiring approval by our stockholders, including the election of directors and mergers, acquisitions or other extraordinary transactions. The Holder of the Amended Warrant may have interests that differ from ours or yours, and it may vote or otherwise act in ways with which you disagree and that may be adverse to your interests. In addition, the concentration of ownership in a single Holder may have the effect of delaying, preventing or deterring another change of control of our Company, which could deprive our stockholders of an opportunity to receive a premium for their shares of our Common Stock as part of a sale of our Company, or conversely, could facilitate a change of control at a time or under circumstances when you and other stockholders may prefer not to sell. Further, the concentration of ownership could adversely affect the prevailing market price for our Common Stock.

For your consideration of the Nasdaq 20% Issuance Proposal, the above description of the material terms of the Private Placement is set forth in this Proxy Statement to provide you with basic information concerning the Private Placement. However, the description above is not a substitute for reviewing the full text of the referenced documents, which were attached as exhibits to the Company’s Current Report on Form 8-K as filed with the SEC on June 9, 2022 and the Company’s Current Report on Form 8-K as filed with the SEC on July 15, 2022 when we filed the Amended Warrant and the Second Amendment to the Series A Certificate.

The Board unanimously recommends that the Company’s stockholders vote “FOR” the Nasdaq 20% Issuance Proposal (Proposal 1), and thereby the issuance of Common Stock issuable pursuant to the Private Placement, including all of the Conversion Shares underlying the Series A and the Warrant Shares issuable upon exercise of the Purchaser’s Warrant.

PROPOSAL 2.

APPROVAL OF INCORPORATION TOAUTHORIZED SHARE INCREASE THE AUTHORIZED COMMON STOCK

The Board has approved, and is asking the Company’s stockholders to approve an increase in the number of authorized shares of Common Stock 40,000,000 shares to 100,000,000 shares (the “Authorized Share Increase”) and a proposedcorresponding amendment to the Articles of Incorporation to effect the Authorized Share Increase. The form of amendment to the Articles of Incorporation to be filed with the Nevada Secretary of State to effect the Authorized Share Increase if we obtain stockholder approval is included in this Proxy Statement as Annex A.

Under our Articles of Incorporation, we are currently authorized to issue up to 40,000,000 shares of Common Stock and 5,000,000 shares of Preferred Stock. As of the close of business on the Record Date, there were 26,466,980 shares of Common Stock issued and outstanding and 1,200 shares of Preferred Stock issued and outstanding. Additionally, as of the Record Date there were 12,648,814 shares of Common Stock underlying other outstanding derivative securities comprised of stock options, warrants and restricted stock units. After allowing for full conversion of the Series A, we will have only 884,206 shares of Common Stock available. As described below, we have contractual obligations which require us to increase our authorized Common Stock. For this reason, and to allow for greater flexibility to issue Common Stock including for compensation awards, we are seeking stockholder approval of the Authorized Share Increase.

Purpose of the Authorized Share Increase

The Agreement, the Series A and the Amended Warrant require us to establish and maintain a reserve of authorized but unissued shares of Common Stock equal to 300% of the Conversion Shares plus 100% of the Warrant Shares at all times while such securities remain outstanding, for a total reserve requirement of 37,604,203 shares as of the Record Date with respect to the Private Placement (the “Private Placement Reserve”). When we closed the Private Placement, the Purchaser understood we did not meet the Private Placement Reserve requirement. The principal purpose of the Authorized Share Increase is to comply with this Private Placement Reserve requirement.

The Company needs 76,719,997 shares of authorized Common Stock to meet its existing contractual obligations including those to the Purchaser. Increasing the authorized number of shares of Common Stock to 100,000,000 shares gives the Company sufficient flexibility to issue Common Stock as needed including under its outstanding derivative securities and to meet the future needs of its compensation programs described below.

In addition, if and when vested the Amended Warrant will provide the Holder with the conditional right to receive a number of shares as necessary for it to beneficially own 49% of the outstanding Common Stock on a fully-diluted basis. Based on the 39,115,794 fully-diluted number of shares of Common Stock as of the Record Date, that means the current number of shares that would be issuable under the Amended Warrant is currently 26,175,632 shares, again assuming no sale of the Commitment Shares and the Conversion Shares. To the extent that the Purchaser sells any of these shares, the number of Warrant Shares is increased while the Private Placement Reserve is decreased by two shares for each share sold.

Given the above outstanding securities and agreements to which the Company is subject, and specifically the need for additional authorized but unissued shares of Common Stock in order to comply with the Private Placement Reserve, the Board believes it to be in the best interest of the Company (the “Articles Amendment”) to increase the number of shares of Common Stock the Company is authorized to issue from 30,000,000in order to 40,000,000 shares (the “Authorized Capital Increase”).

Background and Reasons for the Authorized Capital Increase and the Articles Amendment

Under its Articles of Incorporation, as amended,enable the Company is currently authorized to issue upcomply with its contractual obligations while also giving the Company greater flexibility in addressing its future general corporate needs, including, but not limited to, 30,000,000 sharesthe offer and sale of Common Stock, the grant of awards under equity incentive plans, and 5,000,000 shares of preferred stock. As of the close of business on the Record Date, there were 26,349,099 shares of Common Stock issued and outstanding and 3,389,987 shares reserved for issuance pursuant to outstanding equity awards to employees and directors and outstanding warrants (excluding the Warrants and Placement Agent Warrants, as defined below), leaving a balance of 378,028 shares of Common Stock. As of the Record Date, there were no shares of preferred stock outstanding.

Additionally, as of the Record Date, the Company had outstanding an additional 3,721,739 warrants, consisting of (i) warrants to purchase 3,478,261 shares of Common Stock (the “Warrants”) at an exercise price of $5.75 per share, and (ii) warrants (the “Placement Agent Warrants”) to purchase up to 243,478 shares of Common Stock at an exercise price of $7.1875 per share. The Warrants were issued pursuant to the Securities Purchase Agreement, dated August 4, 2021 (the “SPA”), by and among the Company and a number of institutional investors in connection with the previously disclosed registered direct offering of Common Stock and Warrants (the “Offering”). The Placement Agent Warrants were issued to the placement agent as additional compensation in connection with the Offering. The Warrants and the Placement Agent Warrants provide that they will become exercisable on the effective date of an increase in the number of shares of the Company’s authorized Common Stock to 40,000,000, and under the SPA the Company has agreed to reserve a sufficient number of shares of Common Stock for issuance upon exercise of the Warrants, following such increase.

If the Authorized Capital Increase is effected following the approval of the Articles Amendment by the stockholders at the Special Meeting and filing the Articles Amendment with the Secretary of State of Nevada, and an amendment to the 2017 Plan (Proposal 2) is also approved by the stockholders at the Special Meeting, we will have a total of 40,000,000 authorized shares of Common Stock, with approximately 26,349,099 shares of Common Stock outstanding, and approximately 8,043,976 shares reserved for issuance, leaving a balance of 18,305,123 shares of commoncapital stock authorized and not reserved for any specific purpose.

Effects of the Proposed Articles Amendment

If the Articles Amendment is approved, the number ofin strategic transactions. The Board believes that additional authorized shares of Common Stock will be 40,000,000. The total numberalso enable the Company to take timely advantage of market conditions and favorable acquisition opportunities that may become available to the Company.

If this Proposal 2 is approved, the authorized but unissued shares of Common Stock will be 23,280,003 shares of Common Stock. Subject to reserve requirements under outstanding derivative securities, the authorized but unissued shares of Common Stock will be issued at the direction of the Board, without stockholder approval unless required by applicable law or Nasdaq Rules.

Compensation Programs

We have historically compensated our directors, officers and employees with stock options and/or RSUs in addition to salaries and other forms of cash compensation. Presently, we are providing our non-employee directors with Restricted Stock Units equal to $12,500 per quarter.

If approved by the stockholders, the Authorized Share Increase will enable the Company will be 45,000,000, consistingto continue to compensate its directors awards under its compensation programs.

Rights of 40,000,000Additional Authorized Shares

Any newly authorized shares of Common Stock and 5,000,000 authorized shares of preferred stock. The Articles Amendment will not changehave the par value ofsame rights as the shares of the Common Stock, affect the number of shares of Common Stock outstanding ornow authorized and outstanding. The Authorized Share Increase will not affect the rights or privileges of holders of shares of the Common Stock or have any effect on any outstanding securities, including outstanding equity awards, that are exercisable, convertible or exchangeable for sharescurrent Holders of Common Stock, except that whennone of whom have preemptive or similar rights to acquire the Warrants and Placement Agent Warrants are exercised the existing stockholders will experience dilution.newly authorized shares.

A form of the Articles Amendment that would be filed with the Nevada Secretary of State to effect the Authorized Capital Increase is set forth in Annex A. If the stockholders approve the Articles Amendment, the Company intends to file it with the Nevada Secretary of State as soon as practicable following the Special Meeting, and the Articles Amendment will be effective upon such filing.

Potential Adverse Effects of the Proposed Amendment

Other than discussed above in this Proposal 1, the Company currentlyThe Board has no current plans to issue any additional shares of Common Stock following the filing and effectiveness of the Articles Amendment. The Authorized CapitalShare Increase except for awards to non-employee directors. Adoption of the Authorized Share Increase alone will not have any immediate dilutive effect on the proportionate voting power or other rights of the Company’s existing stockholders. However, any issuance of Common Stock upon exercise

No Appraisal Rights

Stockholders have no rights under Chapter 78 of the Warrants and the Placement Agent WarrantsNevada Revised Statutes or otherwise at the directionunder our Articles of the Board in the future, generally without obtaining stockholder approval (unless specifically required by applicable law or the listing rulesIncorporation to exercise dissenters’ rights of The Nasdaq Stock Market LLC (the “Nasdaq Listing Rules”)) may, among other things, result in dilution to our stockholders at the time such additional shares are issued.

Additionally, an increase in the number of authorized shares of Common Stock may make it more difficult to, or discourage an attempt to, obtain control of the Company by means of a takeover bid that is not in the Board’s determination in the best interest of the Company and its stockholders. However, the Board does not deem the proposed Authorized Capital Increase pursuantappraisal with respect to the Articles Amendment as an anti-takeover measure and is not aware of any attempt or plan by a third party to obtain control of the Company.

Effect of Failure to Obtain Stockholder Approval

If the stockholders do not approve this Proposal 1 at the Special Meeting or adjournment or postponement thereof, we will be required to seek approval at another special meeting every 45 days. If we fail to obtain stockholder approval of the Authorized Capital Increase and the Articles Amendment we would not be able to comply with our obligations under the SPA, the Warrants and the Placement Agent Warrants and could potentially face legal action for breach of contract. Additionally, we would not be able to receive the proceeds from the exercise of the Warrants and the Placement Agent Warrants.

Failure to obtain stockholder approval of this Proposal 1 will also significantly limit the Company’s flexibility in raising additional capital in the future.

Interest of Officers and Directors in Proposal 1

None of the officers or directors of the Company have any interest in this Proposal 1, except that officers and directors have in the past received, non-employee directors will, and the other officers and directors may, in the future receive equity awards as compensation for their services, and Peter Mehring will receive 63,998 restricted stock units if this Proposal 1 and Proposal 2 are approved.

Vote Required

The affirmative vote of the holders of a majority of the voting power is required to approve the Authorized Capital Increase and the Articles Amendment. An abstention with respect to this Proposal 1 will have the same effect as a vote “Against” the proposal.Share Increase.

THE BOARD RECOMMENDS THAT THE STOCKHOLDERS VOTE “FOR” THIS PROPOSAL 1.

PROPOSAL 2. APPROVAL OF AN AMENDMENT TO THE 2017 OMNIBUS INCENTIVE PLAN

Our Board has approved and is asking the stockholders to approve an increase in the number of shares of Common Stock authorized for issuance under the 2017 Plan from 800,000 to 1,300,000 shares (the “Plan Amendment”).

The Board originally adopted the 2017 Plan in 2017 and the stockholders approved the 2017 Plan on June 13, 2017. The 2017 Plan provides for the grant of incentive stock options, non-qualified stock options, restricted stock awards, restricted stock units, stock appreciation rights (“SARs”), and performance shares or units and other awards. Awards may be granted under the 2017 Plan to our employees, directors and consultants.

Overview and Purpose of the Stockholder Approval

In order to allow the Company to responsibly address its future equity compensation needs, the Company is requesting that the stockholders approve the Plan Amendment, which will authorize an additional 500,000 shares for issuance under the 2017 Plan, thus increasing the total number of shares authorized for issuance under the 2017 Plan to 1,300,000 shares. Having a sufficient number of shares under the 2017 Plan is critical to our ability to continue to attract, retain, engage and focus highly motivated and qualified employees and directors. A copy of the Plan Amendment is attached to this Proxy Statement as Annex B.

Interest of Officers and Directors in Matters to Be Acted Upon

None of the officers or directors of the Company have any interest in this Proposal 2, except that officers and directors have in the past received, non-employee directors will, and the other officers and directors may, in the future receive equity awards as compensation for their services under the 2017 Plan, and Peter Mehring will receive 63,998 restricted stock units under the 2017 Plan. See “Proposal 3. Approval of Issuance of Restricted Stock Units in Exchange for Cancellation of Stock Options” for further information. The increase in available shares permitted the Company to raise a material amount of additional gross proceeds from the registered direct offering completed on August 6, 2021, enhancing the Company’s working capital position.

Vote Required

The affirmative vote of a majority of the votes cast for or against this Proposal 2 is required to approve the Plan Amendment. Abstentions will not be considered as votes cast under the Company’s bylaws, and accordingly will have no effect on the outcome of this Proposal 2.

THE BOARDDIRECTORS RECOMMENDS THAT THE STOCKHOLDERS VOTE “FOR” THIS PROPOSAL 2.

DescriptionPROPOSAL 3.

ELECTION OF DIRECTORS

Pursuant to the authority granted to our Board under our Bylaws, the Board has fixed the number of directors constituting the entire Board at four. The Board currently consists of four directors following the resignation of Peter Mehring on February 11, 2022 and the reduction of the 2017 Plannumber of directors. In connection with the closing of the Private Placement, initially the Purchaser has the right to designate one director. However, the Purchaser is not designating a director at the Annual Meeting.

Summarized below areUpon the principal featuresrecommendation of the Corporate Governance & Nominating Committee of the Board, our Board has nominated the four current directors named below to be elected as directors at the Annual Meeting, each to hold office until the next annual meeting of stockholders and until his or her successor is duly elected and qualified. Although management does not anticipate that any nominee will be unable or unwilling to serve as a director, in the event of such an occurrence proxies may be voted in the discretion of the persons named in the proxy for a substitute designated by the Board, unless the Board decides to reduce the number of directors constituting the Board.

The Board recommends a vote “FOR” the election of all of the director nominees.

Nominees for Director

The following table sets forth information provided by the nominees as of the Record Date. All of the nominees are currently serving as directors of the Company. All of the nominees have consented to serve if elected by our stockholders.

There are no family relationships among our directors and executive officers.

Director Nominees Biographies

Randy S. May. Mr. May has served as Chairman of the Board since April 11, 2016 and served as Chief Executive Officer of the Company from April 13, 2016 through March 28, 2017, Plan.and then again from September 21, 2017, to the present. Mr. May has also served as the Executive Chairman of the Board of Directors of Agora, an approximately 90% owned subsidiary of the Company, since September 2021. He previously served as Chairman of the Board of Directors and as Chief Executive Officer of Ecoark, Inc. from its incorporation until its reverse acquisition with Magnolia Solar Corporation in March 2016. Mr. May is a 25-year retail and supply-chain veteran with experience in marketing, operational and executive roles. Prior to joining the Company, Mr. May held a number of roles with Wal-Mart Stores, Inc. (“Walmart”). From 1998 to 2004, Mr. May served as Divisional Manager for half the United States for one of Walmart’s specialty divisions, where he was responsible for all aspects of strategic planning, finance, and operations for more than 1,800 stores. Mr. May’s qualifications and background that qualify him to serve on the Board include his strong managerial and leadership experience, his extensive knowledge of strategic planning, finance and operations, as well his ability to guide the Company.

Gary M. Metzger. Mr. Metzger has been serving on the Board since March 24, 2016 and served on the Board of Directors of Ecoark, Inc. from 2013 until its reverse merger with Magnolia Solar Corporation in March 2016. Mr. Metzger has 40 years of product development, strategic planning, management, business development and operational expertise. He served as an executive at Amco International, Inc. and Amco Plastics Materials, Inc. (“Amco”), where in 1986 he was named President and served in such role for 24 years until Amco was sold to global resin distribution company, Ravago Americas, in December 2011, where he remains a product developer and product manager. Mr. Metzger was also a co-owner of Amco. In addition to his leadership functions, Mr. Metzger spearheaded research and development for recycled polymers, new alloy and bio-based polymer development, and introduced fragrance into polymer applications. He also developed encrypted item level bar code identification technology, anti-counterfeiting technologies and antimicrobial technologies. The below summaryCompany believes that Mr. Metzger’s leadership and knowledge of manufacturing companies, product development, strategic planning, management and business development are an asset to the Board. Taken together, these are among the many qualifications and the significant experience that have led to the conclusion that Mr. Metzger is qualified to serve on the Board.

Steven K. Nelson. Mr. Nelson has been serving on the Board and as Chairman of our Audit Committee since April 2017. He was appointed Lead Director in July 2022. Mr. Nelson has also served as a director of Agora since October 2021. Since 2015, Mr. Nelson has been a lecturer for the Department of Accounting at the University of Central Arkansas. Mr. Nelson is licensed as a Certified Public Accountant (“CPA”) in the State of Arkansas. Mr. Nelson’s 35-year career as a CPA, his academic expertise, and his experience on our Board qualifies him to serve on the Board and its entirety by referenceAudit Committee. His broad experience uniquely qualifies Mr. Nelson as an SEC Audit Committee Financial Expert.

Emily L. Pataki. Ms. Pataki has been serving on the Board since November 12, 2021. Since 2016, Ms. Pataki has been self-employed as a consultant assisting clients with aerospace, defense and corporate strategy. Since 2014, she has also served on the Board of Directors and in various officer roles at Pedernales Electric Cooperative, an energy utility cooperative in Texas, and on the Board of Directors of Atec, Inc. an aerospace firm also located in Texas. The Company believes Ms. Pataki’s corporate and consulting experience and knowledge of the energy industry are an asset to the Board.

EXECUTIVE OFFICERS

Set forth below is biographical information with respect to each current executive officer of the Company. Mr. May also serves as a director of the Company. Officers are elected by the Board to hold office until their successors are elected and qualified.

Randy S. May. See “Nominees for Directors” above for Mr. May’s biographical information.

Jay Puchir. Mr. Puchir has served as the Chief Financial Officer of the Company since April 12, 2022 and Treasurer of the Company since October 22, 2020. Mr. Puchir has also served as the Chief Executive Officer and President of Banner Midstream Corp. since its formation in April 2018. He previously was Chief Financial Officer of Agora from September 2021 to April 2022.  Mr. Puchir served in various roles as an executive at the Company including Director of Finance from December 2016 to March 2017, Chief Executive Officer from March 2017 to October 2017, Chief Financial Officer from October 2017 to May 2018 and Chief Accounting Officer from March 2020 to October 2020.  He served as Chief Executive Officer of Banner Energy Services Corp. from November 2019 to August 2020 and as Chairman from February 2020 to August 2020. Mr. Puchir is a licensed Certified Public Accountant in the State of South Carolina.

Jimmy R. Galla. Mr. Galla has served as our Chief Accounting Officer since October 22, 2020. He had previously served as the Company’s Director of Financial Reporting since July 20, 2020, and prior to that he served as an accounting consultant to the Company from January 2017 to March 2020. From October 2017 to July 2020, Mr. Galla served as VP, Financial Accounting Lead Analyst, Deputy Controller Department of Citibank, Inc.

William B. Hoagland. Mr. Hoagland has served as Agora’s Chief Executive Officer and as a director of Agora since September 2021. From May 2019 until April 8, 2022, Mr. Hoagland was also Chief Financial Officer of Ecoark. Prior to that, Mr. Hoagland spent eight years as Managing Member of Trend Capital Management, a hybrid hedge fund with a track record of outperforming the S&P 500. Since July 23, 2021, Mr. Hoagland has been a director for HUMBL, Inc. [OTC: HMBL]. Mr. Hoagland holds the Chartered Financial Analyst designation and is a Level III candidate in the Chartered Market Technician Program.

Family Relationships

There are no family relationships among any of the directors or executive officers.

CORPORATE GOVERNANCE

Board Committees and Charters

The Board and its committees meet and act by written consent from time to time as appropriate. The Board has formed the following standing committees: (i) the Audit Committee, (ii) the Compensation Committee, and (iii) the Corporate Governance & Nominating Committee (the “Nominating Committee”). These Committees regularly report on their activities and actions to the Board.

Each of our Audit, Compensation, and Corporate Governance & Nominating Committees has a written charter. Each of these committee charters is available through the “Investor Relations” section on our website, which can be found at www.ecoarkusa.com. The information on, or that can be accessed through, our website is not incorporated into this Proxy Statement.

The following table identifies the independent and non-independent Board nominees and Committee members:

All of the directors attended over 75% of the applicable Board and Committee meetings held during the fiscal year ended March 31, 2022 (the “2022 Fiscal Year”).

Board and Committee Meetings

Our Board held seven meetings during the 2022 Fiscal Year. We have no formal policy regarding attendance by directors or officers at our stockholder meetings.

During the 2022 Fiscal Year, our Audit Committee held five meetings, the Compensation Committee held three meetings, and the Corporate Governance & Nominating Committee held three meetings.

Director Independence

Our Board, in the exercise of its reasonable business judgment, has determined that each of the Company’s three non-employee directors qualifies as an independent director pursuant to Rule 5605(a)(2) of Nasdaq Listing Rules and applicable SEC rules and regulations.

Our Board has also determined that Mr. Gary Metzger, Mr. Steven K. Nelson and Ms. Emily L. Pataki meet the independence requirements under Rule 5605(c)(2) of the Nasdaq Listing Rules and the heightened independence requirements for Audit Committee members under Rule 10A-3 of the Securities Exchange Act of 1934. Also, our Board has determined that Mr. Gary Metzger, Mr. Steven K. Nelson and Ms. Emily L. Pataki are independent under Rule 5605(a) of the Nasdaq Listing Rules independence standards for Compensation Committee members.

Committees of the Board of Directors

The following is an overview of each of the Audit Committee, Corporate Governance & Nominating Committee and Compensation Committee of our Board. Each such committee operates under a written charter; copies of which available on our website at https://www.ecoarkusa.com/investor-relations/.

Audit Committee

Management has the primary responsibility for the financial statements and the reporting process, including the system of internal controls. The Audit Committee reviews the Company’s financial reporting process on behalf of the Board and administers our engagement of the independent registered public accounting firm. The Audit Committee meets with the independent registered public accounting firm, with and without management present, to discuss the results of its examinations, the evaluations of our internal controls, and the overall quality of our financial reporting. The Audit Committee also has responsibility for approving related party transactions.

Audit Committee Financial Expert

Our Board has determined that Mr. Steven K. Nelson is qualified as an Audit Committee Financial Expert, as that term is defined under the rules of the SEC and in compliance with the Sarbanes-Oxley Act of 2002.

Corporate Governance & Nominating Committee (“Nominating Committee”)

The responsibilities of the Nominating Committee include the identification of individuals qualified to become Board members, the selection of nominees to stand for election as directors, the oversight of the selection and composition of committees of the Board, establishing procedures for the nomination process including procedures, oversight of possible conflicts of interests involving the Board and its members, developing corporate governance principles, and the oversight of the evaluations of the Board and management. The Nominating Committee has not established a policy with regard to the consideration of any candidates recommended by stockholders. If we receive any stockholder recommended nominations, the Nominating Committee will carefully review the recommendation(s) and consider such recommendation(s) in good faith.

Compensation Committee

The function of the Compensation Committee is to determine the compensation of our executive officers and other compensation matters, including the periodic review of the compensation strategy of the Company in consultation with the chief executive officer and its effect on the achievement of Company goals. Additionally, the Compensation Committee is responsible for administering the Company’s executive and equity compensation plans, including the 2013 Incentive Stock Option Plan and the 2017 Omnibus Stock Plan, and such other compensation and benefit plans, as it deems appropriate, subject to the Board's authority to also appoint other committees to administer awards made to non-executive officers.

Board Diversity

While we do not have a formal policy on diversity, our Board and Nominating Committee consider diversity to include the skill set, background, reputation, type and length of business experience of our Board members as well as a particular nominee’s contribution to that mix. Of our four directors, one is female. Although there are many other factors, our Board seeks individuals with experience in the oil and gas industry or in other industries in which we operate or legal and accounting skills.

Board Leadership Structure

Our Board has determined that its current structure, with a combined Chairman and Chief Executive Officer roles, is in the best interests of the Company and its stockholders at this time. A number of factors support the leadership structure chosen by the Board, including, among others:

Our Bylaws provide that the Chairman of the Board may be elected by a majority vote of the Board of Directors and shall serve until the meeting of the Board following the next annual meeting of stockholders at which such Chairman is re-elected. The Chairman of the Board shall preside at all meetings.

Our Corporate Governance Guidelines (the “Guidelines”) provide that a Lead Director selected by the non-management directors shall preside at meetings of the Board at which the Chairman of the Board is not present. The Guidelines require that the Lead Director shall preside at executive sessions of the non-management directors. The non-management directors will meet in executive session, no less frequently than quarterly, as determined by the Lead Director, or when a director makes a request of the Lead Director. Steven K. Nelson currently serves as the Lead Director. The Lead Director serves as the Company’s lead independent director.

Board Risk Oversight

Our risk management function is overseen by our Board. Our management keeps its Board apprised of material risks and provides its directors access to all information necessary for them to understand and evaluate how these risks interrelate, how they affect us, and how management addresses those risks. Mr. Randy S. May, as our Chief Executive Officer and Chairman of the Board, works closely with the Board once material risks are identified on how to best address such risks. If the identified risk poses an actual or potential conflict with management, our independent directors may conduct the assessment.

The Board actively interfaces with management on seeking solutions to any perceived risk.

Stockholder Communications

Although we do not have a formal policy regarding communications with our Board, stockholders may communicate with the Board by writing to the Corporate Secretary of Ecoark Holdings, Inc. at 303 Pearl Parkway Suite 200, San Antonio, TX 78215. Stockholders who would like their submission directed to a particular member of the Board may so specify, and the communication will be forwarded, as appropriate.

Delinquent Section 16(a) Reports

Section 16(a) of the Exchange Act requires our directors, executive officers and persons who beneficially own more than 10% of our Common Stock to file initial reports of ownership and changes in ownership of our Common Stock and other equity securities with the SEC. These individuals are required by the regulations of the SEC to furnish us with copies of all Section 16(a) forms they file. Based solely on a review of the copies of the forms furnished to us, and written representations from reporting persons, we believe that all filing requirements applicable to our officers, directors and 10% beneficial owners were complied with during our fiscal year ended March 31, 2022, except for one Form 4 for Peter Mehring, who resigned from our Board in February 2022, in connection with a grant of Restricted Stock Units to Mr. Mehring, which was not timely filed due to an administrative error.

Code of Ethics

We have adopted a Code of Ethics as defined in Item 406 of Regulation S-K, which code applies to all of our directors and employees, including our principal executive officer, principal financial officer, principal accounting officer or controller, and persons performing similar functions. All directors, officers, and other employees are expected to be familiar with the Code of Ethics and to adhere to the principles and procedures set forth therein. The Code of Ethics forms the foundation of a comprehensive program that requires compliance with all corporate policies and procedures and seeks to foster an open relationship among colleagues that contributes to good business conduct and an abiding belief in the integrity of our employees. Our policies and procedures cover all areas of professional conduct, including employment policies, conflicts of interest, intellectual property, and the protection of confidential information, as well as strict adherence to all laws and regulations applicable to the conduct of our business.

Directors, officers, and other employees are required to report any conduct that they believe in good faith to be an actual or apparent violation of the Code of Ethics. The full text of the 2017 Plan.Code of Ethics is available on our website at https://www.ecoarkusa.com/company/governance. We intend to satisfy the disclosure requirements of Form 8-K regarding any amendment to, or a waiver from, any provision of our Code of Ethics by posting such amendment or waiver on our website.

BackgroundHedging

Under the Company’s Insider Trading Policy, all officers, directors and employees are prohibited from engaging in hedging transactions.

RELATED PARTY TRANSACTIONS

Set forth below is the description of transactions since April 1, 2020, to which the Company has been a party in which the amount involved exceeded $120,000 and in which any of our directors, executive officers, beneficial owners of 5% or more of our Common Stock and certain other related persons had a direct or indirect material interest, other than compensation arrangements described in this Proxy Statement under “Executive Compensation” or “Director Compensation.”

Until June 16, 2022, the Company owned 100% of Trend Discovery Holdings LLC (“Trend Discovery”) either directly or through Agora, a 90% owned subsidiary. Trend Discovery is the sole owner of Trend Capital Management LLC (“Trend Discovery Capital Management”), which is the general partner of Trend Discovery LP, a limited partnership (“Trend LP”). On August 31, 2021, William B. Hoagland, our then Chief Financial Officer, transferred 550,000 shares of Ecoark Holdings Common Stock to Trend LP, of which Mr. Hoagland owns an approximately 36.0% partnership interest. Following the transfer, Trend LP owned 713,255 shares of Ecoark Holdings Common Stock. Additionally, Trend Discovery SPV 1, LLC (“Trend SPV”) holds 243,471 shares of Ecoark Common Stock and 460,000 warrants to purchase Ecoark Holdings Common Stock. Trend Capital Management is the general partner or manager of, and provides services and collects fees from entities including Trend LP and Trend SPV, respectively. However, Trend Capital Management is not the investment manager of these entities, nor the beneficial owner of Ecoark Holdings securities held by Trend LP nor Trend SPV since it assigned the sole power to vote and direct all investment activities which will impact the entities’ economic performance to an independent third party not affiliated with Ecoark Holdings. The objectives ofinvestment capital in Trend LP and Trend SPV is from individual limited partners and members, and not from the 2017 Plan are to optimizeCompany.

On August 5, 2021, the profitability and growthCompany granted Peter Mehring, then a director of the Company through incentives that are consistent withand Chief Executive Officer and President of Zest Labs, Inc., 272,252 restricted stock units (“RSUs”) in exchange for cancellation of 672,499 previously issued stock options, of which 100,875 remained unvested. The RSUs were granted under the Company’s goals and align the personal interests of participants with thoseEcoark Holdings, Inc. 2017 Omnibus Incentive Plan (the “2017 Plan”). Each RSU represents a contingent right to receive one share of the Company’s stockholders.

AdministrationCommon Stock. The grant of the RSUs and Eligibility

The 2017 Plan is administeredthe cancellation of the Options were approved by the Compensation Committee of the Board or such other committee asBoard. The RSUs vest in 12 equal quarterly increments with the Board may select (the “Committee”).

Awards that may be granted under the 2017 Plan include restricted stock, restricted stock units, options, performance shares, performance units, SARs, and the persons eligible to participatefirst vesting date being November 4, 2021. Additionally, in the 2017 Plan include employees, officers, directors, and consultants.

PursuantOctober 2021 following stockholder approval of an amendment to the 2017 Plan, the CommitteeCompany granted Mr. Mehring an additional 63,998 RSUs having the same terms as those described above.

On February 2, 2022, Peter Mehring gave notice of his intent to resign as an executive officer and director effective on February 11, 2022. Mr. Mehring resigned as a result of his entering into an Employment Agreement with a leading Internet service company. He also entered into a Consulting Agreement with the Company under which Mr. Mehring advises Zest Labs, Inc. on matters relating to Zest Lab, Inc.’s intellectual property and litigation as well as provide transition services. The Consulting Agreement has a one-year term, during which time the authority,Company agreed to pay Mr. Mehring $16,667 per month and for his unvested stock awards to continue to vest during the term, and that the expiration date on any stock awards be extended to February 14, 2023.

Between February 1 and March 1, 2022, Trend Exploration assigned working interests in its sole discretion, subjectoil wells to certain limitations,Sky3D, LLC, a limited liability company controlled by Randy May, our Chief Executive Officer, in connection with non-interest bearing loans made by Mr. May to identifyus in the individualsamount of $727,737. These loans included $227,737 paid to drill an oil well on a 9,615 acre lease on which the Company is required to drill a well every 270 days and working capital loans. In exchange, Sky3D, LLC assigned the Company a 2.5% working interest in an oil well owned Sky3D, LLC and the loans were cancelled.

EXECUTIVE COMPENSATION

Summary Compensation Table

The following table provides information regarding the compensation of our named executive officers during the fiscal years ended March 31, 2022 and 2021.

Named Executive Officer Employment Agreements

Set forth below are summaries of our Employment Agreements with each Named Executive Officer. For purposes of clarity, we have separated the employment and compensation arrangements for Named Executive Officers between those provided by Ecoark Holdings and those provided by Agora.

Ecoark Holdings Employment Agreements

Randy S. May

Mr. May receives an annual salary of $400,000 pursuant to an oral Employment Agreement.

William B. Hoagland

Under his former Employment Agreement with Ecoark Holdings dated May 15, 2019, Mr. Hoagland previously served as Chief Financial Officer of Ecoark Holdings and received an annual salary of $180,000, which was increased to $270,000 in September 2020. His Employment Agreement with Ecoark Holdings was terminated in April 2022 in connection with his resignation as Chief Financial Officer of Ecoark Holdings.

Jay Puchir

Mr. Puchir entered into a three-year Employment Agreement with Banner Midstream which expires in March 2023. He receives an annual base salary of $280,000 which was increased by the Board from the initial base salary of $180,000. Under his Employment Agreement, Mr. Puchir also received 50,000 stock options and is entitled to receive awards, determinean annual bonus of up to 30% of his annual base salary based on based on performance criteria established by the sizeBoard.

Pursuant to Mr. Puchir’s Employment Agreement, in the event of termination by the Company without “cause,” or resignation for “good reason,” Mr. Puchir is entitled to receive an amount of base salary for the longer of (i) the remainder of the applicable term, and type(ii) three months, and a lump sum cash payment equal to six times the “applicable percentage” of individual awards, and determinehis monthly COBRA premium cost.

Generally, “good reason” is defined as (i) a material reduction of Mr. Puchir’s annual base salary (which must be by at least 20% in order to constitute a material reduction), or (ii) a material breach of the terms of the awardsEmployment Agreement by the Company.

Agora Employment Agreements

The chart below summarizes the terms and conditions of Agora employment arrangements with each of our Named Executive Officers. As indicated in footnote (5) to the below table, Mr. Puchir’s Employment Agreement with Agora terminated in April 2022 in connection with his resignation from that subsidiary.

Until September 30, 2021, each of Messrs. William B. Hoagland, Randy May, and Jay Puchir (the former Chief Financial Officer of Agora) were solely compensated by Ecoark Holdings. Beginning October 1, 2021, the additional compensation over their Ecoark Holdings salaries for Mr. Hoagland has been allocated to Agora. Since April 8, 2022 Agora is responsible for all of their compensation, and Mr. Hoagland have resigned from his responsibilities with Ecoark Holdings.

Agora Annual Bonuses

Mr. Hoagland shall be eligible to earn, for each complete year ending during the Term, an annual bonus of up to 100% of the executive’s Annual Base Salary based on terms and conditions, including the financial performance of Agora as well as individual performance goals, as set forth in a manner consistentbonus plan that is to be established, approved, administered and determined in all respects in the sole discretion of Agora’s Board of Directors or Compensation Committee.

Agora Termination Provisions

The table below describes the severance payments that Agora’s executive officers are entitled to in connection with a termination of their employment upon death, disability, dismissal without cause, or for Good Reason. All of the termination provisions are intended to comply with Section 409A of the Internal Revenue Code of 1986 and the Regulations thereunder.

Outstanding Equity Awards at Fiscal Year End

The following table presents information concerning equity awards held by our Named Executive Officers as of March 31, 2022:

DIRECTOR COMPENSATION

Director Compensation Table

Directors may receive compensation for their services and reimbursement for their expenses as shall be determined from time to time by resolution of the Board. Beginning with the 2017 Plan. Asquarter ended December 31, 2021, directors began receiving quarterly cash payments of $12,500 and RSU grants with a value of $12,500 based on the Record Date, we had 44 employees, five directors (two of whom are employees) and four consultants who are eligible to receive awards under the 2017 Plan. On August 16, 2021, the last reported saleclosing price of our Common Stock on The Nasdaq Capital Market was $4.43 per share.

Limitation on Awards

Pursuant toeach applicable grant date. Additional cash and RSU grants are granted for servings the 2017 Plan, the number of shares subject to restricted stock awards, restricted stock units, options, SARs and performance shares, that can be granted to any one participant in any one fiscal year may not exceed 80,000 shares, and the aggregate compensation that can be paid pursuant to performance units or other awards granted to any one participant in any one fiscal year may not exceed $1,000,000 or a number of shares having an aggregate fair market value of $1,000,000.

Restricted Stock Awards

A restricted stock award gives the recipient a stock award subject to restriction on sale. The Committee determines the terms and conditions of restricted stock awards, including the number of shares of restricted stock granted, and conditions for vesting that must be satisfied, which may be based principally or solely on continued provision of services. Unless otherwise determined by the Committee and/or provided in the award agreement, the holderchair of a restricted stock award generally will have the rights of a stockholder from the date of grant of the award, including the right to vote the shares of Common Stock and the right to receive cash dividends and share and property distributions on the shares.

Restricted Stock Units

A restricted stock unit gives a recipient the right to receive a number of shares of our Common Stock on the applicable vesting or other dates. Delivery of the shares of Common Stock may be deferred beyond vesting as determined by the Committee. The Committee determines the terms and conditions of restricted stock units, including the number of units granted, and conditions for vesting that must be satisfied, which may be based principally or solely on continued provision of services. The holder of a restricted stock unit award will not have voting rights with respect to the award and possess no incidents of ownership with respect to the underlying Common Stock.

Stock Options

The Committee may grant either incentive stock options within the meaning of Section 422(b) of the Internal Revenue Code (the “Code”), or non-qualified stock options. A stock option entitles the recipient to purchase a specified number of shares of Common Stock at a fixed price subject to terms and conditions set by the Committee, including conditions for exercise that must be satisfied, which typically are based solely on continued employment or service. The purchase price of shares of Common Stock covered by a stock option cannot be less than 100% of the fair market value of the Common Stock on the date of the grant. Additionally, the 2017 Plan provides that no incentive stock options granted to a participant who, at the time of the grant, owns stock representing more than 10% of the voting power of all classes of stock of the Company or any subsidiary shall have an exercise price that is less than 110% of the fair market value of Common Stock on the date of the grant. Fair market value of the Common Stock is generally equal to the closing price for the Common Stock on the trading date the option is granted.

The option exercise price may be paid in cash or its equivalent, by tendering shares of Common Stock or directing the Company to withhold shares having an aggregate fair market value at the time of exercise equal to the exercise price, by broker-assisted cashless exercise, or in any other manner then permitted by the Committee, or by a combination of any of the permitted methods.

Performance Awards

The 2017 Plan provides for performance based awards, in the form of either performance shares or performance units, which are earned upon achievement of objective performance targets relative to certain performance measures. The terms and conditions of any performance-based awards granted under the 2017 Plan are set forth in award agreements which contain provisions determined by the Committee and cannot be inconsistent with the 2017 Plan. The performance criteria to be achieved during any performance period and the length of the performance period is determined by the Committee.

SARs

An SAR entitles the holder to receive, as designated by the Committee, cash or shares of Common Stock, having a value equal to the excess of the fair market value of a specified number of shares of Common Stock at the time of exercise over the exercise price established by the Committee. Pursuant to the 2017 Plan, the Committee may grant freestanding SARs, tandem SARs, or any combination of these forms of SAR.

The grant price of each SAR granted under the 2017 Plan is established by the Committee at the time the SAR is granted, provided such price shall not be less than, in case of freestanding SARs, 100% of the fair market value of Common Stock on the grant date, and the exercise price of the related option in case of tandem SARs. Shares of Common Stock delivered pursuant to the exercise of a SAR shall be subject to such conditions, restrictions and contingencies as the Committee may establish in the applicable award agreement.

Term, Termination and Amendment

No award may be granted under the 2017 Plan after June 12, 2027, the day immediately preceding the 10th anniversary of the effective date of the 2017 Plan, or such earlier date as the Board shall determine. The 2017 Plan will remain in effect with respect to outstanding awards until no awards remain outstanding. The Board may at any time, and from time to time, amend, suspend or terminate the 2017 Plan. However, no amendment shall be effected unless approved by the stockholders of the Company to the extent that stockholder approval is necessary to satisfy applicable law or the rules of The Nasdaq Stock Market LLC, which is the securities exchange on which our Common Stock is listed, or in general with respect to an increase in the shares authorized under the 2017 Plan. No award may be granted under the 2017 Plan once it is terminated. Termination of the 2017 Plan shall not impair rights or obligations under any award granted while the 2017 Plan is in effect, except with the written consent of the grantee. Further, no such amendment may adversely affect the rights of recipients of outstanding awards under the 2017 Plan without such recipient’s consent.

The Committee may at any time, and from time to time, amend the terms of any one or more awards; provided, that the rights of the grantee under the award shall not be impaired by any such amendment, except with the consent of the grantee.

Forfeiture

The Committee may condition the grant, vesting, exercisability and other terms of the awards granted under the 2017 Plan on compliance by the participant with specified conditions relating to non-competition, confidentiality of information relating to or possessed by the Company, non-solicitation of customers, suppliers, and employees of the Company, cooperation in litigation, non-disparagement of the Company and its officers, directors and affiliates, and other restrictions upon or covenants of the participant, including during specified periods following termination of employment with or service for the Company and/or a subsidiary. All vested or unvested awards may be forfeited in the event that the recipient does not comply with such conditions.

Adjustments upon Changes in Capitalization

In the event of any equity restructuring, such as a stock dividend, stock split, spin-off, rights offering or recapitalization through a large, nonrecurring cash dividend, the Committee shall make an equitable adjustment (i) in the number and kind of shares authorized for issuance under the 2017 Plan, (ii) in the individual limitations, and (iii) in the number and kind of shares subject to outstanding awards, the exercise price, grant price or other price of shares subject to outstanding awards, any performance conditions relating to shares, the market price of shares, or per-share results, and other terms and conditions of outstanding awards, to prevent dilution or enlargement of rights. In the event of any other change in corporate capitalization, such as a merger, consolidation or liquidation, the Committee may, in its sole discretion, make an equitable adjustment as described in the foregoing sentence, to prevent dilution or enlargement of rights.

Federal Income Tax Consequencescommittee.

The following is a brief summary oftable sets forth the principal U.S. federal income tax consequences with respectcompensation earned to awards granted underour non-employee directors for service during the 2017 Plan.fiscal year ended March 31, 2022.

Restricted Stock Awards

The recipient of a restricted stock award does not have taxable income upon receipt of the award. When the restricted stock award is vested, the recipient will recognize ordinary income in an amount equal to the difference of the fair market value of the shares on the date of vesting and the amount paid for such restricted stock, if any.

Upon the vesting of a restricted stock award, the Company will be entitled to a corresponding income tax deduction in the tax year in which the restricted stock award vested.

The recipient may, however, elect under Section 83(b) of the Code to include as ordinary income in the year the shares are granted an amount equal to the excess of (i) the fair market value of the shares on the date of issuance, over (ii) the purchase price, if any, paid for the shares. If the Section 83(b) election is made, the recipient will not realize any additional taxable income when the shares become vested.

Restricted Stock Units

A recipient will not recognize taxable income upon the grant of a restricted stock unit, and the Company will not be entitled to a deduction, until the underlying shares are issued to the recipient, generally at the end of the vesting period. At the time of transfer, the recipient will recognize ordinary income equal to the value of the shares of Common Stock and/or cash. The Company will be entitled to a deduction equal to the income recognized by the recipient. The subsequent disposition of shares acquired pursuant to a restricted stock unit award will result in capital gain or loss (based upon the difference between the price received upon disposition and the recipient’s basis in those shares).

Stock Options

The recipient does not recognize any taxable income as a result of a grant of a non-qualified stock option. Upon exercise of a non-qualified stock option, the recipient will recognize ordinary income in an amount equal to the difference between the fair market value of the shares on the date of exercise and the exercise price. When the shares are sold, any difference between the sale price and the fair market value of the shares on the date of exercise will generally be treated as long term or short term capital gain or loss, depending on whether the stock was held for more than one year. Upon the exercise of a non-qualified stock option, the Company will be entitled to a corresponding income tax deduction in the tax year in which the option was exercised.

Upon exercising an incentive stock option, the excess of the fair market value of the shares of Common Stock acquired over the option exercise price will be an item of tax preference to the participant, which may be subject to an alternative minimum tax for the year of exercise. If no disposition of the shares is made within two years from the date of the grant or within one year after the transfer of the shares to the participant, the participant does not realize taxable income as a result of exercising the incentive stock option; the tax basis of the shares received for capital gain treatment is the option exercise price; any gain or loss realized on the sale of the shares is long-term capital gain or loss. If the recipient disposes of the shares within the two-year or one-year periods referred to above, the recipient will realize ordinary income at that time in an amount equal to the excess of the fair market value of the shares at the time of exercise (or the net proceeds of disposition, if less) over the option exercise price. For capital gain treatment on such a disposition, the tax basis of the shares will be their fair market value at the time of exercise.

Performance Awards

A recipient will not recognize taxable income upon the grant of a performance award, and the Company will not be entitled to a deduction, until the award has vested and, in case of performance units, the underlying shares are issued or cash is delivered to the recipient. Upon vesting of the performance award, the recipient will recognize ordinary income equal to the value of the shares of Common Stock and/or cash. The Company will be entitled to a deduction equal to the income recognized by the recipient. The subsequent disposition of shares acquired pursuant to a performance award will result in capital gain or loss (based upon the difference between the price received upon disposition and the recipient’s basis in those shares).

SARs

A recipient does not recognize any taxable income upon the receipt of an SAR. Upon the exercise of an SAR, the recipient will recognize ordinary income in an amount equal to the excess of the fair market value of the underlying shares of Common Stock on the exercise date over the exercise price.

Upon the exercise of an SAR, the Company is entitled to a corresponding income tax deduction in the tax year in which the SAR is exercised.

Restrictions on Transfer

None of the awards granted under the 2017 Plan are transferable other than by will or the laws of descent and distribution or pursuant to a “qualified domestic relations order” as defined in the Code; provided, that the Committee may in its discretion permit the transfer of an award to a recipient’s family members or to one or more trusts established for the benefit of such family members.

New Plan Benefits

Except as disclosed in the table and footnotes below, awards under the 2017 Plan, as amended, will be granted in such amounts and to such individuals entitled to participate in the 2017 Plan, as determined by the Committee in its sole discretion. Therefore, except as specified below, the benefits or amounts that will be received by employees, officers, directors and consultants under the 2017 Plan are currently not determinable.

The table below sets forth the shares of unexercised options held by each of our non-employee directors outstanding as of March 31, 2022.

Equity Compensation Plan Information

The following chart reflectstable contains information about the number of securities granted under equity compensation plans approved and not approved by stockholders2013 Incentive Stock Plan and the weighted average exercise price for such plans2017 Omnibus Incentive Plan as of March 31, 2021.2022:

PROPOSAL 3. APPROVAL OF ISSUANCE OF RESTRICTED STOCK UNITS TO

PRESIDENT AND DIRECTOR IN EXCHANGE FOR

CANCELLATION OF PREVIOUSLY ISSUED STOCK OPTIONS

We are asking the stockholders to ratify and approve the issuance of 272,254 restricted stock units and approve the issuance of an additional 63,996 restricted stock units to Peter Mehring, the President and director of the Company, under the 2017 Plan, in exchange for (the “Exchange”) the cancellation of 672,499 previously issued stock options (the “Options”).

Overview and Purpose of the Stockholder Approval

The Committee approved the Exchange on August 5, 2021. Of the cancelled Options, 218,999 Options were issued under the 2013 Plan, 50,000 Options were issued under the 2017 Plan, and 403,500 Options were non-plan awards. The Options were issued on October 13, 2017, had a term of 10 years and an exercise price of $13 per share. At the time of the cancellation, 100,875 Options remained unvested.

The Exchange may be deemed a material amendment to the 2013 Plan and the 2017 Plan under the Nasdaq Listing Rules and as such is required to be approved by the stockholders of the Company pursuant to Nasdaq Listing Rule 5635(c).

The 272,254 restricted stock units were granted pursuant to the Restricted Stock Unit Agreement attached as Annex C hereto.

Interest of Officers and Directors in Matters to Be Acted Upon

Peter Mehring, the President and director of the Company, agreed to cancel the Options and has received 272,254 restricted stock units and will receive an additional 63,996 restricted stock units in the Exchange.

Vote Required

The affirmative vote of a majority of the votes cast for or against this Proposal 3 is required to ratify and approve the Exchange. Abstentions will not be considered as votes cast under the Company’s bylaws, and accordingly will have no effect on the outcome of this Proposal 3.

THE BOARD RECOMMENDS THAT THEPRINCIPAL STOCKHOLDERS VOTE “FOR” THIS PROPOSAL 3.

Description of the Plans

Summarized below are the principal features of the 2013 Plan. For the description of the 2017, see “Proposal 2. Approval of an Amendment the 2017 Omnibus Incentive Plan – Description of the 2017 Plan.” The summary of the 2013 Plan and the 2017 Plan is qualified in its entirety by reference to the full text of the 2013 Plan and the 2017 Plan.

2013 Plan

The objectives of the 2013 Plan are to provide incentives in order to retain in the employ of and as directors, officers, consultants, advisors and employees to the Company persons of training, experience and ability, to attract new directors, officers, consultants, advisors and employees whose services are considered valuable, to encourage the sense of proprietorship and to stimulate the active interest of such persons in the development and financial success of the Company.

There are 1,100,000 shares authorized for issuance under the 2013 Plan. Awards that may be granted under the 2013 Plan include restricted stock, restricted stock purchase offers, and stock options, including incentive stock options and non-qualified stock options. The directors, officers, employees or consultants to the Company are eligible to participate in the 2013 Plan.

The 2013 Plan is administered by the Committee or by the whole Board. Subject to the provisions of the 2013 Plan, the Board and/or the Committee have the authority to, among other things, grant, in its discretion, the awards to authorized participants, determine in good faith the fair market value of the stock underlying the awards, determine which eligible participants shall receive grants under the 2013 Plan and the number of shares, restrictions, terms and conditions of such grants, interpret the 2013 Plan, adopt, amend and rescind rules and regulations relating to its administration, of the 2013 Plan or any award thereunder, and with the consent of the participant, as appropriate, amend the terms of any outstanding award or amend the exercise date or dates thereof.

As of the Record Date, there were 731,176 stock options outstanding and 368,252 shares of Common Stock remained available for future grants under the 2013 Plan. The Company does not intend to issue any awards under the 2013 Plan in the future.

To the extent required by Item 10 of Schedule 14A under the Securities Exchange Act of 1934, the information set forth in “Proposal 2. Approval of an Amendment the 2017 Omnibus Incentive Plan” of this Proxy Statement is incorporated herein by reference.

PROPOSAL 4. ADJOURNMENT

General

The Company is asking stockholders to approve, if necessary, an adjournment of the Special Meeting to solicit additional proxies in favor of Proposals 1, 2 and 3 (the “Adjournment”). Any Adjournment of the Special Meeting for the purpose of soliciting additional proxies will allow the stockholders who have already sent in their proxies to revoke them at any time prior to the time that the proxies are used.

Vote Required

The affirmative vote of a majority of the votes cast for or against this Proposal 4 is required to approve the Adjournment. Abstentions will not be considered as votes cast under the Company’s bylaws, and accordingly will have no effect on the outcome of this Proposal 4.

THE BOARD OF DIRECTORS RECOMMENDS THAT THE STOCKHOLDERS VOTE “FOR” THIS PROPOSAL 4.

Security Ownership of Certain Beneficial Owners and Management

The following table sets forth the number of shares of the Company’s Common Stock beneficially owned as of the Record Date by (i) those persons known by the Company to be owners of more than 5% of each class of its voting stock,the Company’s outstanding Common Stock, (ii) each director, (iii) theeach Named Executive OfficersOfficer (as such term is defined in Item 402(m)(2) of Regulation S-K under the Securities Exchange Act of 1934, as amended)Act), and (iv) the Company’s current executive officers and directors as a group. Unless otherwise specified in the notes to thisthe below table, the address for each person is: c/o Ecoark Holdings, Inc., 303 Pearl Parkway Suite 200, San Antonio, TX 78215, Attention: Corporate Secretary.

PROPOSAL 4.

RATIFICATION OF THE SELECTION OF OUR INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR FISCAL YEAR ENDING MARCH 31, 2021

Our Audit Committee has selected RBSM LLP (“RBSM”) as our independent registered public accounting firm for the fiscal year ending March 31, 2022 and our Board recommends that stockholders vote for the ratification of such selection. RBSM has been engaged as our independent registered public accounting firm since 2019.

Selection of the Company’s independent registered public accounting firm is not required to be submitted to a vote of the stockholders of the Company for ratification. However, the Company is submitting this matter to the stockholders as a matter of good corporate governance. Even if the selection is ratified, the Audit Committee may, in its discretion, appoint a different independent registered public accounting firm at any time if they determine that such a change would be in the best interests of the Company and its stockholders. If the selection is not ratified, the Audit Committee will consider its options.

A representative of the RBSM is not expected to be present at the Annual Meeting.

The Board recommends that the stockholders vote “For” This Proposal 4.

AUDIT COMMITTEE REPORT

The Audit Committee reviews the Company’s financial reporting process on behalf of the Board and administers our engagement of the independent registered public accounting firm. The Audit Committee operates in accordance with a written charter, which was adopted by the Board, a copy of which is available on our corporate website at www.ecoarkusa.com/downloads/Audit-Committee.pdf. The Audit Committee’s function is more fully described in its charter. The Audit Committee consists of Steven K. Nelson, Chairman, Gary M. Metzger and Emily L. Pataki.

Our management is responsible for preparing our financial statements and ensuring they are complete and accurate and prepared in accordance with generally accepted accounting principles (“GAAP”). The independent registered public accounting firm is responsible for performing an independent audit of our consolidated financial statements and expressing an opinion on the conformity of those financial statements with GAAP.

The Audit Committee has:

This report is submitted by the Audit Committee:

Steven K. Nelson, Chairman

Gary M. Metzger

Emily L. Pataki

The above Audit Committee Report is not deemed to be “soliciting material,” is not “filed” with the SEC and is not to be incorporated by reference in any filings that the Company files with the SEC.

It is not the duty of the Audit Committee to determine that the Company’s financial statements and disclosures are complete and accurate and in accordance with generally accepted accounting principles or to plan or conduct audits. Those are the responsibilities of management and the Company’s independent registered public accounting firm. In giving its recommendation to the Board, the Audit Committee has relied on: (1) management’s representations that such financial statements have been prepared with integrity and objectivity and in conformity with GAAP; and (2) the report of the Company’s independent registered public accounting firm with respect to such financial statements.

Audit Committee’s Pre-Approval Policy

The Audit Committee pre-approves all audit and permissible non-audit services on a case-by-case basis. In its review of non-audit services, the Audit Committee considers whether the engagement could compromise the independence of our independent registered public accounting firm, and whether for the reasons of efficiency or convenience it is in the Company’s best interest to engage our independent registered public accounting firm to perform the services. During the fiscal year ended March 31, 2022, all of the services provided and fees charged by our independent registered public accounting firm were approved by our Audit Committee in accordance with its pre-approval policy.

Principal Accountant Fees and Services

The following table shows the fees paid to RBSM for the fiscal years ended March 31, 2022 and 2021.