Exhibit 10.1


 


EXCHANGE AGREEMENT


 


EXCHANGE AGREEMENT
(the “Agreement”) is made as of October __, 2019, by and between Ecoark Holdings, Inc., a Nevada
corporation (the “Company”), and the investor signatory hereto (the “Investor”).


 


WHEREAS, the
Investor is the holder of certain common stock purchase warrants (the “Warrants”) issued by the Company
and set forth on the Investor’s signature page attached hereto;


 


WHEREAS, subject
to the terms and conditions set forth in this Agreement and in reliance on Section 3(a)(9) of the Securities Act of 1933, as amended
(the “Securities Act”), the Company desires to exchange with the Investor, and the Investor desires to
exchange with the Company, some or all of the Warrants (such Warrants to be exchanged, the “Exchange Warrants),
as set forth on the Signature Page hereto for the number of shares of Common Stock set forth on the Investor’s signature
page hereto (the “Shares” or the “Exchange Securities”); and


 


NOW, THEREFORE,
for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of
the premises and the mutual agreements, representations and warranties, provisions and covenants contained herein, the parties
hereto, intending to be legally bound hereby, agree as follows:


 


1. Exchange.
On the Closing Date (as defined below), subject to the terms and conditions of this Agreement, the Investor shall, and the Company
shall, pursuant to Section 3(a)(9) of the Securities Act, exchange the Exchange Warrants for the Exchange Securities. Subject to
the conditions set forth herein, the exchange of the Exchange Warrants for the Exchange Securities shall take place at the offices
of Ellenoff Grossman & Schole LLP, on October __, 2019, or at such other time and place as the Company and the Investor mutually
agree (the “Closing” and such date, the “Closing Date”). At the Closing, the
following transactions shall occur (such transaction an “Exchange”):


 


1.1 On
the Closing Date, in exchange for the Exchange Warrants, the Company shall deliver Exchange Securities to the Investor or its designee
in accordance with the Investor’s delivery instructions set forth on the Investor signature page hereto, which Exchange Securities
shall have no restrictive legends and no restrictions on resale. Upon receipt of the Exchange Securities in accordance with this
Section 1.1, all of the Investor’s rights under the Exchange Warrants shall be extinguished. The Investor shall tender to
the Company the Exchange Warrants within three Trading Days (as defined below) of the Closing Date.


 


1.2 On
the Closing Date, the Investor shall be deemed for all corporate purposes to have become the holder of record of the Exchange Securities,
irrespective of the date such Exchange Securities are delivered to the Investor in accordance herewith. The Exchange Warrants shall
be deemed for all corporate purposes to have been cancelled upon receipt of the Exchange Securities in accordance with Section
1.1 above. Until the Exchange Warrants have been delivered to the Company, the Investor shall bear the risk that they are acquired
by a bona fide purchaser with no notice of the Investor’s and the Company’s claims.


 






    


     


    

 


As used herein, “Beneficial
Ownership Limitation” means 4.99% of the number of shares of the Common Stock outstanding immediately after giving
effect to the issuance of the Shares hereunder.


 


As used herein, “Common
Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into
which such securities may hereafter be reclassified or changed.


 


As used herein, “Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.


 


As used herein, “Trading
Day” means any day on which the Common Stock is traded on the principal securities exchange or securities market
on which the Common Stock is then traded.


 


1.3 The
Company and the Investor shall execute and/or deliver such other documents and agreements as are customary and reasonably necessary
to effectuate the Exchanges, including, at the request of the Company or its transfer agent, executed stock powers in customary
form.


 


2. Closing
Conditions.


 


2.1 Conditions
to Investor’s Obligations. The obligation of the Investor to consummate the Exchange is subject to the fulfillment, to
the Investor’s reasonable satisfaction, prior to or at the Closing, of each of the following conditions:


 


(a) Representations
and Warranties. The representations and warranties of the Company contained in this Agreement shall be true and correct in
all material respects on the date hereof and on and as of the Closing Date as if made on and as of such date.


 


(b) Issuance
of Shares. At the Closing, the Company shall cause the Shares to be delivered via The Depository Trust Company Deposit or Withdrawal
at Custodian system for the accounts of the Investor. In the event the issuance of the Shares would cause the Investor’s
beneficial ownership of the Common Stock to exceed the Beneficial Ownership Limitation, the Investor shall be issued a pre-funded
warrant in lieu of shares of Common Stock that would result in ownership in excess of the Beneficial Ownership Limitation.


 


(c) No
Actions. No action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed
before any court, governmental agency or authority or legislative body to enjoin, restrain, prohibit or obtain substantial damages
in respect of, this Agreement or the consummation of the transactions contemplated by this Agreement.


 


(d) Proceedings
and Documents. All proceedings in connection with the transactions contemplated hereby and all documents and instruments incident
to such transactions shall be satisfactory in substance and form to the Investor, and the Investor shall have received all such
counterpart originals or certified or other copies of such documents as they may reasonably request.


 


(e) Consents.
The Company shall have obtained all required consents, as set forth on Schedule 3.5.


 






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2.2 Conditions
to the Company’s Obligations. The obligation of the Company to consummate the Exchange is subject to the fulfillment,
to the Company’s reasonable satisfaction, prior to or at the Closing, of each of the following conditions:


 


(a) Representations
and Warranties. The representations and warranties of the Investor contained in this Agreement shall be true and correct in
all material respects on the date hereof and on and as of the Closing Date as if made on and as of such date.


 


(b) No
Actions. No action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed
before any court, governmental agency or authority or legislative body to enjoin, restrain, prohibit, or obtain substantial damages
in respect of, this Agreement or the consummation of the transactions contemplated by this Agreement.


 


(c) Proceedings
and Documents. All proceedings in connection with the transactions contemplated hereby and all documents and instruments incident
to such transactions shall be satisfactory in substance and form to the Company and the Company shall have received all such counterpart
originals or certified or other copies of such documents as the Company may reasonably request.


 


3. Representations
and Warranties of the Company. The Company hereby represents and warrants to Investor that:


 


3.1 Organization,
Good Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the
laws of the State of Nevada. The Company is duly qualified to transact business and is in good standing in each jurisdiction in
which the failure to so qualify would have a material adverse effect on its business or properties.


 


3.2 Authorization.
All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution
and delivery of this Agreement and the performance of all obligations of the Company hereunder, and the authorization (or reservation
for issuance of), the Exchanges, and the issuance of the Exchange Securities, have been taken on or prior to the date hereof.


 


3.3 Valid
Issuance of the Shares. The Shares, when issued and delivered in accordance with the terms of this Agreement, for the consideration
expressed herein, will be duly and validly issued, fully paid and nonassessable.


 


3.4 Compliance
With Laws. The Company has not violated any law or any governmental regulation or requirement which violation has had or would
reasonably be expected to have a material adverse effect on its business and the Company has not received written notice of any
such violation.


 






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3.5 Consents;
Waivers. Other than as set forth on Schedule 3.5 attached hereto, no consent, waiver, approval or authority of any nature,
or other formal action, by any Person, not already obtained, is required in connection with the execution and delivery of this
Agreement by the Company or the consummation by the Company of the transactions provided for herein and therein.


 


3.6 Acknowledgment
Regarding Investor’s Purchase of Securities. The Company acknowledges and agrees that the Investor is acting solely in
the capacity of arm’s length Investor with respect to this Agreement and the other documents entered into in connection herewith
(collectively, the “Transaction Documents”) and the transactions contemplated hereby and thereby and
that the Investor is not (i) an officer or director of the Company, (ii) an “affiliate” of the Company (as defined
in Rule 144 promulgated under the Securities Act), or (iii) to the knowledge of the Company, a “beneficial owner” of
more than 10% of the shares of Common Stock (as defined for purposes of Rule 13d-3 of the Securities Exchange Act of 1934, as amended).
The Company further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the Company (or in any
similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby, and any advice
given by the Investor or any of its representatives or agents in connection with the Transaction Documents and the transactions
contemplated hereby and thereby is merely incidental to the Investor’s acceptance of the Exchange Securities. The Company
further represents to the Investor that the Company’s decision to enter into the Transaction Documents has been based solely
on the independent evaluation by the Company and its representatives.


 


3.7 Absence
of Litigation. There is no action, suit, proceeding, inquiry or investigation before or by any court, public board, government
agency, selfregulatory organization or body pending or, to the knowledge of the Company, threatened against or affecting the Company,
the Securities or any of the Company’s officers or directors in their capacities as such.


 


3.8 No
Group. The Company represents to the Investor that it will be entering into one or more Securities Exchange Agreements with
other investors in substantially the form and identical terms hereof (“Other Agreements”), but the Company acknowledges
that, to the Company’s knowledge, the Investor is acting independently in connection with this Agreement and the transactions
contemplated hereby, and is not acting as part of a “group” as such term is defined under Section 13(d) of the Securities
Act and the rules and regulations promulgated thereunder. The Company hereby represents and warrants as of the date hereof and
covenants and agrees from and after the date hereof that none of the terms offered pursuant to any of the Other Agreements (or
agreements related to the Company’s common stock purchase warrants) is or will be more favorable than those terms offered
hereunder.


 






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3.9 Validity;
Enforcement; No Conflicts. This Agreement and each Transaction Document to which the Company is a party have been duly and
validly authorized, executed and delivered on behalf of the Company and shall constitute the legal, valid and binding obligations
of the Company enforceable against the Company in accordance with their respective terms, except as such enforceability may be
limited by general principles of equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other
similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies. The execution,
delivery and performance by the Company of this Agreement and each Transaction Document to which the Company is a party and the
consummation by the Company of the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational
documents of the Company or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Company is a party or by which it is bound, or (iii) result in a violation of any law, rule,
regulation, order, judgment or decree (including federal and state securities or “blue sky” laws) applicable to the
Company, except in the case of clause (ii) above, for such conflicts, defaults or rights which would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the ability of the Company to perform its obligations hereunder.


 


3.10 Disclosure.
The Company confirms that neither it nor any other Person acting on its behalf has provided the Investor or its agents or counsel
with any information that constitutes or could reasonably be expected to constitute material, nonpublic information. The Company
understands and confirms that the Investor will rely on the foregoing representations in effecting transactions in the Exchange
Securities.


 


3.11 No
Commission Paid. Neither the Company nor any of its affiliates nor any Person acting on behalf of or for the benefit of any
of the foregoing, has paid or given, or agreed to pay or give, directly or indirectly, any commission or other remuneration (within
the meaning of Section 3(a) (9) of the Securities Act and the rules and regulations of the Securities and Exchange Commission promulgated
thereunder) for soliciting the Exchange.


 


4. Representations
and Warranties of the Investor. The Investor hereby represents, warrants and covenants that:


 


4.1 Authorization.
The Investor has full power and authority to enter into this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby and has taken all action necessary to authorize the execution and delivery of this Agreement,
the performance of its obligations hereunder and the consummation of the transactions contemplated hereby.


 


4.2 Investment
Experience. The Investor can bear the economic risk of its investment in the Securities, and has such knowledge and experience
in financial and business matters that it is capable of evaluating the merits and risks of an investment in the Exchange Securities.


 






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4.3 Information.
The Investor and its advisors, if any, have been furnished with all materials relating to the business, finances and operations
of the Company and materials relating to the offer and issuance of the Exchange Securities which have been requested by the Investor.
The Investor has had the opportunity to review the Company’s filings with the Securities and Exchange Commission. The Investor
and its advisors, if any, have been afforded the opportunity to ask questions of the Company. Neither such inquiries nor any other
due diligence investigations conducted by the Investor or its advisors, if any, or its representatives shall modify, amend or affect
the Investor’s right to rely on the Company’s representations and warranties contained herein. The Investor understands
that its investment in the Exchange Securities involves a high degree of risk. The Investor has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Exchange
Securities. The Investor is relying solely on its own accounting, legal and tax advisors, and not on any statements of the Company
or any of its agents or representatives, for such accounting, legal and tax advice with respect to its acquisition of the Exchange
Securities and the transactions contemplated by this Agreement.


 


4.4 No
Governmental Review. The Investor understands that no United States federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the Exchange Securities or the fairness or suitability of the
investment in the Shares nor have such authorities passed upon or endorsed the merits of the offering of the Exchange Securities.


 


4.5 Validity;
Enforcement; No Conflicts. This Agreement and each Transaction Document to which the Investor is a party have been duly and
validly authorized, executed and delivered on behalf of the Investor and shall constitute the legal, valid and binding obligations
of the Investor enforceable against the Investor in accordance with their respective terms, except as such enforceability may be
limited by general principles of equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other
similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies. The execution,
delivery and performance by the Investor of this Agreement and each Transaction Document to which the Investor is a party and the
consummation by the Investor of the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational
documents of the Investor or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Investor is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment
or decree (including federal and state securities or “blue sky” laws) applicable to the Investor, except in the case
of clause (ii) above, for such conflicts, defaults or rights which would not, individually or in the aggregate, reasonably be expected
to have a material adverse effect on the ability of the Investor to perform its obligations hereunder.


 


4.6 Bring-Down
of Representations and Warranties. All legal and factual representations and warranties made by the Investor to the Company
in any prior agreements pursuant to which the Exchange Securities were originally issued are accurate and complete in all material
respects as of the date hereof, unless as of a specific date therein in which case they shall be accurate as of such date (or,
to the extent representations or warranties are qualified by materiality or Material Adverse Effect (as defined in such agreements),
in all respects).


 






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5. Additional
Covenants.


 


5.1 Disclosure.
The Company shall, on or before 9:30 a.m., New York City time, on the first business day after the date of this Agreement, issue
a Current Report on Form 8-K (the “8-K Filing”) disclosing all material terms of the transactions contemplated
hereby. From and after the issuance of the 8-K Filing, the Investor shall not be in possession of any material, nonpublic information
received from the Company or any of its respective officers, directors, employees or agents that is not disclosed in the 8-K Filing.
The Company shall not, and shall cause its officers, directors, employees and agents, not to, provide the Investor with any material,
nonpublic information regarding the Company from and after the filing of the 8-K Filing without the express written consent of
the Investor. The Company shall not disclose the name of the Investor in any filing, announcement, release or otherwise, unless
such disclosure is required by law or regulation. In addition, effective upon the filing of the 8-K Filing, the Company acknowledges
and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company,
any of its subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and the
Investor or any of its affiliates, on the other hand, shall terminate.


 


5.2 Survival
of Covenants. Sections 4.3, 4.4, 4.6, 4.8, 4.10 and 4.14 of the Securities Purchase Agreement, dated as of March 17, 2017 by
and among the Company and the purchasers signatory thereto and the Securities Purchase Agreement, dated as of May 26, 2017 by and
among the Company and the purchasers signatory thereto (collectively, the “2017 Purchase Agreements”)
shall survive and be incorporated by reference into this Agreement and the Shares issuable hereunder for all such purposes be deemed
“Shares” as used under 2017 Purchase Agreements as if the Shares were issued pursuant to such agreement.


 


5.3 Fees
and Expenses. Each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and
all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this
Agreement.


 


5.4 Section
3(a)(9) Exchange. The parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Shares
shall take on the registered characteristics of the Exchange Securities being exchanged. The Company agrees not to take
any position contrary to this Section 5.4.


 


6. Miscellaneous.


 


6.1 Successors
and Assigns. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the parties hereto and the respective successors and assigns of the parties. Nothing in this Agreement, express
or implied, is intended to confer upon any party, other than the parties hereto or their respective successors and assigns, any
rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.


 






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6.2 Governing
Law; Jurisdiction; Jury Trial. All questions concerning the construction, validity, enforcement and interpretation of this
Agreement shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict
of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the
laws of any jurisdictions other than the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction
of the state or federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees
not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court,
that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit,
action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees
that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be
deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY
RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH
OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.


 


6.3 Titles
and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.


 


6.4 Notices.
Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must
be in writing and will be deemed to have been delivered pursuant to the terms of the 2017 Purchase Agreements.


 


6.5 Amendments
and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company
and the Investor. Any amendment or waiver effected in accordance with this paragraph shall be binding upon Investor and the Company,
provided that no such amendment shall be binding on a holder that does not consent thereto to the extent such amendment treats
such party differently than any party that does consent thereto.


 


6.6 Severability.
If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable
in accordance with its terms.


 


6.7 Entire
Agreement. This Agreement represents the entire agreement and understanding between the parties concerning the Exchange and
the other matters described herein and therein and supersede and replaces any and all prior agreements and understandings solely
with respect to the subject matter hereof and thereof.


 


6.8 Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.


 






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6.9 Interpretation.
Unless the context of this Agreement clearly requires otherwise, (a) references to the plural include the singular, the singular
the plural, the part the whole, (b) references to any gender include all genders, (c) “including” has the inclusive
meaning frequently identified with the phrase “but not limited to” and (d) references to “hereunder” or
“herein” relate to this Agreement.


 


6.10 No
Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.


 


6.11 Survival.
The representations, warranties and covenants of the Company and the Investor contained herein shall survive the Closing and delivery
of the Exchange Securities.


 


6.12 Further
Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request
in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated
hereby.


 


6.13 No
Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against any party.


 


[SIGNATURES
ON THE FOLLOWING PAGES]


 




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IN WITNESS WHEREOF,
the parties have caused this Agreement to be duly executed and delivered as of the date provided above.


 


	 	THE COMPANY
	 	 
	 	ECOARK HOLDINGS, INC.
	 	 	 
	 	By:	 
	 	Name:	William B. Hoagland, CFA
	 	Title:	Principal Financial Officer





 






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IN WITNESS WHEREOF,
the parties have caused this Agreement to be duly executed and delivered as of the date provided above.


 


INVESTOR


 


Name of Investor: ________________________________________________________


 


Signature of Authorized Signatory of
Investor: __________________________________


 


Name of Authorized Signatory: ____________________________________________________


 


Title of Authorized Signatory: _____________________________________________________


 


Email Address of Authorized Signatory:
_____________________________________________


 


List of Warrants held by Investor:


 


Exchange Warrants:


 


Exchange Securities:


 


Shares:


 


Prefunded Warrants:


 


DWAC Instructions for Delivery of Shares to
Investor:___________________________________________


 


 


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