Exhibit 10.1


 


ECOARK HOLDINGS, INC.


 


May 9, 2020


 


Holder of Common Stock Purchase Warrants


 


		Re:	Inducement Offer to Exercise Common Stock Purchase Warrants



 


Dear Holder:


 


Ecoark Holdings, Inc. (the “Company”)
is pleased to offer to you an inducement to exercise those certain (i) Common Stock Purchase Warrants issued on January 27, 2020
with an exercise price of $0.90 (“$0.90 Warrants”) and (ii) Common Stock Purchase Warrants issued on November
13, 2019 with an exercise price of $0.725 (“$0.725 Warrants” and collectively with the $0.90 Warrants, the “Existing
Warrants”) currently held by you (the “Holder”). The $0.90 Warrants and shares underlying such warrants
(“$0.90 Warrant Shares”) and the shares underlying the $0.725 Warrants (the $”0.725 Warrant Shares”
and collectively with the $0.90 Warrant Shares, the “Warrant Shares”) have been registered for resale pursuant
to registration statement on Form S-1 (File No. 333-235456) (the “Registration Statement”). The Registration
Statement is currently effective and, upon exercise of the Existing Warrants pursuant to this letter agreement, will be effective
for the resale, as the case may be, of the Warrant Shares. Capitalized terms not otherwise defined herein shall have the meanings
set forth in the Existing Warrants.


 


In consideration for
exercising in full all of the Existing Warrants held by you (the “Warrant Exercise”) on or before May 18, 2020,
the Company hereby offers to issue you or your designee a Common Stock Purchase Warrant (“New Warrant” and the
shares of Common Stock issuable upon exercise of the New Warrant, the "New Warrant Shares") pursuant to Section
4(a)(2) of the Securities Act of 1933, as amended (“Securities Act”) to purchase up to a number of shares of
Common Stock equal to 100% of the number of $0.90 Warrant Shares issued pursuant to the Warrant Exercise hereunder, which
New Warrant shall be substantially in the form of the $0.90 Warrants (except for that the exercise price of the New Warrant shall
be equal to $1.10. The original New Warrant certificate(s) will be delivered within two Business Days following the date
hereof. Notwithstanding anything herein to the contrary, in the event the Warrant Exercise would otherwise cause the Holder to
exceed the beneficial ownership limitations (“Beneficial Ownership Limitation”) set forth in Section 1(f) of
the Existing Warrants, the Company shall only issue such number of Warrant Shares to the Holder that would not cause the Holder
to exceed the maximum number of Warrant Shares permitted thereunder with the balance to be held in abeyance until notice from the
Holder that the balance (or portion thereof) may be issued in compliance with such limitations, which abeyance shall be evidenced
through the Existing Warrant which shall be deemed prepaid thereafter, and exercised pursuant to a Notice of Exercise in the applicable
Existing Warrant (provided no additional exercise price shall be payable to the Company).


 


Expressly subject to
the paragraph immediately following this paragraph below, Holder may accept this offer by signing this letter below, with such
acceptance constituting Holder's exercise in full of the Existing Warrants for an aggregate exercise price set forth on the Holder’s
signature page hereto (the “Warrants Exercise Price”) on or before 11:00 p.m. Eastern on May 10, 2020.


 


Additionally, the Company
agrees to the representations, warranties and covenants set forth on Annex A attached hereto. Holder represents and warrants
that it is an “accredited investor” as defined in Rule 501 of the Securities Act, and agrees that the New Warrants
will contain restrictive legends when issued, and neither the New Warrants nor the shares of Common Stock issuable upon exercise
of the New Warrants will be registered under the Securities Act, except in the discretion of the Company.


 






     


     


    

 


The Holder understands that the New Warrants
and the shares of Common Stock underlying New Warrants are not, and may never be, registered under the Securities Act, or the securities
laws of any state and, accordingly, each certificate, if any, representing such securities shall bear a legend substantially similar
to the following:


 


“THIS
SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE
UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS. THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED
BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)
UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.”


 


Certificates evidencing
shares of Common Stock underlying the New Warrants shall not contain any legend (including the legend set forth above), (i) while
a registration statement covering the resale of such Common Stock is effective under the Securities Act, (ii) following any sale
of such Common Stock pursuant to Rule 144 under the Securities Act, (iii) if such Common Stock is eligible for sale under Rule
144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as
to such Common Stock and without volume or manner-of-sale restrictions, (iv) if such Common Stock may be sold under Rule 144
and the Company is then in compliance with the current public information required under Rule 144 as to such Common Stock, or (v)
if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements
issued by the staff of the Securities and Exchange Commission (the “Commission”) and the earliest of clauses
(i) through (v), the “Delegend Date”)). The Company shall cause its counsel to issue a legal opinion to the
transfer agent promptly after the Delegend Date if required by the Company and/or the transfer agent to effect the removal of the
legend hereunder, which opinion shall be in form and substance reasonably acceptable to the Holder. If such Common Stock may be
sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under
Rule 144 or if such legend is not otherwise required under applicable requirements of the Securities Act (including judicial interpretations
and pronouncements issued by the staff of the Commission) then such Common Stock shall be issued free of all legends. The Company
agrees that following the Delegend Date or at such time as such legend is no longer required under this Section 2.3(b), it will,
no later than two (2) Trading Days following the delivery by the Holder to the Company or the transfer agent of a certificate representing
the Common Stock underlying the New Warrants issued with a restrictive legend (such second Trading Day, the “Legend Removal
Date”), deliver or cause to be delivered to the Holder a certificate representing such shares that is free from all restrictive
and other legends or, at the request of the Holder shall credit the account of the Holder’s prime broker with the Depository
Trust Company System as directed by the Holder.


 






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In addition to the Holder’s
other available remedies, the Company shall pay to a Holder, in cash, (i) as partial liquidated damages and not as a penalty, for
each $1,000 of Shares or Warrant Shares (based on the VWAP of the Common Stock on the date such Warrant Shares are submitted to
the Transfer Agent) delivered for removal of the restrictive legend, $10 per Trading Day (increasing to $20 per Trading Day five
(5) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date until such certificate
is delivered without a legend and (ii) if the Company fails to (a) issue and deliver (or cause to be delivered) to the Holder by
the Legend Removal Date a certificate representing the Securities so delivered to the Company by the Holder that is free from all
restrictive and other legends and (b) if after the Legend Removal Date the Holder purchases (in an open market transaction or otherwise)
shares of Common Stock to deliver in satisfaction of a sale by the Holder of all or any portion of the number of shares of Common
Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that
the Holder anticipated receiving from the Company without any restrictive legend, then, an amount equal to the excess of the Holder’s
total purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for the shares of Common Stock
so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”)
over the product of (A) such number of Warrant Shares that the Company was required to deliver to the Holder by the Legend Removal
Date multiplied by (B) the lowest closing sale price of the Common Stock on any Trading Day during the period commencing on the
date of the delivery by the Holder to the Company of the applicable Warrant Shares (as the case may be) and ending on the date
of such delivery and payment under this clause (ii).


 


From the date hereof
until the end of the 100 Trading Day following the date hereof, other than an Exempt Issuance (as defined below), neither the Company
nor any subsidiary of the Company (the Company acknowledging that it does not currently have any subsidiaries) shall issue, enter
into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or any securities of the
Company or any subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation,
any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable
for, or otherwise entitles the holder thereof to receive, Common Stock, other than the offer and issuance of New Warrants to Other
Holders (defined below). “Exempt Issuance” means the issuance of (a) shares of Common Stock or options to employees,
officers or directors of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee
members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose
for services rendered to the Company, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder
and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the
date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number
of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection
with stock splits or combinations) or to extend the term of such securities, (c) up to 500,000 shares of Common Stock to be paid
to consultants and advisors for services rendered, provided that such shares of Common Stock are issued as “restricted securities”
(as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection
therewith during the prohibition period in this paragraph, and (d) securities issued pursuant to acquisitions or strategic transactions
approved by a majority of the disinterested directors of the Company, provided that such Common Stock or securities are issued
as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing
of any registration statement in connection therewith during the prohibition period in this paragraph, and provided that any such
issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating
company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional
benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities
primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.


 






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If this offer is accepted
and the transaction documents are executed on or before 11:00 p.m. Eastern on May 10, 2020, then on or before 9:00 am Eastern on
May 11, 2020, the Company shall issue a press release or file a Current Report on Form 8-K with the SEC disclosing all material
terms of the transactions contemplated hereunder. From and after the issuance of such press release or Current Report on From 8-K,
the Company represents to you that it shall have publicly disclosed all material, non-public information delivered to you by the
Company, its subsidiaries or any of their respective officers, directors, employees or agent in connection with the transactions
contemplated hereunder. In addition, effective upon the issuance of such press release or Current Report on Form 8-K, 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, agents, employees of Affiliates on the one
hand, and you and your Affiliates on the other hand, shall terminate. The Company represents, warrants and covenants that, upon
acceptance of this offer, the shares underlying the Existing Warrants shall be issued free of any legends or restrictions on resale
by Holder and all of the Warrant Shares shall be delivered electronically through the Depository Trust Company within 1 Business
Day of the date the Company receives the Warrants Exercise Price (or, with respect to Warrant Shares that would otherwise be in
excess of the Beneficial Ownership Limitation, within 2 Business Days of the date the Company is notified by Holder that its ownership
is less than the Beneficial Ownership Limitation). The terms of the Existing Warrants, including but not limited to the obligations
to deliver the Warrant Shares, shall otherwise remain in effect as if the acceptance of this offer were a formal Notice of Exercise
(including but not limited to any liquidated damages and compensation in the event of late delivery of the Warrant Shares).


 


As soon as practicable
(and in any event within 60 calendar days of the date of this letter agreement), the Company shall file a registration statement
on Form S-3 (or other appropriate form if the Company is not then S-3 eligible) providing for the resale by the Purchasers of the
New Warrant Shares issued and issuable upon exercise of the New Warrants.  The Company shall use commercially reasonable efforts
to cause such registration to become effective within 90 days following the Closing Date and to keep such registration statement
effective at all times until no Purchaser owns any New Warrants or New Warrant Shares issuable upon exercise thereof.


 


From the date hereof
until such time as the Holder no longer holds any of the New Warrants, the Company shall be prohibited from effecting or entering
into an agreement to effect any issuance by the Company or any of its direct or indirect subsidiaries of Common Stock or Common
Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction. As used herein, "Common Stock
Equivalents" means any securities of the Company or any of its direct or indirect subsidiaries which would entitle the holder
thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or
other instrument that is convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive,
Common Stock. Also, as used herein, “Variable Rate Transaction” means a transaction in which the Company (i) issues
or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive,
additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that is based
upon, and/or varies with, the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance
of such debt or equity securities or (B) with a conversion, exercise or exchange price that is subject to being reset at some future
date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly
or indirectly related to the business of the Company or the market for the Common Stock or (ii) enters into, or effects a transaction
under, any agreement, including, but not limited to, an equity line of credit, whereby the Company may issue securities at a future
determined price. The Holder shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which
remedy shall be in addition to any right to collect damages.


 






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The Company acknowledges
and agrees that the obligations of the Holders under this letter agreement are several and not joint with the obligations of any
other holder or any other holders of Warrants to Purchase Common Stock of the Company (each, an “Other Holder”)
under any other agreement related to the exercise of such warrants (“Other Warrant Exercise Agreement”), and
the Holder shall not be responsible in any way for the performance of the obligations of any Other Holder or under any such Other
Warrant Exercise Agreement. Nothing contained in this letter agreement, and no action taken by the Holders pursuant hereto, shall
be deemed to constitute the Holder and the Other Holders as a partnership, an association, a joint venture or any other kind of
entity, or create a presumption that the Holder and the Other Holders are in any way acting in concert or as a group with respect
to such obligations or the transactions contemplated by this letter agreement and the Company acknowledges that the Holder and
the Other Holders are not acting in concert or as a group with respect to such obligations or the transactions contemplated by
this letter agreement or any Other Warrant Exercise Agreement. The Company and the Holder confirm that the Holder has independently
participated in the negotiation of the transactions contemplated hereby with the advice of its own counsel and advisors. The Holder
shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this
letter agreement, and it shall not be necessary for any Other Holder to be joined as an additional party in any proceeding for
such purpose.


 


The Company hereby represents
and warrants as of the date hereof and covenants and agrees from and after the date hereof until 100 Trading Days after the date
hereof, that none of the terms offered to any Other Holder with respect to any Other Warrant Exercise Agreement (or any amendment,
modification or waiver thereof), is or will be more favorable to such Other Holder than those of the Holder and this letter agreement.
If, and whenever on or after the date hereof until 100 Trading Days after the date hereof, the Company enters into an Other Warrant
Exercise Agreement, then (i) the Company shall provide notice thereof to the Holder promptly following the occurrence thereof and
(ii) the terms and conditions of this letter agreement shall be, without any further action by the Holder or the Company, automatically
amended and modified in an economically and legally equivalent manner such that the Holder shall receive the benefit of the more
favorable terms and/or conditions (as the case may be) set forth in such Other Warrant Exercise Agreement (including the issuance
of additional Warrant Shares), provided that upon written notice to the Company at any time the Holder may elect not to accept
the benefit of any such amended or modified term or condition, in which event the term or condition contained in this letter agreement
shall apply to the Holder as it was in effect immediately prior to such amendment or modification as if such amendment or modification
never occurred with respect to the Holder. The provisions of this paragraph shall apply similarly and equally to each Other Warrant
Exercise Agreement.


 


***************


 




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Within one business
day from the Holder’s exercise of the applicable Existing Warrants, the Holder shall wire to the Company immediately available
funds equal to the number of Existing Warrants being exercised multiplied by the applicable Exercise Price and the Company shall
deliver the Existing Warrant Shares via the Deposit / Withdrawal at Custodian system of the DTC to the Holder and shall deliver
the New Warrants registered in the name of the Holder.


 


Please do not hesitate
to call me if you have any questions.


 


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


 


Accepted and Agreed to:


 


Name of Holder: ________________________________________________________


 


Signature of Authorized Signatory of
Holder: _________________________________


 


Name of Authorized Signatory: _______________________________________________


 


Title of Authorized Signatory: ________________________________________________


 


Existing Warrant Shares: ______________


 


Aggregate Exercise Price: _____________


 


New Warrants: (100% of total $0.90 Warrant
Shares being exercised): ___________


 


DWAC Instructions:


 




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Annex A


 


Representations,
Warranties and Covenants of the Company. The Company hereby makes the following representations and warranties to the Holder:


 


(a) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions
contemplated by this letter agreement and otherwise to carry out its obligations hereunder and thereunder. The execution and
delivery of this letter agreement by the Company and the consummation by the Company of the transactions contemplated hereby
have been duly authorized by all necessary action on the part of the Company and no further action is required by the
Company, its board of directors or its stockholders in connection therewith. This letter agreement has been duly executed by
the Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles
and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement
of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited
by applicable law.


 


(b) No
Conflicts. The execution, delivery and performance of this letter agreement by the Company and the consummation by the
Company of the transactions contemplated hereby do not and will not: (i) conflict with or violate any provision of the
Company’s certificate or articles of incorporation, bylaws or other organizational or charter documents; or (ii)
conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under,
result in the creation of any  liens, claims, security interests, other encumbrances or defects upon any of the
properties or assets of the Company in connection with, or give to others any rights of termination, amendment, acceleration
or cancellation (with or without notice, lapse of time or both) of, any material agreement, credit facility, debt or other
material instrument (evidencing Company debt or otherwise) or other material understanding to which such Company is a party
or by which any property or asset of the Company is bound or affected; or (iii) conflict with or result in a violation of any
law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to
which the Company is subject (including federal and state securities laws and regulations), or by which any property or asset
of the Company is bound or affected, except, in the case of each of clauses (ii) and (iii), such as could not have or
reasonably be expected to result in a material adverse effect upon the business, prospects, properties, operations, condition
(financial or otherwise) or results of operations of the Company, taken as a whole, or in its ability to perform its
obligations under this letter agreement.


 


 


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