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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934


Date of report (Date of earliest event reported): October 25, 2024

remarkholdingslogo.jpg
Remark Holdings, Inc.

Delaware001-3372033-1135689
(State or other jurisdiction of incorporation)(Commission File Number)(IRS Employer Identification No.)
800 S. Commerce Street
Las Vegas, NV
89106
702-701-9514
(Address of principal executive offices)(Zip Code)(Registrant’s telephone number, including area code)
(Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act: None
Title of each classTrading SymbolName of each exchange on which registered

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

☐ Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange
Act. ☐


Item 1.01 Entry into a Material Definitive Agreement

On October 31, 2024, Remark Holdings, Inc. (the “Corporation”, “Remark,” “we,” “us” or “our”) entered into a stock purchase agreement (the “Tao Stock Purchase Agreement”) pursuant to which it issued 150,000 shares of its Series A Redeemable Voting Preferred Stock (the “Series A Preferred Stock”) to Remark’s Chief Executive Officer, Kai-Shing Tao. The summary of the Series A Preferred Stock set forth in Item 3.03 below is incorporated herein by reference.

Also on October 31, 2024, we entered into a voting agreement (the “Tao Voting Agreement”) with Mr. Tao pursuant to which Mr. Tao agreed to vote the shares of Series A Preferred Stock only in accordance with the recommendations of our Board of Directors with respect to the Voting Proposals.

The foregoing descriptions of the Tao Stock Purchase Agreement and the Tao Voting Agreement do not purport to be complete and are subject to, and qualified in their entirety by reference to, the full texts of the Tao Stock Purchase Agreement and the Tao Voting Agreement, copies of which are attached hereto as Exhibit 10.1 and Exhibit 10.2, respectively, and incorporated herein by reference.

We relied upon an exemption from registration in accordance with Section 4(a)(2) of the Securities Act of 1933 because this issuance does not constitute a public offering of our shares of Series A Preferred Stock.


Item 3.03    Material Modifications to Rights of Security Holders.

Series A Preferred Stock

On October 31, 2024, we filed a Certificate of Designations (the “Series A Certificate of Designations”) with the Secretary of State of Delaware designating the rights, preferences and limitations of a new series of preferred stock with 150,000 shares designated as Series A Preferred Stock.

The Series A Certificate of Designations contains the following significant provisions:


•Dividends. The holder(s) of shares of the Series A Preferred Stock are not entitled to dividends of any kind.

•Liquidation Preference. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the holder(s) of shares of Series A Preferred Stock will be entitled to be paid out of the assets the Corporation has legally available for distribution to its stockholders, with respect to the distribution of assets upon liquidation, dissolution or winding up (collectively, a “Liquidation Event”), a liquidation preference of $0.001 per share, before any distribution of assets is made to holders of the Corporation’s common stock or any other class or series of the Corporation’s capital stock that it may issue that ranks junior to the Series A Preferred Stock as to liquidation rights. The Corporation’s Series B Preferred Stock has priority over the Series A Preferred Stock with respect to distributions upon a Liquidation Event.

•Redemption. We will automatically redeem Series A Preferred Stock on the date that is 270 days after the day that the Corporation issues such shares of Series A Preferred Stock (the “Mandatory Redemption Date”). At any time prior to the Mandatory Redemption Date, we may, at our option, redeem the Series A Preferred Stock by providing written notice of not fewer than two days prior to such redemption.

•No Conversion Rights. The Series A Preferred Stock is not convertible into our common stock.

•Voting Rights. Holders of the Series A Preferred Stock shall be entitled to vote at meetings of the Corporation’s stockholders only on the following matters: (i) the election of directors to serve until the following annual meeting (the “Directors Proposal”), ii) the ratification of the Company’s independent registered public accounting firm (the “Auditor Proposal”), (iii) a proposal to approve the redomestication of the Corporation from the State of Delaware to the State of Nevada (the “Redomestication Proposal”), (iv) a proposal to approve an amendment to the Corporation’s 2022 Incentive Plan (the “Equity Plan Proposal”) to increase the number of shares reserved under the 2022 Incentive Plan, and (v) a proposal to increase the number of authorized shares of the Corporation’s common stock (the “Authorized Share Proposal”, and collectively with the Directors Proposal, the Auditor Proposal, the Reincorporation Proposal and the Equity Plan Proposal, the “Voting Proposals”, and each individually a “Voting Proposal”). Each share of Series A Preferred Stock shall be entitled to one thousand (1,000) votes on each Voting Proposal. Except as


otherwise required by law, the holder(s) of Series A Preferred Stock shall vote together as a single class with holders of Common Stock.

•No Preemptive Rights. The holders of the Series A Preferred Stock will not have any preemptive rights to purchase or subscribe to our common stock or any other security.


The foregoing description of the Series A Certificate of Designations does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of the Certificate of Designations, a copy of which is attached hereto as Exhibit 3.1 and incorporated herein by reference.


Series B Preferred Stock

On October 25, 2024, we filed a Certificate of Designations (the “Series B Certificate of Designations”) with the Secretary of State of Nevada designating the rights, preferences and limitations of a new series of preferred stock with 800,000 shares designated as Series B 15% Cumulative Redeemable Perpetual Preferred Stock (the “Series B Preferred Stock”).

The Series B Certificate of Designations contains the following significant provisions:


•Dividends. Holders of shares of Series B Preferred Stock are entitled to receive, when, as and if declared by the Board, out of our legally available funds for the payment of dividends, cumulative cash dividends at the rate of 15% of the stated value of $100.00 per share of the Series B Preferred Stock per annum (equivalent to $15.00 per annum per share). Dividends shall be payable on a quarterly basis in arrears on or after the 15th day after the end of each quarter.

•Liquidation Preference. In the event of our voluntary or involuntary liquidation, dissolution, or winding up, the holders of shares of Series B Preferred Stock will be entitled to be paid out of the assets we have legally available for distribution to our stockholders, with respect to the distribution of assets upon liquidation, dissolution or winding up, a liquidation preference of $100.00 per share, plus an amount equal to any accumulated and unpaid dividends to, but not including, the date of payment, before any distribution of assets is made to holders of our common stock or any other class or series of our capital stock we may issue that ranks junior to the Series B Preferred Stock as to liquidation rights.

•Redemption. On and after the date that is two (2) years from the date of each issuance (the “Redemption Period Start Date”), we may, at our option and upon not less than thirty (30) nor more than sixty (60) days’ written notice, redeem the Series B Preferred Stock, in whole or in part, at any time or from time to time, for cash at a redemption price of $100.00 per share, plus any accumulated and unpaid dividends thereon to, but not including, the redemption date.

•No Conversion Rights. The Series B Preferred Stock is not convertible into our common stock.

•Voting Rights. Holders of the Series B Preferred Stock do not have any voting rights, except as required by Delaware law. On each matter on which holders of Series B Preferred Stock are entitled to vote under Delaware law, each share of Series B Preferred Stock will be entitled to one vote.

•No Preemptive Rights. The holders of the Series B Preferred Stock will not have any preemptive rights to purchase or subscribe to our common stock or any other security.


The foregoing description of the Series B Certificate of Designations does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of the Certificate of Designations, a copy of which is attached hereto as Exhibit 3.2 and incorporated herein by reference.


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

On October 30, 2024, the Board of Directors of Remark approved an amendment to Section 2.06 of Remark’s Amended and Restated Bylaws (the “Bylaws”) to specify that the quorum for the transaction of business at all meetings of stockholders, whether annual or special, shall be 33.33% of the voting power of the shares outstanding entitled to vote, present in person or by proxy. The amendment became effective immediately.



The text of the amendment to the Bylaws is filed as Exhibit 3.3 to this Current Report on Form 8-K and incorporated herein by reference.


Item 9.01     Financial Statements and Exhibits.

(d)    Exhibits


Signature

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

    
Remark Holdings, Inc.
Date:October 31, 2024By:/s/ Kai-Shing Tao
Name:Kai-Shing Tao
Title:Chief Executive Officer


EXHIBIT 3.1
REMARK HOLDINGS, INC.
 
CERTIFICATE OF DESIGNATIONS OF

SERIES A REDEEMABLE VOTING PREFERRED STOCK
 
Pursuant to Section 151 of the General Corporation Law of the State of Delaware, Remark Holdings, Inc. a corporation organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”), in accordance with the provisions of Sections 103 and 151 thereof, does hereby certify that the Corporation’s Board of Directors duly adopted the following:

WHEREAS, the Certificate of Incorporation of the Corporation (as amended, the “Certificate of Incorporation”) authorizes the issuance of as many as 1,000,000 shares of preferred stock, par value $0.001 per share, of the Corporation (“Preferred Stock”) in one or more series, and expressly authorizes the Board of Directors of the Corporation (the “Board”), subject to limitations prescribed by law, to provide, out of the unissued shares of Preferred Stock, for series of Preferred Stock, and, with respect to each such series, to establish and fix the number of shares to be included in any series of Preferred Stock and the designation, rights, preferences, powers, restrictions, and limitations of the shares of such series; and

WHEREAS, it is the desire of the Board to establish and fix the number of shares to be included in a new series of Preferred Stock and the designations, rights, preferences, and limitations of the shares of such new series.

NOW, THEREFORE, BE IT RESOLVED, that the Board does hereby provide for the creation and issuance of a series of Preferred Stock designated as “Series A Redeemable Voting Preferred Stock” and does hereby in this Certificate of Designations (the “Certificate of Designations”) establish and fix and herein state and express the designation, rights, preferences, powers, restrictions, and limitations of such series of Preferred Stock as follows:

1.Designation and Amount. There shall be a series of Preferred Stock that shall be designated as “Series A Redeemable Voting Preferred Stock” (the “Series A Preferred Stock”) and the number of shares constituting such series shall be 150,000 shares, par value $.001 per share and a stated value of $0.001 per share (subject to adjustment for any stock split, stock dividend, recapitalization or similar transaction with respect to the Series A Redeemable Voting Preferred Stock) (the “Stated Value”).

2.No Sinking Fund. The Corporation is not required to set aside funds to redeem the Series A Preferred Stock.

3.Ranking. The Series A Preferred Stock will rank, with respect to the distribution of assets upon the Corporation’s liquidation, dissolution or winding up, (i) junior to Series B Preferred Stock, ii) senior to all classes or series of the Corporation’s common stock and to all other equity securities issued by the Corporation other than equity securities referenced in clauses (i), (iii) and (iv) of this Section 3, (iii) on parity with all equity securities issued by the Corporation with terms specifically providing that those equity securities rank on parity with the Series A Preferred Stock with respect to rights to the distribution of assets upon the Corporation’s liquidation, dissolution or winding up; and (iv) effectively junior to all of the Corporation’s existing and future indebtedness (including indebtedness convertible into the Corporation’s common stock or preferred stock) and to the indebtedness and other liabilities of (as well as any preferred equity interests held by others in) the Corporation’s existing subsidiaries and any future subsidiaries.

4.Dividends. The holder(s) of shares of the Series A Preferred Stock are not entitled to dividends of any kind.


EXHIBIT 3.1
5.Liquidation Preference.

(a)In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the holder(s) of shares of Series A Preferred Stock will be entitled to be paid out of the assets the Corporation has legally available for distribution to its stockholders, with respect to the distribution of assets upon liquidation, dissolution or winding up, a liquidation preference of $0.001 per share, before any distribution of assets is made to holders of the Corporation’s common stock or any other class or series of the Corporation’s capital stock that it may issue that ranks junior to the Series A Preferred Stock as to liquidation rights.

(b)In the event that, upon any such voluntary or involuntary liquidation, dissolution, or winding up, the available assets of the Corporation are insufficient to pay the amount of the liquidating distributions on all outstanding shares of Series A Preferred Stock and the corresponding amounts payable on all shares of other classes or series of capital stock of the Corporation that it may issue ranking on a parity with the Series A Preferred Stock in the distribution of assets, then the holder(s) of the Series A Preferred Stock and all other such classes or series of capital stock shall share ratably in any such distribution of assets in proportion to the full liquidating distributions to which they would otherwise be respectively entitled.

(c)In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the Corporation shall, no fewer than 30 days and no more than 60 days prior to the payment date, give the holder(s) of Series A Preferred Stock written notice of any such liquidation, dissolution or winding up. After payment of the full amount of the liquidating distributions to which they are entitled, the holder(s) of Series A Preferred Stock will have no right or claim to any of the remaining assets of the Corporation. The consolidation or merger of the Corporation with or into any other corporation, trust or entity or of any other entity with or into the Corporation, or the sale, lease, transfer or conveyance of all or substantially all of the property or business of the Corporation, shall not be deemed a liquidation, dissolution or winding up of the Corporation (although such events may give rise to the redemption described in Section 7 hereof).

6.Voting Rights. The holders of the Company’s Series A Preferred Stock shall be entitled to vote at meetings of the Corporation’s stockholders only on the following matters: (i) the election of directors to serve until the following annual meeting (the “Directors Proposal”), ii) the ratification of the Company’s independent registered public accounting firm (the “Auditor Proposal”), (iii) a proposal to approve the redomestication of the Corporation from the State of Delaware to the State of Nevada (the “Redomestication Proposal”), (iv) a proposal to approve an amendment to the Corporation’s 2022 Incentive Plan (the “Equity Plan Proposal”) to increase the number of shares reserved under the 2022 Incentive Plan, and (v) a proposal to increase the number of authorized shares of the Corporation’s common stock (the “Authorized Share Proposal”, and collectively with the Directors Proposal, the Auditor Proposal, the Reincorporation Proposal and the Equity Plan Proposal, the “Voting Proposals”, and each individually a “Voting Proposal”). Each share of Series A Preferred Stock shall be entitled to one thousand (1,000) votes on each Voting Proposal. Except as otherwise required by law, the holder(s) of Series A Preferred Stock shall vote together as a single class with holders of Common Stock.

7.Redemption.

(a)The Corporation will automatically redeem any outstanding shares of Series A Preferred Stock on date that is 270 days after the day that the Corporation issues such shares of Series A Preferred Stock (the “Mandatory Redemption Date”). On the Mandatory Redemption Date, all shares of Series A Preferred Stock then outstanding shall be automatically redeemed from the holder(s) of such shares at a price equal to the Stated Value per share of Series A Preferred Stock multiplied by the number of shares of Series A Preferred Stock automatically redeemed, and any evidence of ownership of the shares of Series A Preferred Stock being redeemed (whether in certificated form or electronic form) shall be deemed cancelled and null and void as of as of the Mandatory Redemption Date.


EXHIBIT 3.1
(b)Prior to the Mandatory Redemption Date, the Corporation may, at its option, redeem the Series A Preferred Stock by providing written notice of not fewer than two days prior to such redemption (an “Early Redemption”, and the date upon which the shares are being redeemed pursuant to this Section 7(a), the “Early Redemption Date”). The Corporation may make an Early Redemption, in whole or in part and at any time or from time to time, at a price equal to the Stated Value per share of Series A Preferred Stock multiplied by the number of shares of Series A Preferred Stock being redeemed pursuant to the Early Redemption, and any evidence of ownership of the shares of Series A Preferred Stock being redeemed (whether in certificated form or electronic form) shall be deemed cancelled and null and void as of the Early Redemption Date.

8.No Conversion Rights. The Series A Preferred Stock is not convertible into the Corporation’s common stock.

9.No Preemptive Rights. The holder(s) of the Series A Preferred Stock will not have any preemptive rights to purchase or subscribe for the Corporation’s common stock or any other security.

10.Transfer Restrictions. The holder(s) of the shares of Series A Preferred Stock shall not, directly or indirectly, transfer such shares or any interest in such shares (by sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift, bequest, device or descent, by operation or law or by any other transfer or disposition or any kind, including to any receivers, creditors, trustees in bankruptcy or other insolvency proceeding) to any other person or entity.

11.Reissuance of Preferred Stock. Any shares of Series A Preferred Stock redeemed or otherwise acquired by the Corporation shall be cancelled and retired as issued shares of capital stock of the Corporation and shall thereafter be available for reissuance and sale.

12.Record Holder(s). The Corporation and the transfer agent for the Series A Preferred Stock may deem and treat the record holder(s) of the Series A Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Corporation nor the transfer agent shall be affected by any notice to the contrary.

IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designations to be signed in its name and on its behalf on this 31st day of October 2024. 

REMARK HOLDINGS, INC.
By:/s/ Kai-Shing Tao
Kai-Shing Tao
Chief Executive Officer



EXHIBIT 3.2
REMARK HOLDINGS, INC.
 
CERTIFICATE OF DESIGNATIONS OF

SERIES B 15% CUMULATIVE REDEEMABLE PERPETUAL PREFERRED STOCK
 
Pursuant to Section 151 of the General Corporation Law of the State of Delaware, Remark Holdings, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”), in accordance with the provisions of Section 103 thereof, does hereby submit the following:

WHEREAS, the Certificate of Incorporation of the Corporation (as amended, the “Certificate of Incorporation”) authorizes the issuance of as many as 1,000,000 shares of preferred stock, par value $0.001 per share, of the Corporation (“Preferred Stock”) in one or more series, and expressly authorizes the Board of Directors of the Corporation (the “Board”), subject to limitations prescribed by law, to provide, out of the unissued shares of Preferred Stock, for series of Preferred Stock, and, with respect to each such series, to establish and fix the number of shares to be included in any series of Preferred Stock and the designation, rights, preferences, powers, restrictions, and limitations of the shares of such series; and

WHEREAS, it is the desire of the Board to establish and fix the number of shares to be included in a new series of Preferred Stock and the designations, rights, preferences, powers, restrictions, and limitations of the shares of such new series.

NOW, THEREFORE, BE IT RESOLVED, that the Board does hereby provide for the issue of a series of Preferred Stock and does hereby in this Certificate of Designations (this “Certificate of Designations”) establish and fix and herein state and express the designations, rights, preferences, powers, restrictions, and limitations of such series of Preferred Stock as follows:

1.     Designation and Amount. The shares of such series of Preferred Stock shall be designated as “Series B 15% Cumulative Redeemable Perpetual Preferred Stock” (the “Series B Preferred Stock”) and the number of shares constituting such series shall be 800,000 shares, par value $.001 per share and a stated value of $100 per share (the “Stated Value”).
 
2.     No Maturity, Sinking Fund, Mandatory Redemption. The Series B Preferred Stock has no stated maturity and will not be subject to any sinking fund or mandatory redemption and will remain outstanding indefinitely unless the Corporation decides to redeem or otherwise repurchase the Series B Preferred Stock as provided in Section 6 hereof. The Corporation is not required to set aside funds to redeem the Series B Preferred Stock.
 
3.     Ranking. The Series B Preferred Stock will rank, with respect to rights to the payment of dividends and the distribution of assets upon the Corporation’s liquidation, dissolution or winding up, (i) senior to all classes or series of the Corporation’s common stock and to all other equity securities issued by the Corporation other than equity securities referenced in clauses (ii) and (iii) of this Section 3, (ii) on parity with all equity securities issued by the Corporation with terms specifically providing that those equity securities rank on parity with the Series B Preferred Stock with respect to rights to the payment of dividends and the distribution of assets upon the Corporation’s liquidation, dissolution or winding up; and (iii) effectively junior to all of the Corporation’s existing and future indebtedness (including indebtedness convertible into the Corporation’s common stock or Preferred Stock) and to the indebtedness and other


EXHIBIT 3.2
liabilities of (as well as any preferred equity interests held by others in) the Corporation’s existing subsidiaries and any future subsidiaries.
 
4.     Dividends.
 
(a)     Holders of shares of the Series B Preferred Stock are entitled to receive, when, as and if declared by the Board of Directors, out of funds of the Corporation legally available for the payment of dividends, cumulative cash dividends at the rate of 15% on the stated value of $100.00 per share of the Series B Preferred Stock per annum (equivalent to $15.00 per annum per share). Commencing on the date of issuance of the Series B Preferred Stock (as applicable, the “Issue Date”), dividends shall accrue on the Series B Preferred Stock daily and shall be cumulative from, and including, the applicable Issue Date, and shall be payable on a quarterly basis in arrears on or after the 15th day of each quarter (each, a “Dividend Payment Date”) to the holders of record of the Series B Preferred Stock as they appear on the stock records of the Corporation at the close of business on the last day of the preceding quarter, regardless of whether a Business Day (each, a “Dividend Record Date”); provided, that if any Dividend Payment Date is not a Business Day (as defined below), then the dividend which would otherwise have been payable on that Dividend Payment Date may be paid on the next succeeding Business Day with the same force and effect as if paid on such Dividend Payment Date, and no interest, additional dividends or other sums will accumulate on the amount so payable for the period from and after such Dividend Payment Date to such next succeeding Business Day. Dividends payable on the Series B Preferred Stock will be computed on the basis of a 360-day year consisting of twelve 30-day months, provided that for partial dividend periods, dividend payments will be pro-rated, unless otherwise provided in the applicable securities offering and sale documents. The dividends payable on any Dividend Payment Date shall include dividends accumulated to, but not including, such Dividend Payment Date. For purposes of this Certificate of Designations, “Business Day” shall mean any day other than a Saturday, a Sunday, or a day on which banking institutions in the State of Delaware are authorized or obligated by law or executive order to close.
 
(b)     No dividends on shares of Series B Preferred Stock shall be authorized by the Board of Directors or paid or set apart for payment by the Corporation at any time when the terms and provisions of any agreement of the Corporation, including any agreement relating to any indebtedness of the Corporation, prohibit the authorization, payment or setting apart for payment thereof or provide that the authorization, payment or setting apart for payment thereof would constitute a breach of the agreement or a default under the agreement, or if the authorization, payment or setting apart for payment shall be restricted or prohibited by law.
 
(c)     Notwithstanding anything to the contrary contained herein, dividends on the Series B Preferred Stock will accrue regardless of whether the Corporation has earnings, regardless of whether there are funds legally available for the payment of those dividends and regardless of whether those dividends are declared by the Board of Directors. No interest, or sum in lieu of interest, will be payable in respect of any dividend payment or payments on the Series B Preferred Stock which may be in arrears, and holders of the Series B Preferred Stock will not be entitled to any dividends in excess of full cumulative dividends described in Section 4(a) hereof. Any dividend payment made on the Series B Preferred Stock shall first be credited against the earliest accumulated but unpaid dividend due with respect to those shares of Series B Preferred Stock.

(d)     Future distributions on the Corporation’s common stock and any other series of Preferred Stock (if issued), including the Series B Preferred Stock, will be at the discretion of the Board of Directors and will depend on, among other things, the Corporation’s results of operations, cash flow from


EXHIBIT 3.2
operations, financial condition and capital requirements, any debt service requirements, applicable legal requirements and any other factors the Board of Directors deems relevant. Accordingly, the Corporation cannot guarantee that it will be able to make cash distributions on its Series B Preferred Stock or what the actual distributions will be for any future period.
 
(e)     Unless full cumulative dividends on all shares of Series B Preferred Stock have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof has been or contemporaneously is set apart for payment for all past dividend periods, no dividends shall be declared or paid or set aside for payment upon shares of common stock or Preferred Stock that the Corporation may issue ranking junior to or on parity with the Series B Preferred Stock as to the payment of dividends, or upon liquidation, dissolution, or winding up. Nor shall any other distribution be declared or made upon shares of common stock or Preferred Stock that the Corporation may issue ranking junior to or on parity with the Series B Preferred Stock as to the payment of dividends, or the distribution of assets upon liquidation, dissolution, or winding up.
 
(f)     When dividends are not paid in full (or a sum sufficient for such full payment is not so set apart) upon the Series B Preferred Stock and the shares of any other series of Preferred Stock that the Corporation may issue ranking on a parity as to the payment of dividends with the Series B Preferred Stock, all dividends declared on the Series B Preferred Stock and any other series of Preferred Stock that the Corporation may issue ranking on parity as to the payment of dividends with the Series B Preferred Stock shall be declared pro rata so that the amount of dividends declared per share of Series B Preferred Stock and such other series of Preferred Stock that the Corporation may issue shall in all cases bear to each other the same ratio that accrued dividends per share on the Series B Preferred Stock and such other series of Preferred Stock that the Corporation may issue (which shall not include any accrual in respect of unpaid dividends for prior dividend periods if such Preferred Stock does not have a cumulative dividend) bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Series B Preferred Stock that may be in arrears.

 5. Liquidation Preference.
 
(a)     In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the holders of shares of Series B Preferred Stock will be entitled to be paid out of the assets the Corporation has legally available for distribution to its stockholders, with respect to the distribution of assets upon liquidation, dissolution or winding up, a liquidation preference of $100.00 per share, plus an amount equal to any accumulated and unpaid dividends to, but not including, the date of payment, before any distribution of assets is made to holders of the Corporation’s common stock or any other class or series of the Corporation’s capital stock that it may issue that ranks junior to the Series B Preferred Stock as to liquidation rights.
 
(b)     In the event that, upon any such voluntary or involuntary liquidation, dissolution, or winding up, the available assets of the Corporation are insufficient to pay the amount of the liquidating distributions on all outstanding shares of Series B Preferred Stock and the corresponding amounts payable on all shares of other classes or series of capital stock of the Corporation that it may issue ranking on parity with the Series B Preferred Stock in the distribution of assets, then the holders of the Series B Preferred Stock and all other such classes or series of capital stock shall share ratably in any such distribution of assets in proportion to the full liquidating distributions to which they would otherwise be respectively entitled.
 


EXHIBIT 3.2
(c)     Holders of Series B Preferred Stock will be entitled to written notice of any such liquidation, dissolution or winding up no fewer than 30 days and no more than 60 days prior to the payment date. After payment of the full amount of the liquidating distributions to which they are entitled, the holders of Series B Preferred Stock will have no right or claim to any of the remaining assets of the Corporation. The consolidation or merger of the Corporation with or into any other corporation, trust or entity or of any other entity with or into the Corporation, or the sale, lease, transfer or conveyance of all or substantially all of the property or business of the Corporation, shall not be deemed a liquidation, dissolution or winding up of the Corporation (although such events may give rise to the special optional redemption described in Section 6 hereof).
 
6.     Redemption.
 
(a)     The Series B Preferred Stock is not redeemable by holders of Series B Preferred Stock under any circumstances. The Series B Preferred Stock is not redeemable by the Corporation prior to the two-year anniversary of the applicable Issue Date of each respective share, except upon a Change of Control.
 
(b)     On and after the two-year anniversary of the applicable Issue Date, the Corporation may, at its option and upon not less than 30 nor more than 60 days’ written notice, redeem the Series B Preferred Stock, in whole or in part, at any time or from time to time, for cash at a redemption price of $100.00 per share, plus any accumulated and unpaid dividends thereon up to, but not including, the redemption date.
 
(c)     Upon the occurrence of a Change of Control as defined in Section 6(d) hereof, regardless of whether before or after the two-year anniversary of the applicable Issue Date, the Corporation may, at its option, upon not less than 30 nor more than 60 days’ written notice, redeem the Series B Preferred Stock, in whole or in part, within 120 days after notice of such Change of Control, for cash at a redemption price of $15.00 per share, plus any accumulated and unpaid dividends thereon up to, but not including, the redemption date.
 
(d)     A “Change of Control” is deemed to occur when any person, including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Exchange Act of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of purchases, shall have acquired the Corporation’s stock entitling that person to exercise more than 50% of the total voting power of all the Corporation’s stock entitled to vote generally in the election of the Corporation’s directors (except that such person will be deemed to have beneficial ownership of all securities that such person has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition).
 
(e)     In the event the Corporation elects to redeem Series B Preferred Stock the notice of redemption will be mailed to each holder of record of the Series B Preferred Stock called for redemption at such holder’s address as it appears on the Corporation’s stock transfer records, not less than 30 nor more than 60 days prior to the redemption date, and will state the following: (i) the redemption date; (ii) the number of shares of Series B Preferred Stock to be redeemed; (iii) the applicable redemption price per share plus any accrued but unpaid dividends; (iv) the place or places where certificates (if any) for the Series B Preferred Stock are to be surrendered for payment of the redemption price; (v) that dividends on the shares to be redeemed will cease to accumulate on the redemption date; and (vi) if applicable, that such redemption is being made in connection with a Change of Control and, in that case, a brief description of the transaction or transactions constituting such Change of Control. If less than all of the


EXHIBIT 3.2
shares of Series B Preferred Stock held by any holder are to be redeemed, the notice mailed to such holder shall also specify the number of shares of Series B Preferred Stock held by such holder to be redeemed. No failure to give such notice or any defect thereto or in the mailing thereof shall affect the validity of the proceedings for the redemption of any shares of Series B Preferred Stock except as to the holder to whom notice was defective or not given.
 
(f)     Holders of Series B Preferred Stock to be redeemed shall surrender the Series B Preferred Stock (if certificated) at the place designated in the notice of redemption and shall be entitled to the redemption price and any accumulated and unpaid dividends payable upon the redemption following the surrender.
 
(g)     If notice of redemption of any shares of Series B Preferred Stock has been given and if the Corporation irrevocably sets aside the funds necessary for redemption in trust for the benefit of the holders of the shares of Series B Preferred Stock so called for redemption, then from and after the redemption date (unless the Corporation shall default in providing for the payment of the redemption price plus accumulated and unpaid dividends, if any), dividends will cease to accrue on those shares of Series B Preferred Stock, those shares of Series B Preferred Stock shall no longer be deemed outstanding, and all rights of the holders of those shares will terminate, except the right to receive the redemption price plus accumulated and unpaid dividends, if any, payable upon redemption.
 
(h)     If any redemption date is not a Business Day, then the redemption price and accumulated and unpaid dividends, if any, payable upon redemption may be paid on the next Business Day and no interest, additional dividends or other sums will accumulate on the amount payable for the period from and after that redemption date to that next Business Day.
 
(i)     If less than all of the outstanding Series B Preferred Stock is to be redeemed, the Series B Preferred Stock to be redeemed shall be selected pro rata (as nearly as may be practicable without creating fractional shares) or by any other equitable method the Corporation shall determine.
 
(j)     In connection with any redemption of the Series B Preferred Stock, the Corporation shall pay, in cash, any accumulated and unpaid dividends up to, but not including, the redemption date, unless a redemption date falls after a Dividend Record Date and prior to the corresponding Dividend Payment Date, in which case each holder of Series B Preferred Stock at the close of business on such Dividend Record Date shall be entitled to the dividend payable on such shares on the corresponding Dividend Payment Date notwithstanding the redemption of such shares before such Dividend Payment Date. Except as provided in this Section 6(j), the Corporation will make no payment or allowance for unpaid dividends, regardless of whether in arrears, on shares of the Series B Preferred Stock to be redeemed. 
 
(k)     Subject to applicable law, the Corporation may purchase shares of Series B Preferred Stock in the open market, by tender or by private agreement. Any shares of Series B Preferred Stock that the Corporation acquires may be retired and reclassified as authorized but unissued shares of Preferred Stock, without designation as to class or series, and may thereafter be reissued as any class or series of Preferred Stock.
 
7.     No Conversion Right, Amendment. The Series B Preferred Stock is not convertible into the Corporation’s common stock. No provision in this Certificate of Designations may be amended, waived or modified except by the mutual written consent of the Company and the unanimous written consent of the holders of the Series B Preferred Stock.
 


EXHIBIT 3.2
8.     Voting Rights.
 
(a)     Holders of the Series B Preferred Stock will not have any voting rights, except as required by Delaware law. On each matter on which holders of Series B Preferred Stock are entitled to vote, each share of Series B Preferred Stock will be entitled to one vote.
 
(b)     Except as expressly stated in this Section 8 or as may be required by applicable law, the Series B Preferred Stock will not have any relative, participating, optional or other special voting rights or powers and the consent of the holders thereof shall not be required for the taking of any corporate action.
 
9.     No Preemptive Rights. The holders of the Series B Preferred Stock will not have any preemptive rights to purchase or subscribe for the Corporation’s common stock or any other security.
 
10.     Record Holders. The Corporation and the transfer agent for the Series B Preferred Stock may deem and treat the record holder of any Series B Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Corporation nor the transfer agent shall be affected by any notice to the contrary.
 
11.     Adjustment. If the Corporation effects a stock dividend, a stock split, or a reverse split of the Series B Preferred Stock, the dividend, liquidation and redemption rates will be proportionately adjusted.
 
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designations to be signed in its name and on its behalf on this 25th day of October, 2024.
 

REMARK HOLDINGS, INC.
By:/s/ Kai-Shing Tao
Kai-Shing Tao
Chief Executive Officer


EXHIBIT 3.3
AMENDMENT TO AMENDED AND RESTATED BYLAWS
OF REMARK MEDIA, INC. N/K/A REMARK HOLDINGS, INC.

1.    Section 2.06 of the Amended and Restated Bylaws (the “Bylaws”) of Remark Media, Inc. n/k/a Remark Holdings, Inc. (the “Company”) is hereby amended and restated in its entirety as follows:

SECTION 2.06. Quorum. Except as otherwise provided by law or the Certificate of Incorporation, the holders of one-third (or 33.33%) of the voting power of the shares outstanding entitled to vote, present in person or by proxy, shall constitute a quorum for the transaction of business at all meetings of stockholders, whether annual or special. In the absence of a quorum, any meeting of stockholders may be adjourned, from time to time, either by the chairman of the meeting or by vote of the holders of a majority of the shares represented thereat, but no other business shall be transacted at such meeting. The stockholders present at a duly called or convened meeting, at which a quorum is present, may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, all action taken by the holders of a majority of the votes cast, excluding abstentions, at any meeting at which a quorum is present shall be valid and binding upon the Corporation; provided, however, that directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Where a separate vote by a class or classes or series is required, except where otherwise provided by the statute or by the Certificate of Incorporation or these Bylaws, the holders of one-third (or 33.33%) of the voting power of the shares outstanding of such class or classes or series, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to the vote on that matter and, except where otherwise provided by the statute or by the Certificate of Incorporation or these Bylaws, the affirmative vote of the majority (plurality, in the case of the election of directors) of the votes cast, including abstentions, by the holders of shares of such class or classes or series shall be the act of such class or classes or series.

2.    This amendment to the Bylaws shall become effective immediately upon approval by the Company’s Board of Directors.
 

EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
 
This agreement (the “Stock Purchase Agreement” or the “Agreement”) is entered into by and between Remark Holdings, Inc., a Delaware corporation (the “Company”), and Kai-Shing Tao (“Buyer”), as of the date set forth on the signature page hereto.
 
RECITALS
 
WHEREAS, the Company is offering to sell 150,000 shares of Series A voting preferred stock (each a “Share” and, collectively, the “Shares”) at an offering price of $0.001 per Share (the “Share Purchase Price).
 
WHEREAS, Buyer desires to acquire 150,000 Shares (the “Subject Shares”) at the Share Purchase Price.
 
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants hereinafter set forth, the parties hereto do hereby agree as follows:
 
1. Offering Terms.
 
(a) Purchase and Sale. On the terms and subject to the conditions set forth in this Stock Purchase Agreement, at the Closing the Company will sell and the Buyer will purchase the Subject Shares at the Share Purchase Price.
 
(b) The closing of the transaction contemplated under this Agreement (the "Closing") will take place at 10:00 a.m. on the date hereof at the offices of the Company located at 800 S. Commerce Street, Las Vegas, Nevada 89106. At the Closing, the Buyer shall pay the aggregate purchase price by wire transfer of immediately available funds to an account designated by the Company, and the Company shall issue the Shares to the Purchaser.

2. Representations and Warranties of the Company. The Company represents and warrants to Buyer that each of the following is true and complete in all material respects as of the date of this Stock Purchase Agreement:
 
(a) The Company is a corporation duly formed, validly existing and in good standing under the laws of the State of Delaware. The Company has all requisite power and authority to own and operate its properties and assets, to execute and deliver this Stock Purchase Agreement, the Subject Shares and any other agreements or instruments required hereunder. The Company is duly qualified and is authorized to do business and is in good standing as a foreign corporation in all jurisdictions in which the nature of its activities and of its properties (both owned and leased) makes such qualification necessary, except for those jurisdictions in which failure to do so would not have a material adverse effect on the Company or its business;
 
(b) The issuance, sale and delivery of the Subject Shares in accordance with this Stock Purchase Agreement have been duly authorized by all necessary corporate action on the part of the Company. The Subject Shares, when issued, sold and delivered against payment therefor in accordance with the provisions of this Stock Purchase Agreement, will be duly and validly issued, fully paid and non-assessable; and
 
(c) The acceptance by the Company of this Stock Purchase Agreement and the consummation of the transaction contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company. Upon the Company’s acceptance of this Stock Purchase Agreement, this Agreement shall constitute a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights and (ii) as limited by general principles of equity that restrict the availability of equitable remedies.
  
(d) Assuming the accuracy of Buyer’s representations and warranties set forth in Section 4 hereof, no order, license, consent, authorization or approval of, or exemption by, or action by or in respect of, or notice to,


or filing or registration with, any governmental body, agency or official is required by or with respect to the Company in connection with the execution, delivery and performance by the Company of this Stock Purchase Agreement except (i) for such filings as may be required under any applicable state securities laws, (ii) for such other filings and approvals as have been made or obtained, or (iii) where the failure to obtain any such order, license, consent, authorization, approval or exemption or give any such notice or make any filing or registration would not have a material adverse effect on the ability of the Company to perform its obligations hereunder.  
 
4. Representations and Warranties of Buyer. Buyer represents and warrants to the Company that each of the following is true and complete in all material respects as of the date of this Stock Purchase Agreement:
 
(a) Requisite Power and Authority. Buyer has all necessary power and authority under all applicable provisions of law to execute and deliver this Stock Purchase Agreement and to carry out the provisions hereof. Upon due delivery hereof, this Stock Purchase Agreement will be a valid and binding obligation of Buyer, enforceable in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights and (ii) as limited by general principles of equity that restrict the availability of equitable remedies.
 
(b) Investment Experience; Buyer Suitability. Buyer has sufficient experience in financial and business matters so as to be capable of evaluating the merits and risks of an investment in the Shares, and to make an informed decision relating thereto. Alternatively, Buyer has utilized the services of a purchaser representative and, together, they have sufficient experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Shares, and to make an informed decision relating thereto. Buyer has evaluated the risks of an investment in the Shares and has determined that such an investment is suitable for Buyer. Buyer has adequate financial resources for an investment of this character and can bear a complete loss of Buyer’s investment in the Shares.
  
(c) No Registration. Buyer understands that the Shares are not being registered under the Securities Act or under the securities laws of any state.

(d) No Transfer; Continued Economic Risk. Buyer acknowledges and agrees that Buyer cannot, and will not, transfer the Subject Shares to any other person or entity. Buyer further acknowledges that the Buyer must bear the economic risk of the investment in the Subject Shares indefinitely and that Buyer is able to bear the economic risk of losing Buyer’s entire investment in the Subject Shares. 

(d) Valuation; Arbitrary Determination of Share Purchase Price by the Company. Buyer acknowledges that the Share Purchase Price of the Shares in the Offering was set by the Company based on the Company’s internal valuation and no warranties are made as to value. Buyer further acknowledges that future offerings of securities of the Company may be made at lower valuations, with the result that Buyer’s investment will bear a lower valuation.
 
(e) Domicile. Buyer maintains Buyer’s domicile (and is not a transient or temporary resident) at the address which the Buyer previously provided to the Company.
 
5. Indemnity. The representations, warranties and covenants made by Buyer herein shall survive the consummation of this Stock Purchase Agreement. Buyer agrees to indemnify and hold harmless the Company and its officers, directors and agents, and each other person, if any, who controls the Company within the meaning of Section 15 of the Securities Act, against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all reasonable attorneys’ fees, including attorneys’ fees on appeal) and expenses reasonably incurred in investigating, preparing or defending against any false representation or warranty or breach of failure by Buyer to comply with any covenant or agreement made by Buyer herein or in any other document furnished by Buyer to any of the foregoing in connection with the transaction contemplated hereby.
 
6. Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, applicable to agreements made in and wholly to be performed in that jurisdiction
2


with regards to the choice of law rules of such state, except for matters arising under the Securities Act or the Securities Exchange Act of 1934, as amended, which matters shall be construed and interpreted in accordance with such laws.
 
BUYER CERTIFIES THAT BUYER HAS READ THIS ENTIRE STOCK PURCHASE AGREEMENT AND THAT EVERY STATEMENT MADE BY BUYER HEREIN IS TRUE AND COMPLETE.

 
IN WITNESS WHEREOF, the undersigned has executed this Stock Purchase Agreement on the date set forth below.

DATED: October 31, 2024
 

COMPANY
By:    /s/ Todd Brown    
Name:    Todd Brown
Title:    Vice President - Finance
BUYER
By:    /s/ Kai-Shing Tao    
Name:    Kai-Shing Tao

3

EXHIBIT 10.2
VOTING AGREEMENT
 
This Voting Agreement (the “Voting Agreement”), dated October 31, 2024, documents the understanding by and between Remark Holdings, Inc., a Delaware corporation (the “Company”), and Kai-Shing Tao (the “Holder”, and collectively with the Company, the “Parties”, and each of Holder and the Company, a “Party”). 

WHEREAS, on October 31, 2024, the Company filed a certificate of designations (the “Certificate of Designations”) with the State of Delaware establishing the Company’s Series A Voting Preferred Stock (the “Series A Stock”). 

WHEREAS, the Company and the Investor entered into a Stock Purchase Agreement, dated October 31, 2024 (the “Stock Purchase Agreement”), pursuant to which the Company has agreed to issue and sell to the Holder, and the Holder has agreed to purchase, all authorized shares of the Company’s Series A Stock (the “Series A Shares”).

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the Parties hereby agree as follows:

At any annual or special meeting of the Company’s stockholders at which any of the Voting Proposals (as such term is defined in the Certificate of Designations) is presented by the Company to the Company’s stockholders, including at every adjournment or postponement thereof, the Holder agrees to vote any of the Series A Shares it owns as of the record date of any such meeting of stockholders, and further agrees to cast such votes according to the recommendations of the Company’s Board of Directors as such recommendations are stated in the definitive proxy statement the Company files with the U.S. Securities and Exchange Commission in relation to such meeting of stockholders.
 
Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Voting Agreement must be in writing and shall be delivered to the Holder at the e-mail address or facsimile number on the signature page hereto.
 
This Voting Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior negotiations, letters and understandings relating to the subject matter hereof and is fully binding on the Parties.
 
This Voting Agreement may be executed simultaneously in any number of counterparts. Each counterpart shall be deemed to be an original, and all such counterparts shall constitute one and the same instrument. This Voting Agreement may be delivered and accepted via electronic mail or other electronic means and may be executed using an electronic form of signature (using a service such as DocuSign or by digitally signing with a stylus) and any such signature shall be of the same force and effect as a manual, non-electronic signature.
 
The terms of this Voting Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns.
 
This Voting Agreement may not be amended or modified except in writing signed by the Parties.
 


All questions concerning the construction, validity, enforcement and interpretation of this Voting Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles of conflicts of law thereof.
  
Each Party hereto acknowledges that, in view of the uniqueness of the transactions contemplated by this Voting Agreement, the other Party will not have an adequate remedy at law for money damages in the event that this Voting Agreement has not been performed in accordance with its terms, and therefore agrees that such other Party shall be entitled to seek specific enforcement of the terms hereof in addition to any other remedy it may seek, at law or in equity.


 
[The remainder of the page is intentionally left blank]
 
 
 

2



 
The Parties have executed this Voting Agreement as of the date first set forth above.
 
 
COMPANY
By:    /s/ Todd Brown    
Name:    Todd Brown
Title:    Vice President - Finance
HOLDER
By:    /s/ Kai-Shing Tao    
Name:    Kai-Shing Tao

3

v3.24.3
Cover Page
Oct. 25, 2024
Cover [Abstract]  
Document Type 8-K
Document Period End Date Oct. 25, 2024
Entity Registrant Name Remark Holdings, Inc.
Entity Incorporation, State or Country Code DE
Entity File Number 001-33720
Entity Tax Identification Number 33-1135689
Entity Address, Address Line One 800 S. Commerce Street
Entity Address, City or Town Las Vegas
Entity Address, State or Province NV
Entity Address, Postal Zip Code 89106
City Area Code 702
Local Phone Number 701-9514
Written Communications false
Soliciting Material false
Pre-commencement Tender Offer false
Pre-commencement Issuer Tender Offer false
Title of 12(b) Security
Trading Symbol
Security Exchange Name
Entity Emerging Growth Company false
Entity Central Index Key 0001368365
Amendment Flag false
Current Fiscal Year End Date --12-31
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