VIVK Vivakor Inc

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K/A

(Amendment No. 1)

 

CURRENT REPORT

 

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

 

Date of Report (Date of earliest event reported): June 13, 2024

 

VIVAKOR, INC.

(Exact name of registrant as specified in its charter)

 

Nevada		001-41286		26-2178141
(State or other jurisdiction of		(Commission		(IRS Employer
incorporation or organization)		File Number)		Identification No.)

 

5220 Spring Valley Rd. Suite 500

Dallas, TX 75254

(Address of principal executive offices)

 

(949) 281-2606

(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:

 

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Common Stock		VIVK		The Nasdaq Stock Market LLC (Nasdaq Capital Market)

 

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. ☐

 

 

 

EXPLANATORY NOTE

 

 

Item 1.01 Entry into a Material Agreement.

 

As previously disclosed, on June 9, 2022, the Company entered into an executive employment agreement (the “Original Agreement”) with Tyler Nelson, the Chief Financial Officer of the Company (the “Executive”), for a term of two years, and, on January 16, 2023, Mr. Nelson was appointed as member of the Company’s Board of Directors (the “Board”).

 

As previously disclosed, on February 26, 2024, the Company entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Empire Energy Acquisition Corp., a Delaware corporation, and wholly owned subsidiary, Empire Diversified Energy, Inc., a Delaware corporation (collectively “Empire”), whereby, at closing, subject to the conditions set forth in the Merger Agreement, Empire will become a wholly-owned subsidiary of the Company. On March 21, 2024, the Company entered into a Membership Interest Purchase Agreement (the “Endeavor MIPA”), the equity holders of Endeavor Crude, LLC (“Endeavor”), whereby, at closing, subject to the conditions set forth in the Endeavor MIPA, the Company will acquire several entities that will become wholly-owned subsidiaries of the Company.

 

As previously disclosed, beginning on June 8, 2024, the Company and Mr. Nelson entered into a series of amendments to the Original Agreement effecting the extension of the expiration date of the Original Agreement until June 13, 2024. On June 13, 2024, the Company entered into a new Executive Employment Agreement (the “New Employment Agreement”) with Mr. Nelson, and, in connection therewith the Company and Mr. Nelson also entered into a settlement agreement with respect to compensation owed by the Company to Mr. Nelson (the “Settlement Agreement”).

 

New Employment Agreement

 

On June 13, 2024, the Company entered into the New Employment Agreement with Mr. with respect to the Company’s appointment of Mr. Nelson as Chief Financial Officer. Pursuant to the New Employment Agreement, Mr. Nelson will receive: (i) $450,000 annually (the “Base Salary”); (ii) an annual cash incentive bonus of a minimum of 50% of the Base Salary (a portion of which may be payable in the form of restricted common stock of the Company) and a maximum of 120% of the Base Salary; and (iii) an annual equity incentive bonus of a minimum of 25% of the Base Salary and a maximum of 120% of the Base Salary in shares of restricted stock. Mr. Nelson will also be eligible for a cash transaction bonus (the “Transaction Bonus”) for Qualified Transactions, as defined in the New Employment Agreement, of 0.5% of the enterprise value of the assets, equity or business sold or acquired or the listing value of the equity or debt being listed on a national exchange. For each of the closing of the Merger Agreement and Endeavor MIPA, Mr. Nelson will receive a bonus of $200,000, with $100,000 for each such bonus to be paid in cash and the remaining $100,000 for each such bonus to be paid in shares of the Company’s common stock, valued on the date of close of the Merger Agreement and the Endeavor MIPA, respectively. The foregoing bonuses are in lieu of a Transaction Bonus for either the Merger Agreement or the Endeavor MIPA. The New Employment Agreement is for an initial term of two years and will auto-renew for subsequent one-year terms if not terminated by either party at the end of a term, which requires 90 days prior notice. The New Employment Agreement may also be terminated under standard cause and without cause termination and resignation provisions.

 

Settlement Agreement and Promissory Note

 

At the time of the termination of the Original Agreement, the Company owed Mr. Nelson $1,167,750 in accrued salary and bonuses, plus interest (together, the “Accrued Compensation”), for serving as the Company’s Chief Financial Officer under the Original Agreement. Pursuant to the Settlement Agreement, the Company and Mr. Nelson agreed the Accrued Compensation would be paid to Mr. Nelson under of a straight promissory note in the principal amount of the Accrued Compensation (the “Note”). Under the terms of the Note, the amounts due under the Note will accrue interest at 8% per annum, and will be paid to Mr. Nelson by paying him 5% of any money received by the Company from closed future financings or acquisition/merger/sale transactions until the Note has been paid in full. In the event the Note has not been paid in full by December 31, 2024, the Note will mature and any amounts due thereunder will be due and payable in full in such date.

 

 

Stock Option

 

Under the terms of the Settlement Agreement, the Company issued Mr. Nelson a stock option agreement (the “Option Agreement”) setting forth the stock options Mr. Nelson were issued on June 9, 2022 (the “Grant Date”). Pursuant to the Option Agreement, as of the Grant Date, Mr. Nelson was granted 917,825 stock options (the “Options”) at an exercise price per share of $1.80. The Options shall vest as follows: (i) 360,145 shares on the Grant Date, (ii) 219,312 shares three (3) months after the Grant Date, (iii) 48,338 shares for each of the following six (6) quarters, and (iv) 48,340 shares following the eighth (8^th) quarter after the Grant Date. The Options were fully vested as of June 9, 2024.

 

The foregoing description of the Employment Agreement, Settlement Agreement, the Note and Option Agreement do not purport to be complete and are qualified in their entirety by their full text, the forms of which is filed herewith as Exhibit 10.1, 10.2, 10.3, and 10.4, respectively.

 

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

 

The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 5.02.

 

Tyler Nelson, 43, Chief Financial Officer

 
Tyler Nelson joined Vivakor on a part-time basis as Chief Financial Officer in 2014 and has served as full-time Chief Financial Officer since September 2020. Mr. Nelson joined the Board of Directors of Vivakor in January 2023. Mr. Nelson is a CPA who worked from 2006 to 2011 in Audit and Enterprise Risk Services at Deloitte LLP (USA) and later at KSJG, LLP (later acquired by Withum+Brown, PC). He worked with clients with assets of more than $100 billion and annual revenues of more than $15 billion, which are considered some of the most respected financial institutions in the world. In 2011, Mr. Nelson began working for LBL Professional Consulting, Inc. where he provided merger and acquisition, initial public offering, and interim chief financial officer services to clients. Mr. Nelson continues to sit on the Board of Directors and remains an officer of LBL Professional Consulting, Inc. Mr. Nelson earned a Master’s Degree in Accountancy from the University of Illinois- Urbana-Champaign, and a Bachelor’s Degree in Economics with a minor in Business Management from Brigham Young University.

 

The Board believes that Mr. Nelson’s experience in public company accounting and his extensive knowledge in the history of the Company makes him ideally qualified to help lead the Company towards continued growth and success.

  

Family Relationships

 

Mr. Nelson does not have a family relationship with any of the current officers or directors of the Company.

 

Related Party Transactions

 

There are no related party transactions with regard to Mr. Nelson reportable under Item 404(a) of Regulation S-K.

 

Compensatory Arrangements

 

The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 5.02.

 

 

Item 9.01 Exhibits.

 

(d)

Exhibits

 

 

Exhibit No.		Exhibit
10.1		Executive Employment Agreement by and between Vivakor, Inc. and Tyler Nelson dated June 13, 2024
10.2		Settlement Agreement by and between Vivakor, Inc. and Tyler Nelson dated June 13, 2024
10.3		Form of Promissory Note Issued to Tyler Nelson dated June 13, 2024
10.4		Form of Stock Option Issued to Tyler Nelson dated June 13, 2024
104		Cover Page Interactive Data File (embedded within the Inline XBRL document).

 

 

SIGNATURES

 

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.

 

	VIVAKOR, INC.
Dated: June 18, 2024	By:	/s/ James Ballengee
		Name:	James Ballengee
		Title:	Chief Executive Officer

 

 

 

Exhibit 10.1

 

EXECUTIVE EMPLOYMENT AGREEMENT

 

THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of June 13, 2024 (“Effective Date”), by and between Vivakor, Inc., a Nevada corporation (the “Company”), and Tyler Nelson, an individual (the “Executive”).

 

WITNESSETH:

 

WHEREAS, Executive’s Executive Employment Agreement dated June 9, 2022 is expiring and the Company and Executive desire to enter into a new executive employment agreement;

 

WHEREAS, on February 26, 2024 the Company, entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Empire Energy Acquisition Corp., a Delaware corporation, and wholly owned subsidiary, Empire Diversified Energy, Inc., a Delaware corporation (collectively “Empire”), whereby, at closing, subject to the conditions set forth in the Merger Agreement, Empire will become a wholly-owned subsidiary of the Company;

 

WHEREAS, on March 21, 2024, the Company entered into a Membership Interest Purchase Agreement (the “Endeavor MIPA”), the equity holders of Endeavor Crude, LLC (“Endeavor”), whereby, at closing, subject to the conditions set forth in the Endeavor MIPA, the Company will acquire several entities that will become wholly-owned subsidiaries of the Company;

 

WHEREAS, based on the Merger Agreement and Endeavor MIPA, the Company and Executive desire to modify and renew the Executive’s term and compensation for serving as the Company’s Chief Financial Officer in order to bring the compensation in line with the anticipated growth of the Company by these transactions and incentivize Executive to continue to move the Company’s business forward in all facets.

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements set forth herein, the Company and Executive, intending to be legally bound, hereby agree as follows:

 

1. Employment. The Company agrees to employ Executive as its Chief Financial Officer, and Executive accepts such employment and agrees to perform executive employment services for the Company, for the period and upon the other terms and conditions set forth in this Agreement.

 

2. Term.  This Agreement shall be for a term commencing on the Effective Date and terminating upon the earliest to occur (a) two years from the Effective Date (the “Initial Term”) or at the end of a Renewal Term, (b) resignation with or without Good Reason, (c) termination without cause, (d) termination for Cause, or (e) the Disability or death of the Executive (the “Term”). At the end of the Initial Term (if this Agreement is not terminated earlier pursuant to Section 5 during the Initial Term), this Agreement will be automatically renewed for successive one-year terms (each a “Renewal Term”) unless either the Executive or Company gives written notice to the other party at least ninety (90) days before the end of the then current Term that they elect not to renew this Agreement for any subsequent year.

 

 

3. Position and Duties.

 

3.1. Service with the Company. During the Term of this Agreement, Executive agrees to perform as the Company’s Chief Financial Officer and such executive employment duties as the Board of Directors of the Company (the “Board”) shall reasonably assign to him, and which are consistent with the Executive’s position and compensation, from time to time. The Executive shall, if requested, also serve as a member of the Board upon the same terms as other Board members. Company may also request Executive to serve as an additional officer of the Company or as an officer of any affiliate for no additional compensation.

 

3.2. Additional Resources. To the extent the Company has not already hired new personnel to cover the below duties, then not later than the closing of the Merger Agreement, the Company shall hire and retain a Financial Planning and Analysis professional within 60 days after the closing of the Merger Agreement and an Accounting Manager and Accounting Senior within 30 days after the closing of the Merger Agreement. Additionally, the Company will use its best efforts to retain the current personnel who worked on the Company’s most recent Form 10-K with the Executive at least through the filing of the first quarter Form 10-Q 2025, or will contract with similarly qualified personnel in the event the current personnel are not available or retained.. The Company shall also engage a consultant to assist with the implementation of a new Enterprise Resource Planning system (i.e. NetSuite, Oracle) within 60 days after the closing of the Merger Agreement.

 

3.3. Conflicting Duties. Executive hereby confirms that he is under no contractual commitments inconsistent with his obligations set forth in this Agreement. The Company agrees that Executive may, during the Term of this Agreement, perform services for LBL Professional Consulting, Inc. (“LBL”), or any other corporation, firm, entity or person that is not otherwise inconsistent with the provisions of this Agreement or Executive’s fiduciary obligations to the Company. The Company acknowledges that currently the Executive is the President of LBL and sits on LBL’s board of directors.

 

4. Compensation and Benefits.

 

4.1. Base Salary. As compensation for the services to be rendered by Executive under this Agreement, the Company shall pay to Executive an annual salary of at least Four Hundred Fifty Thousand Dollars ($450,000) (the “Base Salary”), subject to potential increases as stated below. The Base Salary is payable in equal installments and will be paid every two weeks. The Executive’s Base Salary shall be reviewed at least annually by the Board and the Board may, but shall not be required to, increase the Base Salary during the Term.

 

 

4.2. Bonuses. Consistent with comparable Nasdaq-listed companies, the Company’s Compensation Committee and Board of Directors agree to pay Executive an annual executive incentive bonus, an annual equity bonus, and a growth and acquisition transaction bonus, as set forth below. The Executive will be eligible to participate in any and all other bonus plans or any additional bonuses similar to those of other executives that may be established during the Term of this Agreement. If Executive is terminated or terminates employment during any year, Executive will be entitled to bonuses for the year of termination as described in Section 6, below. Any amounts paid as an annual bonus will not be considered as part of the Executive’s Base Salary in the next year of employment for the purposes of calculating future bonus payments.

 

(a) Annual Cash Incentive Bonus. On an annual basis, the Company shall provide revenue and profitability guidance for the Company (and its subsidiaries and affiliates, if applicable), identifying Company performance targets expressed as earnings before interest, taxes, depreciation, and amortization (“EBITDA”). The Executive shall be eligible for an annual cash incentive bonus (“Cash Incentive Bonus”) equal to the Base Salary multiplied by proportional progress achieved toward the Company’s financial performance, to be calculated as (A) the Company’s current year EBITDA less the Company’s prior year EBITDA, divided by (B) the Company’s current year EBITDA guidance less the Company’s prior year EBITDA (the “Annual Incentive Multiplier”). The Annual Incentive Multiplier may not be less than zero nor greater than one hundred twenty percent (120%) for any purpose of this Agreement. Notwithstanding the Annual Incentive Multiplier, the Cash Incentive Bonus will not be less than 50% of the Base Salary on an annual basis (the “Cash Incentive Bonus Minimum”), however, if the actual Cash Incentive Bonus is less than the Cash Incentive Bonus Minimum, the difference will be paid to Executive through the issuance of shares of the Company’s common stock, valued on the date the Company’s Board of Directors approves the issuance of the relevant Cash Incentive Bonus. The Cash Incentive Bonus shall be paid on the 5^th day of April of the year succeeding the year for which the Cash Incentive Bonus is calculated, less applicable withholdings. By way of example only, if the Company’s current year actual EBITDA is $15,000,000, the Company’s prior year EBITDA was $10,000,000, and the Company’s current year EBITDA guidance is $12,000,000, the Cash Incentive Bonus would be calculated as follows:

 

Annual Incentive Multiplier x Base Salary = Cash Incentive Bonus

[(FY1 EBITDA – FY0 EBITDA) ÷ (FY1E EBITDA – FY0 EBITDA)] x Base Salary = Cash Incentive Bonus

[($15mm – $10mm) ÷ ($12mm – $10mm)] x Base Salary = Cash Incentive Bonus

[$5mm ÷ $2mm] x Base Salary = Cash Incentive Bonus

([250%] > 120%) x Base Salary = Cash Incentive Bonus

120% x $450,000 = $540,000

 

 

By way of further example only, if the Company’s current year actual EBITDA is $11,000,000, the Company’s prior year EBITDA was $10,000,000, and the Company’s current year EBITDA guidance is $12,000,000, the Cash Incentive Bonus would be calculated as follows:

 

Annual Incentive Multiplier x Base Salary = Cash Incentive Bonus

(FY1 EBITDA – FY0 EBITDA) ÷ (FY1E EBITDA – FY0 EBITDA) x Base Salary

($11mm – $10mm) ÷ ($12mm – $10mm) x Base Salary = Cash Incentive Bonus

$1mm ÷ $2mm x Base Salary = Cash Incentive Bonus

(50%) x Base Salary = Cash Incentive Bonus

50% x $450,000 = $225,000

 

By way of further example only, if the Company’s current year actual EBITDA is $15,000,000, the Company’s prior year EBITDA was $14,000,000, and the Company’s current year EBITDA guidance is $18,000,000, the Cash Incentive Bonus would be calculated as follows:

 

Annual Incentive Multiplier x Base Salary = Cash Incentive Bonus

(FY1 EBITDA – FY0 EBITDA) ÷ (FY1E EBITDA – FY0 EBITDA) x Base Salary

($15mm – $14mm) ÷ ($18mm – $14mm) x Base Salary = Cash Incentive Bonus

$1mm ÷ $4mm x Base Salary = Cash Incentive Bonus

(25%) x Base Salary = Cash Incentive Bonus

25% x $450,000 = $112,500 (paid in cash)(remaining $112,500 to reach Cash Incentive Bonus Minimum paid in shares of Company common stock)

 

(b) Equity Incentive Bonus. The Executive shall be eligible for an annual equity incentive bonus (“Equity Incentive Bonus”) equal to the Base Salary multiplied by the Annual Incentive Multiplier, in accordance with the terms set forth in section 6(a) above. The Annual Incentive Multiplier may not be less than twenty five percent (25%) nor greater than one hundred twenty percent (120%). The Equity Incentive Bonus shall be granted to Executive no later than the 15^th day of March of the year succeeding the year for which the Equity Incentive Bonus is calculated, less applicable withholdings, and shall be remitted in the form of the Company’s common stock, priced per share based on the volume-weighted average closing price for the preceding five (5) NASDAQ trading days prior to the grant date. All shares comprising an Equity Incentive Bonus shall be issued under the Company’s 2023 Equity and Incentive Plan or successor plan and otherwise in accordance with applicable law and the rules and regulations of The Nasdaq Capital Market, and, in the event that any such shares cannot be issued because compliance with such requirements has not been met, the obligation to issue such shares will be accrued until such time as such compliance requirements have been satisfied.

 

(c) For purposes of calculating the amounts due and owing Executive under Section 4.2(a) and (b), the Parties stipulate and agree that the Company’s current year EBITDA guidance for 2024 is stipulated and deemed to be $19,000,000, and prior-year (2023) EBITDA is stipulated and deemed to be $12,000,000. Furthermore, the Company shall have the right to reasonably adjust EBITDA guidance for purposes of calculating the Annual Incentive Multiplier in connection with any mergers, acquisitions, or business combination transactions during 2024.

 

 

(d) Growth and Transaction Based Bonus. The Executive will be eligible for a cash transaction bonus (“Cash Transaction Bonus”) for all Qualified Transactions involving the acquisitions of assets or equity of another business, or the divestiture, merger, consolidation, restructuring of assets or business of the Company or a subsidiary of the Company. The Cash Transaction Bonus shall equal one-half of one percent (0.5%) of the Enterprise Value of the assets, equity or business sold or acquired or the listing value of the equity or debt being listed on a national exchange. A Qualified Transaction also includes any transaction where the Company lists the equity or debt securities of a subsidiary or of its assets or portion of its business on a recognized national stock exchange in the United States of America or the equivalent in any other jurisdiction (such as in a spinoff transaction). In order for a transaction to be a Qualified Transaction, the transaction must have an Enterprise Value of at least 10% or more of the total assets of the Company immediately prior to the transaction (a “Qualified Transaction”). Notwithstanding the above, Executive agrees to waive the Cash Transaction Bonus for the close of Empire Merger Agreement and Endeavor MIPA and the Company agrees that Executive will be paid a flat Cash Transaction Bonus of Two Hundred Thousand Dollars ($200,000) for each of these transactions, with $100,000 for each Cash Transaction Bonus to be paid in cash and the remaining $100,000 for each Cash Transaction Bonus to be paid in shares of the Company’s common stock, valued on the Effective Date.

 

Enterprise Value is calculated on a consolidated basis, as the sum of (1) the market value of an entity’s common equity (or the fair market value thereof if not publicly traded), (2) the value of its preferred stock (at liquidation value), (3) the book value of its minority interests and (4) its aggregate long- and short-term debt, less its cash and cash equivalents that remain with a counter party.

 

All Cash Transaction Bonuses shall be considered earned and paid in cash immediately upon the closing of a Qualified Transaction.

 

(e) The Executive shall be eligible for such additional bonuses in such amounts and at such times, annual or otherwise, as determined in the discretion of the Compensation Committee of the Board of Directors of the Company.

 

(f) The Company and its Board of Directors will waive any rights of first refusal, right of repurchase or other restrictions on the sale of any stock awarded under this agreement, as described in Section 10 of the Vivakor, Inc. 2021 and 2023 Equity and Incentive Plan. In addition, for any bonus based upon EBITDA guidance, the Company’s failure to timely issue or stipulate to such guidance means any such bonus formula will treat the current year projected EBITDA guidance amount as one dollar more than the prior year EBITDA amount.

 

4.3. Participation in Benefit Plans. Executive shall be included to the extent eligible thereunder in any and all plans of the Company providing general benefits for the Company’s employees, including, without limitation, medical, dental, vision, disability, life insurance, 401(k) plan, sick days, vacation, and holidays. Executive’s participation in any such plan or program shall be subject to the provisions, rules, and regulations applicable thereto. In addition, during the Term of this Agreement, Executive shall be eligible to participate in all non-qualified deferred compensation and similar compensation, bonus and stock plans offered, sponsored or established by Company on substantially the same or a more favorable basis as any other executive employee of Company. The Company will pay directly or reimburse Executive for supplemental disability coverage, in an amount approved by the Board (or its Compensation Committee, if applicable). The benefit plans described in this Section 4.3 are collectively referred to in this Agreement as “Benefit Plans.”

 

 

4.4. Business Expenses. In accordance with the Company’s policies established from time to time, the Company will pay or reimburse Executive for all reasonable and necessary out-of-pocket expenses incurred by him in the performance of his duties under this Agreement, subject to the presentment of appropriate supporting documentation. In addition, the Company will reimburse or pay directly for Executive’s personal executive development expenses, in a maximum amount to be approved by the Compensation Committee of the Company’s Board of Directors.

 

4.5. Vacation. Executive shall be entitled to paid vacations. Executive will accrue four (4) weeks paid vacation time per calendar year. Vacation accrual into a new year has a ceiling of 12 weeks of vacation. Unused vacation time will be paid out to Executive upon any termination of employment. If any vacation time accrues during a year that exceeds 12 weeks, the Company will pay to Executive the value of such unused vacation time (calculated pursuant to the then current Base Salary at the time a payout is requested) on the last business day of that year.

 

4.6. Indemnification. In addition to any rights Executive may have under the Company’s charter, by-laws or other agreements or policies, the Company agrees to indemnify Executive and hold Executive harmless, both during the Term and thereafter, against all costs, expenses (including, without limitation, fines, penalties, excise taxes and attorneys’ and accountants’ fees) and liabilities (other than settlements to which the Company does not consent, which consent shall not be unreasonably withheld) (collectively, “Losses”) reasonably incurred by Executive in connection with any claim, action, proceeding or investigation brought against or involving Executive with respect to, arising out of or in any way relating to Executive’s employment with the Company or Executive’s service as a director or officer of the Company or any affiliate; provided, however, that the Company shall not be required to indemnify Executive for Losses incurred as a result of Executive’s intentional misconduct or gross negligence (other than matters where Executive acted in good faith and in a manner he reasonably believed to be in and not opposed to the Company’s best interests). Executive shall promptly notify the Company of any claim, action, proceeding or investigation under this paragraph and the Company shall be entitled to participate in the defense of any such claim, action, proceeding or investigation and, if it so chooses, to assume the defense with counsel selected by the Company; provided that Executive shall have the right to employ counsel to represent him (at the Company’s expense) if Company counsel would have a conflict of interest in representing both the Company and Executive. The Company shall not settle or compromise any claim, action, proceeding or investigation without Executive’s consent, which consent shall not be unreasonably withheld; provided, however, that such consent shall not be required if the settlement entails only the payment of money (and no admission of guilt or wrong doing by Executive) and the Company fully indemnifies Executive in connection therewith. The Company further agrees to advance any and all expenses (including, without limitation, the fees and expenses of counsel) reasonably incurred by Executive in connection with any such claim, action, proceeding or

 

 

investigation. Not later than six weeks after the conclusion of the next financing, the Company will obtain and maintain a policy of directors’ and officers’ liability insurance covering Executive with minimum coverage limits of $5 million and terms that are no less favorable to Executive than similar coverage provided to other directors or officers of the Company and, notwithstanding the expiration or earlier termination of this Agreement, the Company shall maintain such directors’ and officers’ liability insurance policy covering Executive for a period of time following such expiration or earlier termination of this Agreement equal to the statute of limitations for any claim that may be asserted against Executive for which coverage is available under such directors’ and officers’ liability insurance policy. The carrier providing such coverage shall have a Comdex rating of at least 90. The provisions of this paragraph shall survive the termination of this Agreement for any reason.

 

5. Termination.

 

5.1. Disability. At the Company’s election, Executive’s employment shall terminate upon Executive’s becoming totally or permanently disabled for a period of at least six (6) consecutive months. For purposes of this Agreement, the term “totally or permanently disabled” or “total or permanent disability” means Executive’s inability on account of sickness or accident, whether or not job-related, to engage in regularly or to perform adequately his assigned duties under this Agreement. The Company may only make a determination that Executive is totally or permanently disabled or has a total or permanent disability upon receipt of such a determination from Executive’s regular, treating physician. Executive, or Executive’s authorized personal representative, will instruct Executive’s regular, treating physician to furnish to the Company such physician’s determination of whether Executive is totally or permanently disabled or has a total or permanent disability upon Executive’s, or Executive’s authorized personal representative’s, receipt of a written request from the Company, signed by any officer.

 

5.2. Death of Executive. Executive’s employment shall terminate immediately upon the death of Executive.

 

5.3. Termination for Cause. The Company may terminate Executive’s employment at any time for “Cause” (as hereinafter defined) immediately upon written notice to Executive. As used herein, the term “Cause” shall mean that Executive shall have (i) been finally adjudicated to have committed any act of fraud, embezzlement, or any other willful misconduct that is demonstrably and materially injurious to the Company, or (ii) violated any material written Company policy or rules of the Company (provided such policies and rules must be commercially reasonable) and such violation is not cured by Executive within 30 days following written notice thereof to Executive, or (iii) refused to follow the reasonable written directions given by the Board or its designee or breached any material covenant or obligation under this Agreement or any other written agreement with the Company and such refusal or breach is not cured by Executive within 30 days following written notice thereof to Executive. No act or failure to act by Executive shall be considered “willful” unless committed without good faith and without a reasonable belief that the act or omission was in the Company’s best interest.

 

 

5.4. Resignation. Executive’s employment shall terminate on the earlier of the date that is thirty (30) days following the written submission of Executive’s resignation to the Company or the date such resignation is accepted by the Company. Executive may resign at any time with or without Good Reason.

 

5.5. Termination for Good Reason. Executive may terminate his employment under this Agreement at any time for “Good Reason” (as hereinafter defined). As used herein, the term “Good Reason” shall mean, without Executive’s prior written consent: (a) any reduction in Executive’s Base Salary; (b) a material reduction in Executive’s authority, duties or responsibilities, including without limitation, removing Executive as Chief Financial Officer; (c) relocation by the Company of Executive’s work site (which is currently Laguna Hills, California) to a facility or location more than 15 miles from the Executive’s current work site; (d) imposition of a requirement that Executive report to anyone other than the Company’s Chief Executive Officer or directly to the Board (or its committees); or (e) a material breach by the Company of any of its obligations under this Agreement, including Section 3.2, or any other written agreement or covenant with Executive, or a material breach by the Company of any other material agreement by and between Executive and the Company. A condition will not be considered “Good Reason” unless Executive gives the Company written notice of the condition within ninety (90) days after the condition comes into existence and the Company fails to remedy the condition within thirty (30) days after receiving Executive’s written notice. To resign for Good Reason, Executive must resign within three months (3) months after one of the foregoing conditions has not been remedied by the Company within its 30-day remedy deadline.

 

5.6. Termination Without Cause. The Company may terminate Executive’s employment at any time without Cause on 90 days’ prior written notice. A termination “Without Cause” is a termination of Executive’s employment by the Company for any reason other than those set forth in subsections (5.1) (Disability), (5.2) (Death), or (5.3) (For Cause) of this Section.

 

5.7. Surrender of Records and Property. Upon termination of his employment with the Company, Executive shall deliver promptly to the Company all credit cards, computer equipment, cellular telephone, records, manuals, books, blank forms, documents, letters, memoranda, notes, notebooks, reports, data, tables, calculations or copies thereof, that are the property of the Company and that relate in any way to the business, strategies, products, practices, processes, policies or techniques of the Company, and all other property, trade secrets and confidential information of the Company, including, but not limited to, all documents that in whole or in part contain any trade secrets or confidential information of the Company that in any of these cases are in his possession or under his control, and Executive shall also remove all such information from any personal computers that he owns or controls. Executive may retain a copy of this Agreement and any other agreement between the Executive and the Company (or any of its affiliates).

 

5.8. Resignation from Board and Officer Status. Upon termination of Executive’s employment with Company, Executive will be deemed to have resigned from any officer or director status Executive held with Company or any affiliate or a subsidiary of the Company as of the termination date.

 

 

6. Compensation upon the Termination of Executive’s Employment.

 

6.1. In the event that Executive’s employment is terminated by Company pursuant to Section 5.3 (Termination for Cause) or by Executive pursuant to Section 5.4 (Resignation) without Good Reason, then: (i) Executive shall be paid a pro rata amount of Executive’s then current Base Salary through the date his employment is terminated; and (ii) all earned but unpaid bonuses and accrued and unpaid compensation (including any accrued and unused vacation time) shall be paid to the Executive. For the purposes of this Section, Executive will be deemed to have earned a pro rata portion of any Annual Cash Incentive Bonus or Equity Incentive Bonus through a termination event based on days employed through a termination event out of a 365 day year. Executive will retain whatever rights or benefits Executive is entitled to under any Benefit Plan.

 

6.2. In the event Executive’s employment is terminated pursuant to Section 5.2 (Death), then: (i) Executive’s beneficiary designated by Executive in writing to the Company, or in the absence of such beneficiary, Executive’s estate, shall be paid Executive’s then current Base Salary through the end of the month in which his death occurs; and (ii) all accrued and unpaid compensation (including any accrued and unused vacation time) and earned but unpaid bonus payments shall be paid to the Executive’s beneficiary or in the absence of such beneficiary, Executive’s estate. Executive’s beneficiary will retain whatever rights or benefits Executive is entitled to under any Benefit Plan. For the purposes of this Section, Executive will be deemed to have earned a pro rata portion of any Annual Cash Incentive Bonus or Equity Incentive Bonus through a termination event based on days employed through a termination event out of a 365 day year.

 

6.3. In the event Executive’s employment is terminated by the Executive pursuant to Section 5.5 (Termination for Good Reason), by the Company pursuant to Section 5.1 (Disability), or by the Company pursuant to Section 5.6 (Termination Without Cause), then: (i) Executive shall be paid Executive’s then current Base Salary through the date his employment is terminated and for any accrued and unused vacation time; or accrued but unpaid bonus, (ii) Executive will retain whatever rights or benefits Executive is entitled to under any Benefit Plan and (iii) the Company shall pay to Executive, as a severance allowance, the amounts described in Sections 6.3.1. through 6.3.5. (together, the “Severance Payments”). For the purposes of this Section, Executive will be deemed to have earned a pro rata portion of any Annual Cash Incentive Bonus or Equity Incentive Bonus through a termination event based on days employed through a termination event out of a 365 day year. Any Qualified Transaction which closes not more than six months after Executive’s termination under this Section shall be included in the Cash Transaction Bonus payable to Executive.

 

 

6.3.1. Company shall pay to Executive the Executive’s then current monthly Base Salary for a period of twelve (12) months beginning upon Executive’s termination date (the “Severance Period”), provided that Executive satisfies the Conditions. Such payments shall be paid on the Company’s regular paydays throughout the Severance Period, with any amounts due during the period between the termination date and satisfaction of the Conditions paid on the first following payroll date as a lump sum, all such payments subject to Section 9.1.

 

6.3.2. Company shall promptly pay for Executive’s benefit for outplacement services for Executive for twelve (12) months with an outplacement firm selected by Executive.

 

6.3.3. If Executive elects to continue Executive’s health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) following the termination of Executive’s employment, Company shall pay Executive’s monthly COBRA premium (including any premiums related to Executive’s eligible dependents) until the earliest of (a) the last day of the month that includes the close of the Severance Period, (b) the expiration of Executive’s continuation of coverage under COBRA, or (c) the date when Executive becomes eligible for substantially equivalent health insurance coverage in connection with new employment.

 

6.3.4. Company shall pay to Executive any amounts payable under any Company bonus plans in which Executive is eligible to participate as of the date of the termination of his employment. Such payments, if any, shall be determined after the end of the bonus year and paid when similar payments are made to ongoing bonus plan participants on April 5^th. Any such payments to Executive shall be prorated based upon the portion of the bonus year that Executive was employed by Company or any affiliate.

 

Notwithstanding anything herein to the contrary, the Company shall begin COBRA payments as soon as necessary for Executive to continue coverage, even if Executive has yet to meet the Conditions (as defined below); provided that this obligation shall not extend more than sixty (60) days from the date of termination of Executive’s employment.

 

6.4. Conditions. The Company’s obligation to pay the Severance Payments will not apply unless (a) Executive has complied with Section 5.7 (Surrender of Records and Property), and (b) Executive has executed the Company’s standard release agreement (the “Release”; attached as Exhibit A within 45 days of receipt (collectively, clauses (a) and (b)of this Section 6.4 are the “Conditions”). The Executive must comply to satisfy the Conditions within sixty (60) days of termination of Executive’s employment in order to be eligible for and entitled to receive the Severance Payments.

 

 

7. Change of Control.

 

7.1. Definition of Change of Control. As used herein, a “Change of Control” shall mean:

 

(a) any one person, or more than one person acting as a group acquiring ownership of stock of the Company that, together with stock held by such person or group, constitutes more than 50 percent of the total fair market value or total voting power of the stock of the Company. However, if any one person, or more than one person acting as a group, is considered to own more than 40 percent of the total fair market value or total voting power of the stock of the Company the acquisition of additional stock by the same person or persons is not considered a Change of Control. An increase in the percentage of stock owned by any one person, or persons acting as a group, as a result of a transaction in which the corporation acquires its stock in exchange for property will be treated as an acquisition of stock for purposes of this section. This section applies only when there is a transfer of stock of the Company (or issuance of stock) which remains outstanding after the transaction.

 

(b) any one person, or more than one person acting as a group acquiring (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the Company possessing 40 percent or more of the total voting power of the stock of the Company; or the date a majority of members of the Company’s board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Company’s board of directors before the date of the appointment or election.

 

(c) any one person, or more than one person acting as a group acquiring (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the Company that have a total gross fair market value equal to or more than fifty percent (50%) of the total gross fair market value of all of the assets of the Company immediately before such acquisition or acquisitions. For this purpose, gross fair market value means the value of the assets of the corporation, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets.

 

(d) Notwithstanding the above, the acquisition of shares of Company common stock by James Ballengee, or any entity he controls, will not be considered a Change of Control for the purposes of this Section.

 

7.2. Change of Control Bonus. In the event of a Change of Control, the Company shall, within thirty (30) days after occurrence of the Change of Control, pay Executive a lump sum amount equal to Executive’s then current annual Base Salary. The Executive agrees to waive any Change of Control Bonus that would be due to Executive for the closing of the Empire Merger or the Endeavor MIPA (but Executive shall be entitled to the applicable Cash Transaction Bonus upon the closing of these transactions).

 

 

7.3. Benefit Plans Following a Change of Control. In the event of a Change of Control following which the Company (or the surviving entity) continues to employ Executive and the Company (or the surviving entity) offers benefit plans that are less favorable to Executive and Executive’s eligible dependents than the Benefit Plans Executive and Executive’s dependents had immediately prior to the Change of Control, the Company (or the surviving entity) will reimburse Executive for any expenses he incurs to independently acquire additional coverage under a third-party plan to cover such deficit in benefits for up to a one (1) year period following a Change of Control.

 

7.4. Severance Payments Following a Change of Control. In the event of a Change of Control following which the Company (or the surviving entity) continues to employ Executive, in the event Executive’s employment is subsequently terminated by the Executive pursuant to Section 5.5 (Termination for Good Reason) or by the Company (or the surviving entity) within one (1) calendar year thereof without Cause, the Company (or the surviving entity) shall pay the Severance Payments to Executive in accordance with Section 6.3 above.

 

8. Successors.

 

8.1. The Company’s Successors. Any successor to the Company (whether direct or indirect and whether by purchase, merger, acquisition, consolidation, liquidation or otherwise) to all or substantially all of the Company’s business and/or assets shall assume the obligations of the Company under this Agreement and agree expressly to perform the obligations of the Company under this Agreement in the same manner and to the same extent as the Company would be required to perform such obligations in the absence of a succession.

 

8.2. Executive’s Successors. The terms of this Agreement and all rights of Executive hereunder shall inure to the benefit of, and be enforceable by, Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributes, devisees and legatees.

 

9. Other Provisions.

 

9.1. Code Section 409A. For purposes of Section 409A Internal Revenue Code, as amended (“Section 409A”), Executive hereby elects to receive, and the Company hereby agrees to pay, each amount payable under this Agreement at the times, and on the terms and conditions, set forth herein. Notwithstanding the foregoing, if Section 409A would impose any additional tax on payments within the first six (6) months following Executive’s Separation from Service (as defined in Section 409A), such payments shall be delayed to the minimum extent necessary to avoid such additional tax. Any delayed payments shall be paid in a lump sum on the first day of the seventh (7^th) month after Executive’s Separation from Service.

 

9.2. Governing Law; Venue. This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of California without reference to conflicts of law provisions of any jurisdiction. Any dispute arising under or related to this Agreement will be resolved exclusively in federal or state court in Orange County, California and the parties hereby consent to such jurisdiction and venue.

 

 

9.3. Prior Agreements. This Agreement contains the entire agreement of the parties relating to the subject matter hereof and supersedes all prior agreements and understanding with respect to such subject matter other than the Settlement Agreement, and the parties hereto have made no other agreements, representations, or warranties relating to the subject matter of this Agreement which are not set forth herein.

 

9.4. Withholding Taxes and Right of Offset. The Company may withhold from all payments and benefits under this Agreement all federal, state, city, or other taxes as shall be required pursuant to any law or governmental regulation or ruling.

 

9.5. No Duty to Mitigate. Executive shall not be required to mitigate the amount of any payment contemplated by this Agreement, nor shall any such payment be reduced by any earnings that Executive may receive from any other source.

 

9.6. Amendments. No amendment or modification of this Agreement shall be deemed effective unless made in writing signed by Executive and the Company.

 

9.7. Headings; Interpretation. All captions and section headings used in this Agreement are for convenient reference only and do not form a part of this Agreement. As used in this Agreement, unless the context expressly indicates otherwise, the word “or” is inclusive and means “and/or” and the word “including” (or any variation of that word) means “including without limitation” or a phrase of equivalent meaning.

 

9.8. No Waiver. No term or condition of this Agreement shall be deemed to have been waived nor shall there be any estoppel to enforce any provisions of this Agreement, except by a statement in writing signed by the party against whom enforcement of the waiver or estoppel is sought. Any written waiver shall not be deemed a continuing waiver unless specifically stated, shall operate only as to the specific term or condition waived, and shall not constitute a waiver of such term or condition for the future or as to any act other than that specifically waived.

 

9.9. Severability. To the extent any provision of this Agreement shall be invalid or unenforceable, it shall be considered deleted from this Agreement and the remainder of such provision and of this Agreement shall be unaffected and shall continue in full force and effect.

 

9.10. Survivability. Sections 6, 7, 8, and 9 of this Agreement shall survive the termination of this Agreement and the termination of Executive’s employment with the Company.

 

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

 

 

9.12. Notice. Notices and all other communications provided for in this Agreement shall be in writing and shall be delivered personally or sent by registered or certified mail, return receipt requested, or by reputable overnight carrier to the parties at the addresses set forth below (or such other addresses as specified by the parties by like notice):

 

If to the Company:

 

Vivakor, Inc.

James Ballengee

Chief Executive Officer

5220 Spring Valley Rd. 500

Dallas, TX 75242

Email: jballengee@vivakor.com

 

If to the Executive:

 

Tyler Nelson

 

with a copy to:

 

Dentons Durham Jones Pinegar
111 South Main, Ste 2400
Salt Lake City, Utah 84111
Attention: John Walch

Email: john.walch@dentons.com

 

 

IN WITNESS WHEREOF, the parties have executed this Executive Employment Agreement as of the day and year set forth above.

 

	“Company”:
	Vivakor, Inc., a Nevada corporation
	/s/ James Ballengee
	By:	James Ballengee
	Title:	Chief Executive Officer
	“Executive”:
	/s/ Tyler Nelson
	Tyler Nelson, an individual

 

 

EXHIBIT A

 

FORM OF RELEASE AGREEMENT

 

(see attached)

 

 

FORM OF

GENERAL RELEASE AND WAIVER

 

For and in consideration of the payments and benefits due to the undersigned under that certain Executive Employment Agreement dated June 13, 2024, executed by Vivakor, Inc. and Tyler Nelson (the “Employment Agreement”), and for other good and valuable consideration, the undersigned (the “Employee”) hereby agrees, for the Employee, the Employee’s spouse and child or children (if any), the Employee’s heirs, beneficiaries, devisees, executors, administrators, attorneys, personal representatives, successors and assigns, to forever release, discharge and covenant not to sue Vivakor, Inc., any of its subsidiaries, or any of their affiliates (collectively, the “Company”), or any of their predecessors, successors, or assigns, and, with respect to such entities, their officers, directors, trustees, employees, agents, administrators, representatives, attorneys, insurers and fiduciaries, past, present and future (the “Released Parties”) from any and all claims relating to the Employee’s employment or other service relationship with the Released Parties, including but not limited to any claims arising out of, or related to the Employee’s compensation as an employee or other service provider of or to the Released Parties, or the Employee’s separation from employment with the Released Parties, in each case which the Employee now has or may have against the Released Parties, whether known or unknown to the Employee, by reason of facts which have occurred on or prior to the date that the Employee has signed this Release. Such released claims include, without limitation, any and all claims under federal, state or local laws pertaining to employment, including, without limitation, the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et. seq., the Fair Labor Standards Act, as amended, 29 U.S.C. Section 201 et. seq., the Americans with Disabilities Act, as amended, 42 U.S.C. Section 12101 et. seq., the Reconstruction Era Civil Rights Act, as amended, 42 U.S.C. Section 1981 et. seq., the Rehabilitation Act of 1973, as amended, 29 U.S.C. Section 701 et. seq., the Family and Medical Leave Act of 1992, 29 U.S.C. Section 2601 et. seq., and any and all federal, state, foreign or local laws regarding employment discrimination or wage payment and/or federal, state, foreign or local laws of any type or description regarding employment.

 

The Employee has read this Release carefully, acknowledges that the Employee has been given at least forty-five (45) days to consider all of its terms and has been advised to consult with an attorney and any other advisors of the Employee’s choice prior to executing this Release, and the Employee fully understands that by signing below the Employee is voluntarily giving up rights which the Employee may have to sue or bring any other claims against the Released Parties, including rights and claims under the Age Discrimination in Employment Act. The Employee also understands that the Employee has a period of seven (7) days after signing this Release within which to revoke his or her agreement, and that neither the Company nor any other person is obligated to make the payments or provide the benefits under the Employment Agreement that are conditioned upon the execution and non-revocation of this Release until eight (8) days have passed since the Employee’s signing of this Release without the Employee’s signature having been revoked. Finally, the Employee has not been forced or pressured in any manner whatsoever to sign this Release, and the Employee agrees to all of its terms voluntarily.

 

 

Notwithstanding anything else herein to the contrary, this Release shall not: (i) affect any rights of the Employee to indemnification or liability insurance coverage the Employee may have under this Agreement or the by- laws (or similar governing documents) of any entity constituting the Company or applicable law, (ii) release any claim that cannot be released as a matter of applicable law, (iii) bar Employee’s right to file an administrative charge with the Equal Employment Opportunity Commission (EEOC) and/or to participate in an investigation by the EEOC, although this Release does bar Employee’s right to recover any personal relief if Employee or any person, organization, or entity asserts a charge on Employee’s behalf, including in a subsequent lawsuit or arbitration, (iv) release the Company’s legally binding obligations under the Employment Agreement, (v) claims to any benefit entitlements vested as the date of separation of Employee’s employment, including without limitation any worker’s compensation or unemployment claim, rights under any qualified retirement plan (including conversion rights) or to continuation of benefits under COBRA, or under the Settlement Agreement or (vi) release any of the Employee’s rights as a holder of vested equity securities or options or other rights in respect thereof.

 

The Employee has not been forced or pressured in any manner whatsoever to sign this Release, and the Employee agrees to all of its terms voluntarily. This Release shall be governed by Texas law, without regard to its rules regarding conflicts of laws.

 

	EMPLOYEE:
	[EXHIBIT ONLY—DO NOT EXECUTE]
	Tyler Nelson, individually

 

 

Exhibit 10.2

 

SETTLEMENT AGREEMENT

 

This Settlement Agreement (“Agreement”) is entered into effective this 8th day of June, 2024 by and between Vivakor, Inc., a Nevada corporation (“Vivakor”) and Tyler Nelson, an individual (“Nelson”). Vivakor and Nelson shall each be referred to as a “Party” and collectively as the “Parties.”

 

RECITALS

 

WHEREAS, the Parties entered into an Executive Employment Agreement dated June 9, 2022 (the “Employment Agreement”), under which Nelson is serving as Vivakor’s Chief Financial Officer;

 

WHEREAS, under the terms of the Employment Agreement, the term of Nelson’s employment was effective June 9, 2022 (the “Employment Effective Date”) and continued until the earlier of (i) two (2) years after the Employment Effective Date or (ii) the date the Employment Agreement is terminated upon written notice by either party as set forth in Section 5 (Termination) of the Employment Agreement;

 

WHEREAS, on March 7, 2024, Vivakor received a written notice from Nelson under Section 5.5 of the Employment Agreement, stating that Vivakor violated the Employment Agreement and gave Vivakor 30 days to cure the alleged violations;

 

WHEREAS, on March 8, 2024, Vivakor sent written notice to Nelson informing him that, as a result of Vivakor entering into a Merger Agreement (the “Merger Agreement”) with Empire Diversified Energy, Inc., a Delaware corporation (“Empire”), Vivakor would not be renewing the Employment Agreement when it terminated at the close of business on June 8, 2024, in order to allow Vivakor to have the flexibility necessary to comply with its obligations under the Merger Agreement;

 

WHEREAS, Vivakor and Nelson agreed in writing to extend both Nelson’s written 30-day to cure notice and the Term of the Employment Agreement through June 13, 2024;

 

WHEREAS, Vivakor and Nelson desire to come to an agreement regarding Nelson’s compensation owed to him under the Employment Agreement; and

 

WHEREAS, Company has presented Nelson with a new employment agreement (“New Agreement”);

 

NOW, THEREFORE, for good and adequate consideration, the receipt of which is hereby acknowledged, without admitting or denying any wrongdoing by any Party hereto, the Parties covenant, promise and agree as follows:

 

AGREEMENT

 

1. In order to effect the desires of the Parties related to terminating the Employment Agreement, the Parties agree as follows (the “Settlement”):

 

a. Vivakor will pay Nelson $1,167,750 in cash (the “Consideration”) in exchange for all accrued salary compensation and unpaid bonus compensation including unpaid interest, due under the Employment Agreement. The Consideration will be paid under the terms of a promissory note, in the form attached hereto as Exhibit A. The payment of the Consideration will fully compensate Nelson for all amounts due to him under the Employment Agreement through the end of the Term of the Employment Agreement, except amounts due to Nelson for accrued vacation pay under the Employment Agreement, which amounts will continue to accrue on Vivakor’s books until either paid to Nelson by Vivakor or used by Nelson in accordance with Vivakor’s vacation policy.

 

 

b. Documents evidencing Nelson’s 2022 stock options, in the form attached hereto as Exhibit B, to be issued to Mr. Nelson not later than the date of execution of this Agreement.

 

2. Vivakor hereby represents, warrants and agrees as follows:

 

a) Corporate Authority. Vivakor has the right, power, authority and capacity to execute and deliver this Agreement and each of the other transaction documents to which Vivakor is a party, to consummate the transactions contemplated by this Agreement and each of the other transaction documents to which Vivakor is a party, and to perform each of their obligations under this Agreement and each of the other transaction documents to which it is a party. Vivakor acknowledges and represents that, in executing this Agreement, it has not relied on any inducements, promises, or representations made by any Party or any party representing or serving such Party, unless expressly set forth herein.

 

b) Corporate Existence. Vivakor is a corporation duly organized, validly existing, and in good standing under the laws of the State of Nevada. Vivakor has all requisite power, franchises, licenses, permits, and authority to own its properties and assets and to carry on its business as it has been and continues to be conducted. Vivakor is in good standing in each state, nation, or other jurisdiction in each state, nation, or other jurisdiction wherein the character of the business transacted by it makes such qualification necessary.

 

3. Nelson hereby represents, warrants and agrees as follows:

 

a) Authority. Nelson has the right, power, authority and capacity to execute and deliver this Agreement and each of the other transaction documents to which Nelson is a party, to consummate the transactions contemplated by this Agreement and each of the other transaction documents to which Nelson is a party, and to perform each of his obligations under this Agreement and each of the other transaction documents to which he is a party. Nelson acknowledges and represents that, in executing this Agreement, he has not relied on any inducements, promises, or representations made by any Party or any party representing or serving such Party, unless expressly set forth herein.

 

4. Release of Claims by Nelson. For and in consideration of the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Nelson, on behalf of himself and his legal representatives, assigns, heirs, and beneficiaries, and any other person or party that could assert a claim through his or in any way derivative of his interests, does hereby fully, finally and completely release, acquit, hold harmless and forever discharge Vivakor, and its past, present, and future members, successors, parents, subsidiaries, affiliates, representatives, administrators, officers, directors, shareholders, partners, employees, agents, assigns and insurers (collectively, the “Vivakor Released Parties”) of and from any and all past, present and future rights, demands, claims, actions, suits and controversies, costs, sums of money, debts, obligations, contracts, agreements, judgments, and/or liabilities, damages and expenses, in contract or in tort, at law or in equity, including claims for breach of contract, sworn account, quantum meruit, attorneys’ fees, expert fees, indemnity and contribution, and any and all other claims for damages that Nelson has, may have or may claim to have arising out of or relating to that certain Employment Agreement, including claims for compensation or wages owed thereunder, or otherwise in any way relating to the Vivakor Released Parties (the “Nelson Claims”) including, but not limited to, all claims asserted or that could have been asserted in a lawsuit, administrative proceeding, or governmental proceeding of any kind or character. In connection with the Nelson Claims, Nelson acknowledges that additional facts may be discovered later, but that it is the intention of Nelson to fully, finally and forever settle and release all matters and claims, whether currently known or unknown against the Vivakor Released Parties. Nelson warrants and represents that he is voluntarily and of his own free will signing and entering into this Agreement for the purposes and consideration herein expressed.

 

 

Notwithstanding the terms of the above paragraph, Nelson does not release Vivakor from any obligations it may have with respect to any of the following: (i) Nelson’s rights under the Company’s 401(k) Plan; (ii) Nelson’s right to the continuation of insurance coverage under COBRA; (iii) Nelson’s right to apply for unemployment compensation benefits or worker’s compensation benefits; (iv) any continuation and/or conversion privileges available to former employees under the terms of the Company’s employee benefit plans and/or applicable law (which privileges must be exercised by Nelson, if at all, within the time period established by the benefit plans and/or applicable law); (v) any rights that cannot be released or waived under applicable law, and (vi) any rights or remedies which Nelson may have against the Company under the terms of this Agreement.

 

Nothing contained herein is intended to constitute or shall be construed as a waiver or release of Nelson’s right to participate in an investigation by the Equal Employment Opportunity Commission, the Securities and Exchange Commission or any other federal or state agency.

 

5. Each Party acknowledges and represents that, in executing this Agreement, such Party has not relied on any inducements, promises, or representations made by any Party or any party representing or serving such Party, unless expressly set forth herein or in the New Agreement.

 

6. This Agreement pertains to a settlement between the Parties and does not constitute an admission of liability by any Party for any purpose, except as otherwise provided herein.

 

7. This Agreement may not be amended, canceled, revoked or otherwise modified except by written agreement subscribed by all of the Parties to be charged with such modification.

 

8. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective partners, employees, agents, servants, heirs, administrators, executors, successors, representatives and assigns.

 

9. All notices, and other required or permitted communications shall be in writing, and shall be addressed as follows:

 

	If to Vivakor:		Vivakor, Inc. 5220 Spring Valley Road, Suite 500 Dallas, TX 75254 Attn. James Ballengee E-mail: jballengee@vivakor.com
	If to Nelson:		Tyler Nelson
	With a copy to (which shall not constitute notice):		Dentons Durham Jones Pinegar P.C 111 South Main Street, Suite 2400 Salt Lake City, UT 84111 Attn. John Walch Email: john.walch@dentons.com

 

 

All notices shall be given (a) by personal delivery to the party, (b) by facsimile, (c) by e-mail, or (d) by overnight or other express courier services. All notices shall be effective and shall be deemed given on the date of receipt at the principal address if received during normal business hours, and, if not received during normal business hours, on the next business day following receipt. Either Party may change its address by notice to the other Party.

 

10. In the event of any action, suit or other proceeding instituted to remedy, prevent or obtain relief from a breach of this Agreement, arising out of a breach of this Agreement, involving claims within the scope of the releases contained in this Agreement, or pertaining to a declaration of rights under this Agreement, the prevailing Party shall recover all of such Party’s attorneys’ fees and costs incurred in each and every such action, suit or other proceeding, including any and all appeals or petitions therefrom.

 

11. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of California including all matters of construction, validity, performance, and enforcement and without giving effect to the principles of conflict of laws. Venue for any action brought under this Agreement shall be in the appropriate court in Orange County, California

 

12. This Agreement sets forth the entire agreement and understanding of the Parties hereto regarding the Employment Agreement and supersedes any and all prior agreements, arrangements and understandings related to the subject matter hereof, except the New Agreement. No understanding, promise, inducement, statement of intention, representation, warranty, covenant or condition, written or oral, express or implied, whether by statute or otherwise, has been made by any party hereto which is not embodied in this Agreement, and no Party hereto shall be bound by or liable for any alleged understanding, promise, inducement, statement, representation, warranty, covenant or condition not so set forth.

 

13. Each Party has had the opportunity to have its legal counsel review this Agreement on its behalf. If an ambiguity or question of law or intent arises with respect to any provision of this Agreement, the Agreement will be construed as if drafted jointly by the Parties. The Parties expressly agree that the construction and interpretation of this Agreement shall not be strictly construed against the drafter.

 

 

[signature page follows]

 

 

IN WITNESS WHEREOF, the Parties hereto, agreeing to be bound hereby, execute this Agreement upon the date first set forth above.

 

“VIVAKOR”			“NELSON”
Vivakor, Inc.			Tyler Nelson
a Nevada corporation			an individual
/s/ James Ballengee			/s/ Tyler Nelson
By:	James Ballengee		Tyler Nelson
Its:	Chief Executive Officer

 

 

Exhibit A

 

Promissory Note

 

(see attached)

 

 

Exhibit B

 

Stock Option Award

 

(see attached)

 

 

Exhibit 10.3

 

PROMISSORY NOTE

 

1. For value received, Vivakor, Inc., a Nevada corporation, whose address is 5220 Spring Valley Road, Suite 500, Dallas, Texas 75254 (“Borrower”) on this day, June 13, 2024 (the “Effective Date”) does hereby promise to pay to the order of Tyler Nelson, an individual whose address is 26895 Aliso Creek Rd. B89, Aliso Viejo, California 92656 (“Lender”), at or at such other address as Lender shall from time to time specify in writing, in lawful money of the United States of America, the sum of One Million One Hundred Sixty Seven Thousand Seven Hundred Fifty and No/100s US Dollars ($1,167,750.00 USD) (the “Total Principal Amount”), advanced to Borrower and outstanding under this Promissory Note (this “Note”), together with interest from date hereof on the principal balance outstanding from time to time as hereinafter provided. Subject to Section 3 below, interest shall be computed at a fixed rate per annum equal to the lesser of (a) the Maximum Rate, defined below; or (b) eight percent (8%); and calculated on a per annum basis of a year of three hundred sixty (360) days and for the actual number of days elapsed, unless such calculation would result in a rate greater than the highest rate permitted by applicable law, in which case interest shall be computed on a per annum basis of a year of 365 days or 366 days in a leap year, as the case may be. The term “Maximum Rate”, as used herein, shall mean at the particular time in question the maximum rate of interest that may then be charged on this Note, under applicable law. If applicable law ceases to provide for such a maximum rate of interest, the Maximum Rate shall be equal to eighteen percent (18%) per annum.

 

2. Payment Terms. Interest on amounts outstanding hereunder shall accrue monthly from the Effective Date; and principal, interest and amounts outstanding hereunder shall be payable as follows (i) five percent (5%) of all funds received by the Borrower as a result of financing transactions, merger transactions, acquisition transactions, or sale of asset (including sale and leaseback) transactions that are completed after the Effective Date, except funds received from any loans by an officer or director of the Borrower, and (ii) all remaining amounts due in full on December 31, 2024 (the “Maturity Date”), which Maturity Date will be accelerated and all amounts payable hereunder shall become immediately due in the event Lender is no longer employed by Borrower as a result of death, Disability, a Termination Without Cause by the Borrower or a Resignation For Good Reason by the Lender under any applicable employment agreement. Unless otherwise agreed to in writing, or otherwise required by applicable law, payments will be applied first to unpaid accrued interest, then to principal, and any remaining amount to any unpaid collection costs, delinquency charges and other charges; provided, however, upon delinquency or other Event of Default, Lender reserves the right to apply payments among principal, interest, delinquency charges, collection costs and other charges, at its discretion.

 

3. Late Charge, Default Rate. If Borrower fails to timely tender and pay the amount due on the Maturity Date, or if Borrower otherwise fails to make any scheduled payment due hereunder more than five (5) days subsequent to its due date, Borrower will be charged, in addition to interest, a delinquency fee of five percent (5%) of the unpaid portion of the regularly scheduled payment. Additionally, upon maturity of this Note, if the outstanding principal balance plus all accrued but unpaid interest and late fees is not fully paid by the Maturity Date, or not otherwise fully paid by Borrower, Borrower will be charged a delinquency fee of five percent (5%) of the sum of the outstanding principal balance (plus all accrued but unpaid interest) and future interest will accrue at the Maximum Rate until such delinquent scheduled payment is paid in full. Borrower agrees with Lender that the charges set forth herein are reasonable compensation to Lender for the handling of such late payments.

 

4. Principal and Interest Payments. Interest shall be calculated at the per annum interest rate reflected in the preamble of this Note, compounded monthly, and the principal amount owed hereunder shall at all times be considered the total capitalized value owed to Lender. No law, foreign or domestic, shall be construed to impose a greater rate of interest than that specified in the preamble of this Note.

 

 

5. Use of Proceeds Default Payments and Rate. Upon an Event of Default, including failure to pay upon the Maturity Date, Lender, at its option, may also, if permitted under applicable law, do one or both of the following: (a) increase the interest rate otherwise provided herein to the Maximum Rate, and (b) add any unpaid accrued interest to principal and such sum will bear interest therefrom until paid at the rate provided in this Note (including the rate determined under “(a)” above).

 

6. Payment and Prepayment. Borrower may prepay, prior to maturity, all or any part of the principal of this Note in accordance with the terms and provisions hereof. All payments and prepayments of principal and interest shall be applied first to accrued interest and then to principal. Borrower will provide written notice to the holder of this Note of any such prepayment of all or any part of the principal at the time thereof. All payments and prepayments of principal or interest on this Note shall be made and tendered in lawful money of the United States of America in immediately available funds, at the address of Lender indicated above, or such other place as the holder of this Note shall designate in writing to Borrower. All partial prepayments of principal shall be applied to the last installments payable in their inverse order of maturity. The books and records of Borrower shall be prima facie evidence of all outstanding principal of and accrued and unpaid interest on this Note.

 

7. Default. It is expressly provided that upon the failure of Borrower to pay this Note or any part hereof, principal or interest, as the same shall become due and payable, the holder of this Note may, at its option, without further notice or demand, (i) declare the outstanding principal balance and accrued but unpaid interest and late fees on this Note at once due and payable, (ii) refuse to advance any additional amounts under this Note, (iii) pursue any and all other rights, remedies and recourses available to the holder hereof, at law or in equity, or (iv) pursue any combination of the foregoing; and in the event default is made in the prompt payment of this Note when due or declared due, and the same is placed in the hands of an attorney for collection, or suit is brought on same, or the same is collected through probate, bankruptcy or other judicial proceedings, then the Borrower agrees and promises to pay all costs of collection, including reasonable attorney’s fees. The failure to exercise the option to accelerate the maturity of this Note or any other right, remedy or recourse available to the holder hereof upon the occurrence of an Event of Default hereunder shall not constitute a waiver of the right of the holder of this Note to exercise the same at that time or at any subsequent time with respect to such Event of Default or any other Event of Default. The rights, remedies and recourses of the holder hereof, as provided in this Note, shall be cumulative and concurrent and may be pursued separately, successively or together as often as occasion therefore shall arise, at the sole discretion of the holder hereof. The acceptance by the holder hereof of any payment under this Note which is less than the payment in full of all amounts due and payable at the time of such payment shall not (i) constitute a waiver of or impair, reduce, release or extinguish any right, remedy or recourse of the holder hereof, or nullify any prior exercise of any such right, remedy or recourse, or (ii) impair, reduce, release or extinguish the obligations of any party liable as originally provided herein.

 

8. No Usury Intended; Usury Savings Clause. In no event shall interest contracted for, charged or received hereunder, plus any other charges in connection herewith which constitute interest, exceed the maximum interest permitted by applicable law. The amounts of such interest or other charges previously paid to the holder of the Note in excess of the amounts permitted by applicable law shall be applied by the holder of the Note to reduce the principal of the indebtedness evidenced by the Note, or, at the option of the holder of the Note, be refunded. To the extent permitted by applicable law, determination of the legal maximum amount of interest shall at all times be made by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the loan and indebtedness, all interest at any time contracted for, charged or received from the Borrower hereof in connection with the loan and indebtedness evidenced hereby, so that the actual rate of interest on account of such indebtedness is uniform throughout the term hereof.

 

 

9. Joint and Several Liability; Waiver. Each maker, signer, surety and endorser hereof, as well as all heirs, successors and legal representatives of said parties, shall be directly and primarily, jointly and severally, liable for the payment of all indebtedness hereunder. Lender may release or modify the obligations of any of the foregoing persons or entities, or guarantors hereof, in connection with this loan without affecting the obligations of the others. All such persons or entities expressly waive presentment and demand for payment, notice of default, notice of intent to accelerate maturity, notice of acceleration of maturity, protest, notice of protest, notice of dishonor, and all other notices and demands for which waiver is not prohibited by law, and diligence in the collection hereof; and agree to all renewals, extensions, indulgences, partial payments, or releases, with or without notice, before or after maturity. No delay or omission of Lender in exercising any right hereunder shall be a waiver of such right or any other right under this Note.

 

10. Waivers. Borrower and any and all endorsers and guarantors of this Note severally waive presentment for payment, notice of nonpayment, protest, demand, notice of protest, notice of intent to accelerate, notice of acceleration and dishonor, diligence in enforcement and indulgences of every kind and without further notice hereby agree to renewals, extensions, exchanges or releases of collateral, taking of additional collateral, indulgences or partial payments, either before or after maturity.

 

11. Texas Finance Code. In no event shall Chapter 346 of the Texas Finance Code apply to this Note. To the extent that Chapter 303 of the Texas Finance Code is applicable to this Note, the “weekly ceiling” specified in such article is the applicable ceiling; provided that, if any applicable law permits greater interest, the law permitting the greatest interest shall apply.

 

12. Governing Law and Venue. Borrower and Lender agree that the substantive laws of the State of Texas shall govern the validity, construction, enforcement and interpretation of this Note, without regard to its conflict of laws provisions. In the event of a dispute involving this Note, the undersigned irrevocably agrees that the sole and exclusive venue for such dispute shall lie in a court of competent jurisdiction in Dallas County, Texas.

 

13. Captions and Headings. The captions and paragraph headings in this Note are inserted for convenience only and are not to be used to limit the terms herein.

 

 

[The remainder of this page is intentionally blank.]

 

[Signature page to follow.]

 

 

WHEREFORE, premises considered, Borrower has executed this Note on the date set forth below, but to be effective as of the Effective Date.

 

	BORROWER:
	Vivakor, Inc.,
	a Nevada corporation
	By:	/s/ James Ballengee
	Name:	James Ballengee
	Title:	Chief Executive Officer
	Date:	June 13, 2024

 

 

Exhibit 10.4

 

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE, AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS IS NOT REQUIRED.

 

VIVAKOR, INC.

2021 Equity Incentive Plan

 

INCENTIVE STOCK OPTION AGREEMENT

 

Vivakor, Inc. (the “Company”), hereby grants an Option to purchase shares of its common stock (“Shares”) to the Optionee named below. The terms and conditions of the Option are set forth in this cover sheet, in the attachment and in the Company’s 2021 Equity Incentive Plan (the “Plan”).

 

Date of Grant:		June 9, 2022*
Name of Optionee:		Tyler Nelson
Optionee’s Social Security Number:
Number of Shares Covered by Option:		917,825
Exercise Price per Share:		$1.80
[must be at least 100% fair market value on Date of Grant]
Vesting Start Date:		June 9, 2022

 

____

Check here if Optionee is a 10% owner (so that exercise price must be 110% of fair market value).

 

By signing this cover sheet, you agree to all of the terms and conditions described in the attached Agreement and in the Plan, a copy of which is also attached.

 

Date:	June 13, 2024
Optionee:	/s/ Tyler Nelson
	(Signature)
Company:	/s/ James Ballengee
	(Signature)
Title:	Chief Executive Officer

 

*

The stock options granted hereunder were issued under the Employment Agreement with Tyler Nelson dated June 9, 2022 and the issuance of the stock options was approved by the Company’s Board of Directors on the Date of Grant listed.

 

 

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE, AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS IS NOT REQUIRED.

 

VIVAKOR, INC.

2021 Equity Incentive Plan

 

INCENTIVE STOCK OPTION AGREEMENT

 

Incentive Stock Option		This Option is intended to be an incentive stock option under section 422 of the Internal Revenue Code and will be interpreted accordingly. Any provision of this Agreement or the Plan which conflicts with the Code so that this Option would not be deemed an ISO is null and void and any ambiguities shall be resolved so that the Option qualifies as an ISO. Nonetheless, if the Option is determined not to be an ISO, the Optionee understands that neither the Company nor any Affiliate is responsible to compensate him or her or otherwise make up for the treatment of the Option as a Non-Qualified Option and not as an ISO. The Optionee should consult with the Employee’s own tax advisors regarding the tax effects of the Option and the requirements necessary to obtain favorable tax treatment under Section 422 of the Code, including, but not limited to, holding period requirements. If Optionee sells or otherwise disposes of Shares acquired upon exercise of this Option within one year from the date such Shares were acquired or within two years from the Date of Grant, such shares will not be treated as ISO shares by the Internal Revenue Service and Optionee agrees to deliver a written report to the Company within ten (10) days following the sale or other disposition of such Shares detailing the net proceeds of such sale or disposition.
Vesting		Your Option shall vest as follows: (i) 360,145 shares immediately, (ii) 219,312 shares three (3) months after the Date of Grant, (iii) 48,338 shares for each of the following six (6) quarters, and (iv) 48,340 shares on the eight (8) quarter after the Date of Grant so long as you are in continuous Service Relationship with the Company. Your Option shall also fully vest upon your termination of employment for “good reason” as defined in your employment agreement. No additional Shares will vest after your Service has terminated for any reason.   You should note that you may not exercise the Option prior to vesting.
Term		Your Option will expire in any event at the close of business at Company headquarters on the day before the ten years (10th) anniversary of the Date of Grant, as shown on the cover sheet. (It will expire earlier if your Service terminates, as described below.)

 

 

No Obligation to Employ		The Company is not by the Plan or this Option obligated to continue the Optionee as an employee of the Company or an Affiliate. The Optionee acknowledges: (i) that the Plan is discretionary in nature and may be suspended or terminated by the Company at any time; (ii) that the grant of the Option is a one-time benefit which does not create any contractual or other right to receive future grants of options, or benefits in lieu of options; (iii) that all determinations with respect to any such future grants, including, but not limited to, the times when options shall be granted, the number of shares subject to each option, the option price, and the time or times when each option shall be exercisable, will be at the sole discretion of the Company; (iv) that the Optionee’s participation in the Plan is voluntary; (v) that the value of the Option is an extraordinary item of compensation which is outside the scope of the Optionee’s employment contract, if any; and (vi) that the Option is not part of normal or expected compensation for purposes of calculating any severance, resignation, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments.
Termination		If your Service terminates for any reason, your Option will expire at the close of business at Company headquarters on the third anniversary of your termination date. During that three-year period, you may exercise that portion of your Option that was vested on your termination date. However, your Option will only be eligible for ISO tax treatment if it is exercised within three (3) months following your termination date.
Leaves of Absence		For purposes of this Option, your Service does not terminate when you go on a bona fide leave of absence that was approved by the Company in writing, if the terms of the leave provide for continued service crediting, or when continued service crediting is required by applicable law. However, your Service will be treated as terminating thirty (30) days after you went on leave, unless your right to return to active work is guaranteed by law or by a contract. Your Service terminates in any event when the approved leave ends unless you immediately return to active work. The Company determines which leaves count for this purpose, and when your Service terminates for all purposes under the Plan. The Company also determines the extent to which you may exercise the vested portion of your Option during a leave of absence.

 

 

Notice of Exercise		When you wish to exercise this Option, you must execute Exhibit A. Your exercise will be effective when it is received by the Company. If someone else wants to exercise this Option after your death, that person must prove to the Company’s satisfaction that he or she is entitled to do so.
Form of Payment		When you submit Exhibit A, you must include payment of the Exercise Price for the Shares you are purchasing. Payment may be made in one (or a combination) of the following forms:
		●	Your personal check, a cashier’s check or a money order.
		●	Pursuant to a “cashless exercise” program developed under Regulation T as promulgated by the Federal Reserve Board that, prior to the issuance of the Common Stock subject to the Option, results in either the receipt of cash (or check) by the Company or the receipt of irrevocable instructions to pay the exercise price to the Company from the sales proceeds.
		●	By delivery to the Company (either by actual delivery or attestation) of shares of Common Stock that are already owned by the Optionee free and clear of any liens, claims, encumbrances or security interests, with a Fair Market Value on the date of exercise that does not exceed the exercise price, provided that (A) at the time of exercise the Common Stock is publicly traded, (B) any remaining balance of the exercise price not satisfied by such delivery is paid by the Participant in cash or other permitted form of payment, (C) such delivery would not violate any Applicable Law or agreement restricting the redemption of the Common Stock, (D) any certificated shares are endorsed or accompanied by an executed assignment separate from certificate, and (E) such shares have been held by the Optionee for any minimum period necessary to avoid adverse accounting treatment as a result of such delivery.
		●	Any other form of legal consideration approved by the Committee and permissible under applicable law.
Withholding Taxes		You will not be allowed to exercise this Option unless you make acceptable arrangements to pay any withholding or other taxes that may be due as a result of the Option exercise or the sale of Shares acquired upon exercise of this Option.
Restrictions on Resale		By signing this Agreement, you agree not to exercise this Option or sell any Shares acquired upon exercise of this Option at a time when applicable laws, regulations or Company or underwriter trading policies prohibit exercise or sale. Such limitation on exercise shall not alter the vesting schedule set forth in this Agreement other than to limit the periods during which this Option shall be exercisable.

 

 

		Furthermore, in respect of any underwritten public offering by the Company, you agree that you will not sell or otherwise transfer or dispose of any Shares covered by this Option during a reasonable and customary period of time as agreed to by the Company and the underwriters, not to exceed the greater of (a) one hundred eighty (180) days following the effective date of the registration statement of the Company filed under the Securities Act in respect of such offering and (b) such other period of time as agreed to by holders of a majority of the then outstanding Shares. By signing this Agreement you agree to execute and deliver such other agreements as may be reasonably requested by the Company or the underwriter which are consistent with the foregoing or which are necessary to give further effect thereto. The Company may impose stop-transfer instructions with respect to the Shares subject to the foregoing restriction until the end of such period. If the sale of Shares under the Plan is not registered under the Securities Act of 1933, as amended (the “Securities Act”), but an exemption is available which requires an investment or other representation, you shall represent and agree at the time of exercise that the Shares being acquired upon exercise of this Option are being acquired for investment, and not with a view to the sale or distribution thereof, and shall make such other representations as are deemed necessary or appropriate by the Company and its counsel.
Transfer of Option		Prior to your death, only you may exercise this Option. You cannot transfer or assign this Option. For instance, you may not sell this Option or use it as security for a loan. If you attempt to do any of these things, this Option will immediately become invalid. You may, however, dispose of this Option in your will.
		Regardless of any marital property settlement agreement, the Company is not obligated to honor a Notice of Exercise from your spouse or former spouse, nor is the Company obligated to recognize such individual’s interest in your Option in any other way.
Retention Rights		This Agreement does not give you the right to be retained by the Company in any capacity. The Company reserves the right to terminate your Service at any time and for any reason.
Shareholder Rights		Neither you, nor your estate or heirs, have any rights as a shareholder of the Company until a certificate for the Shares acquired upon exercise of this Option has been issued. No adjustments are made for dividends or other rights if the applicable record date occurs before your stock certificate is issued, except as described in the Plan.
Adjustments		In the event of a stock split, a stock dividend or a similar change in the Company’s Stock, the number of Shares covered by this Option and the Exercise Price per share may be adjusted pursuant to the Plan. Your Option shall be subject to the terms of the agreement of merger, liquidation or reorganization in the event the Company is subject to such corporate activity.

 

 

Legends		All certificates representing the Shares issued upon exercise of this Option shall, where applicable, have endorsed thereon the following legends:
		“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, OR THE SECURITIES LAWS OF ANY STATE, AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT REGISTRATION AND QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS IS NOT REQUIRED.”
Applicable Law		This Agreement will be interpreted and enforced under the laws of the State of Nevada (without regard to their choice of law provisions).
The Plan and Other Agreements		The text of the Plan is incorporated in this Agreement by reference. Certain capitalized terms used in this Agreement are defined in the Plan.   This Agreement, including its attachments, and the Plan constitute the entire understanding between you and the Company regarding this Option. Any prior agreements, commitments or negotiations concerning this Option are superseded.

 

 

By signing the cover sheet of this Agreement, you agree to all of the terms and conditions described above and in the Plan. You also acknowledge that you have read Section 3, “Purchaser’s Investment Representations” of Exhibit A and that you can and hereby do make the same representations with respect to the grant of this Option.

 

 

EXHIBIT A

 

VIVAKOR, INC.

 

Notice of Exercise and Common Stock Purchase Agreement

 

THIS AGREEMENT is dated as of ___________, ____, between Vivakor, Inc., a Delaware corporation (the “Company”), and _________________ (“Purchaser”).

 

W I T N E S S E T H:

 

WHEREAS, the Company and Purchaser are parties to that certain ___ Incentive ___ Nonstatutory Stock Option Agreement dated as of ___________, ____ (the “Option Agreement”) pursuant to which the Purchaser has the right to purchase up to ___________________ shares of the Company’s common stock (the “Option Shares”); and

 

WHEREAS, the Option is exercisable with respect to certain of the Option Shares as of the date hereof; and

 

WHEREAS, pursuant to the Option Agreement, Purchaser desires to purchase shares of the Company as herein described, on the terms and conditions set forth in this Agreement, the Option Agreement and the Vivakor, Inc. 2021 Equity Incentive Plan (the “Plan”). Certain capitalized terms used in this Agreement are defined in the Plan.

 

NOW, THEREFORE, it is agreed between the parties as follows:

 

SECTION 1: PURCHASE OF SHARES.

 

(a) Pursuant to the terms of the Option Agreement, Purchaser hereby agrees to purchase from the Company and the Company agrees to sell and issue to Purchaser ________________ shares of the Company’s common stock (the “Stock”) for the Exercise Price per share specified in the Option Agreement payable by personal check, cashier’s check or money order, if permitted by the Option Agreement, as follows: _______________________________. Payment shall be delivered at the Closing, as such term is hereinafter defined.

 

(b) The closing hereunder (the “Closing”) shall occur at the offices of the Company on __________, ____, or such other time and place as may be designated by the Company (the “Closing Date”).

 

SECTION 2: LEGEND OF SHARES.

 

All certificates representing the Stock purchased under this Agreement shall, where applicable, have endorsed thereon the legends set forth in the Option Agreement and any other legends required by applicable securities laws.

 

 

SECTION 3: PURCHASER’S INVESTMENT REPRESENTATIONS.

 

(a) This Agreement is made with Purchaser in reliance upon Purchaser’s representation to the Company, which by Purchaser’s acceptance hereof Purchaser confirms, that the Stock which Purchaser will receive will be acquired with Purchaser’s own funds for investment for an indefinite period for Purchaser’s own account, not as a nominee or agent, and not with a view to the sale or distribution of any part thereof, and that Purchaser has no present intention of selling, granting participation in, or otherwise distributing the same, but subject, nevertheless, to any requirement of law that the disposition of Purchaser’s property shall at all times be within Purchaser’s control. By executing this Agreement, Purchaser further represents that Purchaser does not have any contract, understanding or agreement with any person to sell, transfer, or grant participation, to such person or to any third person, with respect to any of the Stock.

 

(b) Purchaser understands that the Stock will not be registered or qualified under federal or state securities laws on the ground that the sale provided for in this Agreement is exempt from registration or qualification under federal or state securities laws and that the Company’s reliance on such exemption is predicated on Purchaser’s representations set forth herein.

 

(c) Purchaser agrees that in no event will Purchaser make a disposition of any of the Stock, unless and until Purchaser shall have furnished the Company with an opinion of counsel satisfactory to the Company to the effect that (A) such disposition will not require registration or qualification of such Stock under federal or state securities laws or (B) appropriate action necessary for compliance with the federal or state securities laws has been taken.

 

(d) With respect to a transaction occurring prior to such date as the Plan and Stock thereunder are covered by a valid Form S-8 or similar federal registration statement, this subsection shall apply unless the transaction is covered by the exemption in Delaware Corporate Law or a similar broad based exemption. In connection with the investment representations made herein, Purchaser represents that Purchaser is able to fend for himself or herself in the transactions contemplated by this Agreement, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of Purchaser’s investment, has the ability to bear the economic risks of Purchaser’s investment and has been furnished with and has had access to such information as would be made available in the form of a registration statement together with such additional information as is necessary to verify the accuracy of the information supplied and to have all questions answered by the Company.

 

(e) Purchaser understands that if the Company does not register with the Securities and Exchange Commission pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or if a registration statement covering the Stock (or a filing pursuant to the exemption from registration under Regulation A of the Securities Act of 1933) under the Securities Act of 1933 is not in effect when Purchaser desires to sell the Stock, Purchaser may be required to hold the Stock for an indeterminate period. Purchaser also acknowledges that Purchaser understands that any sale of the Stock which might be made by Purchaser in reliance upon Rule 144 under the Securities Act of 1933 may be made only in limited amounts in accordance with the terms and conditions of that Rule.

 

SECTION 4: ASSISTANCE TO PURCHASER UNDER RULE 144.

 

The Company covenants and agrees that (a) at all times after it first becomes subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, it will use its best efforts to comply with the current public information requirements of Rule 144(c)(1) under the Securities Act of 1933, and that if prior to becoming subject to such reporting requirements an over-the-counter market develops for the Stock, it will make publicly available the information required by Rule 144(c)(2); (b) it will furnish Purchaser, upon request, with all information required for the preparation and filing of Form 144; and (c) it will on a timely basis use its best efforts to file all reports required to be filed and make all disclosures, including disclosures of materially adverse information, required to permit Purchaser to make the required representations in Form 144.

 

 

SECTION 5: NO DUTY TO TRANSFER IN VIOLATION HEREUNDER.

 

The Company shall not be required (a) to transfer on its books any shares of Stock of the Company which shall have been sold or transferred in violation of any of the provisions set forth in this Agreement or (b) to treat as owner of such shares or to accord the right to vote as such owner or to pay dividends to any transferee to whom such shares shall have been so transferred.

 

SECTION 6: RIGHTS OF PURCHASER.

 

Except as otherwise provided herein, Purchaser shall, during the term of this Agreement, exercise all rights and privileges of a stockholder of the Company with respect to the Stock.

 

SECTION 7: OTHER NECESSARY ACTIONS.

 

The parties agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement.

 

SECTION 8: NOTICE.

 

Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon the earliest of personal delivery, receipt or the third full day following deposit in the United States Post Office with postage and fees prepaid, addressed to the other party hereto at the address last known or at such other address as such party may designate by ten (10) days’ advance written notice to the other party hereto.

 

SECTION 9: SUCCESSORS AND ASSIGNS.

 

This Agreement shall inure to the benefit of the successors and assigns of the Company and, subject to the restrictions on transfer herein set forth, be binding upon Purchaser and Purchaser’s heirs, executors, administrators, successors and assigns.

 

SECTION 10: APPLICABLE LAW.

 

This Agreement shall be governed by, and construed in accordance with, the laws of the State of Nevada, as such laws are applied to contracts entered into and performed in such state.

 

SECTION 11: NO STATE QUALIFICATION.

 

THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATES OF NEVADA AND THE ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE QUALIFICATION. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.

 

 

SECTION 12: NO ORAL MODIFICATION.

 

No modification of this Agreement shall be valid unless made in writing and signed by the parties hereto.

 

SECTION 13: ENTIRE AGREEMENT.

 

This Agreement and the Option Agreement constitute the entire complete and final agreement between the parties hereto with regard to the subject matter hereof.

 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

 

Vivakor, Inc.,			Purchaser
By:
Its:

 

v3.24.1.1.u2

Cover	Jun. 13, 2024
Cover [Abstract]
Document Type	8-K/A
Amendment Flag	true
Amendment Description	On June 14, 2024, Vivakor, Inc. (the “Company”) filed a current report on Form 8-K (the “Original 8-K”) to disclose its entry into an employment agreement and related agreements with the Chief Financial Officer of the Company. The Original 8-K inadvertently listed the Date of Report (date of earliest event reported) on the cover page as June 8, 2024. The correct date should have been June 13, 2024. This Amendment No. 1 on Form 8-K/A (this “Amendment”) is being filed to correct the scrivener’s error regarding the date of the earliest event reported. There are no other changes.
Document Period End Date	Jun. 13, 2024
Entity File Number	001-41286
Entity Registrant Name	VIVAKOR, INC.
Entity Central Index Key	0001450704
Entity Tax Identification Number	26-2178141
Entity Incorporation, State or Country Code	NV
Entity Address, Address Line One	5220 Spring Valley Rd.
Entity Address, Address Line Two	Suite 500
Entity Address, City or Town	Dallas
Entity Address, State or Province	TX
Entity Address, Postal Zip Code	75254
City Area Code	(949)
Local Phone Number	281-2606
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock
Trading Symbol	VIVK
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	true
Elected Not To Use the Extended Transition Period	false

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