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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 26, 2024
VIVAKOR, INC.
(Exact name of registrant as specified in its charter)
Nevada |
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001-41286 |
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26-2178141 |
(State or other jurisdiction of |
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(Commission |
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(IRS Employer |
incorporation or organization) |
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File Number) |
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Identification No.) |
5220 Spring Valley Road, Suite 500
Dallas, TX 75254
(Address of principal executive offices)
(949) 281-2606
(Registrant’s telephone number, including area code)
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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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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 |
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Trading Symbol(s) |
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Name of each exchange on which registered |
Common Stock |
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VIVK |
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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.
Item 1.01. |
Entry into a Material Definitive Agreement. |
Entry into Equity Line of Credit
One July 26, 2024, the Company entered into that certain Strata Purchase Agreement with ClearThink Capital Partners, LLC (the "ClearThink ELOC" and "ClearThink", respectively), pursuant to which ClearThink agreed to purchase a number of shares of common stock in tranches as directed by the Company, up to $5,000,000 worth of common stock. Each tranche request is limited to the lesser of $1,000,000 or 500% of the daily average shares traded value for the 10 days prior to the date of any Company request to purchase. The minimum purchase notice allowable is $25,000, and there must be a minimum of 10 trading days between purchase notices unless the parties mutually agree otherwise. The Company cannot issue a purchase notice if it would cause ClearThink to own more than 9.99% of the Company’s outstanding common stock. The Company also executed a registration rights agreement and stock purchase agreement with ClearThink under the terms of the ClearThink ELOC, forms of which are filed as Exhibits 10.2 and 10.3 hereto, respectively,
which are incorporated by reference into this Item 1.01.
Sale of Unregistered Equity Securities
On
July 26, 2024, the Company entered into a Securities Purchase Agreement with James K. Granger (the "SPA" and "Granger",
respectively), under which Granger, or an entity he controls, purchased 1,600,000 common shares of the Company’s stock for
$800,000, at a price of $0.50 per common share. Pursuant to the SPA, the shares issued to Granger will be subject to Rule 144
restrictions. Granger funded the purchase price in cash to the Company on July 31, 2024.
This summary is not a complete description of all of the terms of the ClearThink ELOC or the SPA, and is qualified in its entirety by reference to the full text of the ClearThink ELOC and the SPA, forms of which are filed as Exhibit 10.1 and 10.4 hereto, respectively, which are incorporated by reference into this Item 1.01.
Item 2.03. |
Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant. |
To the extent required by this Item 2.03, the information contained in Item 1.01 is incorporated herein by reference.
Item 3.02. |
Unregistered Sales of Equity Securities. |
To the extent required by this Item 3.02, the information contained in Item 1.01 is incorporated herein by reference. The Company relied on the exemption provided for under Section 4(a)(2) for the issuance of common shares pursuant to the ClearThink ELOC and the SPA, and the upfront shares of restricted shares of its common stock issued thereunder are accredited investors and familiar with the Company’s operations.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits.
Exhibit
No. |
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Description |
10.1 |
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Strata Purchase Agreement dated July 26, 2024, by and between ClearThink Capital Partners, LLC, as Investor, and the Company |
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10.2 |
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Registration Rights Agreement dated July 31, 2024, by and between ClearThink Capital Partners, LLC, as Investor, and the Company |
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10.3 |
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Stock Purchase Agreement dated July 31, 2024, by and between ClearThink Capital Partners, LLC, as Investor, and the Company |
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10.4 |
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Securities Purchase Agreement dated July 26, 2024, by and between the Company and James K. Granger, as Buyer |
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.
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VIVAKOR, INC. |
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Dated: August 1, 2024 |
By: |
/s/ James Ballengee |
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Name: |
James Ballengee |
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Title: |
Chief Executive Officer |
Exhibit 10.1
Execution Copy
STRATA
PURCHASE AGREEMENT
THIS
STRATA PURCHASE AGREEMENT (the “Agreement”), dated as of July 26, 2024, by and between VIVAKOR, INC.,
a Nevada corporation (the “Company”), and CLEARTHINK CAPITAL PARTNERS, LLC, a Delaware limited
liability company (the “Investor”).
WHEREAS:
Subject
to the terms, conditions and limitations on the number of shares which may be sold set forth in this Agreement, the Company wishes
to sell to the Investor, and the Investor wishes to purchase from the Company, up to Five Million Dollars ($5,000,000) of the Company’s
common stock, par value $0.001 per share (the “Common Stock”). The shares of Common Stock to be purchased hereunder
are referred to herein as the “Purchase Shares.”
NOW
THEREFORE, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the Company and the Investor hereby agree as follows:
For
purposes of this Agreement, the following terms shall have the following meanings:
(a) “Average
Price” means a price per Purchase Share (rounded to the nearest tenth of a cent) equal to the quotient obtained by dividing
(i) the aggregate gross purchase price paid by the Investor for all Purchase Shares purchased pursuant to this Agreement, by (ii)
the aggregate number of Purchase Shares issued pursuant to this Agreement.
(b) “Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
(c) “Business
Day” means any day on which the Principal Market is open for trading, including any day on which the Principal Market
is open for trading for a period of time less than the customary time.
(d) “Closing
Sale Price” means, for any security as of any date, the last closing sale price for such security on the Principal Market
as reported by the Principal Market.
(e) “Closings”
shall occur upon the settlement of the trades of the Purchase Share Amount associated with a Request (or sooner as directed by
the Investor).
(f) “Commitment
Amount” means, initially, Five Million Dollars ($5,000,000) in the aggregate, which amount shall be reduced by the amount
paid by the Investor each time the Investor purchases shares of Common Stock pursuant to Section 2 hereof.
(g) “Commitment
Fee” means the 150,000 restricted shares of Common Stock (the “Commitment Shares”) issued to Investor in
connection with the entry into the Agreement.
(h) “Concurrent
Purchase Agreement” means the Securities Purchase Agreement being entered into between the Investor and the Company with
respect to the sale of $250,000 of Restricted Common Shares of the Company.
(i) “Confidential
Information” means any information disclosed by either party to the other party or any of their respective affiliates,
either directly or indirectly, electronically, in writing, orally or by inspection of tangible objects (including, without limitation,
documents, prototypes, samples, plant and equipment), regardless of whether or not such information, documentation or data is marked
or otherwise identified as “confidential”, “proprietary” or a similar designation. Confidential Information
will also include information disclosed to a disclosing party by third parties where such parties have an obligation of confidentiality
with respect to such information. Confidential Information shall not, however, include any information which (i) was publicly known
and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly
known and made generally available after disclosure by the disclosing party to the receiving party other than as a result of a
disclosure in violation of this Agreement; (iii) is already in the possession of the receiving party without confidential restriction
at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to
the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s
obligations of confidentiality; (v) is independently developed by the receiving party without use of or reference to the disclosing
party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession;
or (vi) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party
prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information
from public disclosure.
(j) “Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
(k) “DTC”
means The Depository Trust Company, or any successor performing substantially the same function for the Company.
(l) “DWAC
Shares” means shares of Common Stock that are (i) issued in electronic form, (ii) freely tradable and transferable and
without restriction on resale and (iii) timely credited by the Company to the Investor’s or its designee’s specified
Deposit/Withdrawal at Custodian (DWAC) account with DTC under its Fast Automated Securities Transfer (FAST) Program, or any similar
program hereafter adopted by DTC performing substantially the same function.
(m) “Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
(n) “Fully
Adjusted Regular Purchase Share Limit” means, with respect to any reorganization, recapitalization, non-cash dividend,
stock split or other similar transaction from and after the date of this Agreement, the Purchase Share Limit (as defined in Section 2(a)
hereof) in effect on the applicable date of determination, after giving effect to the full proportionate adjustment thereto
made pursuant to Section 2(a) hereof for or in respect of such reorganization, recapitalization, non-cash dividend,
stock split or other similar transaction.
(o) “Material
Adverse Effect” means any material adverse effect on the business, operations, assets, financial condition or prospects
of the Company or its Subsidiaries, if any, taken as a whole, or on the ability to consummate the transactions contemplated hereby
or by the agreements or instruments to be entered into in connection herewith, provided, however, that "Material
Adverse Effect" shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable
to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which the Company operates;
(iii) any changes in financial or securities markets in general; (iv) any action required or permitted by this Agreement; (vi)
any changes in applicable laws or accounting policies; or (vii) the public announcement, pendency or completion of the transactions
contemplated by this Agreement by the agreements or instruments to be entered into in connection herewith.
(p) “Maturity
Date” means the first day of the month immediately following the six (6) month anniversary of the Commencement Date.
(q) “Person”
means an individual or entity including but not limited to any limited liability company, a partnership, a joint venture, a corporation,
a trust, an unincorporated organization and a government or any department or agency thereof.
(r) “Principal
Market” means The Nasdaq. (or any nationally recognized successor thereto); provided, however, that in the event the
Company’s Common Stock is ever listed or traded on The Nasdaq Global Market, The Nasdaq Global Select Market, the New York
Stock Exchange, the NYSE American, the NYSE Arca, the OTC Bulletin Board, the OTCQX operated by the OTC Markets Group, Inc. or
the OTCQB operated by the OTC Markets Group, Inc. (or any nationally recognized successor to any of the foregoing), then the “Principal
Market” shall mean such other market or exchange on which the Company’s Common Stock is then listed or traded.
(s) “Purchase
Date” means, with respect to any purchase made pursuant to Section 2(a) hereof, the Business Day on which
the Investor receives by 6:00 p.m., Eastern time, of such Business Day a valid Request Notice that the Investor is to purchase
such applicable number of Purchase Shares pursuant to Section 2(a) hereof.
(t) “Purchase
Price”, with respect to any purchase made pursuant to Section 2(a) hereof, the price per share of
Common Stock purchased shall equal 100% of the average of the two (2) lowest daily VWAP during the Valuation Period (in each case,
to be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction
that occurs on or after the date of this Agreement).
(u) “Purchase
Share Amount” means the number of shares of Common Stock the Company is requiring the Investor to purchase.
(v) “Request”
means the Company may draw upon the Commitment Amount periodically during the Term by the Company’s delivery to the Investor
of a written Purchase Notice requiring the Investor to purchase a number of shares of Common Stock.
(w) “Request
Limits” means the number of shares of Common Stock the Company is requiring the Investor to purchase to be limited to
the lesser of $1,000,000 or 500% of the average number of shares traded for the 10 trading days prior to the Closing Request Date.
No Purchase Notices are allowed until the shares have been registered. Minimum Purchase Notice allowable is $25,000. Purchase Notices
must be at least 10 Business Days apart. In no event may the shares issuable pursuant to a Purchase Notice, when aggregated with
the shares then held by the Investor on the date of the Purchase Notice, exceed 9.99% of the Company’s outstanding Common
Stock. Request Limits are further limited by the provisions of Section 2 (c) hereof.
(x) “Request
Notice” means, with respect to any Request made pursuant to Section 2(b) hereof, an irrevocable written notice
from the Company to the Investor directing the Investor to purchase a specified number of shares of Common Stock on the applicable
Purchase Date pursuant to Section 2(b) hereof at the applicable Purchase Price.
(y) “Sale
Price” means any trade price for the shares of Common Stock on the Principal Market as reported by the Principal Market.
(z) “SEC”
means the U.S. Securities and Exchange Commission.
(aa) “Securities”
means, collectively, the Purchase Shares and the Commitment Shares
(bb) “Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
(cc) “Subsidiary”
means any Person the Company wholly-owns or controls, or in which the Company, directly or indirectly, owns a majority of the voting
stock or similar voting interest, in each case that would be disclosable pursuant to Item 601(b)(21) of Regulation S-K promulgated
under the Securities Act.
(dd) “Tranche
Shares” means in consideration for each Purchase Notice and upon Closings of such Purchase Notices, the Company will
issue the Investor additional shares of restricted common stock with no registration rights. Each Tranche Share issuance will be
calculated by 10% of each Purchase Notice dollar amount divided by the Purchase Price.
(ee) “Transaction
Documents” means, collectively, this Agreement and the exhibits hereto, the Registration Rights Agreement and the schedules
and exhibits thereto, and each of the other agreements, documents, certificates and instruments entered into or furnished by the
parties hereto in connection with the transactions contemplated hereby and thereby.
(ff) “Transfer
Agent” means Empire Stock Transfer or such other Person who is then serving as the transfer agent for the Company in
respect of the Common Stock.
(gg) “Valuation
Period” means five (5) Business Days preceding the Purchase Date with respect to a Request Notice.
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2. |
PURCHASE
OF COMMON STOCK. |
Subject
to the terms and conditions set forth in this Agreement, the Company has the right to sell to the Investor, and the Investor has
the obligation to purchase from the Company, Purchase Shares as follows:
(a) Commencement
of Sales of Common Stock. Upon the satisfaction of the conditions set forth in Sections 7 and 8 hereof (the
“Commencement” and the date of satisfaction of such conditions the “Commencement Date”) and
thereafter, the Company shall have the right, but not the obligation, to direct the Investor, by its delivery to the Investor of
a Request Notice from time to time, to purchase shares of Common Stock (“Purchase Shares”), subject to adjustment as
set forth below in this Section 2(a), up to the Request Limit, at the Purchase Price on the Purchase Date. If the Company
delivers any Request Notice for a Purchase Share Amount in excess of the Request Limits, such Request Notice shall be void ab
initio to the extent of the number by which the number of Purchase Shares set forth in such Request Notice exceeds the number
of Purchase Shares which the Company is permitted to include in such Request Notice in accordance herewith, and the Investor shall
have no obligation to purchase such excess Purchase Shares in respect of such Request Notice; provided that the Investor shall
remain obligated to purchase the number of Purchase Shares which the Company is permitted to include in such Request Notice. The
Company may deliver Request Notices to the Investor as often as every Business Day, so long as the Company has not failed to deliver
Purchase Shares for all prior Purchase Share Amounts, including, without limitation, those that have been effected on the same
Business Day as the applicable Purchase Date, have theretofore been received by the Investor as DWAC Shares in accordance with
this Agreement.
(b) Payment
for Purchase Shares. For each Purchase, the Investor shall pay to the Company an amount equal to the product of the Purchase
Shares Amount and the Purchase Price with respect to such Purchase as full payment for such Purchase Shares via wire transfer of
immediately available funds on the Business Day that the Investor receives settlement of the trades of such Purchase Shares, expected
to be [__] Business Days (the “Closing Request Date”), but in no event later than seven trading days after the date
of the Purchase Notice. All payments made under this Agreement shall be made in lawful money of the United States of America or
wire transfer of immediately available funds to such account as the Company may from time to time designate by written notice in
accordance with the provisions of this Agreement. Whenever any amount expressed to be due by the terms of this Agreement is due
on any day that is not a Business Day, the same shall instead be due on the next succeeding day that is a Business Day.
(c) Beneficial
Ownership Limitation. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not issue or
sell, and the Investor shall not purchase or acquire, any shares of Common Stock under this Agreement which, when aggregated with
all other shares of Common Stock then beneficially owned by the Investor and its affiliates (as calculated pursuant to Section 13(d)
of the Exchange Act and Rule 13d-3 promulgated thereunder), would result in the beneficial ownership by the Investor and its
affiliates of more than 9.99% of the then issued and outstanding shares of Common Stock.
Upon
the written or oral request of the Investor, the Company shall promptly confirm orally or in writing to the Investor the number
of shares of Common Stock then outstanding. The Investor and the Company shall each cooperate in good faith in the determinations
required hereby and the application hereof. The Investor’s written certification to the Company of the applicability of the
beneficial ownership limitation, and the resulting effect thereof hereunder at any time, shall be conclusive with respect to the
applicability thereof and such result absent manifest error.
(d)
Compliance with Principal Market Rules; Exchange Cap. The Company shall not issue any Securities pursuant to this
Agreement or the Concurrent Purchase Agreement if (I) such issuance would reasonably be expected to cause the aggregate number
of shares of Common Stock issued pursuant to such agreements to exceed 19.99% of the outstanding shares of Common Stock immediately
prior to the date hereof unless shareholder approval pursuant to the rules and regulations of the Principal Market has been obtained
or (II) otherwise cause the Company to breach any of the rules or regulations of the Principal Exchange. Furthermore, the Company
agrees that it shall not issue any Securities pursuant to this Agreement if, at the time of such issuance (Y) the effectiveness
of the Registration Statement registering the Securities has lapsed for any reason (including, without limitation, the issuance
of a stop order or similar order) or (Z) the Registration Statement is unavailable for the sale by the Company to the Investor
(or the resale by the Investor, as the case may be) of any or all of the Securities to be issued to the Investor under the Transaction
Documents. The provisions of this Section 2(d) shall be implemented in a manner otherwise than in strict conformity
with the terms hereof only if necessary to ensure compliance with the Securities Act and the rules and regulations of the Principal
Market.
(e) Issuance of the Commitment Shares. On
or before the Commencement Date hereof, the Company will issue the Commitment Shares to the Investor. The Commitment Shares will be
issued without registration rights and the Company will have no obligation to register the Commitment Shares for resale or
otherwise.
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3. |
INVESTOR’S
REPRESENTATIONS AND WARRANTIES. |
The
Investor represents and warrants to the Company that as of the date hereof and as of the Commencement Date:
(a) Investment
Purpose. The Investor is acquiring the Securities as principal for its own account and not with a view to or for distributing
or reselling such Securities or any part thereof in violation of the Securities Act or any applicable state securities law, has
no present intention of distributing any of such Securities in violation of the Securities Act or any applicable state securities
law and has no direct or indirect arrangement or understandings with any other Persons to distribute or regarding the distribution
of such Securities in violation of the Securities Act or any applicable state securities law (this representation and warranty
not limiting the Investor’s right to sell the Securities at any time pursuant to the Registration Statement described herein
or otherwise in compliance with applicable federal and state securities laws). The Investor is acquiring the Securities hereunder
in the ordinary course of its business.
(b) Accredited
Investor Status. The Investor is an “accredited investor” as that term is defined in Rule 501(a)(3) of Regulation
D promulgated under the Securities Act.
(c) Reliance
on Exemptions. The Investor understands that the Securities may be offered and sold to it in reliance on specific exemptions
from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon
the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments
and understandings of the Investor set forth herein in order to determine the availability of such exemptions and the eligibility
of the Investor to acquire the Securities.
(d) Good
Standing. The Investor is a limited liability company, duly organized, validly existing and in good standing in the State of
Delaware.
(e) Information.
The Investor understands that its investment in the Securities involves a high degree of risk. The Investor (i) is able to bear
the economic risk of an investment in the Securities including a total loss thereof, (ii) has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and risks of the proposed investment in the Securities
and (iii) has had an opportunity to ask questions of and receive answers from the officers of the Company concerning the financial
condition and business of the Company and other matters related to an investment in the Securities. Neither such inquiries nor
any other due diligence investigations conducted by the Investor or its representatives shall modify, amend or affect the Investor’s
right to rely on the Company’s representations and warranties contained in Section 4 below. The Investor has
sought such accounting, legal and tax advice from its own independent advisor as it has considered necessary to make an informed
investment decision with respect to its acquisition of the Securities and is not relying on any such advice or similar advice from
the Company, its officers, directors, representatives, or advisors.
(f) No
Governmental Review. The Investor understands that no U.S. federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of an investment
in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
(g) Transfer
or Sale. The Investor understands that (i) the Securities may not be offered for sale, sold, assigned or transferred unless
(A) registered pursuant to the Securities Act or (B) an exemption exists permitting such Securities to be sold, assigned or transferred
without such registration; (ii) any sale of the Securities made in reliance on Rule 144 may be made only in accordance with
the terms of Rule 144 and further, if Rule 144 is not applicable, any resale of the Securities under circumstances in
which the seller (or the Person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the
Securities Act) may require compliance with some other exemption under the Securities Act or the rules and regulations of the SEC
thereunder.
(h) Validity;
Enforcement. This Agreement has been duly and validly authorized, executed and delivered on behalf of the Investor and is a
valid and binding agreement of the Investor enforceable against the Investor in accordance with its terms, subject as to enforceability
to general principles of equity and to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar
laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.
(i) Residency.
The Investor is a resident of the State of New York.
(j) No
Short Selling. The Investor represents and warrants to the Company that at no time prior to the date of this Agreement has
any of the Investor, its agents, representatives or affiliates engaged in or effected, in any manner whatsoever, directly or indirectly,
any (i) “short sale” (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common
Stock or (ii) hedging transaction, which establishes a net short position with respect to the Common Stock.
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4. |
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY. |
The
Company represents and warrants to the Investor that as of the date hereof and as of the Commencement Date:
(a) Organization
and Qualification. The Company is an entity duly incorporated or otherwise organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization, with the requisite corporate power and authority to own
and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any of its Subsidiaries
is in violation or default of any of the provisions of its respective articles or certificate of incorporation, bylaws or other
organizational or charter documents. Each of the Company and its Subsidiaries is duly qualified to conduct business and is in good
standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may
be, could not have or reasonably be expected to result in a Material Adverse Effect and no proceeding has been instituted in any
such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
(b) Authorization;
Enforcement; Validity. (i) The Company has the requisite corporate power and authority to enter into and perform its obligations
under this Agreement and each of the other Transaction Documents, and to issue the Securities in accordance with the terms hereof
and thereof, (ii) the execution and delivery of the Transaction Documents by the Company and the consummation by it of the transactions
contemplated hereby and thereby, including without limitation, the issuance of the Commitment Shares and the reservation for issuance
and the issuance of the Purchase Shares issuable under this Agreement, have been duly authorized by the Company’s Board of
Directors and no further consent or authorization is required by the Company, its Board of Directors or its stockholders, (iii)
this Agreement has been, and each other Transaction Document shall be on the Commencement Date, duly executed and delivered by
the Company and (iv) this Agreement constitutes, and each other Transaction Document upon its execution on behalf of the Company,
shall constitute, the valid and binding obligations of the Company enforceable against the Company in accordance with their terms,
except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of creditors’ rights and remedies.
The Board of Directors of the Company has approved the resolutions (the “Signing Resolutions”) to authorize
this Agreement and the transactions contemplated hereby. The Signing Resolutions are valid, in full force and effect and have not
been modified or supplemented in any respect. The Company has delivered to the Investor a true and correct copy of a unanimous
written consent adopting the Signing Resolutions executed by all of the members of the Board of Directors of the Company or minutes
of a meeting of the Board of Directors of the Company approving the Signing Resolutions. Except as set forth in this Agreement,
no other approvals or consents of the Company’s Board of Directors, any authorized committee thereof, and/or stockholders
is necessary under applicable laws and the Certificate of Incorporation and/or Bylaws to authorize the execution and delivery of
this Agreement or any of the transactions contemplated hereby, including, but not limited to, the issuance of the Commitment Shares
and the issuance of the Purchase Shares.
(c) Issuance
of Securities. Upon issuance and payment therefor in accordance with the terms and conditions of this Agreement, the Commitment
Shares and Purchase Shares shall be validly issued, fully paid and nonassessable and free from all taxes, liens, charges, restrictions,
rights of first refusal and preemptive rights with respect to the issue thereof, with the holders being entitled to all rights
accorded to a holder of Common Stock.
(d) No
Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby (including, without limitation, the reservation for issuance and issuance
of the Purchase Shares and the Commitment Shares) will not (i) result in a violation of the Certificate of Incorporation, any Certificate
of Designations, Preferences and Rights of any outstanding series of preferred stock of the Company or the Bylaws or (ii) conflict
with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the
Company or any of its Subsidiaries is a party, or result in a violation of any law, rule, regulation, order, judgment or decree
(including federal and state securities laws and regulations and the rules and regulations of the Principal Market applicable to
the Company or any of its Subsidiaries) or by which any property or asset of the Company or any of its Subsidiaries is bound or
affected, except in the case of conflicts, defaults, terminations, amendments, accelerations, cancellations and violations under
clause (ii), which could not reasonably be expected to result in a Material Adverse Effect. Except as specifically contemplated
by this Agreement and the related documents and as required under the Securities Act or applicable state securities laws and the
rules and regulations of the Principal Market, the Company is not required to obtain any consent, authorization or order of, or
make any filing or registration with, any court or governmental agency or any regulatory or self-regulatory agency in order for
it to execute, deliver or perform any of its obligations under or contemplated by the Transaction Documents in accordance with
the terms hereof or thereof. Except as set forth elsewhere in this Agreement, all consents, authorizations, orders, filings and
registrations which the Company is required to obtain pursuant to the preceding sentence shall be obtained or effected on or prior
to the Commencement Date. Except as set forth in the SEC Documents, to the Company’s knowledge, the Principal Market has
not commenced any delisting proceedings against the Company.
(e) SEC
Documents; Financial Statements. The Company has filed reports, schedules, forms, statements and other documents under the
Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the 24 months preceding the
date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC
Documents”). None of the SEC Documents, when filed, contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The financial statements of the Company included in the SEC Documents comply in all
material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect
at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting
principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified
in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes
required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries
as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of
unaudited statements, to normal, immaterial, year-end audit adjustments. The SEC has not commenced any enforcement proceedings
against the Company or any of its Subsidiaries.
(f) Absence
of Certain Changes. Except as disclosed in the SEC Documents, since June 30, 2023, there has been no material adverse
change in the business, properties, operations, financial condition or results of operations of the Company or its Subsidiaries.
The Company has not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy
Law nor does the Company or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate
involuntary bankruptcy or insolvency proceedings.
(g) Acknowledgment
Regarding Investor’s Status. The Company acknowledges and agrees that the Investor is acting solely in the capacity
of arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby.
The Company further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the Company (or in any
similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby and any advice
given by the Investor or any of its representatives or agents in connection with the Transaction Documents and the transactions
contemplated hereby and thereby is merely incidental to the Investor’s purchase of the Securities. The Company further represents
to the Investor that the Company’s decision to enter into the Transaction Documents has been based solely on the independent
evaluation by the Company and its representatives and advisors.
(h) No
General Solicitation; No Aggregated or Integrated Offering. Neither the Company, its Subsidiaries, nor any of its affiliates,
nor any Person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the
meaning of Regulation D under the Securities Act) in connection with the offer or sale of the Securities. Neither the Company,
its Subsidiaries, nor or any of its affiliates, nor any Person acting on their behalf has, directly or indirectly, made any offers
or sales of any security or solicited any offers to purchase any security, under circumstances that would require registration
of the offer and sale of any of the Securities under the Securities Act, whether through aggregation or integration with prior
offerings or otherwise, or cause this offering of the Securities to be aggregated or integrated with prior offerings by the Company
in a manner that would require stockholder approval pursuant to the rules of the Principal Market on which any of the securities
of the Company are listed or designated. The issuance and sale of the Securities hereunder, as of the date of this Agreement, does
not contravene the rules and regulations of the Principal Market.
(i) Intellectual
Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all material trademarks,
trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses,
approvals, governmental authorizations, trade secrets and rights necessary to conduct their respective businesses as now conducted.
Except as set forth in the SEC Documents, none of the Company’s material trademarks, trade names, service marks, service
mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals, government authorizations,
trade secrets or other intellectual property rights have expired or terminated, or, by the terms and conditions thereof, could
expire or terminate within two years from the date of this Agreement. The Company and its Subsidiaries do not have any knowledge
of any infringement by the Company or its Subsidiaries of any material trademark, trade name rights, patents, patent rights, copyrights,
inventions, licenses, service names, service marks, service mark registrations, trade secret or other similar rights of others,
or of any such development of similar or identical trade secrets or technical information by others, and there is no claim, action
or proceeding being made or brought against, or to the Company’s knowledge, being threatened against, the Company or its
Subsidiaries regarding trademark, trade name, patents, patent rights, invention, copyright, license, service names, service marks,
service mark registrations, trade secret or other infringement, which could reasonably be expected to have a Material Adverse Effect.
(j) Environmental
Laws. To the Company’s best knowledge, the Company and its Subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received
all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses
and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where, in each of the
three foregoing clauses, the failure to so comply could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
(k) Title.
Except as disclosed in the SEC Documents, the Company and its Subsidiaries have good and marketable title in fee simple to all
real property owned by them and good and marketable title in all personal property owned by them that is material to the business
of the Company and its Subsidiaries, in each case free and clear of all liens, encumbrances and defects (“Liens”)
and, except for such Liens as do not materially affect the value of such property and do not materially interfere with the use
made and proposed to be made of such property by the Company and its Subsidiaries and Liens for the payment of federal, state or
other taxes, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease
by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and
its Subsidiaries are in compliance with such exceptions as are not material and do not interfere with the use made and proposed
to be made of such property and buildings by the Company and its Subsidiaries.
(l) Insurance.
The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and
risks and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company
and its Subsidiaries are engaged. Neither the Company nor any such Subsidiary has been refused any insurance coverage sought or
applied for and neither the Company nor any such Subsidiary has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not materially and adversely affect the condition, financial or otherwise, or the earnings,
business or operations of the Company and its Subsidiaries, taken as a whole.
(m) Regulatory
Permits. The Company and its Subsidiaries possess all material certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their respective businesses, and neither the Company nor
any such Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate,
authorization or permit.
(n) Transactions
With Affiliates. Except as set forth in the SEC Documents, to the Company’s best knowledge, none of the officers or directors
of the Company, the Company’s stockholders, the officers or directors of any stockholder of the Company, or any family member
or affiliate of any of the foregoing, has either directly or indirectly any interest in, or is a party to, any transaction that
would be required to be disclosed as a related party transaction pursuant to Rule 404 of Regulation S-K promulgated under
the Securities Act.
(o) Application
of Takeover Protections. The Company and its Board of Directors have taken or will take prior to the Commencement Date all
necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including
any distribution under a rights agreement) or other similar anti-takeover provision under the Certificate of Incorporation or the
laws of the state of its incorporation which is or could become applicable to the Investor as a result of the transactions contemplated
by this Agreement, including, without limitation, the Company’s issuance of the Securities and the Investor’s ownership
of the Securities.
(p) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents that will
be timely publicly disclosed by the Company, the Company confirms that neither it nor any other Person acting on its behalf has
provided the Investor or its agents or counsel with any information that it believes constitutes or might constitute material,
non-public information which is not otherwise disclosed in the Registration Statement or the SEC Documents. The Company understands
and confirms that the Investor will rely on the foregoing representation in effecting purchases and sales of securities of the
Company. All of the disclosure furnished by or on behalf of the Company to the Investor regarding the Company, its business and
the transactions contemplated hereby, is true and correct and does not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they
were made, not misleading. The press releases disseminated by the Company during the twelve (12) months preceding the date of this
Agreement taken as a whole do not contain any untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made
and when made, not misleading. The Company acknowledges and agrees that the Investor neither makes nor has made any representations
or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3
hereof.
(q) Foreign
Corrupt Practices. Neither the Company, nor to the knowledge of the Company, any agent or other Person acting on behalf of
the Company, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful
expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials
or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully
any contribution made by the Company (or made by any Person acting on its behalf of which the Company is aware) which is in violation
of law, or (iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977, as amended.
(r) DTC
Eligibility. The Company, through the Transfer Agent, currently participates in the DTC Fast Automated Securities Transfer
(FAST) Program and the Common Stock can be transferred electronically to third parties via the DTC Fast Automated Securities Transfer
(FAST) Program.
(s) Sarbanes-Oxley.
Except as disclosed in the SEC Documents, including the weakness in internal controls, the Company is in compliance with all material
provisions of the Sarbanes-Oxley Act of 2002, as amended, which are applicable to it as of the date hereof.
(t) Certain
Fees. No brokerage or finder’s fees or commissions are or will be payable by the Company to any broker, financial advisor
or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by
the Transaction Documents. The Investor shall have no obligation with respect to any fees or with respect to any claims made by
or on behalf of other Persons for fees that may be due in connection with the transactions contemplated by the Transaction Documents.
(u) Investment
Company. The Company is not, and immediately after receipt of payment for the Securities will not be, an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.
(v) Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and
the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration
of the Common Stock pursuant to the Exchange Act nor has the Company received any notification that the SEC is currently contemplating
terminating such registration. Except as disclosed in the SEC Documents, the Company has not, in the twelve (12) months preceding
the date hereof, received any notice from any Person to the effect that the Company is not in compliance with the listing or maintenance
requirements of the Principal Market.
(w) Auditors.
The Company’s auditors are set forth in the SEC Documents and, to the knowledge of the Company, such auditors are an independent
registered public accounting firm as required by the Securities Act.
(x) No
Market Manipulation. The Company has not, and to its knowledge, no Person acting on its behalf has, (i) taken, directly or
indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation for
soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another
to purchase any other securities of the Company.
(y) Shell
Company Status. The Company is not currently an issuer identified in Rule 144(i)(1) under the Securities Act and has filed
all “Form 10 information” required by Rule 144(i)(1) under the Securities Act with the SEC as of December 31,
2023.
(z) No
Disqualification Events. None of the Company, any of its predecessors, any affiliated issuer, any director, executive officer,
other officer of the Company participating in the offering contemplated hereby, any beneficial owner of 20% or more of the Company’s
outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405
under the Securities Act) connected with the Company in any capacity at the time of sale (each, an “Issuer Covered Person”)
is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities
Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3)
under the Securities Act. The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to
a Disqualification Event.
(a) Filing
of Current Report and Registration Statement. The Company agrees that it shall, within the time required under the Exchange
Act, file with the SEC a report on Form 8-K relating to the transactions contemplated by, and describing the material terms and
conditions of, the Transaction Documents (the “Current Report”).
(b) Blue
Sky. The Company shall take all commercially reasonable action, if any, as is reasonably necessary in order to obtain an exemption
for or to register or qualify (i) the issuance of the Commitment Shares and the sale of the Purchase Shares to the Investor under
this Agreement and (ii) any subsequent resale of all Commitment Shares and all Purchase Shares by the Investor, in each case, under
applicable securities or “Blue Sky” laws of the states of the United States in such states as is reasonably requested
by the Investor from time to time, and shall provide evidence of any such action so taken to the Investor.
(c) Listing/DTC.
The Company shall as soon as practicable secure the listing of all of the Purchase Shares and Commitment Shares to be issued to
the Investor hereunder on the Principal Market (subject to official notice of issuance) and upon each other national securities
exchange or automated quotation system, if any, upon which the Common Stock is then listed, and shall use commercially reasonable
efforts to maintain, so long as any shares of Common Stock shall be so listed, such listing of all such Securities from time to
time issuable hereunder. The Company shall use commercially reasonable efforts to maintain the listing of the Common Stock on the
Principal Market and shall comply in all respects with the Company’s reporting, filing and other obligations under the bylaws
or rules and regulations of the Principal Market. Neither the Company nor any of its Subsidiaries shall take any action that would
reasonably be expected to result in the delisting or suspension of the Common Stock on the Principal Market. The Company shall
promptly, and in no event later than four (4) Business Days, provide to the Investor copies of any notices it receives from any
Person regarding the continued eligibility of the Common Stock for listing on the Principal Market; provided, however, that the
Company shall not provide the Investor copies of any such notice that the Company reasonably believes constitutes material non-public
information, and the Company would not be required to publicly disclose such notice in any report or statement filed with the SEC
under the Exchange Act (including on Form 8-K) or the Securities Act. The Company shall pay all fees and expenses in connection
with satisfying its obligations under this Section 5(c). The Company shall take all action necessary to ensure that
its Common Stock can be transferred electronically as DWAC Shares.
(d) Prohibition
of Short Sales and Hedging Transactions. The Investor agrees that beginning on the date of this Agreement and ending on the
date of termination of this Agreement as provided in Section 11, the Investor and its agents, representatives and affiliates
shall not in any manner whatsoever enter into or effect, directly or indirectly, any (i) “short sale” (as such term
is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii) hedging transaction, which establishes
a net short position with respect to the Common Stock.
(e) Taxes.
The Company shall pay any and all transfer, stamp or similar taxes that may be payable with respect to the issuance and delivery
of any shares of Common Stock to the Investor made under this Agreement.
(f) Aggregation.
From and after the date of this Agreement, neither the Company, nor or any of its affiliates will, and the Company shall use its
reasonable best efforts to ensure that no Person acting on their behalf will, directly or indirectly, make any offers or sales
of any security or solicit any offers to purchase any security, under circumstances that would cause this offering of the Securities
by the Company to the Investor to be aggregated with other offerings by the Company in a manner that would require stockholder
approval pursuant to the rules of the Principal Market on which any of the securities of the Company are listed or designated,
unless stockholder approval is obtained before the closing of such subsequent transaction in accordance with the rules of such
Principal Market.
(g) Use
of Proceeds. The Company will use the net proceeds from the offering for any corporate purpose at the sole discretion of the
Company.
(h) Other
Transactions. During the term of this Agreement, the Company shall not enter into, announce or recommend to its stockholders
any agreement, plan, arrangement or transaction in or of which the terms thereof would restrict, materially delay, conflict with
or impair the ability or right of the Company to perform its obligations under the Transaction Documents, including, without limitation,
the obligation of the Company to deliver the Purchase Shares and the Commitment Shares to the Investor in accordance with the terms
of the Transaction Documents.
|
6. |
TRANSFER
AGENT INSTRUCTIONS. |
Upon
written request by the Investor, provided all conditions of Rule 144 under the Securities Act are met, the Company shall,
no later than three (3) Business Days following the delivery by the Investor to the Company or the Transfer Agent of one or more
legended certificates or book-entry statements representing the Commitment Fee shares and/or which certificates or book-entry statement(s)
the Company shall promptly issue and deliver (or cause to be issued and delivered) to the Investor, as requested by the Investor,
either: (A) a certificate or book-entry statement representing such Commitment Shares that is free from all restrictive and other
legends or (B) a number of shares of Common Stock equal to the number of Commitment Shares represented by the certificate(s) or
book-entry statement(s) so delivered by the Investor as DWAC Shares. The Company shall take all actions to carry out the intent
and accomplish the purposes of the immediately preceding sentence, including, without limitation, delivering all such legal opinions,
consents, certificates, resolutions and instructions to the Transfer Agent, and any successor transfer agent of the Company, as
may be requested from time to time by the Investor or necessary or desirable to carry out the intent and accomplish the purposes
of the immediately preceding sentence. Notwithstanding the above, the Company’s obligations to comply with the time commitments
of this Section is dependent on the Investor timely returning any required seller’s representation letter(s) regarding the
Investor’s request. On the Commencement Date, the Company shall issue to the Transfer Agent, and any subsequent transfer
agent, (i) irrevocable instructions in the form substantially similar to those used by the Investor in substantially similar transactions
(the “Commencement Irrevocable Transfer Agent Instructions”) and (ii) the notice of effectiveness of the Registration
Statement in the form attached as an exhibit to the Registration Rights Agreement (the “Notice of Effectiveness of Registration
Statement”), in each case to issue the Commitment Shares and the Purchase Shares in accordance with the terms of this
Agreement and the Registration Rights Agreement. All Purchase Shares to be issued from and after Commencement to or for the benefit
of the Investor pursuant to this Agreement shall be issued only as DWAC Shares. The Company represents and warrants to the Investor
that, while this Agreement is effective, no instruction other than the Commencement Irrevocable Transfer Agent Instructions and
the Notice of Effectiveness of Registration Statement referred to in this Section 6 will be given by the Company to
the Transfer Agent with respect to the Commitment Shares or the Purchase Shares from and after Commencement, and the Purchase Shares
covered by the Registration Statement shall otherwise be freely transferable on the books and records of the Company. The Company
agrees that if the Company fails to fully comply with the provisions of this Section 6 within five (5) Business Days
of the Investor providing the deliveries referred to above, the Company shall, at the Investor’s written instruction, purchase
such shares of Common Stock containing the Restrictive Legend from the Investor at the greater of the (i) Purchase Price paid for
such shares of Common Stock (as applicable) and (ii) the Closing Sale Price of the Common Stock on the date of the Investor’s
written instruction.
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7. |
CONDITIONS TO THE COMPANY’S RIGHT TO COMMENCE |
SALES OF SHARES OF COMMON STOCK.
The right of the Company hereunder to commence sales of the Purchase Shares as of
the Commencement Date is subject to the satisfaction of each of the following conditions:
(a) The Investor shall have executed each of the Transaction Documents and delivered the
same to the Company;
(b) The Registration Statement covering the resale of the Purchase Shares shall have been
declared effective under the Securities Act by the SEC and no stop order with respect
to the Registration Statement shall be pending or threatened by the SEC;
(c) All Securities to be issued by the Company to the Investor under the Transaction Documents
shall have been approved for listing on the Principal Market in accordance with the
applicable rules and regulations of the Principal Market, subject only to official
notice of issuance; and
(d) The representations and warranties of the Investor shall be true and correct in all
material respects as of the date hereof and as of the Commencement Date as though
made at that time.
|
8. |
CONDITIONS TO THE INVESTOR’S OBLIGATION TO PURCHASE SHARES OF COMMON STOCK. |
The obligation of the Investor to buy Purchase Shares under this Agreement is subject to the satisfaction of each of the following conditions on or prior to
the Commencement Date and, once such conditions have been initially satisfied, there
shall not be any ongoing obligation to satisfy such conditions after the Commencement
has occurred:
The Company shall have executed each of the Transaction Documents and delivered the
same to the Investor;
(a) The Company shall have issued or caused to be issued to the Investor (i) one or more
certificates or book entry statements representing the Commitment Shares or (ii) a number of shares of
Common Stock equal to the number of Commitment Shares as DWAC Shares, in accordance
with Section 6;
(b) The Common Stock shall be listed or quoted on the Principal Market, trading in the
Common Stock shall not have been suspended by the SEC or the Principal Market within
the last 365 days, and all Securities to be issued by the Company to the Investor
pursuant to this Agreement shall have been approved for listing or quotation on the Principal Market in accordance
with the applicable rules and regulations of the Principal Market, as then in effect,
subject only to official notice of issuance;
(c) The representations and warranties of the Company shall be true and correct in all
material respects (except to the extent that any of such representations and warranties
is already qualified as to materiality in Section 4 above, in which case, such representations and warranties shall be true and correct
without further qualification) as of the date hereof and as of the Commencement Date
as though made at that time (except for representations and warranties that speak
as of a specific date, which shall be true and correct as of such date) and the Company
shall have performed, satisfied and complied with the covenants, agreements and conditions
required by the Transaction Documents to be performed, satisfied or complied with
by the Company at or prior to the Commencement Date. The Investor shall have received
a certificate, executed by the CEO, President or CFO of the Company, dated as of the
Commencement Date, to the foregoing effect in the form attached hereto as Exhibit A;
(d) The Board of Directors of the Company shall have adopted resolutions in the form previously
provided to the Investor which shall be in full force and effect without any amendment
or supplement thereto as of the Commencement Date;
(e) The Commencement Irrevocable Transfer Agent Instructions and the Notice of Effectiveness
of Registration Statement each shall have been delivered to and acknowledged in writing
by the Company and the Company’s Transfer Agent (or any successor transfer agent);
(f) The Company shall have delivered to the Investor a secretary’s certificate executed by the Secretary of the Company, dated as of the Commencement
Date, in the form attached hereto as Exhibit B;
(g) The Registration Statement covering the resale of the Purchase Shares shall have been
declared effective under the Securities Act by the SEC and no stop order with respect
to the Registration Statement shall be pending or threatened by the SEC. The Company
shall have prepared and filed with the SEC, not later than two (2) Business Days after
the effective date of the Registration Statement, a final and complete prospectus
(the preliminary form of which shall be included in the Registration Statement) and
shall have delivered to the Investor a true and complete copy thereof. Such prospectus
shall be current and available for the resale by the Investor of all of the Securities
covered thereby. The Current Report shall have been filed with the SEC, as required
pursuant to Section 5(a);
(h) No Event of Default has occurred, or any event which, after notice and/or lapse of
time, would become an Event of Default has occurred;
(i) All federal, state and local governmental laws, rules and regulations applicable to
the transactions contemplated by the Transaction Documents and necessary for the execution,
delivery and performance of the Transaction Documents and the consummation of the
transactions contemplated thereby in accordance with the terms thereof shall have
been complied with, and all consents, authorizations and orders of, and all filings
and registrations with, all federal, state and local courts or governmental agencies
and all federal, state and local regulatory or self-regulatory agencies necessary for the execution, delivery and performance of the Transaction
Documents and the consummation of the transactions contemplated thereby in accordance
with the terms thereof shall have been obtained or made, including, without limitation,
in each case those required under the Securities Act, the Exchange Act, applicable
state securities or “Blue Sky” laws or applicable rules and regulations of the Principal
Market, or otherwise required by the SEC, the Principal Market or any state securities
regulators;
(j) No statute, regulation, order, decree, writ, ruling or injunction shall have been
enacted, entered, promulgated, threatened or endorsed by any federal, state, local
or foreign court or governmental authority of competent jurisdiction which prohibits
the consummation of or which would materially modify or delay any of the transactions
contemplated by the Transaction Documents; and
(k) No action, suit or proceeding before any federal, state, local or foreign arbitrator
or any court or governmental authority of competent jurisdiction shall have been commenced
or threatened, and no inquiry or investigation by any federal, state, local or foreign
governmental authority of competent jurisdiction shall have been commenced or threatened,
against the Company, or any of the officers, directors or affiliates of the Company,
seeking to restrain, prevent or change the transactions contemplated by the Transaction
Documents, or seeking material damages in connection with such transactions.
In consideration of the Investor’s execution and delivery of the Transaction Documents and acquiring the Securities
hereunder and in addition to all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect,
indemnify and hold harmless the Investor and all of its affiliates, stockholders,
officers, directors, members, managers, employees and direct or indirect investors
and any of the foregoing Person’s agents or other representatives (including, without limitation, those retained in
connection with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”) from and against any and all actions, causes of action, suits, claims, losses,
costs, penalties, fees, liabilities and damages, and expenses in connection therewith
(irrespective of whether any such Indemnitee is a party to the action for which indemnification
hereunder is sought), and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by any Indemnitee as a result of, or arising out of, or relating to (a)
any misrepresentation or breach of any representation or warranty made by the Company
in the Transaction Documents or any other certificate, instrument or document contemplated
hereby or thereby, (b) any breach of any covenant, agreement or obligation of the
Company contained in the Transaction Documents or any other certificate, instrument
or document contemplated hereby or thereby, or (c) any cause of action, suit or claim
brought or made against such Indemnitee and arising out of or resulting from the execution,
delivery, performance or enforcement of the Transaction Documents or any other certificate,
instrument or document contemplated hereby or thereby, other than, in the case of
clause (c), with respect to Indemnified Liabilities which directly and primarily result
from the fraud, gross negligence or willful misconduct of an Indemnitee. The indemnity
in this Section 9 shall not apply to amounts paid in settlement of any claim if such settlement is
effected without the prior written consent of the Company, which consent shall not
be unreasonably withheld, conditioned or delayed. To the extent that the foregoing
undertaking by the Company may be unenforceable for any reason, the Company shall
make the maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law. Payment under this indemnification
shall be made within thirty (30) days from the date the Investor makes written request
for it. A certificate containing reasonable detail as to the amount of such indemnification
submitted to the Company by the Investor shall be conclusive evidence, absent manifest
error, of the amount due from the Company to the Investor. If any action shall be
brought against any Indemnitee in respect of which indemnity may be sought pursuant
to this Agreement, such Indemnitee shall promptly notify the Company in writing, and the Company shall
have the right to assume the defense thereof with counsel of its own choosing reasonably
acceptable to the Indemnitee. Any Indemnitee shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Indemnitee, except to the
extent that (i) the employment thereof has been specifically authorized by the Company
in writing, (ii) the Company has failed after a reasonable period of time to assume
such defense and to employ counsel or (iii) in such action there is, in the reasonable
opinion of such separate counsel, a material conflict on any material issue between
the position of the Company and the position of such Indemnitee, in the case of clauses
(i),(ii) and (iii) the Company shall be responsible for the reasonable fees and expenses
of no more than one such separate counsel.
An “Event of Default” shall be deemed to have occurred at any time as any of the following events occurs:
(a) the effectiveness of a registration statement registering the resale of the Purchase Shares lapses for any reason (including, without limitation, the issuance of a stop order
or similar order) or such registration statement (or the prospectus forming a part
thereof) is unavailable to the Investor for resale of any or all of the Purchase Shares to be issued to the Investor under the Transaction Documents, and such lapse or unavailability
continues for a period of ten (10) consecutive Business Days or for more than an aggregate
of thirty (30) Business Days in any 365-day period, but excluding a lapse or unavailability
where (i) the Company terminates a registration statement after the Investor has confirmed
in writing that all of the Securities covered thereby have been resold or (ii) the
Company supersedes one registration statement with another registration statement,
including (without limitation) by terminating a prior registration statement when
it is effectively replaced with a new registration statement covering Purchase Shares (provided in the case of this clause (ii) that all of the Securities covered by the
superseded (or terminated) registration statement that have not theretofore been resold
are included in the superseding (or new) registration statement);
(b) the suspension of the Common Stock from trading on the Principal Market for a period
of two (2) consecutive Business Day, provided that the Company may not direct the Investor to purchase any
shares of Common Stock during any such suspension;
(c) the delisting of the Common Stock from the OTCQB operated by the OTC Markets Group,
Inc. or such other nationally recognized trading market (or nationally recognized
successor to any of the foregoing);
(d) If at any time after the Commencement Date, the Exchange Cap is reached unless and
until stockholder approval is obtained pursuant to the terms hereof. The Exchange Cap shall be deemed to be reached at such time if, upon submission
of a Purchase Notice under this Agreement, the issuance of such shares of Common Stock would exceed that number of shares of
Common Stock which the Company may issue without breaching the Company’s obligations under the rules or regulations of the Principal Market;
(e) the failure for any reason by the Transfer Agent to issue Purchase Shares to the Investor
within three (3) Business Days after the applicable Purchase Date on which the Investor
is entitled to receive such Purchase Shares;
(f) the Company breaches any representation, warranty, covenant or other term or condition
under any Transaction Document if such breach could have a Material Adverse Effect
and except, in the case of a breach of a covenant which is reasonably curable, only
if such breach continues for a period of at least five (5) Business Days;
(g) if any Person commences a proceeding against the Company pursuant to or within the
meaning of any Bankruptcy Law;
(h) if the Company, pursuant to or within the meaning of any Bankruptcy Law, (i) commences
a voluntary case, (ii) consents to the entry of an order for relief against it in
an involuntary case, (iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property, or (iv) makes a general assignment for the
benefit of its creditors or is generally unable to pay its debts as the same become
due;
(i) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law
that (i) is for relief against the Company in an involuntary case, (ii) appoints a
Custodian of the Company or for all or substantially all of its property, or (iii)
orders the liquidation of the Company or any Subsidiary; or
(j) if at any time the Company is not eligible to transfer its Common Stock electronically
as DWAC Shares.
So long as an Event of Default has occurred and is continuing, or if any event which,
after notice and/or lapse of time, would become an Event of Default, has occurred
and is continuing, the Company shall not deliver to the Investor any Purchase Notice.
This Agreement may be terminated only as follows:
(a) If pursuant to or within the meaning of any Bankruptcy Law, the Company commences
a voluntary case or any Person commences a proceeding against the Company, a Custodian
is appointed for the Company or for all or substantially all of its property, or the
Company makes a general assignment for the benefit of its creditors (any of which
would be an Event of Default as described in Sections 10(g), 10(h) and 10(i) hereof), this Agreement shall automatically terminate without any liability or payment to the Company (except
as set forth below) without further action or notice by any Person.
(b) In the event that the Commencement shall not have occurred on or before March 31, 2025, due to the failure to satisfy the conditions set forth in Sections 7 and 8 above with respect to the Commencement, either the Company or the Investor shall
have the option to terminate this Agreement at the close of business on such date or thereafter without liability of any party
to any other party (except as set forth below); provided, however, that the right
to terminate this Agreement under this Section 11(b) shall not be available to any party if such party is then in breach of any covenant
or agreement contained in this Agreement or any representation or warranty of such party contained in this Agreement fails to be true and correct such that the conditions set forth in Section 7(d) or Section 8(e), as applicable, could not then be satisfied.
(c) At any time after the Commencement Date, the Company shall have the option to terminate
this Agreement for any reason or for no reason by delivering notice (a “Company Termination Notice”) to the Investor electing to terminate this Agreement without any liability whatsoever of any party to any other party under this Agreement (except as set forth below). The Company Termination Notice shall not be effective
until one (1) Business Day after it has been received by the Investor.
(d) This Agreement shall automatically terminate on the date that the Company sells and the Investor
purchases the full Available Amount as defined in the Registration Rights Agreement, without any action or notice on the part of any party and without any liability
whatsoever of any party to any other party under this Agreement (except as set forth below).
(e) If, for any reason or for no reason, the full Available Amount has not been purchased
in accordance with Section 2 of this Agreement by the Maturity Date, this Agreement shall automatically terminate on the Maturity Date, without any action or notice
on the part of any party and without any liability whatsoever of any party to any
other party under this Agreement (except as set forth below).
Except as set forth in Sections 11(a) (in respect of an Event of Default under Sections 10(g), 10(h) and 10(i)), 11(d) and 11(e), any termination of this Agreement pursuant to this Section 11 shall be effected by written notice from the Company to the Investor, or the Investor
to the Company, as the case may be, setting forth the basis for the termination hereof.
The representations and warranties and covenants of the Company and the Investor contained
in Sections 3, 4, 5, and 6 hereof, the indemnification provisions set forth in Section 9 hereof and the agreements and covenants set forth in Sections 10, 11 and 12 shall survive the Commencement and any termination of this Agreement. No termination of this Agreement shall (i) affect the Company’s or the Investor’s rights or obligations under (A) this Agreement with respect to pending Purchases and the Company and the Investor shall complete
their respective obligations with respect to any pending Purchases under this Agreement and (B) the Registration Rights Agreement, which shall survive any such termination,
or (ii) be deemed to release the Company or the Investor from any liability for intentional
misrepresentation or willful breach of any of the Transaction Documents.
(a) Governing Law; Jurisdiction; Jury Trial. The corporate laws of the State of Delaware shall govern all issues concerning the
relative rights of the Company and its stockholders. All other questions concerning
the construction, validity, enforcement and interpretation of this Agreement and the other Transaction Documents shall be governed by the internal laws of the
State of New York, without giving effect to any choice of law or conflict of law provision
or rule (whether of the State of New York or any other jurisdictions) that would cause
the application of the laws of any jurisdictions other than the State of New York.
Each party hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in the State of New York, Borough of Manhattan, for the adjudication
of any dispute hereunder or under the other Transaction Documents or in connection
herewith or therewith, or with any transaction contemplated hereby or discussed herein,
and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such court,
that such suit, action or proceeding is brought in an inconvenient forum or that the
venue of such suit, action or proceeding is improper. Each party hereby irrevocably
waives personal service of process and consents to process being served in any such
suit, action or proceeding by mailing a copy thereof to such party at the address
for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing contained herein shall be deemed to limit in any way any
right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH
OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(b) Counterparts. This Agreement may be executed in two or more identical counterparts, all of which shall be considered
one and the same agreement and shall become effective when counterparts have been
signed by each party and delivered to the other party; provided that a facsimile signature
or signature delivered by e-mail in a “.pdf” format data file shall be considered
due execution and shall be binding upon the signatory thereto with the same force
and effect as if the signature were an original signature.
(c) Headings. The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation
of, this Agreement.
(d) Severability. If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability
shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any provision of this Agreement in any other jurisdiction.
(e) Entire Agreement. The Transaction Documents supersede all other prior oral or written agreements between
the Investor, the Company, their affiliates and Persons acting on their behalf with
respect to the subject matter thereof, and this Agreement, the other Transaction Documents and the instruments referenced herein contain the
entire understanding of the parties with respect to the matters covered herein and
therein and, except as specifically set forth herein or therein, neither the Company
nor the Investor makes any representation, warranty, covenant or undertaking with
respect to such matters. The Company acknowledges and agrees that is has not relied
on, in any manner whatsoever, any representations or statements, written or oral,
other than as expressly set forth in the Transaction Documents.
(f) Notices. Any notices, consents or other communications required or permitted to be given
under the terms of this Agreement must be in writing and will be deemed to have been delivered: (i) upon receipt when
delivered personally; (ii) upon receipt when sent by facsimile or email (provided
confirmation of transmission is mechanically or electronically generated and kept
on file by the sending party); or (iii) one Business Day after deposit with a nationally
recognized overnight delivery service, in each case properly addressed to the party
to receive the same. The addresses for such communications shall be:
If to the Company:
Vivakor, Inc.
5220 Spring Valley
Road
Suite 500
Dallas, TX75254
Tel: 949-281-2606
Email: jballengee@vivakor.com
With a copy to (which shall not constitute notice or service of process):
Pat Knapp
At the Company
Tel: 903-815-6350
Email: pknapp@vivakor.com
If to the Investor:
ClearThink Capital
Partners, LLC
10 Times Square,
5th FL
New York, NY 10024
Tel: 646-431-6980
E-mail: nyc@clearthink.capital
If to Transfer
Agent:
Empire Stock Transfer
1859 Whitney Mesa
Drive
Henderson, NV 89014
Tel: 702-818-5898
Email: info@empirestock.com
or at such other address and/or facsimile number and/or to the attention of such other
Person as the recipient party has specified by written notice given to each other
party three (3) Business Days prior to the effectiveness of such change. Written confirmation
of receipt (A) given by the recipient of such notice, consent or other communication,
(B) mechanically or electronically generated by the sender’s facsimile machine or email account containing the time, date, and recipient facsimile
number or email address, as applicable, and an image of the first page of such transmission
or (C) provided by a nationally recognized overnight delivery service, shall be rebuttable
evidence of personal service, receipt by facsimile, email or receipt from a nationally
recognized overnight delivery service in accordance with clause (i), (ii) or (iii)
above, respectively.
(g) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective
successors and assigns. The Company shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Investor,
including by merger or consolidation. The Investor may not assign its rights or obligations
under this Agreement.
(h) No Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any provision hereof
be enforced by, any other Person.
(i) Publicity. The Company shall afford the Investor and its counsel with the opportunity to review
and comment upon, shall consult with the Investor and its counsel on the form and
substance of, and shall give due consideration to all such comments from the Investor
or its counsel on, any press release, SEC filing or any other public disclosure by
or on behalf of the Company relating to the Investor, its purchases hereunder or any
aspect of the Transaction Documents or the transactions contemplated thereby, not
less than 24 hours prior to the issuance, filing or public disclosure thereof. The
Investor must be provided with a final version of any such press release, SEC filing
or other public disclosure at least 24 hours prior to any release, filing or use by
the Company thereof; provided however, that the Company’s obligations pursuant to this Section 12(i) shall not apply if the form and substance of such press release, SEC filing, or other
public disclosure relating to the Investor, its purchases hereunder or any aspect
of the Transaction Documents or the transactions contemplated thereby previously have
been publicly disclosed by the Company in compliance with this Section 12(i). The Company agrees and acknowledges that its failure to fully comply with this provision
constitutes a Material Adverse Effect.
(j) Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements, certificates,
instruments and documents, as the other party may reasonably request in order to consummate
and make effective, as soon as reasonably possible, the Commencement, and to carry
out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
(k) No Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any party.
(l) Remedies, Other Obligations, Breaches and Injunctive Relief. The Investor’s remedies provided in this Agreement, including, without limitation, the Investor’s remedies provided in Section 9, shall be cumulative and in addition to all other remedies available to the Investor
under this Agreement, at law or in equity (including a decree of specific performance and/or other injunctive
relief), no remedy of the Investor contained herein shall be deemed a waiver of compliance
with the provisions giving rise to such remedy and nothing herein shall limit the
Investor’s right to pursue actual damages for any failure by the Company to comply with the
terms of this Agreement. The Parties acknowledge that a breach by the other of its obligations hereunder will cause irreparable harm to harmed Party and that the remedy at law for any such breach may be inadequate. The Parties therefore agree that, in the event of any such breach or threatened breach, the harmed Party shall be entitled, in addition to all other available remedies, to an injunction
restraining any breach, without the necessity of showing economic loss and without
any bond or other security being required.
(m) Enforcement Costs. If: (i) this Agreement is placed by either Party in the hands of an attorney for enforcement or is enforced by such Party through any legal proceeding; (ii) an attorney is retained to represent the Party in any bankruptcy, reorganization, receivership or other proceedings affecting creditors’ rights and involving a claim under this Agreement; or (iii) an attorney is retained to represent the Party in any other proceedings whatsoever in connection with this Agreement, then the other Party shall pay to such Party, as incurred by such Party, all reasonable costs and expenses including attorneys’ fees incurred in connection therewith, in addition to all other amounts due hereunder.
(n) Amendment and Waiver; Failure or Indulgence Not Waiver. No provision of this Agreement may be amended or waived by the parties from and after the date that is one (1) Business
Day immediately preceding the filing of the Registration Statement with the SEC. Subject
to the immediately preceding sentence, (i) no provision of this Agreement may be amended other than by a written instrument signed by both parties hereto and
(ii) no provision of this Agreement may be waived other than in a written instrument signed by the party against whom
enforcement of such waiver is sought. No failure or delay in the exercise of any power,
right or privilege hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege.
(o) Adjustments for Share Splits. The parties acknowledge and agree that all share-related numbers contained in this
Agreement shall be adjusted to take into account any reorganization, recapitalization, non-cash
dividend, stock split or other similar transaction effected with respect to the Common
Stock except as specifically stated herein.
** Signature Page Follows **
IN WITNESS WHEREOF, the Investor and the Company have caused this Agreement to be duly executed as of the date first written above.
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THE COMPANY: |
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VIVAKOR, INC. |
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By: |
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Name: |
James Ballengee |
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Title: |
Chief Executive Officer |
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INVESTOR: |
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CLEARTHINK CAPITAL PARTNERS, LLC |
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By: |
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Name: |
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Title: |
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EXHIBITS
Exhibit A |
Form of Officer’s Certificate |
Exhibit B |
Form of Secretary’s Certificate |
EXHIBIT A
FORM OF OFFICER’S CERTIFICATE
This Officer’s Certificate (“Certificate”) is being delivered pursuant to Section 8(e) of that certain Agreement, dated July [__], 2024, to the STRATA Purchase Agreement, (“Purchase Agreement”), by and between Vivakor, Inc, a Nevada corporation (the “Company”), and CLEARTHINK CAPITAL PARTNERS, LLC (the “Investor”). Terms used herein and not otherwise defined shall have the meanings ascribed to
them in the Purchase Agreement.
The undersigned, ___________, ______________ of the Company, hereby certifies, on
behalf of the Company and not in his individual capacity, as follows:
1. I am the _____________ of the Company and make the statements contained in this Certificate;
2. The representations and warranties of the Company in the Purchase Agreement are true
and correct in all material respects (except to the extent that any of such representations
and warranties is already qualified as to materiality in Section 4 of the Purchase Agreement, in which case, such representations and warranties are
true and correct without further qualification) as of the date when made and as of
the Commencement Date as though made at that time (except for representations and
warranties that speak as of a specific date, in which case such representations and
warranties are true and correct as of such date);
3. The Company has performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by the Transaction Documents to be performed,
satisfied or complied with by the Company at or prior to the Commencement Date.
4. The Company has not taken any steps, and does not currently expect to take any steps,
to seek protection pursuant to any Bankruptcy Law nor does the Company or any of its
Subsidiaries have any knowledge or reason to believe that its creditors intend to
initiate involuntary bankruptcy or insolvency proceedings.
IN WITNESS WHEREOF,
I have hereunder signed my name on this ___ day of ___________.
The undersigned as Secretary of Vivakor, Inc., a Nevada corporation, hereby certifies that ___________ is the duly elected, appointed, qualified
and acting ________ of _________ and that the signature appearing above is his genuine
signature.
EXHIBIT B
FORM OF SECRETARY’S CERTIFICATE
This Secretary’s Certificate (“Certificate”) is being delivered pursuant to Section 8(k) of that certain STRATA Purchase Agreement, dated July [__], 2024 (“Purchase Agreement”), by and between Vivakor, Inc., a Nevada corporation (the “Company”) and CLEARTHINK CAPITAL PARTNERS, LLC (the “Investor”), pursuant to which the Company may sell to the Investor up to Five Million Dollars ($5,000,000) of the Company’s Common Stock, $0.001 par value per share (the “Common Stock”). Terms used herein
and not otherwise defined shall have the meanings ascribed to them in the Purchase
Agreement.
The undersigned, ____________, Secretary of the Company, hereby certifies, on behalf
of the Company and not in his individual capacity, as follows:
1. I am the Secretary of the Company and make the statements contained in this Secretary’s Certificate.
2. Attached hereto as Exhibit A and Exhibit B are true, correct and complete copies of the Company’s Bylaws (“Bylaws”) and Certificate of Incorporation (“Charter”), in each case, as
amended through the date hereof, and no action has been taken by the Company, its
directors, officers or stockholders, in contemplation of the filing of any further
amendment relating to or affecting the Bylaws or Charter.
3. Attached hereto as Exhibit C are true, correct and complete copies of the resolutions duly adopted by the Board
of Directors of the Company on _____________, at which a quorum was present and acting
throughout. Such resolutions have not been amended, modified or rescinded and remain
in full force and effect and such resolutions are the only resolutions adopted by
the Company’s Board of Directors, or any committee thereof, or the stockholders of the Company
relating to or affecting (i) the entering into and performance of the Purchase Agreement,
or the issuance, offering and sale of the Purchase Shares and the Commitment Shares
and (ii) and the performance of the Company of its obligation under the Transaction
Documents as contemplated therein.
4. As of the date hereof, the authorized, issued and reserved capital stock of the Company
is as set forth on Exhibit D hereto.
IN WITNESS WHEREOF, I have hereunder signed my name on this ___ day of ____________.
The undersigned as ___________ of Vivakor, Inc.., a Nevada corporation, hereby certifies that ____________ is the duly elected, appointed, qualified
and acting Secretary of _________, and that the signature appearing above is his genuine
signature.
Exhibit 10.2
Execution Version
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of July 31, 2024, by and between VIVAKOR, INC., a Nevada corporation (the “Company”), and CLEARTHINK CAPITAL PARTNERS, LLC, a Delaware limited liability company (together with it permitted assigns, the “Buyer”). Capitalized terms used herein and not otherwise defined herein shall have the
respective meanings set forth in the STRATA Purchase Agreement by and between the parties hereto, dated as of the date hereof
(as amended, restated, supplemented or otherwise modified from time to time, the “Purchase Agreement”).
WHEREAS:
The Company has agreed, upon the terms and subject to the conditions of the Purchase
Agreement, to sell to the Buyer up to Five Million Dollars ($5,000,000) of Purchase Shares and to induce the Buyer to enter into the Purchase Agreement,
the Company has agreed to provide certain registration rights under the Securities
Act of 1933, as amended, and the rules and regulations thereunder (collectively, the
“Securities Act”), and applicable state securities laws.
NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Company and the Buyer hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following meanings:
a. “Investor” means the Buyer, any transferee or assignee thereof to whom a Buyer assigns its
rights under this Agreement in accordance with Section 9 and who agrees to become bound by the provisions of this Agreement, and any transferee
or assignee thereof to whom a transferee or assignee assigns its rights under this
Agreement in accordance with Section 9 and who agrees to become bound by the provisions of this Agreement.
b. “Person” means any individual or entity including but not limited to any corporation, a limited
liability company, an association, a partnership, an organization, a business, an
individual, a governmental or political subdivision thereof or a governmental agency.
c. “Register,” “registered,” and “registration” refer to a registration effected by preparing and filing one or more registration
statements of the Company in compliance with the Securities Act and pursuant to Rule 415 under the Securities Act or any successor rule providing for offering securities
on a continuous basis (“Rule 415”), and the declaration or ordering of effectiveness of such registration statement(s)
by the United States Securities and Exchange Commission (the “SEC”).
d. “Registrable Securities” means all of the Purchase Shares that may, from time to time, be issued or become
issuable to the Investor under the Purchase Agreement (without regard to any limitation
or restriction on purchases), and any and all shares of capital stock issued or issuable
with respect to the Purchase Shares or the Purchase Agreement as a result of any stock
split, stock dividend, recapitalization, exchange or similar event or otherwise, without
regard to any limitation on purchases under the Purchase Agreement.
e. “Registration Statement” means one or more registration statements of the Company covering only the sale
of the Registrable Securities.
2. REGISTRATION.
a. Mandatory Registration. The Company shall, within 60 days of executing definitive documents, file with the SEC an initial Registration Statement covering the maximum number
of Registrable Securities as shall be permitted to be included thereon in accordance
with applicable SEC rules, regulations and interpretations so as to permit the resale
of such Registrable Securities by the Investor under Rule 415 under the Securities Act at then prevailing market prices (and not fixed prices),
as mutually determined by both the Company and the Investor in consultation with their respective legal counsel, subject to the aggregate number
of authorized shares of the Company’s Common Stock then available for issuance in its Certificate of Incorporation (the “Available Amount”). The initial Registration Statement shall register only the Registrable Securities.
The Investor and its counsel shall have a reasonable opportunity to review and comment
upon such Registration Statement and any amendment or supplement to such Registration
Statement and any related prospectus prior to its filing with the SEC, and the Company
shall give due consideration to all such comments. The Investor shall furnish all
information reasonably requested by the Company for inclusion therein. The Company
shall use its best efforts to have the Registration Statement and any amendment declared
effective by the SEC at the earliest possible date. The Company shall use reasonable
best efforts to keep the Registration Statement effective pursuant to Rule 415 promulgated under the Securities Act and available for the resale by the Investor
of all of the Registrable Securities covered thereby at all times until the date on
which the Investor shall have resold all the Registrable Securities covered thereby
and no Available Amount remains under the Purchase Agreement (the “Registration Period”). The Registration Statement (including any amendments or supplements thereto and
prospectuses contained therein) shall not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein, or necessary
to make the statements therein, in light of the circumstances in which they were made,
not misleading.
b. Rule 424 Prospectus. The Company shall, as required by applicable securities regulations, from time to
time file with the SEC, pursuant to Rule 424 promulgated under the Securities Act, the prospectus and prospectus supplements,
if any, to be used in connection with sales of the Registrable Securities under the
Registration Statement. The Investor and its counsel shall have a reasonable opportunity
to review and comment upon such prospectus prior to its filing with the SEC, and the
Company shall give due consideration to all such comments. The Investor shall use
its reasonable best efforts to comment upon such prospectus within one (1) Business
Day from the date the Investor receives the substantially final pre-filing version
of such prospectus.
c. Sufficient Number of Shares Registered. In the event the number of shares available under the Registration Statement is
insufficient to cover all of the Registrable Securities, the Company shall amend the
Registration Statement or file a new Registration Statement (a “New Registration Statement”), so as to cover all of such Registrable Securities (subject to the limitations
set forth in Section 2(a)) as soon as practicable, but in any event not later than ten (10) Business Days
after the necessity therefor arises, subject to any limits that may be imposed by
the SEC pursuant to Rule 415 under the Securities Act. The Company shall use its reasonable best efforts to
cause such amendment and/or New Registration Statement to become effective as soon
as practicable following the filing thereof.
d. Offering. If the staff of the SEC (the “Staff”) or the SEC seeks to characterize any offering pursuant to a Registration Statement
filed pursuant to this Agreement as constituting an offering of securities that does
not permit such Registration Statement to become effective and be used for resales
by the Investor under Rule 415 at then-prevailing market prices (and not fixed prices), or if after the filing
of the initial Registration Statement with the SEC pursuant to Section 2(a), the Company is otherwise required by the Staff or the SEC to reduce the number
of Registrable Securities included in such initial Registration Statement, then the
Company shall reduce the number of Registrable Securities to be included in such initial
Registration Statement (with the prior consent, which shall not be unreasonably withheld,
of the Investor as to the specific Registrable Securities to be removed therefrom)
until such time as the Staff and the SEC shall so permit such Registration Statement
to become effective and be used as aforesaid. In the event of any reduction in Registrable
Securities pursuant to this paragraph, the Company shall file one or more New Registration
Statements in accordance with Section 2(c) until such time as all Registrable Securities have been included in Registration
Statements that have been declared effective and the prospectus contained therein
is available for use by the Investor. Notwithstanding any provision herein or in the
Purchase Agreement to the contrary, the Company’s obligations to register Registrable Securities (and any related conditions to the
Investor’s obligations) shall be qualified as necessary to comport with any requirement of
the SEC or the Staff as addressed in this Section 2(d).
3. RELATED OBLIGATIONS.
With respect to the Registration Statement and whenever any Registrable Securities
are to be registered pursuant to Section 2 including on any New Registration Statement, the Company shall use its reasonable
best efforts to effect the registration of the Registrable Securities in accordance
with the intended method of disposition thereof and, pursuant thereto, the Company
shall have the following obligations:
a. The Company shall prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to any registration statement and the prospectus used
in connection with such registration statement, which prospectus is to be filed pursuant
to Rule 424 promulgated under the Securities Act, as may be necessary to keep the Registration
Statement or any New Registration Statement effective at all times during the Registration
Period, and, during such period, comply with the provisions of the Securities Act
with respect to the disposition of all Registrable Securities of the Company covered
by the Registration Statement or any New Registration Statement until such time as
all of such Registrable Securities shall have been disposed of in accordance with
the intended methods of disposition by the Investor as set forth in such registration
statement.
b. The Company shall permit the Investor to review and comment upon the Registration
Statement or any New Registration Statement and all amendments and supplements thereto,
and not file any document in a form to which Investor reasonably objects. The Investor
shall use its reasonable best efforts to comment upon the Registration Statement or
any New Registration Statement and any amendments or supplements thereto within two
(2) Business Days from the date the Investor receives the final version thereof. The
Company shall furnish to the Investor, without charge any correspondence from the
SEC or the staff of the SEC to the Company or its representatives relating to the
Registration Statement or any New Registration Statement.
c. Upon request of the Investor, the Company shall furnish to the Investor, (i) promptly
after the same is prepared and filed with the SEC, at least one copy of such Registration
Statement and any amendment(s) thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits, (ii) upon the effectiveness
of any Registration Statement, a copy of the prospectus included in such Registration
Statement and all amendments and supplements thereto (or such other number of copies
as the Investor may reasonably request) and (iii) such other documents, including
copies of any preliminary or final prospectus, as the Investor may reasonably request
from time to time in order to facilitate the disposition of the Registrable Securities
owned by the Investor. For the avoidance of doubt, any filing available to the Investor
via the SEC’s live EDGAR system shall be deemed “furnished to the Investor” hereunder.
d. Upon the request of the Investor, the Company shall use reasonable best efforts
to (i) register and qualify, unless an exemption from registration and qualification
applies, the resale by the Investor of the Registrable Securities covered by a Registration
Statement under such other securities or “blue sky” laws of such jurisdictions in
the United States as the Investor reasonably requests, (ii) prepare and file in those
jurisdictions, such amendments (including post-effective amendments) and supplements
to such registrations and qualifications as may be necessary to maintain the effectiveness
thereof during the Registration Period, (iii) take such other actions as may be necessary
to maintain such registrations and qualifications in effect at all times during the
Registration Period, and (iv) take all other actions reasonably necessary or advisable
to qualify the Registrable Securities for sale in such jurisdictions; provided, however,
that the Company shall not be required in connection therewith or as a condition thereto
to (x) qualify to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), (y) subject itself to general taxation in any such jurisdiction, or (z) file
a general consent to service of process in any such jurisdiction. The Company shall
promptly notify the Investor who holds Registrable Securities of the receipt by the
Company of any notification with respect to the suspension of the registration or
qualification of any of the Registrable Securities for sale under the securities or
“blue sky” laws of any jurisdiction in the United States or its receipt of actual
notice of the initiation or threatening of any proceeding for such purpose.
e. As promptly as practicable after becoming aware of such event or facts, the Company
shall notify the Investor in writing of the happening of any event or existence of
such facts as a result of which the prospectus included in any Registration Statement,
as then in effect, includes an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading
(provided that in no event shall such notice contain any material, non-public information
regarding the Company), and promptly prepare a supplement or amendment to such Registration
Statement to correct such untrue statement or omission, and deliver a copy of such
supplement or amendment to the Investor (or such other number of copies as the Investor
may reasonably request). The Company shall also promptly notify the Investor in writing
(i) when a prospectus or any prospectus supplement or post-effective amendment has
been filed, and when a Registration Statement or any post-effective amendment has
become effective (notification of such effectiveness shall be delivered to the Investor
by email or facsimile on the same day of such effectiveness and by overnight mail),
(ii) of any request by the SEC for amendments or supplements to any Registration Statement or related prospectus or related information, and (iii) of
the Company’s reasonable determination that a post-effective amendment to a Registration Statement
would be appropriate.
f. The Company shall use its reasonable best efforts to prevent the issuance of any
stop order or other suspension of effectiveness of any registration statement, or
the suspension of the qualification of any Registrable Securities for sale in any
jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal
of such order or suspension at the earliest possible moment and to notify the Investor
of the issuance of such order and the resolution thereof or its receipt of actual
notice of the initiation or threat of any proceeding for such purpose.
g. The Company shall (i) cause all the Registrable Securities to be listed on each
securities exchange on which securities of the same class or series issued by the
Company are then listed, if any, if the listing of such Registrable Securities is
then permitted under the rules of such exchange, or (ii) secure designation and quotation
of all the Registrable Securities on the Principal Market. The Company shall pay all
fees and expenses in connection with satisfying its obligation under this Section 3.
h. The Company shall cooperate with the Investor to facilitate the timely preparation
and delivery of certificates (not bearing any restrictive legend) representing the
Registrable Securities to be offered pursuant to any registration statement and enable
such certificates to be in such denominations or amounts as the Investor may reasonably
request and registered in such names as the Investor may request.
i. The Company shall at all times provide a transfer agent and registrar with respect
to its Common Stock.
j. If reasonably requested by the Investor, the Company shall (i) as soon as practicable
after receipt of written notice from the Investor, incorporate in a prospectus supplement
or post-effective amendment such information as the Investor reasonably requests be
included therein relating to the sale and distribution of Registrable Securities,
including, without limitation, information with respect to the number of Registrable
Securities being sold, the purchase price being paid therefor and any other terms
of the offering of the Registrable Securities; (ii) make all required filings of such
prospectus supplement or post-effective amendment as soon as practicable upon notification
of the matters to be incorporated in such prospectus supplement or post-effective
amendment; and (iii) supplement or make amendments to any Registration Statement.
k. The Company shall use its reasonable best efforts to cause the Registrable Securities
covered by any Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to consummate the disposition
of such Registrable Securities.
l. Within one (1) Business Day after any Registration Statement which includes the
Registrable Securities is ordered effective by the SEC, the Company shall deliver,
and shall cause legal counsel for the Company to deliver, to the transfer agent for
such Registrable Securities (with copies to the Investor) confirmation that such Registration
Statement has been declared effective by the SEC in the form attached hereto as Exhibit A, or such other form acceptable to the Company’s transfer agent. Thereafter, if requested by the Buyer at any time, the Company shall
require its counsel to deliver to the Buyer a written confirmation whether or not
the effectiveness of such registration statement has lapsed at any time for any reason
(including, without limitation, the issuance of a stop order) and whether or not the
registration statement is current and available to the Buyer for sale of all of the
Registrable Securities.
m. The Company shall take all other reasonable actions necessary to expedite and facilitate
disposition by the Investor of Registrable Securities pursuant to any Registration
Statement.
4. OBLIGATIONS OF THE INVESTOR.
a. The Company shall notify the Investor in writing of the information the Company
reasonably requires from the Investor in connection with any Registration Statement
hereunder. The Investor shall furnish to the Company such information regarding itself,
the Registrable Securities held by it and the intended method of disposition of the
Registrable Securities held by it as shall be reasonably required to effect the registration
of such Registrable Securities and shall execute such documents in connection with
such registration as the Company may reasonably request.
b. The Investor agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of any Registration Statement
hereunder.
c. The Investor agrees that, upon receipt of any notice from the Company of the happening
of any event or existence of facts of the kind described in Section 3(f) or the first sentence of 3(e), the Investor will immediately discontinue disposition
of Registrable Securities pursuant to any registration statement(s) covering such
Registrable Securities until the Investor’s receipt of the copies of the supplemented or amended prospectus contemplated by
Section 3(f) or the first sentence of 3(e). Notwithstanding anything to the contrary, the Company
shall cause its transfer agent to promptly deliver shares of Common Stock without
any restrictive legend in accordance with the terms of the Purchase Agreement in connection
with any sale of Registrable Securities with respect to which an Investor has entered
into a contract for sale prior to the Investor’s receipt of a notice from the Company of the happening of any event of the kind described
in Section 3(f) or the first sentence of Section 3(e) and for which the Investor has not yet settled.
5. EXPENSES OF REGISTRATION.
All reasonable expenses, other than sales or brokerage commissions, incurred in connection
with registrations, filings or qualifications pursuant to Sections 2 and 3, including, without limitation, all registration, listing and qualifications
fees, printers and accounting fees, and fees and disbursements of counsel for the
Company, shall be paid by the Company.
6. INDEMNIFICATION.
a. To the fullest extent permitted by law, the Company will, and hereby does, indemnify,
hold harmless and defend the Investor, each Person, if any, who controls the Investor,
the members, the directors, officers, partners, employees, agents, members, managers
representatives of the Investor and each Person, if any, who controls the Investor
within the meaning of the Securities Act or the Securities Exchange Act of 1934, as
amended (the “Exchange Act”) (each, an “Indemnified Person”), against any losses, claims, damages, liabilities, judgments, fines, penalties,
charges, costs, attorneys’ fees, amounts paid in settlement or expenses, joint or several, (collectively, “Claims”) incurred in investigating, preparing or defending any action, claim, suit, inquiry,
proceeding, investigation or appeal taken from the foregoing by or before any court
or governmental, administrative or other regulatory agency, body or the SEC, whether
pending or threatened, whether or not an indemnified party is or may be a party thereto
(“Indemnified Damages”), to which any of them may become subject insofar as such Claims (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of or
are based upon: (i) any untrue statement or alleged untrue statement of a material
fact in the Registration Statement, any New Registration Statement or any post-effective
amendment thereto or in any filing made in connection with the qualification of the
offering under the securities or other “blue sky” laws of any jurisdiction in which
Registrable Securities are offered (“Blue Sky Filing”), or the omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in the final prospectus
(as amended or supplemented, if the Company files any amendment thereof or supplement
thereto with the SEC) or the omission or alleged omission to state therein any material
fact necessary to make the statements made therein, in light of the circumstances
under which the statements therein were made, not misleading, (iii) any violation
or alleged violation by the Company of the Securities Act, the Exchange Act, any other
law, including, without limitation, any state securities law, or any rule or regulation
thereunder relating to the offer or sale of the Registrable Securities pursuant to
the Registration Statement or any New Registration Statement or (iv) any material
violation by the Company of this Agreement (the matters in the foregoing clauses (i)
through (iv) being, collectively, “Violations”). The Company shall reimburse each Indemnified Person promptly as such expenses
are incurred and are due and payable, for any reasonable legal fees or other reasonable
expenses incurred by them in connection with investigating or defending any such Claim.
Notwithstanding anything to the contrary contained herein, the indemnification agreement
contained in this Section 6(a): (i) shall not apply to a Claim by an Indemnified Person arising out of or based
upon a Violation which occurs in reliance upon and in conformity with information
about the Investor furnished in writing to the Company by such Indemnified Person
expressly for use in connection with the preparation of the Registration Statement,
any New Registration Statement or any such amendment thereof or supplement thereto,
if such was timely made available by the Company pursuant to Section 3(c) or Section 3(e); (ii) with respect to any superseded prospectus, shall not inure to the benefit
of any such person from whom the person asserting any such Claim purchased the Registrable Securities that are the subject
thereof (or to the benefit of any person controlling such person) if the untrue statement
or omission of material fact contained in the superseded prospectus was corrected
in the revised prospectus, as then amended or supplemented, if such revised prospectus
was timely made available by the Company pursuant to Section 3(c) or Section 3(e), and the Indemnified Person was promptly advised in writing not to use the incorrect
prospectus prior to the use giving rise to a violation and such Indemnified Person,
notwithstanding such advice, used it; (iii) shall not be available to the extent such
Claim is based on a failure of the Investor to deliver or to cause to be delivered
the prospectus made available by the Company, if such prospectus was timely made available
by the Company pursuant to Section 3(c) or Section 3(e); and (iv) shall not apply to amounts paid in settlement of any Claim if such settlement
is effected without the prior written consent of the Company, which consent shall
not be unreasonably withheld. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnified Person and
shall survive the transfer of the Registrable Securities by the Investor pursuant
to Section 9.
b. In connection with the Registration Statement or any New Registration Statement,
the Investor agrees to indemnify, hold harmless and defend, to the same extent and
in the same manner as is set forth in Section 6(a), the Company, each of its directors, each of its officers who signs the Registration
Statement or any New Registration Statement, each Person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act (collectively
and together with an Indemnified Person, an “Indemnified Party”), against any Claim or Indemnified Damages to which any of them may become subject,
under the Securities Act, the Exchange Act or otherwise, insofar as such Claim or
Indemnified Damages arise out of or are based upon any Violation, in each case to
the extent, and only to the extent, that such Violation occurs in reliance upon and
in conformity with written information about the Investor set forth on Exhibit B attached hereto and furnished to the Company by the Investor expressly for use in
connection with such Registration Statement; and, subject to Section 6(d), the Investor will reimburse any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such Claim; provided, however,
that the indemnity agreement contained in this Section 6(b) and the agreement with respect to contribution contained in Section 7 shall not apply to amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of the Investor, which consent shall not
be unreasonably withheld; provided, further, however, that the Investor shall be liable
under this Section 6(b) for only that amount of a Claim or Indemnified Damages as does not exceed the
net proceeds to the Investor as a result of the sale of Registrable Securities pursuant
to such Registration Statement. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Indemnified Party and
shall survive the transfer of the Registrable Securities by the Investor pursuant
to Section 9.
c. Promptly after receipt by an Indemnified Person or Indemnified Party under this
Section 6 of notice of the commencement of any action or proceeding (including any governmental
action or proceeding) involving a Claim, such Indemnified Person or Indemnified Party
shall, if a Claim in respect thereof is to be made against any indemnifying party
under this Section 6, deliver to the indemnifying party a written notice of the commencement thereof,
and the indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party similarly
noticed, to assume control of the defense thereof with counsel mutually satisfactory
to the indemnifying party and the Indemnified Person or the Indemnified Party, as
the case may be; provided, however, that an Indemnified Person or Indemnified Party
shall have the right to retain its own counsel with the fees and expenses to be paid
by the indemnifying party, if, in the reasonable opinion of counsel retained by the
indemnifying party, the representation by such counsel of the Indemnified Person or
Indemnified Party and the indemnifying party would be inappropriate due to actual
or potential differing interests between such Indemnified Person or Indemnified Party
and any other party represented by such counsel in such proceeding. The Indemnified
Party or Indemnified Person shall cooperate fully with the indemnifying party in connection
with any negotiation or defense of any such action or claim by the indemnifying party
and shall furnish to the indemnifying party all information reasonably available to
the Indemnified Party or Indemnified Person which relates to such action or claim.
The indemnifying party shall keep the Indemnified Party or Indemnified Person fully
apprised at all times as to the status of the defense or any settlement negotiations
with respect thereto. No indemnifying party shall be liable for any settlement of
any action, claim or proceeding effected without its written consent, provided, however,
that the indemnifying party shall not unreasonably withhold, delay or condition its
consent. No indemnifying party shall, without the consent of the Indemnified Party
or Indemnified Person, consent to entry of any judgment or enter into any settlement
or other compromise which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such Indemnified Party or Indemnified Person of a
release from all liability in respect to such claim or litigation. Following indemnification
as provided for hereunder, the indemnifying party shall be subrogated to all rights
of the Indemnified Party or Indemnified Person with respect to all third parties,
firms or corporations relating to the matter for which indemnification has been made.
The failure to deliver written notice to the indemnifying party within a reasonable
time of the commencement of any such action shall not relieve such indemnifying party
of any liability to the Indemnified Person or Indemnified Party under this Section 6, except to the extent that the indemnifying party is prejudiced in its ability to
defend such action.
d. The indemnification required by this Section 6 shall be made by periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or Indemnified Damages are
incurred.
e. The indemnity agreements contained herein shall be in addition to (i) any cause
of action or similar right of the Indemnified Party or Indemnified Person against
the indemnifying party or others, and (ii) any liabilities the indemnifying party
may be subject to pursuant to law.
7. CONTRIBUTION.
To the extent any indemnification by an indemnifying party is prohibited or limited
by law, the indemnifying party agrees to make the maximum contribution with respect
to any amounts for which it would otherwise be liable under Section 6 to the fullest extent permitted by law; provided, however, that: (i) no seller of
Registrable Securities guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from any seller of Registrable
Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution
by any seller of Registrable Securities shall be limited in amount to the net amount
of proceeds received by such seller from the sale of such Registrable Securities.
8. REPORTS AND DISCLOSURE UNDER THE SECURITIES ACTS.
With a view to making available to the Investor the benefits of Rule 144 promulgated under the Securities Act or any other similar rule or regulation of
the SEC that may at any time permit the Investor to sell securities of the Company
to the public without registration (“Rule 144”), the Company agrees, at the Company’s sole expense, to:
a. make and keep public information available, as those terms are understood and defined
in Rule 144;
b. file with the SEC in a timely manner all reports and other documents required of
the Company under the Securities Act and the Exchange Act so long as the Company remains
subject to such requirements and the filing of such reports and other documents is
required for the applicable provisions of Rule 144;
c. furnish to the Investor so long as the Investor owns Registrable Securities, promptly
upon request, (i) a written statement by the Company that it has complied with the
reporting and or disclosure provisions of Rule 144, the Securities Act and the Exchange Act, (ii) a copy of the most recent annual
or quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested to permit
the Investor to sell such securities pursuant to Rule 144 without registration; and
d. take such additional action as is reasonably requested by the Investor to enable
the Investor to sell the Registrable Securities pursuant to Rule 144, including, without limitation, delivering all such legal opinions, consents, certificates,
resolutions and instructions to the Company’s Transfer Agent as may be reasonably requested from time to time by the Investor
that comply with applicable laws and otherwise fully cooperate with Investor and Investor’s broker to effect such sale of securities pursuant to Rule 144.
The Company agrees that damages may be an inadequate remedy for any breach of the
terms and provisions of this Section 8 and that Investor shall, whether or not it is pursuing any remedies at law, be entitled
to seek equitable relief in the form of a preliminary or permanent injunction, without
having to post any bond or other security, upon any breach or threatened breach of
any such terms or provisions.
9. ASSIGNMENT OF REGISTRATION RIGHTS.
The Company shall not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Investor. The Investor may not assign its
rights under this Agreement without the written consent of the Company, other than
to an affiliate of the Investor.
10. AMENDMENT OF REGISTRATION RIGHTS.
No provision of this Agreement may be amended or waived by the parties from and after
the date that is one (1) Business Day immediately preceding the initial filing of
the Registration Statement with the SEC. Subject to the immediately preceding sentence,
no provision of this Agreement may be (i) amended other than by a written instrument
signed by both parties hereto or (ii) waived other than in a written instrument signed
by the party against whom enforcement of such waiver is sought. Failure of any party
to exercise any right or remedy under this Agreement or otherwise, or delay by a party
in exercising such right or remedy, shall not operate as a waiver thereof.
11. MISCELLANEOUS.
a. A Person is deemed to be a holder of Registrable Securities whenever such Person
owns or is deemed to own of record such Registrable Securities. If the Company receives
conflicting instructions, notices or elections from two or more Persons with respect
to the same Registrable Securities, the Company shall act upon the basis of instructions,
notice or election received from the registered owner of such Registrable Securities.
b. Any notices, consents, waivers or other communications required or permitted to
be given under the terms of this Agreement must be in writing and will be deemed to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt,
when sent by facsimile or email (provided confirmation of transmission is mechanically
or electronically generated and kept on file by the sending party); or (iii) one (1)
Business Day after deposit with a nationally recognized overnight delivery service,
in each case properly addressed to the party to receive the same. The addresses for
such communications shall be:
If to the Company:
Vivakor, Inc.
5220 Spring Valley Road
Suite 500
Dallas, TX75254
Tel: 949-281-2606
Email: jballengee@vivakor.com
With a copy to (which shall not constitute notice or service of process):
Pat Knapp
At the Company
Tel: 903-815-6350
Email: pknapp@vivakor.com
If to the Investor:
ClearThink Capital Partners, LLC
10 Times Square, 5th FL
New York, NY 10024
Tel: 646-431-6980
E-mail: nyc@clearthink.capital
If to the Transfer Agent:
Empire Stock Transfer
1859 Whitney Mesa Drive
Henderson, NV 89014
Tel: 702-818-5898
Email: info@empirestock.com
or at such other address, email address and/or facsimile number and/or to the attention
of such other person as the recipient party has specified by written notice given
to each other party three (3) Business Days prior to the effectiveness of such change.
Written confirmation of receipt (A) given by the recipient of such notice, consent,
waiver or other communication, (B) mechanically or electronically generated by the
sender’s facsimile machine or email account containing the time, date, recipient facsimile
number or email address, as applicable, or (C) provided by a nationally recognized
overnight delivery service, shall be rebuttable evidence of personal service, receipt
by facsimile, email or receipt from a nationally recognized overnight delivery service
in accordance with clause (i), (ii) or (iii) above, respectively.
c. The corporate laws of the State of Nevada shall govern all issues concerning the relative rights of the Company and its stockholders.
All other questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of Texas, without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Texas or any other jurisdictions) that would cause the application of the laws of any jurisdictions
other than the State of Texas. Each party hereby irrevocably submits to the exclusive jurisdiction of the state
and federal courts sitting the State of Texas, County of Dallas, for the adjudication of any dispute hereunder or in connection herewith or with
any transaction contemplated hereby or discussed herein, and hereby irrevocably waives,
and agrees not to assert in any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of any such court, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of such suit, action
or proceeding is improper. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or proceeding
by mailing a copy thereof to such party at the address for such notices to it under
this Agreement and agrees that such service shall constitute good and sufficient service
of process and notice thereof. Nothing contained herein shall be deemed to limit in
any way any right to serve process in any manner permitted by law. If any provision
of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity
or unenforceability shall not affect the validity or enforceability of the remainder
of this Agreement in that jurisdiction or the validity or enforceability of any provision
of this Agreement in any other jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST,
A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH
OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
d. This Agreement and the Purchase Agreement constitute the entire agreement among the parties hereto with
respect to the subject matter hereof and thereof. There are no restrictions, promises,
warranties or undertakings among the parties hereto, other than those set forth or
referred to herein and therein. This Agreement and the Purchase Agreement supersede
all prior agreements and understandings among the parties hereto with respect to the
subject matter hereof and thereof.
e. Subject to the requirements of Section 9, this Agreement shall inure to the benefit of and be binding upon the successors
and permitted assigns of each of the parties hereto.
f. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
g. This Agreement may be executed in identical counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same agreement. This
Agreement, once executed by a party, may be delivered to the other party hereto by
facsimile transmission or by e-mail in a “.pdf” format data file of a copy of this
Agreement bearing the signature of the party so delivering this Agreement.
h. Each party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements, certificates,
instruments and documents, as the other party may reasonably request in order to carry
out the intent and accomplish the purposes of this Agreement and the consummation
of the transactions contemplated hereby.
i. The language used in this Agreement will be deemed to be the language chosen by
the parties to express their mutual intent and no rules of strict construction will
be applied against any party.
j. This Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns, and is not for the benefit of, nor may any provision
hereof be enforced by, any other Person.
* * * * * *
IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be duly executed as
of day and year first above written.
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THE COMPANY: |
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VIVAKOR, INC.
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By: |
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Name: |
James Ballengee |
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Title: |
Chief Executive Officer |
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BUYER: |
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CLEARTHINK CAPITAL PARTNERS, LLC |
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By |
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Name: |
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Title: |
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EXHIBIT A
TO REGISTRATION RIGHTS AGREEMENT
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
[Date]
[TRANSFER AGENT]
___________________
___________________
Re: [__________]
Ladies and Gentlemen:
We are counsel to Vivakor. Inc., a Nevada corporation (the “Company”), and have represented the Company in connection with that certain Purchase Agreement,
dated as of July [__], 2024 (the “Purchase Agreement”), entered into by and between the Company and ClearThink Capital Partners, LLC (the “Buyer”) pursuant to which, among other things, the Company has agreed to issue to the Buyer
shares of the Company’s Common Stock, par value $0.001 per share (the “Common Stock”), in an amount up to Five Million Dollars ($5,000,000) (the “Purchase Shares”), in accordance with the terms of the Purchase Agreement. In connection with the
transactions contemplated by the Purchase Agreement, the Company has registered with
the U.S. Securities and Exchange Commission (the “SEC”) [__________] shares of Common Stock that may be issued and sold by the Company
to the Buyer from time to time (the “Purchase Shares”).
Pursuant to the Purchase Agreement, the Company also has entered into a Registration
Rights Agreement, dated as of July [__], 2024 with the Buyer (the “Registration Rights Agreement”) pursuant to which the Company agreed, among other things, to register the Purchase
Shares under the Securities Act of 1933, as amended (the “Securities Act”). In connection with the Company’s obligations under the Purchase Agreement and the Registration Rights Agreement,
on August [__], 2024, the Company filed a Registration Statement (File No. 333-[_________]) (the “Registration Statement”) with the SEC relating to the resale of the Purchase Shares.
In connection with the foregoing, we advise you that a member of the SEC’s staff has advised us by telephone that the SEC has entered an order declaring the
Registration Statement effective under the Securities Act at __:__ am/pm on _______
__, 2024, and we have no knowledge, based solely on our review of the Commission’s “Stop Orders” web page (http://sec.gov/litigation/stoporders.shtml), that any stop
order suspending the Registration Statement’s effectiveness has been issued or that any proceedings for that purpose are pending
before, or threatened by, the SEC, and the Purchase Shares and the Commitment Shares
are available for resale under the Securities Act pursuant to the Registration Statement
and may be issued without any restrictive legend.
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Very truly yours, |
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[Company Counsel] |
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Exhibit 10.3
Execution Version
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this “Agreement”), dated as of July 31, 2024, is entered into by and between Vivakor, Inc., a Nevada corporation, (the “Company”), and ClearThink Capital Partners, LLC, a Delaware limited liability company (the “Buyer”).
A. The Company and the Buyer are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by the rules and regulations as promulgated by the United States Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “1933 Act”).
B. Upon the terms and conditions stated in this Agreement, the Buyer desires to purchase and the Company desires to issue and sell, upon the terms and conditions set forth in this Agreement one hundred thirty-five thousand and one hundred thirty-five (135,135) restricted common shares in the Company (“Restricted Common Stock”) at an effective price of $1.85 per share to be delivered to Buyer, via book entry within 7 (seven) calendar days following the Closing Dates.
NOW THEREFORE, the Company and the Buyer hereby agree as follows:
1. Purchase and Sale. On each of the two Closing Dates (as defined below), the Company shall issue and sell to the Buyer and the Buyer agrees to purchase from the Company sixty-seven thousand five hundred sixty-eight (67,568) restricted Common shares (collectively the “Securities”) in exchange for $125,000 (each a “Purchase Price”).
1.1. Form of Payment. (i) the Buyer shall pay the purchase price of $125,000 at the 1st Closing (as defined below) and an additional $125,000 at the 2nd Closing (as defined below) by wire transfer of immediately available funds to a Company account designated by the Company, in accordance with the Company’s written wiring instructions, against delivery of the Securities, and (ii) the Company shall deliver such duly executed Securities on behalf of the Company, to the Buyer, against delivery of such Purchase Price.
1.2. Closing Date(s). The date and time of the issuance and sale of the Securities pursuant to this Agreement (each a “Closing Date”) for the 1st Closing shall be on or about July 31, 2024, or such other mutually agreed upon time. The 2nd Closing shall be within five (5) days after the filing of the S-1 Registration Statement underlying the Purchase Agreement. The closings of the transactions contemplated by this Agreement (the “Closing”) shall occur on the Closing Dates at such location as may be agreed to by the parties.
2. Buyer’s Investment Representations; Governing Law; Miscellaneous.
2.1 Buyer’s Investment Representations.
(a) This Agreement is made in reliance upon the Buyer’s representation to the Company, which by its acceptance hereof Buyer hereby confirms, that the Securities to be received by it will be acquired for investment for its own account, not as a nominee or agent, and not with a view to the sale or distribution of any part thereof, and that it 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 its property shall at all times be within its control.
(b) The Buyer understands that the Securities are not registered under the 1933 Act, on the basis that the sale provided for in this Agreement and the issuance of securities hereunder is exempt from registration under the 1933 Act pursuant to Section 4(a)(2) thereof, and that the Company’s reliance on such exemption is predicated on the Buyer’s representations set forth herein. The Buyer realizes that the basis for the exemption may not be present if, notwithstanding such representations, the Buyer has in mind merely acquiring shares of the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Buyer does not have any such intention.
(c) The Buyer understands that the Securities may not be sold, transferred, or otherwise disposed of without registration under the 1933 Act or an exemption therefrom, and that in the absence of an effective registration statement covering the Securities or an available exemption from registration under the 1933 Act, the Stock must be held indefinitely. In particular, the Buyer is aware that the Securities may not be sold pursuant to Rule 144 or Rule 701 promulgated under the 1933 Act unless all of the conditions of the applicable Rules are met. Among the conditions for use of Rule 144 is the availability of current information to the public about the Company. The Buyer represents that, in the absence of an effective registration statement covering the Securities, it will sell, transfer, or otherwise dispose of the Securities only in a manner consistent with its representations set forth herein and then only in accordance with the provisions of Section 5(d) hereof.
(d) The Buyer agrees that in no event will it make a transfer or disposition of any of the Securities (other than pursuant to an effective registration statement under the 1933 Act), unless and until (i) the Buyer shall have notified the Company of the proposed disposition and shall have furnished the Company with a statement of the circumstances surrounding the disposition, and (ii) if requested by the Company, at the expense of the Buyer or transferee, the Buyer shall have furnished to the Company either (A) an opinion of counsel, reasonably satisfactory to the Company, to the effect that such transfer may be made without registration under the 1933 Act or (B) a “no action” letter from the Securities and Exchange Commission to the effect that the transfer of such securities without registration will not result in a recommendation by the staff of the Securities and Exchange Commission that action be taken with respect thereto. The Company will not require such a legal opinion or “no action” letter in any transaction in compliance with Rule 144.
(e) The Buyer represents and warrants to the Company that it is an “accredited investor” within the meaning of Securities and Exchange Commission Rule 501 of Regulation D, as presently in effect and, for the purpose of Section 25102(f) of the California Corporations Code, he or she is excluded from the count of “purchasers” pursuant to Rule 260.102.13 thereunder.
2.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada without regard to principles of conflicts of laws. Any action brought by either party against the other concerning the transactions contemplated by this Agreement shall be brought only in the state courts of Texas or in the federal courts located in Dallas County, Texas. The parties to this Agreement hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens. In the event that any provision of this Agreement or any other agreement delivered in connection herewith is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision of any agreement. Each party hereby irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding in connection with this Agreement or any other Transaction Document by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
2.3 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party.
2.4 Headings. The headings of this Agreement are for convenience of reference only and shall not form part of, or affect the interpretation of, this Agreement.
2.5 Severability. In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any provision hereof which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision hereof.
2.6 Entire Agreement; Amendments. This Agreement and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be waived or amended other than by an instrument in writing signed by the Buyer.
2.7 Notices. Any notice required or permitted hereunder shall be given in writing (unless otherwise specified herein) and shall be deemed effectively given on the earliest of:
2.7.1 the date delivered, if delivered by personal delivery as against written receipt therefor or by e-mail to an executive officer, or by confirmed facsimile,
2.7.2 the fifth Trading Day after deposit, postage prepaid, in the United States Postal Service by registered or certified mail, or
2.7.3 the third Trading Day after mailing by domestic or international express courier, with delivery costs and fees prepaid, in each case, addressed to each of the other parties thereunto entitled at the following addresses (or at such other addresses as such party may designate by ten (10) calendar days’ advance written notice similarly given to each of the other parties hereto):
If to the Company:
Vivakor,
Inc.
5220
Spring Valley Road
Suite
500
Dallas,
TX75254
Tel:
949-281-2606
Email: jballengee@vivakor.com
With a copy to (which shall not constitute notice or service of process):
Pat
Knapp
At
the Company
Tel:
903-815-6350
Email:
pknapp@vivakor.com
If to the Investor:
ClearThink
Capital Partners, LLC
10
Times Square, 5th FL
New
York, NY 10024
Tel:
646-431-6980
E-mail: nyc@clearthink.capital
If to the Transfer Agent:
Empire
Stock Transfer
1859
Whitney Mesa Drive
Henderson,
NV 89014
Tel: 702-818-5898
Email: info@empirestock.com
2.8 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. Notwithstanding anything to the contrary herein, the rights, interests or obligations of the Company hereunder may not be assigned, by operation of law or otherwise, in whole or in part, by the Company without the prior written consent of the Buyer, which consent may be withheld at the sole discretion of the Buyer; provided, however, that in the case of a merger, sale of substantially all of the Company’s assets or other corporate reorganization, the Buyer shall not unreasonably withhold, condition or delay such consent. This Agreement or any of the severable rights and obligations inuring to the benefit of or to be performed by Buyer hereunder may be assigned by Buyer to a third party, including its financing sources, in whole or in part, without the need to obtain the Company’s consent thereto.
2.9 Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
2.10 Survival. The representations and warranties of the Company and the agreements and covenants set forth in this Agreement shall survive the Closing hereunder notwithstanding any due diligence investigation conducted by or on behalf of the Buyer. The Company agrees to indemnify and hold harmless the Buyer and all its officers, directors, employees, attorneys, and agents for loss or damage arising as a result of or related to any breach or alleged breach by the Company of any of its representations, warranties and covenants set forth in this Agreement or any of its covenants and obligations under this Agreement, including advancement of expenses as they are incurred.
2.11 No Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.
2.12 Remedies. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Buyer by vitiating the intent and purpose of the transaction contemplated hereby. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations under this Agreement will be inadequate and agrees, in the event of a breach or threatened breach by the Company of the provisions of this Agreement, that the Buyer shall be entitled, in addition to all other available remedies at law or in equity, and in addition to the penalties assessable herein, to an injunction or injunctions restraining, preventing or curing any breach of this Agreement and to enforce specifically the terms and provisions hereof, without the necessity of showing economic loss and without any bond or other security being required.
2.13 Buyer’s Rights and Remedies Cumulative. All rights, remedies, and powers conferred in this Agreement and the Transaction Documents on the Buyer are cumulative and not exclusive of any other rights or remedies, and shall be in addition to every other right, power, and remedy that the Buyer may have, whether specifically granted in this Agreement or any other Transaction Document, or existing at law, in equity, or by statute; and any and all such rights and remedies may be exercised from time to time and as often and in such order as the Buyer may deem expedient.
2.14 Ownership Limitation. If at any time after the Closing, the Buyer shall or would receive shares of Common Stock, so that the Buyer would, together with other shares of Common Stock held by it or its Affiliates, own or beneficially own by virtue of such action or receipt of additional shares of Common Stock a number of shares exceeding 9.99% of the number of shares of Common Stock outstanding on such date (the “Maximum Percentage”), the Company shall not be obligated and shall not issue to the Buyer shares of Common Stock which would exceed the Maximum Percentage, but only until such time as the Maximum Percentage would no longer be exceeded by any such receipt of shares of Common Stock by the Buyer. The foregoing limitations are enforceable, unconditional and non-waivable and shall apply to all Affiliates and assigns of the Buyer.
2.15 No Shorting. For so long as Investor holds any securities of Company, neither Investor nor any of its Affiliates will engage in or effect, directly or indirectly, any (i) “short sale” (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii) hedging transaction, which establishes a net short position with respect to the Common Stock.
2.16 Attorneys’ Fees and Cost of Collection. In the event of any action at law or in equity to enforce or interpret the terms of this Agreement or any of the other Transaction Documents, the parties agree that the party who is awarded the most money shall be deemed the prevailing party for all purposes and shall therefore be entitled to an additional award of the full amount of the attorneys’ fees and expenses paid by such prevailing party in connection with the litigation and/or dispute without reduction or apportionment based upon the individual claims or defenses giving rise to the fees and expenses. Nothing herein shall restrict or impair a court’s power.
2.17 Execution by Facsimile or PDF. This Agreement may be executed by facsimile or portable document format, which shall have the same effect and force as an original signature.
SUBSCRIPTION AMOUNT: FUNDING
Purchase Price: |
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$ |
250,000 |
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IN WITNESS WHEREOF, the undersigned Buyer and the Company have caused this Agreement to be duly executed as of the date first above written.
THE COMPANY:
Vivakor, Inc. |
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By: |
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James Ballengee
Chairman, President & CEO |
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THE BUYER:
ClearThink Capital Partners, LLC |
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By: |
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Exhibit 10.4
Execution Version
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this “Agreement”), dated as of July 26, 2024, is entered into by and between Vivakor, Inc., a Nevada corporation, (the “Company”), and James K. Granger, an individual domiciled in Louisiana (the “Buyer”).
A. The Company and the Buyer are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by the rules and regulations as promulgated by the United States Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “1933 Act”).
B. Upon the terms and conditions stated in this Agreement, the Buyer desires to purchase and the Company desires to issue and sell, upon the terms and conditions set forth in this Agreement 1,600,000 restricted common shares in the Company (“Securities”) at an effective price of $0.50 per share to be delivered to Buyer, via book entry within 7 (seven) calendar days following the Closing Date.
NOW THEREFORE, the Company and the Buyer hereby agree as follows:
1. Purchase and Sale. On the Closing Date (as defined below), the Company shall issue and sell to the Buyer and the Buyer agrees to purchase the Securities from the Company in exchange for Eight Hundred Thousand Dollars ($800,000) (the “Purchase Price”).
1.1. Form of Payment. On the Closing Date, (i) the Buyer shall pay the Purchase Price at the Closing (as defined below) by wire transfer of immediately available funds to a Company account designated by the Company, in accordance with the Company’s written wiring instructions, against delivery of the Securities, and (ii) the Company shall deliver such duly executed Securities on behalf of the Company, to the Buyer, against delivery of such Purchase Price.
1.2. Closing Date(s). The date and time of the issuance and sale of the Securities pursuant to this Agreement (the “Closing Date”) shall be on or about July 31, 2024, or such other mutually agreed upon time. The closing of the transactions contemplated by this Agreement (the “Closing”) shall occur on the Closing Date electronically or at such location as may be agreed to by the parties.
2. Buyer’s Investment Representations; Governing Law; Miscellaneous.
2.1 Buyer’s Investment Representations.
(a) This Agreement is made in reliance upon the Buyer’s representation to the Company, which by its acceptance hereof Buyer hereby confirms, that the Securities to be received by it will be acquired for investment for its own account, not as a nominee or agent, and not with a view to the sale or distribution of any part thereof, and that it 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 its property shall at all times be within its control.
(b) The Buyer understands that the Securities are not registered under the 1933 Act, on the basis that the sale provided for in this Agreement and the issuance of securities hereunder is exempt from registration under the 1933 Act pursuant to Section 4(a)(2) thereof, and that the Company’s reliance on such exemption is predicated on the Buyer’s representations set forth herein. The Buyer realizes that the basis for the exemption may not be present if, notwithstanding such representations, the Buyer has in mind merely acquiring shares of the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. The Buyer does not have any such intention.
(c) The Buyer understands that the Securities may not be sold, transferred, or otherwise disposed of without registration under the 1933 Act or an exemption therefrom, and that in the absence of an effective registration statement covering the Securities or an available exemption from registration under the 1933 Act, the Stock must be held indefinitely. In particular, the Buyer is aware that the Securities may not be sold pursuant to Rule 144 or Rule 701 promulgated under the 1933 Act unless all of the conditions of the applicable Rules are met. Among the conditions for use of Rule 144 is the availability of current information to the public about the Company. The Buyer represents that, in the absence of an effective registration statement covering the Securities, it will sell, transfer, or otherwise dispose of the Securities only in a manner consistent with its representations set forth herein and then only in accordance with the provisions of Section 5(d) hereof.
(d) The Buyer agrees that in no event will it make a transfer or disposition of any of the Securities (other than pursuant to an effective registration statement under the 1933 Act), unless and until (i) the Buyer shall have notified the Company of the proposed disposition and shall have furnished the Company with a statement of the circumstances surrounding the disposition, and (ii) if requested by the Company, at the expense of the Buyer or transferee, the Buyer shall have furnished to the Company either (A) an opinion of counsel, reasonably satisfactory to the Company, to the effect that such transfer may be made without registration under the 1933 Act or (B) a “no action” letter from the Securities and Exchange Commission to the effect that the transfer of such securities without registration will not result in a recommendation by the staff of the Securities and Exchange Commission that action be taken with respect thereto. The Company will not require such a legal opinion or “no action” letter in any transaction in compliance with Rule 144.
(e) The Buyer represents and warrants to the Company that it is an “accredited investor” within the meaning of Securities and Exchange Commission Rule 501 of Regulation D, as presently in effect.
2.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada without regard to principles of conflicts of laws. Any action brought by either party against the other concerning the transactions contemplated by this Agreement shall be brought only in the state courts of Texas or in the federal courts located in Dallas, Texas. The parties to this Agreement hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens. In the event that any provision of this Agreement or any other agreement delivered in connection herewith is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision of any agreement. Each party hereby irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding in connection with this Agreement or any other Transaction Document by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
2.3 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party.
2.4 Headings. The headings of this Agreement are for convenience of reference only and shall not form part of, or affect the interpretation of, this Agreement.
2.5 Severability. In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any provision hereof which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision hereof.
2.6 Entire Agreement; Amendments. This Agreement and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be waived or amended other than by an instrument in writing signed by the Buyer.
2.7 Notices. Any notice required or permitted hereunder shall be given in writing (unless otherwise specified herein) and shall be deemed effectively given on the earliest of:
2.7.1 the date delivered, if delivered by personal delivery as against written receipt therefor or by e-mail to an executive officer, or by confirmed facsimile,
2.7.2 the fifth Trading Day after deposit, postage prepaid, in the United States Postal Service by registered or certified mail, or
2.7.3 the third Trading Day after mailing by domestic or international express courier, with delivery costs and fees prepaid, in each case, addressed to each of the other parties thereunto entitled at the following addresses (or at such other addresses as such party may designate by ten (10) calendar days’ advance written notice similarly given to each of the other parties hereto):
If to the Company:
Vivakor, Inc.
5220 Spring Valley Road
Suite 500
Dallas, TX 75254
Tel: 949-281-2606
Email: jballengee@vivakor.com
With a copy to (which shall not constitute notice or service of process):
Pat Knapp
At the Company
Tel: 903-815-6350
Email: pknapp@vivakor.com
If to the Investor:
James K. Granger
11285 Heritage Oaks
Shreveport, LA 71106
If to the Transfer Agent:
Empire Stock Transfer
1859 Whitney Mesa Drive
Henderson, NV 89014
Tel: 702-818-5898
Email: info@empirestock.com
2.8 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. Notwithstanding anything to the contrary herein, the rights, interests or obligations of the Company hereunder may not be assigned, by operation of law or otherwise, in whole or in part, by the Company without the prior written consent of the Buyer, which consent may be withheld at the sole discretion of the Buyer; provided, however, that in the case of a merger, sale of substantially all of the Company’s assets or other corporate reorganization, the Buyer shall not unreasonably withhold, condition or delay such consent. This Agreement or any of the severable rights and obligations inuring to the benefit of or to be performed by Buyer hereunder may be assigned by Buyer to a third party, including its financing sources, in whole or in part, without the need to obtain the Company’s consent thereto.
2.9 Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
2.10 Survival. The representations and warranties of the Company and the agreements and covenants set forth in this Agreement shall survive the Closing hereunder notwithstanding any due diligence investigation conducted by or on behalf of the Buyer. The Company agrees to indemnify and hold harmless the Buyer and all its officers, directors, employees, attorneys, and agents for loss or damage arising as a result of or related to any breach or alleged breach by the Company of any of its representations, warranties and covenants set forth in this Agreement or any of its covenants and obligations under this Agreement, including advancement of expenses as they are incurred.
2.11 No Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.
2.12 Remedies. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Buyer by vitiating the intent and purpose of the transaction contemplated hereby. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations under this Agreement will be inadequate and agrees, in the event of a breach or threatened breach by the Company of the provisions of this Agreement, that the Buyer shall be entitled, in addition to all other available remedies at law or in equity, and in addition to the penalties assessable herein, to an injunction or injunctions restraining, preventing or curing any breach of this Agreement and to enforce specifically the terms and provisions hereof, without the necessity of showing economic loss and without any bond or other security being required.
2.13 Buyer’s Rights and Remedies Cumulative. All rights, remedies, and powers conferred in this Agreement and the Transaction Documents on the Buyer are cumulative and not exclusive of any other rights or remedies, and shall be in addition to every other right, power, and remedy that the Buyer may have, whether specifically granted in this Agreement or any other Transaction Document, or existing at law, in equity, or by statute; and any and all such rights and remedies may be exercised from time to time and as often and in such order as the Buyer may deem expedient.
2.14 Ownership Limitation. If at any time after the Closing, the Buyer shall or would receive shares of Common Stock, so that the Buyer would, together with other shares of Common Stock held by it or its Affiliates, own or beneficially own by virtue of such action or receipt of additional shares of Common Stock a number of shares exceeding 9.99% of the number of shares of Common Stock outstanding on such date (the “Maximum Percentage”), the Company shall not be obligated and shall not issue to the Buyer shares of Common Stock which would exceed the Maximum Percentage, but only until such time as the Maximum Percentage would no longer be exceeded by any such receipt of shares of Common Stock by the Buyer. The foregoing limitations are enforceable, unconditional and non-waivable and shall apply to all Affiliates and assigns of the Buyer.
2.15 No Shorting. For so long as Investor holds any securities of Company, neither Investor nor any of its Affiliates will engage in or effect, directly or indirectly, any (i) “short sale” (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii) hedging transaction, which establishes a net short position with respect to the Common Stock.
2.16 Attorneys’ Fees and Cost of Collection. In the event of any action at law or in equity to enforce or interpret the terms of this Agreement or any of the other Transaction Documents, the parties agree that the party who is awarded the most money shall be deemed the prevailing party for all purposes and shall therefore be entitled to an additional award of the full amount of the attorneys’ fees and expenses paid by such prevailing party in connection with the litigation and/or dispute without reduction or apportionment based upon the individual claims or defenses giving rise to the fees and expenses. Nothing herein shall restrict or impair a court’s power.
2.17 Execution by Facsimile or PDF. This Agreement may be executed by facsimile or portable document format, which shall have the same effect and force as an original signature.
[The remainder of this page is intentionally blank.]
IN WITNESS WHEREOF, the undersigned Buyer and the Company have caused this Agreement to be duly executed and entered into as of the date first above written.
THE COMPANY: |
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Vivakor, Inc. |
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By: |
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James Ballengee
Chief Executive Officer |
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THE BUYER: |
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By: |
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James K. Granger, individually |
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Signature Page to Securities Purchase Agreement
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Vivakor (NASDAQ:VIVK)
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Vivakor (NASDAQ:VIVK)
過去 株価チャート
から 9 2023 まで 9 2024