What changed in this filing

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Item 5. Other Information

2024-08-16 compared with 2024-05-20 · 139 added, 21 removed, 32 unchanged (83% of the section changed)

OTHER INFORMATION

In previous filings we reported the Paycheck Protection

Program (“PPP”) loans we obtained may be forgivable according to the CARES Act and that we had applied for forgiveness under

the CARES Act, and at the time we believed a substantial portion of the loans may not be forgiven.

The Company has now made the decision

not to continue to apply for forgiveness of the PPP loans and, as a result, we will be responsible for repaying the PPP loans in cash.

and Plan of Merger dated February 26, 2024 by and among Vivakor, Inc., Empire Energy Acquisition Corp., and Empire Diversified Energy,

Interest Purchase Agreement dated as of March 21, 2024, by and among the Registrant, Jorgan Development, LLC and JBAH Holdings LLC

re Endeavor Entities

of Amendment to Amended and Restated Articles of Incorporation, filed with the Secretary of State of the State of Nevada on January 5,

of Certificate of Designation-Series A Preferred Stock

Promissory Note dated February 5, 2024, in the principal amount of $3,000,000 issued to Cedarview Opportunities Master Fund

Director Appointment

On June 3, 2024, the Board of Directors (the “Board”) of the Company appointed Mr.

Michael Thompson as a member of the Board, effective immediately.

Thompson has been determined by the Board to be an independent director consistent with Rule 5605(a)(2) of the NASDAQ listing standards.

In addition to serving as an independent director, Mr.

Thompson will serve as chair of the Audit Committee of the Board (the “Audit Committee”).

Michael Thompson, 55, Director

Michael Thompson, age 55, combines over 25 years of experience in company directorship.

Previously, he had been involved in four companies and two nonprofit organizations, holding positions including President, Representative Director, and board member.

Thompson presently serves as the Global Head of Multi-Vendor Solutions at HP.

From 2016 to 2021, Mr.

Thompson has served on the Board of Directors as the Chair of the Audit Committee and Conflicts Committee of Rhino Resources, LTD, a company concentrated on coal and energy-related assets and activities.

From 2014 to 2016, Mr.

Thompson was a Director and Chair of the Strategic Planning Committee of Idaho Aquarium, a nonprofit aquarium.

From 2010 to 2012, Mr.

Thompson was a member of the board of Asister, a nonprofit organization focused on designing and distributing appliances in Latin America.

From 2005 to 2009, Mr.

Thompson served on the Board of Directors for Environmental Energy Services, Inc.

and Blaze Energy, Inc., energy services and asset accumulation companies.

From 1996 to 1999, he served as President and Representative Director of Micron Electronics Japan, K.K.

and Micron Electronics China.

Thompson has a bachelor’s degree in Business and Japanese from Brigham Young University and a master’s degree in Organizational Leadership from Gonzaga University.

Thompson is a member of the National Association of Corporate Directors and brings to our Board over 25 years of experience in corporate governance, compliance and turnaround.

Compensatory Arrangements

On June 3, 2024, the Company entered into a Director Agreement with Mr.

Thompson (the “Thompson Director Agreement”).

Pursuant to the Thompson Director Agreement, effective June 3, 2024, Mr.

Thompson shall serve as a member of the Board and the chair of the Audit Committee and will receive $60,000 annually in addition to $50,000 in shares of restricted stock annually, vesting quarterly and valued at the stock price on the date of grant.

Thompson also received a one-time grant of 50,000 shares of the Company’s common stock under the Company’s 2023 Equity and Incentive Plan.

Executive Employment Agreement and Settlement Agreement with Chief Financial Officer

On June 9, 2022, the Company entered into an executive employment agreement (the “Original Agreement”) with Tyler Nelson, the Chief Financial Officer of the Company (the “Executive”), for a term of two years, and, on January 16, 2023, Mr.

Nelson was appointed as member of the Company’s Board of Directors (the “Board”).

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

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

As previously disclosed herein, on June 13, 2024, the Company entered into the New Employment Agreement with Mr.

Nelson, and, in connection therewith the Company and Mr.

Nelson also entered into the Settlement Agreement.

New Employment Agreement

On June 13, 2024, the Company entered into the New Employment Agreement with Mr.

with respect to the Company’s appointment of Mr.

Nelson as Chief Financial Officer.

Pursuant to the New Employment Agreement, Mr.

Nelson will receive:

(i) $450,000 annually (the “Base Salary”);

(ii) an annual cash incentive bonus of a minimum of 50% of the Base Salary (a portion of which may be payable in the form of restricted common stock of the Company) and a maximum of 120% of the Base Salary;

and (iii) an annual equity incentive bonus of a minimum of 25% of the Base Salary and a maximum of 120% of the Base Salary in shares of restricted stock.

Nelson will also be eligible for a cash transaction bonus (the “Transaction Bonus”) for Qualified Transactions, as defined in the New Employment Agreement, of 0.5% of the enterprise value of the assets, equity or business sold or acquired or the listing value of the equity or debt being listed on a national exchange.

For each of the closing of the Merger Agreement and Endeavor MIPA, Mr.

Nelson will receive a bonus of $200,000, with $100,000 for each such bonus to be paid in cash and the remaining $100,000 for each such bonus to be paid in shares of the Company’s common stock, valued on the date of close of the Merger Agreement and the Endeavor MIPA, respectively.

The foregoing bonuses are in lieu of a Transaction Bonus for either the Merger Agreement or the Endeavor MIPA.

The New Employment Agreement is for an initial term of two years and will auto-renew for subsequent one-year terms if not terminated by either party at the end of a term, which requires 90 days prior notice.

The New Employment Agreement may also be terminated under standard cause and without cause termination and resignation provisions.

Settlement Agreement and Promissory Note

At the time of the termination of the Original Agreement, the Company owed Mr.

Nelson $1,167,750 in accrued salary and bonuses, plus interest (together, the “Accrued Compensation”), for serving as the Company’s Chief Financial Officer under the Original Agreement.

Pursuant to the Settlement Agreement, the Company and Mr.

Nelson agreed the Accrued Compensation would be paid to Mr.

Nelson under of a straight promissory note in the principal amount of the Accrued Compensation (the “Note”).

Under the terms of the Note, the amounts due under the Note will accrue interest at 8% per annum, and will be paid to Mr.

Nelson by paying him 5% of any money received by the Company from closed future financings or acquisition/merger/sale transactions until the Note has been paid in full.

In the event the Note has not been paid in full by December 31, 2024, the Note will mature and any amounts due thereunder will be due and payable in full in such date.

Under the terms of the Settlement Agreement, the Company issued Mr.

Nelson a stock option agreement (the “Option Agreement”) setting forth the stock options Mr.

Nelson were issued on June 9, 2022 (the “Grant Date”).

Pursuant to the Option Agreement, as of the Grant Date, Mr.

Nelson was granted 917,825 stock options (the “Options”) at an exercise price per share of $1.80.

The Options shall vest as follows:

(i) 360,145 shares on the Grant Date, (ii) 219,312 shares three (3) months after the Grant Date, (iii) 48,338 shares for each of the following six (6) quarters, and (iv) 48,340 shares following the eighth (8 th ) quarter after the Grant Date.

The Options were fully vested as of June 9, 2024.

Executive Employment Agreement with Executive Vice President, General Counsel and Secretary

As previously disclosed herein, on June 26, 2024 the Company, pursuant to the approval of the Board, on the recommendation of the Compensation Committee of the Board entered into the Knapp Agreement.

The Knapp Agreement provides for an annual base salary of $350,000, payable in equal installments every two weeks.

In addition, the Knapp Agreement provides for annual incentive cash and equity compensation of up to $840,000 based on certain performance goals as further set forth therein.

As an inducement to enter into the Knapp Agreement, Mr.

Knapp shall receive a one-time signing grant of Company common stock equivalent in value to $250,000, which are priced per share based on the volume-weighted average price for the preceding five (5) trading days prior to the day of such grant (calculated to be 140,190 shares based on the effective date of the Knapp Agreement), subject to an eighteen (18)-month lockup period and a conditional clawback obligation concurrent therewith, which shall be granted within thirty (30) days after the Start Date, as defined therein.

Pursuant to the Knapp Agreement, Mr.

Knapp’s employment is at-will under Texas law, except as modified therein.

Knapp’s employment with the Company began on June 26, 2024.

As previously disclosed in the Company’s Current Report on Form 8-K filed with the SEC on March 1, 2024, the Company entered into that certain Agreement and Plan of Merger dated effective February 26, 2024 with Empire Energy Acquisition Corp.

and Empire Diversified Energy, Inc.

(the “Merger Agreement”).

The Company obtained the consent of Empire Diversified Energy, Inc.

with respect to the Knapp Agreement, as required under Section 5.02(iv) of the Merger Agreement.

Amendment to Promissory Notes

As previously disclosed in the Company’s Current Report on Form 8-K filed with the SEC on July 11, 2024, the Company received two loans in the amounts of $350,000 and $500,000 and issued two promissory notes dated July 5, 2024 and July 9, 2024, respectively.

On July 19, 2024, the lenders and the Company entered into amendments to the promissory notes in order to extend the maturity date of the promissory notes from December 31, 2024 to September 30, 2025.

Sale of Common Stock

On July 31, 2024, the Company entered into a

stock purchase agreement under which the Company agreed to sell an aggregate of 1,600,000 shares of restricted common stock to a

non-affiliate in exchange for $800,000.

On June 18, 2024, our subsidiary White Claw Colorado

City, LLC (“WCCC”), entered into a supplement (“Supplement No.

3”) to an existing Master Agreement (the “Master

Agreement”) with Maxus Capital Group, LLC (“Maxus”).

Under Supplement No.

3, Maxus agreed to finance approximately

$1 million for the build-out of certain equipment and facilities related to the wash plant we are in the process of constructing

on land leased by our subsidiary, VivaVentures Remediation Corp., in Houston, Texas.

Once the relevant equipment is constructed Maxus

will own the equipment and we will lease these additions to our wash plant facility from Maxus under the terms of Supplement No.

the terms of the lease, we expect our lease payments to Maxus to be approximately $58,595 per month over four years, with an early buyout

option or option at the end of the base term to purchase the wash plant equipment for approximately $683,000, or lease-end option to

purchase the facilities for the fair market value.

We anticipate that the lease payments, our material obligation under Supplement No.

3, will commence in the fourth quarter of 2024.

EXHIBIT INDEX

Exhibit Description

Agreement and Plan of Merger dated February 26, 2024 by and among Vivakor, Inc., Empire Energy Acquisition Corp., and Empire Diversified Energy, Inc.

Membership Interest Purchase Agreement dated as of March 21, 2024, by and among the Registrant, Jorgan Development, LLC and JBAH Holdings LLC re Endeavor Entities

Certificate of Amendment to Amended and Restated Articles of Incorporation, filed with the Secretary of State of the State of Nevada on January 5, 2024

Form of Certificate of Designation-Series A Preferred Stock

Vivakor, Inc.

Promissory Note dated February 5, 2024, in the principal amount of $3,000,000 issued to Cedarview Opportunities Master Fund LP

Form of Convertible Promissory Note Issued by Vivakor, Inc.

Vivakor, Inc.

2023 Equity and Incentive Plan

12 unchanged sentences

Convertible Promissory Note dated March 29, 2024 with Keke Mingo

Executive Employment Agreement by and between Vivakor, Inc.

and Tyler Nelson dated June 13, 2024

Exhibit Description

Settlement Agreement by and between Vivakor, Inc.

and Tyler Nelson dated June 13, 2024

Form of Promissory Note Issued to Tyler Nelson dated June 13, 2024

Form of Stock Option Issued to Tyler Nelson dated June 13, 2024

Director Agreement, by and between Vivakor, Inc.

and Michael Thompson, dated June 3, 2024

Executive Employment Agreement by and between Vivakor, Inc.

and Patrick Knapp dated June 26, 2024

Consulting Agreement with 395 Group, LLC

Supplement No.

3 dated June 18, 2024 to Master Agreement by and between Silver Fuels Delhi, LLC, Jorgan Development, LLC and Maxus Capital Group, LLC dated March 17, 2020

Certification of Principal Executive Officer, pursuant to 18 U.S.C.

6 unchanged sentences

1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

XBRL Instance Document

XBRL Taxonomy Extension Schema Document

XBRL Taxonomy Extension Calculation Linkbase Document

XBRL Taxonomy Extension Definition Linkbase Document

XBRL Taxonomy Extension Label Linkbase Document

XBRL Taxonomy Extension Presentation Linkbase Document

Page Interactive Data File (formatted in IXBRL, and included in exhibit 101).

contract or compensatory plan or arrangement.

exhibits are being furnished rather than filed and shall not be deemed incorporated by reference into any filing, in accordance

with Item 601 of Regulation S-K.

Inline XBRL Instance Document

Inline XBRL Taxonomy Extension Schema Document

Inline XBRL Taxonomy Extension Calculation Linkbase Document

Inline XBRL Taxonomy Extension Definition Linkbase Document

Inline XBRL Taxonomy Extension Label Linkbase Document

Inline XBRL Taxonomy Extension Presentation Linkbase Document

Cover Page Interactive Data File (formatted in IXBRL, and included in exhibit 101).

Management contract or compensatory plan or arrangement.

These exhibits are being furnished rather than filed and shall not be deemed incorporated by reference into any filing, in accordance with Item 601 of Regulation S-K.

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

3 unchanged sentences

Chief Executive Officer (Principal Executive Officer)

August 16, 2024

VIVAKOR, INC.

1 unchanged sentence

Chief Financial Officer (Principal Financial and Accounting Officer)

August 16, 2024

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-Q

Item 5. Other Information