What changed in this filing

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Item 5. Other Information

2025-08-19 compared with 2025-05-20 · 103 added, 70 removed, 121 unchanged (59% of the section changed)

OTHER INFORMATION

Amendment to Articles of Incorporation

On February 6, 2025, we filed a Certificate of Amendment (the “Amendment to Articles”) to the Company’s Amended and Restated Articles of Incorporation, as amended, with the Secretary of State of the State of Nevada in order to withdraw all previously designated series of preferred stock.

As a result, as of February 6, 2025 we had 15,000,000 shares of preferred stock authorized with no shares designated to any series and no shares of preferred stock outstanding.

Consulting Agreement

On February 11, 2025, in order to assist our management in managing our new, combined business operations after the acquisition of the Endeavor Entities, we entered into a Consulting Agreement with WSGS, LLC, which has extensive experience in assisting public companies in the energy sector.

Under the terms of the Consulting Agreement, we will pay the consultant up to $1.3M per year, payable in registered shares of our common stock under our 2023 Equity Incentive Plan.

The Consulting Agreement is for an initial term of one year, with the option for a second year.

The principal of WSGS, LLC is also a former officer and director of Empire Diversified Energy, Inc., a Delaware corporation, that we entered into an Agreement and Plan of Merger (the “Merger Agreement”) with on February 26, 2024, but has not closed, and E-Starts Money Co., a Delaware corporation, which is an investor in our common stock.

On February 10, 2025, we entered into a Side Letter related to our Executive Employment Agreement with Tyler Nelson, a Director and our Chief Financial Officer, and dated June 13, 2024 and the Promissory Note issued to Mr.

Nelson dated June 13, 2024, under which we amended and clarified Mr.

Nelson’s Employment Agreement and the Promissory Note to (i) clarify that effective October 1, 2024, Mr.

Nelson’s Employment Agreement is with Vivakor Administration, LLC with all material obligations guaranteed by us, (ii) confirming the Promissory Note is still our primary obligation;

(iii) confirming the payment obligations of the company are triggered but not just fund raising by the company but also fundraising by our subsidiaries, that the maturity date under the Promissory Note is extended until June 30, 2025, and that a 5% fee will be assessed on the outstanding principal and interest due under the Promissory Note as of December 31, 2024 as a result of the Promissory Note not being paid by December 31, 2024, and (iv) to clarify that no taxable event will occur related to amounts due under the Promissory Note until those amounts are actually paid by the Company to Mr.

This summary only a brief description of the material terms of, and does not purport to be a complete description of, the rights and obligations of the parties to the agreements in connection with the agreements, and such description is qualified in its entirety by reference to the full text of the agreements and its exhibits, which attached as Exhibits 10.1 and 10.2 to our Current Report on Form 8-K filed with the Commission on February 14, 2025.

Loan and Security Agreement and Issuance of a Junior Secured Convertible Promissory Note

On March 17, 2025, we issued a junior secured convertible promissory note (the “Jr.

Note”) due as described below, to J.J.

(the “Lender”), in the principal amount of $6,625,000 (the “Principal Amount”), in connection with a Loan and Security Agreement entered into by and between the Company, its subsidiaries, and the Lender (the “Agreement”).

The Company received $5,000,000, before deduction of closing fees (the “Loan”), and will use the net proceeds of the Loan for general working capital purposes and to repay certain indebtedness.

March 17, 2025, the Company issued a junior secured convertible promissory note (the “Note”) due as described

below, to J.J.

(the “Lender”), in the principal amount of $6,625,000 (the “Principal

Amount”), in connection with a Loan and Security Agreement entered into by and between the Company, its subsidiaries, and the

Lender (the “Agreement”).

The Company received $5,000,000, before deduction of closing fees (the “Loan”).

The Note is payable to the Lender over forty-two equal weekly installments of $157,739, which may be paid in cash or, at the option

of the Company once an applicable resale registration statement covering the conversion shares is declared effective by the SEC, in

free trading shares of its common stock issued at a twenty percent (20%) discount to the lower of either the previous day’s

closing price or the average of the four lowest volume-weighted average prices during the prior twenty (20) trading days.

does not bear interest unless an event of default shall occur and is continuing.

The Company agreed to issue the Lender 250,000

shares of its common stock as additional consideration for the loan (the “Commitment Shares”).

On May 20, 2025, we issued an aggregate of 1,764,964 shares of our restricted common stock for three months of dividends to the holders of our Series A Preferred Stock.

Of those shares, 1,384,311 were issued to Jorgan Development, LLC and 13,983 were issued to JBAH Holdings, LLC, both of which are controlled by James Ballengee, our Chief Executive Officer.

Between May 14, 2025 and June 9, 2025, we issued convertible promissory notes (the “Notes”), to seven non-affiliated accredited investors (the “Holders”), in the aggregate principal amount of $5,911,764.73 in connection with a Securities Purchase Agreement entered into by and between the Company and the Holders (the “SPA”).

Under the terms of the SPA and the Notes, we received $5,025,000 prior to deducting placement agent fees of $391,500, Holders attorney’s fees of $20,000 and escrow fees of $5,000.

The Notes matures twelve months from the date of issuance, have a 15% original issuance discount, have a one-time ten percent (10%) interest charge applied at the issuance date, and is convertible at eighty percent (80%) of the lower of (a) the closing price of the Company’s common stock as traded on either the Nasdaq or the New York Stock Exchange or the NYSE Amex Exchange (as applicable) on the trading day immediately prior to the date a notice of conversion is submitted in writing to the Company under the Note (each a “Notice Date”), or (b) the average of the four lowest VWAPS over the twenty (20) trading days prior to the applicable Notice Date.

In connection with the issuance of the Notes, we issued the Holders 753,750 shares of our common stock as additional incentive to enter into the SPA and the Notes.

As stated above, on March 17, 2025, Vivakor, Inc.

(the “Company”), issued a junior secured convertible promissory note (the “Initial Note”) to J.J.

(the “Lender”), in the principal amount of $6,625,000 (the “Principal Amount”), in relation to a Loan and Security Agreement by and between the Company, its subsidiaries, and the Lender (the “Loan Agreement”).

The Company received $5,000,000, before fees.

The Company received the funds on March 18, 2025.

Note is payable to the Lender over forty-two equal weekly installments of $157,739, which may be paid in cash or, at the option of the Company once an applicable resale registration statement covering the conversion shares is declared effective by the SEC, in free trading shares of its common stock issued at a twenty percent (20%) discount to the lower of either the previous day’s closing price or the average of the four lowest volume-weighted average prices during the prior twenty (20) trading days.

Note does not bear interest unless an event of default shall occur and is continuing.

Note is subject to mandatory prepayment upon the receipt of proceeds from identified sales of equity interests in the Company and/or the receipt of certain extraordinary cash payments.

Note is secured by a junior lien in all assets of the Company and its subsidiaries, subject to exceptions for existing debt covenants of the Company.

The Company reserved 21,554,274 shares of its common stock for issuance in connection with a conversion under the Jr.

Note and the Company agreed to issue the Lender 250,000 shares of its common stock as additional consideration for the loan (the “Commitment Shares”).

Under the terms of a Registration Rights Agreement (the “RRA”), the Company is obligated to file a resale registration statement with the SEC registering any shares of its common stock issuable under the Note (the “Conversion Shares”) as well as the Commitment Shares by a date which shall be not later than sixty (60) days after closing.

This summary is not a complete description of all of the terms of the Agreement, the Jr.

Note, and the RRA and are qualified in their entirety by reference to the full text of the Agreement, the Jr.

Note and the RRA, forms of which are filed as Exhibits 10.1, 10.2 and 10.3, respectively to our Current Report on Form 8-K filed with the Commission on March 21, 2025, which are incorporated by reference into this disclosure.

On February 10, 2025, we entered into an

Amendment No.

1 to our Employment Agreement with Mr.

Les Patterson, our Vice President, Operations & Construction.

Employment Agreement misstated Mr.

Patterson’s annual equity compensation, which was agreed to be annual equity compensation

equal to not less than $100,000 to be paid in equal quarterly installments of $25,000 based on a valuation formula set forth in the Employment

Agreement, but was mistakenly drafted as annual equity compensation equal to not less than $25,000 to be paid in equal quarterly installments

based on a valuation formula set forth in the Employment Agreement.

As a result of the Amendment No.

1 to the Employment Agreement we

Patterson 74,701 additional shares of our common stock, which is valued at $75,000 based on the valuation formula in Mr.

Employment Agreement.

These shares were issued unrestricted under the Company’s 2023 Equity and Incentive Plan as registered on

On February 10, 2025, we entered into an Employment

Agreement with Andre Johnson to be our Vice President, Human Resources As part of Mr.

Johnson’s compensation we agreed to

issue him 302,297 shares of our common stock as a signing bonus, as well as $75,000 worth of our common stock annually, paid in equal

quarterly installments.

These shares are due to be issued unrestricted under the Company’s 2023 Equity and Incentive Plan as registered

Additional Debt Financing

Between May 14, 2025 and May 19, 2025, we issued convertible promissory notes (the “Notes”), to several accredited investors

(the “Holders”), in the aggregate principal amount of $575,000 in connection with a Securities Purchase Agreement entered

into by and between the Company and the Holders (the “SPA”).

Under the terms of the SPA and the Notes, we received $500,000,

the Notes mature twelve months from the date of issuance, have a 15% original issuance discount, have a one-time ten percent (10%) interest

charge applied at the issuance date, and are convertible at eighty percent (80%) of the lower of (a) the closing price of the Company’s

common stock as traded on either the Nasdaq or the New York Stock Exchange or the NYSE Amex Exchange (as applicable) on the trading day

immediately prior to the date a notice of conversion is submitted in writing to the Company under the Note (each a “Notice Date”),

or (b) the average of the four lowest VWAPS over the twenty (20) trading days prior to the applicable Notice Date.

In connection with

the issuances of the Notes, we will issue the Holders 75,000 shares of our common stock as additional incentive to enter into the SPA

and the Notes.

This summary is not a complete

description of all of the terms of the SPA and the Notes and are qualified in their entirety by reference to the full text of the SPA

and the Notes, forms of which are filed as Exhibits 10.1 and 10.2, respectively to our Current Report on Form 8-K filed with the Commission

on May 20, 2025, which are incorporated by reference into this disclosure.

In relation to the Loan Agreement, the Company also entered into a Registration Rights Agreement with the Lender (the “RRA”), under which the Company was obligated to file a resale registration statement with the SEC registering any shares of its common stock issuable under the Note no later than sixty (60) days after closing.

On July 9, 2025, we entered into a Second Amendment to Loan Agreement and Registration Rights Agreement (the “Amendment”), and an Additional Junior Secured Convertible Note (the “Additional Note”, together with the Amendment, the “New Loan Documents”), under which we agreed to issue the Lender the Note in the principal amount of $5,940,000.

Under the New Loan Documents, we will receive net proceeds of $971,025.65, with the remainder of the principal amount going to (a) a $176,000 origination fee, (b) an aggregate of $3,232,974.35 (the “Holdback Amounts”) representing (i) a $891,000 holdback amount to be applied to pay the first six Weekly Installment Payments when due under the Additional Note (hereinafter defined), (ii) $1,395,540.35 to be applied to pay the seven past due Weekly Installment Payments under the Initial Note, plus accrued interest thereon, and (iii) $946,434 to secure and cover the payment of the next six Weekly Installment Payments due under the Initial Note, (c) $20,000 to pay Lender’s legal fees, and (d) and original issuance discount of $1,540,000.

The Note is payable over forty equal weekly installments of $148,500, which may be paid in cash or, at the option of the Company once an applicable registration statement is effective, in free trading shares of its common stock issued at a twenty percent (20%) discount to the lower of either the previous day’s closing price or the average of the four lowest volume-weighted average prices during the prior twenty (20) trading days.

The Note does not bear interest unless in default and is subject to mandatory prepayment upon the receipt of proceeds from identified sales of equity interests in the Company and/or the receipt of certain extraordinary cash payments.

In the event we default on the terms of the Initial Note or the Additional Note, the conversion price under the notes is a 50% discount to discount to the lower of either the previous day’s closing price or the average of the four lowest volume-weighted average prices during the prior twenty (20) trading days.

The lender is secured by a junior lien in all assets of the Company, subject to exceptions for existing debt covenants of the Company.

The Company reserved 15,000,000 shares of its common stock for issuance in connection with a conversion under the Additional Note and the Company agreed to issue the Lender 150,000 shares of its common stock as additional consideration for the loan (the “Commitment Shares”).

We received the funds under the New Loan Documents on July 15, 2025.

On July 9, 2025, we entered into a Forbearance and Amendment to Loan Agreement and Note, which amended the terms of the Loan Agreement, Initial Note and RRA (the “Forbearance Agreement”).

Under the terms of the Forbearance Agreement:

(i) the Lender agreed to loan us an additional amount up to $4,400,000 under similar terms as the Initial Note (funds from which we received on July 15, 2025, as set forth below), (ii) the Lender agreed to permit us to raise an additional $3,000,000 under terms set forth on Exhibit I of the Loan Agreement, (iii) the filing date for the resale registration statement under the RRA was extended to July 18, 2025, (iv) the Outstanding Principal Amount of the Initial Note was $6,151,783 on the Forbearance Agreement Effective Date, (v) the principal amount under the Initial Note was increased to $6,766,961.30 (the “Amended Principal Amount”), representing 110% of the Outstanding Principal Amount of the Note as of the Forbearance Agreement Effective Date, (vi) the Weekly Installment Payments under the Initial Note stayed the same, (vii) the fee of $615,178.30 was added to the Amended Principal Amount of the Initial Note and shall be due and payable by the Company on or before January 7, 2026, (viii) past due interest totaling $291,367.35, that has accrued between the Forbearance Agreement Effective Date and the Effective Date, shall also be paid on or before January 7, 2026, and (ix) both the $615,178.30 fee and the $291,367.35 of past due interest shall be paid in full in cash on or before January 7, 2026.

On July 19, 2025, the Board of Directors of Vivakor received notice from Tyler Nelson, Vivakor’s Chief Financial Officer and Member of the Board of Directors of his resignation from such positions effective immediately.

On July 24, 2025, Vivakor Administration, LLC (the “Company”) entered into an executive employment agreement with Kimberly Hawley (the “Employment Agreement”) with respect to the her appointment as Executive Vice President, Chief Financial Officer, and Treasurer of the Company and Vivakor, Inc.

Pursuant to the Employment Agreement, Ms.

Hawley will receive annual compensation of $350,000.

Additionally, Ms.

Hawley shall be eligible for performance bonus compensation as further set forth therein.

The Employment Agreement may be terminated by either party for any or no reason, by providing five business days’ notice of termination, but a termination without cause will trigger certain severance provisions, including a lump sum payment equal to one (1) calendar year’s pay.

On July 30, 2025, Vivakor Transportation, LLC, as Seller, executed and entered into a Membership Interest Purchase Agreement (the “Purchase Agreement”) with Jorgan Development, LLC (“Jorgan”) to sell all of the issued and outstanding limited liability company membership interests in and to Meridian Equipment Leasing, LLC, and Equipment Transport, LLC (the “Targets”), two indirectly wholly-owned subsidiaries of Vivakor, Inc.

(“Vivakor”, and the “Transaction”, respectively).

The purchase price paid to the Seller thereunder consisted of $11,058,235 USD to be remitted in Series A Convertible Preferred Stock of Vivakor, which shares will no longer be considered outstanding or be entitled to the relevant annual dividend.

The purchase price is subject to upward or downward adjustment based on any difference in net equity of the Targets as reflected by the Targets’ final financial results for the period ending June 30, 2025.

The Targets were principally engaged in the truck transportation of oilfield produced water and associated equipment leasing operations.

In connection with the Transaction, and among other agreements as further set forth in the Purchase Agreement, (i) affiliates of Vivakor, and certain related parties controlled directly or indirectly by James H.

Ballengee, Vivakor’s Chairman, President, and Chief Executive Officer (the “Ballengee Family Office Affiliates”) will amend and restate that certain Transition Services Agreement dated October 1, 2024, to account for new and additional services to be provided by various parties thereto, (ii) the parties will amend and restate that certain Secured Promissory Note dated August 15, 2022, by and between Vivakor, as Borrower, and Jorgan Development, LLC, as Lender, reducing the payments to Lender thereunder by almost one-half (1/2), from ninety-nine percent (99%) of certain free cash flow from certain of Vivakor’s terminal operations to fifty percent (50%) of free cash flow from such operations, and (iii) Mr.

Ballengee and certain Ballengee Family Office Affiliates will voluntarily suspend the right to receive dividends and distributions upon Series A Convertible Preferred Stock of Vivakor, held by them for the period from August 1, 2025 to January 1, 2026.

On July 30, 2025, Silver Fuels Delhi, LLC, White Claw Colorado City, LLC, Silver Fuels Processing, LLC, CPE Gathering Midcon, LLC, Vivakor, and Vivakor Transportation, LLC (collectively, the “Vivakor Obligors”), James H.

Ballengee, Vivakor’s Chairman, President, and Chief Executive Officer, and certain related parties controlled directly or indirectly by Mr.

Ballengee (collectively, the “Ballengee Obligors”), executed and entered into a Forbearance Agreement with Maxus Capital Group, LLC (“Maxus” and the “Forbearance Agreement”, respectively).

Pursuant to the terms of the Forbearance Agreement, the Vivakor Obligors and the Ballengee Obligors agreed that (A) various events of default have occurred and are continuing to occur with respect to (i) Master Agreement No.

1450 dated March 17, 2020, by and between Maxus Capital Group, LLC, as Lessor, Silver Fuels Delhi, LLC, as Lessee, and Jorgan Development, LLC, as Co-Lessee, and all Schedules and Leases made subject thereto (collectively, the “1450 Lease”), (ii) Master Agreement No.

1452 dated December 28, 2021, by and between Maxus Capital Group, LLC, as Lessor, Meridian Equipment Leasing, LLC, as Lessee, and Jorgan Development, LLC, as Co-Lessee, and all Schedules and Leases made subject thereto (collectively, the “1452 Lease”), (iii) Master Agreement No.

1462 dated December 28, 2021, by and between Maxus Capital Group, LLC, as Lessor, White Claw Colorado City, LLC, as Lessee, and Jorgan Development, LLC, as Co-Lessee, and all Schedules and Leases made subject thereto (collectively, the “1462 Lease”, and together with the 1450 Lease and the 1452 Lease, the “Maxus Leases”), (B) Maxus will forbear and refrain from further action to enforce its rights under the Maxus Leases so long as no further events of default occur pursuant to the Forbearance Agreement, and (C) pursuant to the Maxus Leases, the Vivakor Obligors and Ballengee Obligors will pay or cause to be paid to Maxus the sum of $3,288,067.12 on or before September 1, 2025, the sum of $1,418,659.76 on or before October 1, 2025, the sum of $1,500,000 on or before November 30, 2025, the sum of $3,000,000 on or before November 30, 2025, the sum of $41,012.06 per month pursuant to the 1450 Lease, the sum of $592,973.77 per month pursuant to the 1452 Lease, and the sum of $188,030.95 per month pursuant to the 1462 Lease.

Upon the execution of the Forbearance Agreement, the Vivakor Obligors and Ballengee Obligors must remit to Maxus a forbearance fee equal to (x) $250,000.00 cash and (b) restricted common shares of Vivakor in an amount equal to $250,000.00, priced per share based on the average closing price for the three (3) days preceding their issuance.

Pursuant to a Transition Agreement dated August 12, 2025, by and between Vivakor and Vivakor Administration, LLC, as Company, and Russ M.

Shelton (the “Transition Agreement), Mr.

Shelton, resigned his position as Executive Vice President and Chief Operating Officer of the Company, concurrent therewith and agreed to assist in transitioning his responsibilities to his replacement.

Shelton’s resignation is not the result of any disagreement with Vivakor or its independent auditors regarding its accounting or financial practices.

On August 12, 2025, we entered into a Second Amendment

to the Employment Agreement with Les Patterson, which amended that certain Employment Agreement dated July 1, 2025, as amended.

the Amended Agreement, Mr.

Patterson accepted the position of Vice President and Chief Operating Officer of Vivakor, Inc.

for a base annual salary of $375,000 and annual equity compensation of shares of Vivakor’s common stock equal to not less than $125,000,

Patterson in four equal quarterly installments priced per share based on the volume-weighted average price for the preceding

five (5) NASDAQ trading days prior to the Effective Date or annual anniversary of the Amended Agreement, as applicable, with the shares

issued as registered common stock under a registered equity compensation plan.

Patterson will also receive a one-time signing bonus

of Two Hundred Fifty Thousand Dollars ($250,000.00) of Vivakor common stock.

On August 12, 2025, we issued a convertible promissory

note (the “Note”), to a non-affiliated accredited investor (the “Holder”), in the aggregate principal amount of

$647,500 in connection with a Securities Purchase Agreement entered into by and between Vivakor and the Holder (the “SPA”).

The Note and SPA have similar terms to the Notes and SPA Vivakor entered into with 12 non-affiliated investors in May 2025.

terms of the SPA and the Note, we received $550,000, the Note matures twelve months from the date of issuance, has a 15% original issuance

discount, has a one-time ten percent (10%) interest charge applied at the issuance date, and is convertible at eighty percent (80%) of

the lower of (a) the closing price of the Vivakor’s common stock as traded on either the Nasdaq or the New York Stock Exchange or

the NYSE Amex Exchange (as applicable) on the trading day immediately prior to the date a notice of conversion is submitted in writing

to the Company under the Note (each a “Notice Date”), or (b) the average of the four lowest VWAPS over the twenty (20) trading

days prior to the applicable Notice Date.

In connection with the issuance of the Note, we will issue the Holder 82,500 shares of our common

stock as additional incentive to enter into the SPA and the Note.

The issuance of the foregoing securities was exempt from registration

pursuant to Section 4(a)(2) of the Securities Act promulgated thereunder as the Holder is accredited investor and familiar with our operations.

This summary is not a complete description of all of the terms of the related agreements and are qualified in their entirety by reference to the full text of the documents, forms of which are filed as exhibits hereto and/or incorporated by reference into this disclosure from prior filings.

EXHIBIT INDEX

32 unchanged sentences

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

Exhibit Description

Director Agreement, by and between Vivakor, Inc.

2 unchanged sentences

and Patrick Knapp dated June 26, 2024

Exhibit Description

Consulting Agreement with 395 Group, LLC

22 unchanged sentences

Pledge Agreement by and between Meridian Equipment Leasing, LLC and Pilot OFS Holdings, LLC dated December 31, 2023

Exhibit Description

Master Lease Agreement by and between Maxus Capital Group, LLC and Meridian Equipment Leasing, LLC dated December 28, 2021

Form of Schedule to Master Lease Agreement by and between Maxus Capital Group, LLC and Meridian Equipment Leasing, LLC

Exhibit Description

Amended Loan Authorization and Agreement by and between U.S.

20 unchanged sentences

Employment Agreement with Andre Johnson dated February 10, 2025

Exhibit Description

Loan and Security Agreement with J.J.

4 unchanged sentences

Side Letter with Cedarview Capital Management LLC

Exhibit Description

Form of Securities Purchase Agreement with ClearThink Capital Partners, LLC and Other Investors dated May 13, 2025

Form of Promissory Note Under Securities Purchase Agreement with ClearThink Capital Partners, LLC and Other Investors

Forbearance Agreement with J.J.

dated July 9, 2025

Second Amendment to Loan Agreement and Registration Rights Agreement dated July 9, 2025

Junior Secured Convertible Promissory Note dated July 9, 2025

Executive Employment Agreement, by and between Vivakor Administration, LLC and Kimberly Hawley, dated July 24, 2025

Membership Interest Purchase Agreement dated July 30, 2025, by and between Vivakor Transportation, LLC, as Seller, and Jorgan Development, LLC, as Buyer

Forbearance Agreement dated July 30, 2025, by and between Maxus Capital Group, LLC, and Silver Fuels Delhi, LLC, et al.

Transition Agreement dated August 3, 2025, by and between Vivakor, Inc., Vivakor Administration, LLC, and Russ M.

Second Amended Employment Agreement, by and between Vivakor, Inc., Vivakor Administration, LLC and Les Patterson, dated August 12, 2025

Subsidiaries of the Company

21 unchanged sentences

Chief Executive Officer (Principal Executive Officer)

August 19, 2025

VIVAKOR, INC.

/s/ Tyler Nelson

/s/ Kimberly Hawley

Kimberly Hawley

Chief Financial Officer (Principal Financial and Accounting Officer)

August 19, 2025

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