8-K

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 5, 2024

VIVAKOR, INC.

(Exact name of registrant as specified in its charter)

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

5220 Spring Valley 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:

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

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

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

Emerging growth company ☒

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

Item 1.01. Entry into a Material Definitive Agreement.

Issuance of Convertible Promissory Note to Non-Affiliate

On July 8, 2024, Vivakor, Inc. (the “Company”) received a loan from a non-affiliated individual lender in the principal amount of Three Hundred Fifty Thousand Dollars ($350,000) (the “First Loan”) and, in connection therewith, the Company agreed to issue 15,982 restricted shares of the Company’s common stock. The First Loan bears interest at the rate of 10% per annum, matures on December 31, 2024, with all unconverted principal due on the maturity date and interest payable monthly on the last day of the month after the month in which the interest accrued. The Company issued a promissory note dated July 5, 2024 in connection with the First Loan (the “First Note”). The First Note allows the holder to convert the outstanding principal and interest due under the First Note into shares of our common stock at price equal to 90% of the average closing price of our common stock for the previous five (5) trading days prior to the conversion date, with a floor conversion price of $1.00 per share. The lender may not convert amounts owed under the First Note if such conversion would cause him to own more than 4.99% of our common stock after giving effect to the issuance, which limitation may be raised to 9.99% upon no less than 61 days notice to us regarding his desire to increase the conversion limitation percentage. The Company will issue the 15,982 shares in the near future.

Issuance of a Convertible Promissory Note to Related Party

On July 5, 2024, the Company received a loan from Ballengee Holdings, LLC, an entity controlled by James Ballengee, the Company’s Chairman, President, and Chief Executive Officer, in the principal amount of Five Hundred Thousand Dollars ($500,000) (the “BH Loan”) and, in connection therewith, the Company agreed to issue 21,552 restricted shares of the Company’s common stock. The BH Loan bears interest at the rate of 10% per annum, matures on December 31, 2024, with all unconverted principal due on the maturity date and all unconverted interest payable monthly on the last day of the month after the month in which the interest accrued. The Company issued a promissory note dated July 9, 2024 in connection with the BH Loan (the “BH Note”). The BH Note allows the holder to convert the outstanding principal and interest due under the BH Note into shares of our common stock at price equal to 90% of the average closing price of our common stock for the previous five (5) trading days prior to the conversion date, with a floor conversion price of $1.00 per share. The lender may not convert amounts owed under the BH Note if such conversion would cause him to own more than 4.99% of our common stock after giving effect to the issuance, which limitation may be raised to 9.99% upon no less than 61 days notice to us regarding his desire to increase the conversion limitation percentage. The Company will issue the 21,552 shares in the near future.

This summary is not a complete description of all of the terms of the First Note and the BH Note and is qualified in its entirety by reference to the full text of the Form of Note, a form of which is filed as Exhibit 4.1 hereto, which are incorporated by reference into this Item 1.01.

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Consulting Agreement

On July 5, 2024, the Company entered into a Consulting Agreement with 395 Group, LLC, a Nevada limited liability company (“395”), under which 395 agreed to provide the Company with general advisory and business development services. Specifically, 395 agreed to advise the Company for the next four (4) months regarding capitalization, business development, business relationships, industry guidance, and assist with understanding what is happening in the Company’s market space. In exchange for 395’s services, the Company agreed to pay total cash compensation of $340,000 and equity compensation of 50,000 shares of the Company’s restricted common stock, with one-half of the cash compensation and all the equity compensation due upon signing of the agreement and the other half of the cash compensation due in thirty (30) days. The 50,000 shares of common stock will be issued in the near future.

This summary is not a complete description of all of the terms of the 395 Consulting Agreement and is qualified in its entirety by reference to the full text of the 395 Consulting Agreement, which is filed as Exhibit 10.1 hereto, 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 the First Note and the BH Note and the upfront shares of restricted shares of its common stock issued thereunder as the lenders are accredited investors and familiar with the Company’s operations.

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 the 50,000 shares of restricted shares of its common stock issued to 395 as 395 is a sophisticated investor and familiar with the Company’s operations.

Item 9.01. Financial Statements and Exhibits

(d) Exhibits.

Exhibit No.	Description
4.1	Form of Convertible Promissory Note Issued by Vivakor, Inc.
10.1	Consulting Agreement with 395 Group, LLC
104	Cover Page Interactive Data File (embedded within the Inline XBRL document).

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SIGNATURES

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

	VIVAKOR, INC.
Dated: July 11, 2024	By:	/s/ James Ballengee
		Name:	James Ballengee
		Title:	Chief Executive Officer

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EX-4.1

Exhibit 4.1

NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS CONVERTIBLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. AS EVIDENCED BY A LEGAL OPINION OF CåœOUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.

Dated as of: July ___ 2024	Principal Amount:	$	[__________]
Maturity Date: December 31, 2024

VIVAKOR, Inc.

CONVERTIBLE NOTE

THIS CONVERTIBLE NOTE is a duly authorized and validly issued promissory note of Vivakor, Inc., a company incorporated under the laws of Nevada (the “Company”), designated as its Convertible Note due December 31, 2024 (this “Note”).

FOR VALUE RECEIVED, the Company promises to pay to [___________] (the “Holder”), or shall have paid pursuant to the terms hereunder, the principal sum of up to $[__________] on the earlier of December 31, 2024 (the “Maturity Date”) or such earlier date as this Note is required or permitted to be repaid as provided hereunder, and to pay interest to the Holder on the aggregate unconverted and then outstanding principal amount of this Note at a rate per annum equal to ten percent (10%), compounded semi-annually, and computed on the basis of a 365-day year beginning on the Funding Date. The principal payable hereunder shall be paid by the Company in the form of Common Stock at the Conversion Price based upon conversion by the Holder, otherwise unconverted principal shall be payable in cash at the Maturity Date; and interest hereunder shall be paid by the Company in cash no later than the last day of the month after the month in which such interest payment accrued.

This Note is subject to the following additional provisions:

Section 1. Definitions. For the purposes hereof, in addition to the terms defined elsewhere in this Note, the following terms shall have the following meanings:

“Action” means any action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company or any its properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign).

“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.

“Bankruptcy Event” means any of the following events: (a) the Company or any Significant Subsidiary (as such term is defined in Rule 1-02(w) of Regulation S-X) thereof commences a case or other proceeding under any bankruptcy, reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction relating to the Company or any Significant Subsidiary thereof, (b) there is commenced against the Company or any Significant Subsidiary thereof any such case or proceeding that is not dismissed within 60 days after commencement, (c) the Company or any Significant Subsidiary thereof is adjudicated insolvent or bankrupt or any order of relief or other order approving any such case or proceeding is entered, (d) the Company or any Significant Subsidiary thereof suffers any appointment of any custodian or the like for it or any substantial part of its property that is not discharged or stayed within 60 calendar days after such appointment, (e) the Company or any Significant Subsidiary thereof makes a general assignment for the benefit of creditors, (f) the Company or any Significant Subsidiary thereof calls a meeting of its creditors with a view to arranging a composition, adjustment or restructuring of its debts, (g) the Company or any Significant Subsidiary thereof admits in writing that it is generally unable to pay its debts as they become due, (h) the Company or any Significant Subsidiary thereof, by any act or failure to act, expressly indicates its consent to, approval of or acquiescence in any of the foregoing or takes any corporate or other action for the purpose of effecting any of the foregoing.

“Beneficial Ownership Limitation” shall have the meaning set forth in Section 4(c)(vii).

“Board of Directors” means the board of directors of the Company.

“Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York are generally are open for use by customers on such day.

“Common Stock” means the common stock of the Company, par value $0.001.

“Conversion” means a conversion of this Note pursuant to Section 4.

“Conversion Date” means the date of a Conversion hereunder.

“Conversion Price” shall have the meaning set forth in Section 4(b).

“Conversion Shares” means a number of shares of Common Stock equal to the quotient (rounded down to the nearest whole share) obtained by dividing (x) the outstanding principal amount on the Conversion Date elected by the Holder in writing to be converted by (y) the Conversion Price.

“Event of Default” shall have the meaning set forth in Section 7(a).

“Fully Diluted” means the total aggregate number of shares of Common Stock which would be issued assuming all securities issued by the Company convertible into or exercisable for shares of Common Stock were exercised or converted, plus any shares of Common Stock reserved for issuance, but not subject to outstanding options or other awards under any equity incentive or similar plan or arrangement of the Company, but excluding: (a) this Note; (b) any other notes, or (c) any shares reserved for issuance upon conversion of this Note or any other note.

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“Funding Date” means the date on which Holder advances the principal sum hereunder to Company.

“Indebtedness” means any liabilities of the Company for borrowed money or amounts owed and all guaranties made by the Company of borrowed money or amounts owed by others.

“Interest Payment Date” shall have the meaning set forth in Section 2(a).

“Original Issue Date” means the date of the first issuance of this Note, regardless of any transfers of any Note and regardless of the number of instruments which may be issued to evidence such Note.

“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.

“Prepayment Amount” means the sum of (i) the outstanding principal amount of this Note, plus (ii) accrued and unpaid interest hereon.

“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened.

“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Successor Entity” shall have the meaning set forth in Section 5(a).

“Trading Day” means a day on which the principal Trading Market is open for trading.

“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the New York Stock Exchange, the NYSE American, The Nasdaq Capital Market, The Nasdaq Global Market, or The Nasdaq Global Select Market (or any successors to any of the foregoing).

Section 2. Prepayment. The Company shall have the option to prepay this Note at any time after the Original Issue Date prior to the Maturity Date by paying the Prepayment Amount.

Section 3. Registration of Transfers and Exchanges.

a) Different Denominations. This Note is exchangeable for an equal aggregate principal amount of notes of different authorized denominations, as requested by the Holder surrendering the same. No service charge will be payable for such registration of transfer or exchange.

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b)Reliance on Note Register. The Company and any agent of the Company may treat the Person in whose name this Note is duly registered on the Company’s “Note Register” as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Note is overdue, and neither the Company nor any such agent shall be affected by notice to the contrary.

Section 4. Conversion.

a) Voluntary Conversion. At any time, this Note (including all amounts, costs, expenses and liquidated damages due in respect of this Note) shall be convertible, in whole or in part, into shares of restricted Common Stock (defined as “restricted securities” under Rule 144) at the option of the Holder (subject to the conversion limitations set forth in Section 4(c) hereof). The Holder shall effect conversions by delivering to the Company a Notice of Conversion, the form of which is attached hereto as Annex A (each, a “Notice of Conversion”), specifying therein the principal amount of this Note to be converted and the date on which such conversion shall be effected (such date, the “Conversion Date”). If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the date that such Notice of Conversion is deemed delivered hereunder. No ink-original Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Conversion form be required. To effect conversions hereunder, the Holder shall not be required to physically surrender this Note to the Company unless the entire principal amount of this Note has been so converted in which case the Holder shall surrender this Note as promptly as is reasonably practicable after such conversion without delaying the Company’s obligation to deliver the shares on the Share Delivery Date. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Note in an amount equal to the applicable conversion. The Holder and the Company shall maintain records showing the principal amount(s) converted and the date of such conversion(s). In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error. The Holder, and any assignee by acceptance of this Note, acknowledge and agree that, by reason of the provisions of this paragraph, following conversion of a portion of this Note, the unpaid and unconverted principal amount of this Note may be less than the amount stated on the face hereof.

b) Conversion Price. The conversion price in effect on any Conversion Date shall be equal to 90% of the average closing price of the Company’s shares for the previous five (5) Trading Days prior to the conversion date (the “Conversion Price”); provided, however, that such price shall in no event be less than $1.00 per common share. The Conversion Price may amended and modified by the mutual agreement of the Holder and the Company. Nothing in this Section 4(b) shall limit a Holder’s right to pursue actual damages or declare an Event of Default pursuant to Section 8 hereof and the Holder shall have the right to pursue all remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief. The exercise of any such rights shall not prohibit the Holder from seeking to enforce damages pursuant to any other Section hereof or under applicable law.

c) Mechanics of Conversion.

i. Reserved.

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ii. Not later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) after each Conversion Date (the “Share Delivery Date”), the Company shall deliver, or cause to be delivered, to the Holder, (A) the Conversion Shares representing the number of Conversion Shares being acquired upon the conversion of this Note and (B) a bank check or wire transfer in the amount of any accrued and unpaid interest. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Conversion. The Conversion Shares to be delivered pursuant to this Section 4(c)(ii) shall be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with the Depository trust company through its Deposit or Withdrawal at Custodian system if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Conversion Shares to or resale of the Conversion Shares by the Holder or (B) the requisite holding period provided by Rule 144 for the resale of the Conversion Shares by the Holder has been satisfied, and otherwise by delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Conversion Shares to which the Holder is entitled pursuant any such conversion of this Note and issuance of Conversion Shares under this Section 4. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as any portion of this Note remains outstanding (the “Transfer Agent”).

iii. Obligation Absolute; Partial Liquidated Damages. The Company’s obligations to issue and deliver the Conversion Shares upon conversion of this Note in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any set off, counter claim, recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other Person of any obligation to the Company or any violation or alleged violation of law by the Holder or any other Person (unless the Conversion would violate any law applicable to the Company), and irrespective of any other circumstance which might otherwise limit such obligation of the Company to the Holder in connection with the issuance of such Conversion Shares; provided, however, that such delivery shall not operate as a waiver by the Company of any such action the Company may have against the Holder. The Company may not refuse conversion based on any claim that the Holder or anyone associated or affiliated with the Holder has been engaged in any violation of law, agreement or for any other reason, unless an injunction from a court, on notice to Holder, restraining and or enjoining conversion of all or part of this Note shall have been sought and obtained, and the Company posts a surety bond for the benefit of the Holder in the amount of 150% of the outstanding principal amount of this Note, which is subject to the injunction, which bond shall remain in effect until the completion of arbitration/litigation of the underlying dispute and the proceeds of which shall be payable to the Holder to the extent it obtains judgment. In the absence of such injunction, the Company shall issue Conversion Shares or, if applicable, cash, upon a properly noticed conversion. If the Company fails for any reason to deliver to the Holder such Conversion Shares pursuant to Section 4(c)(ii) by the Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of principal amount being converted, $10 per Trading Day (increasing to $20 per Trading Day on the fifth (5th) Trading Day after such liquidated damages begin to accrue) for each Trading Day after such Share Delivery Date until such Conversion Shares are delivered or Holder rescinds such conversion. Nothing herein shall prohibit the Holder from seeking to enforce damages pursuant to any other section hereof or under applicable law.

iv. Reservation of Shares Issuable Upon Conversion. The Company covenants that it will at all times reserve and keep available at least 200% of the maximum aggregate number of Conversion Shares potentially issuable in the future pursuant to the conversion of this Note out of its authorized and unissued shares of Common Stock for the sole purpose of issuance upon Conversion, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holder (and the any other holders of the Note). The Company covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable and, if a registration statement covering the resale of the Conversion Shares is then effective under the Securities Act, shall be registered for public resale in accordance with such registration statement.

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v. Fractional Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of this Note. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the Company shall at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Conversion Price or round up to the next whole share.

vi. Transfer Taxes and Expenses. The issuance of Conversion Shares on conversion of this Note shall be made without charge to the Holder hereof for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such Conversion Shares, provided that the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such Conversion Shares upon conversion in a name other than that of the Holder of this Note so converted and the Company shall not be required to issue or deliver such Conversion Shares unless or until the Person or Persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. The Company shall pay all transfer agent fees required for same-day processing of any conversion and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Conversion Shares. The Company shall pay all attorney fees required for the issuance of attorney legal opinions for removal of restrictive legends on Conversion Shares.

vii. Holder’s Conversion Limitations. The Company shall not affect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the conversion, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon: (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates or Attribution Parties, and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other notes) beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 4(c)(vii), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 4(c)(vii) applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which principal amount of this Note is convertible shall be in the sole discretion of the Holder. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 4(c)(vii), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company, or (C) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within one Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Note, by the Holder or its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 4(c)(vii), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 4(c)(vii) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 4(c)(vii) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Note.

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Section 5. Common Stock Grant at Funding Date. No later than three (3) business days subsequent to the Funding Date, Company shall grant and issue to Holder unregistered Common Stock in an amount equal to ten percent (10%) of the principal amount advanced hereunder, with such Common Stock priced per share based on the closing price of the Common Stock on the Funding Date.

Section 6. Holder Representations.

(a) No Approvals, Notices or Conflicts. Except as provided in this Note, the execution, delivery and performance of this Note by the Holder, and the consummation of the transactions contemplated hereby and thereby, will not (i) constitute a violation (with or without the giving of notice or lapse of time, or both) of any provision of any law, judgment, decree, order, regulation or rule of any court, agency or other governmental authority applicable to the Holder, (ii) require any consent, approval or authorization of, or declaration, filing or registration with, any person or party, (iii) to the knowledge of the Holder, result in a default (with or without the giving of notice or lapse of time, or both) under, acceleration or termination of, or the creation in any party of the right to accelerate, terminate, modify or cancel, any agreement, lease, note or other restriction, encumbrance, obligation or liability to which the Company is a party or by which it is bound or to which any assets of the Company are subject, or (iv) result in the creation of any lien or encumbrance upon the assets of the Holder, or upon the Common Stock granted hereunder or other equity securities of the Company.

(b) 1933 Act. The Holder has been advised that this Note and any Common Stock issued hereunder are not registered under the Securities Act of 1933 (the “Act”), or applicable state securities laws, but is being issued pursuant to exemptions from such laws, and that the Company’s reliance upon such exemptions is predicated in part on the Holder’s representations contained herein. Holder acknowledges that the Company is relying in part upon the Holder’s representations and warranties contained herein for the purpose of qualifying the issuance of this Note and of the Common Stock for applicable exemptions from registration or qualification pursuant to federal or state securities laws, rules and regulations.

(c) Own Account. This Note and any Common Stock issued hereunder will be acquired for the Holder’s own account, not as a nominee or agent, and not with a view to distributing all or any part thereof. The Holder has no present intention of selling, granting any participation in or otherwise distributing this Note or any of the Common Stock issued hereunder in a manner contrary to the Act or any applicable state securities law. The Holder does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to such person or to any third person with respect to this Note or any of the Common Stock issued hereunder.

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(d) Diligence, Sophistication, and Suitability. The Holder has been been solely responsible for their own due diligence investigation of the Company and its business, and their analysis of the merits and risks of the investment made pursuant to this Note, and are not relying on anyone else’s analysis or investigation of the Company, its business or the merits and risks of this Note and any of the Common Stock issued hereunder. The Holder, either alone or with the assistance of their professional advisor, is a sophisticated investor, able to fend for themselves in the transactions contemplated by this Note, and have such knowledge and experience in financial and business matters that they are capable of evaluating the merits and risks of the prospective investment in the indebtedness and Common Stock under the terms hereof. The investment in the indebtedness and Common Stock is suitable for the Holder based upon their investment objectives and financial needs, and the Holder has adequate net worth and means for providing for their current financial needs and contingencies and have no need for liquidity of investment with respect to the indebtedness or Common Stock. The Holder’s overall commitment to investments that are illiquid or not readily marketable is not disproportionate to their net worth, and investment in indebtedness or Common Stock hereunder will not cause such overall commitment to become excessive.

(e)Restricted Securities. The Holder acknowledges that (i) this Note or the Common Stock issued hereunder has not been registered under the Act, is characterized under the Act as “restricted securities” and, therefore, cannot be sold or transferred unless subsequently registered under the Act or an exemption from such registration is available, and (ii) the public market for the Common Stock is volatile and lacks liquidity, and, as a result, the Holder will most likely not be able to liquidate their investment in the event of an emergency or to pledge the Common Stock as collateral security for loans. The Holder represents that they are familiar with Rule 144 of the U.S. Securities and Exchange Commission, as presently in effect, and understand the resale limitations imposed thereby and by the Act.

Section 7. Events of Default.

a) “Event of Default” means, wherever used herein, any of the following events (whatever the reason for such event and whether such event shall be voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court, or any order, rule or regulation of any administrative or governmental body):

i. any default in the payment of: (A) the principal amount of this Note, or (B) liquidated damages and other amounts owing to a Holder on this Note, as and when the same shall become due and payable (whether on a Conversion Date or the Maturity Date or by acceleration or otherwise) which default, solely in the case of a default under clause (B) above, is not cured within 5 Trading Days;

ii. the Company shall fail to observe or perform any other covenant or agreement contained in the Note, which failure is not cured, if possible to cure, within the earlier to occur of 10 calendar days after (A) after receiving notice of such failure sent by the Holder or by any other Holder to the Company and (B) after the Company has become or should have become aware of such failure;

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iii. the Company shall cause a default or event of default (subject to any grace or cure period provided in the applicable agreement, document or instrument) shall occur under (A) the Note or (B) any other material agreement, lease, document or instrument to which the Company is obligated (and not covered by clause (vi) below);

iv. any material representation or warranty made in this Note, any written statement pursuant hereto or thereto or any other report, financial statement or certificate made or delivered to the Holder or any other Holder shall be untrue or incorrect in any material respect as of the date when made;

v. the Company or any Significant Subsidiary (as such term is defined in Rule 1-02(w) of Regulation S-X) shall be subject to a Bankruptcy Event; and

vi. the Company shall fail for any reason to deliver Conversion Shares to a Holder prior to the fifth Trading Day after a Conversion Date pursuant to Section 4(c) or the Company shall provide at any time notice to the Holder, including by way of public announcement, of the Company’s intention to not honor requests for conversions of any notes in accordance with the terms hereof.

b) Default Interest. If any Event of Default occurs an interest rate on this Note shall immediately accrue at an interest rate as set forth in Section 11 hereof which shall be paid in cash monthly to Holder until the Event of Default is cured.

Upon the conversion or payment in full of the outstanding principal and interest amount of this Note, plus liquidated damages and other amounts owing in respect thereof, the Holder shall promptly surrender this Note to or as directed by the Company. The Company hereby waives, any presentment, demand, protest or other notice of any kind, and the Holder may immediately and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available to it under applicable law.

Section 8. Miscellaneous.

a) Notices. Any and all notices or other communications or deliveries to be provided by the Holder hereunder shall be in writing and delivered personally, by email attachment, or sent by a nationally recognized overnight courier service, addressed to the Company, at the address set forth in herein or such other, email address, or address as the Company may specify for such purposes by notice to the Holder delivered in accordance with this Section 8(a). Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by facsimile, by email attachment, or sent by a nationally recognized overnight courier service addressed to each Holder at the facsimile number, email address or address of the Holder appearing on the books of the Company, or if no such facsimile number or email attachment or address appears on the books of the Company, at the principal place of business of such Holder, as set forth herein. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of: (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment to the email address set forth on the signature pages attached hereto prior to 5:30 p.m. (Eastern time) on any date, (ii) the next Business Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment to the email address set forth on the signature pages attached hereto on a day that is not a Business Day or later than 5:30 p.m. (Eastern time) on any Business Day, (iii) the second Business Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.

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b) Absolute Obligation. Except as expressly provided herein, no provision of this Note shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and liquidated on this Note at the time, place, and rate, and in the coin or currency, herein prescribed. This Note is a direct debt obligation of the Company.

c) Lost or Mutilated Note. If this Note shall be mutilated, lost, stolen or destroyed, the Company shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated Note, or in lieu of or in substitution for a lost, stolen or destroyed Note, a new Note for the principal amount of this Note so mutilated, lost, stolen or destroyed, but only upon (i) receipt of evidence of such loss, theft or destruction of such Note, and of the ownership hereof, reasonably satisfactory to the Company and (ii) customary indemnities in favor of the Company, paid for by the Holder, associated with the issuance of such replacement Note.

d) Governing Law. All dispute concerning the construction, validity, enforcement and interpretation of this Note shall be governed by and construed and enforced in accordance with the internal laws of the state of Texas, without regard to its principles of conflict of laws thereof. The parties HERETO KNOWINGLY AND IRREVOCABLY agree that any action brought to enforce OR INTERPRET the terms of this Note will be brought SOLELY AND EXCLUSIVELY in A court OF COMPETNENT jurisdiction SITUATED IN Dallas County, Texas. Each party hereto 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 such forum or that such forum is are improper or inconvenient venue for such proceeding. 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 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 Note 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 applicable law. Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Note or the transactions contemplated hereby. If any party shall commence an action or proceeding to enforce any provisions of this Note, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorney’s fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.

e) Waiver. Any waiver by the Company or the Holder of a breach of any provision of this Note shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Note. The failure of the Company or the Holder to insist upon strict adherence to any term of this Note on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Note on any other occasion. Any waiver by the Company or the Holder must be in writing.

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f) Severability. If any provision of this Note is invalid, illegal or unenforceable, the balance of this Note shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances. If it shall be found that any amount deemed interest due hereunder violates the applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under applicable law. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law which would prohibit or forgive the Company from paying all or any portion of the principal of or interest on this Note as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Note, and the Company (to the extent it may lawfully do so) hereby expressly waives all benefits or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Holder, but will suffer and permit the execution of every such as though no such law has been enacted.

g) Remedies, Characterizations, Other Obligations, Breaches and Injunctive Relief. The remedies provided in this Note shall be cumulative and in addition to all other remedies available under this Note at law or in equity (including a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the Holder’s right to pursue actual and consequential damages for any failure by the Company to comply with the terms of this Note. The Company covenants to the Holder that there shall be no characterization concerning this instrument other than as expressly provided herein. Amounts set forth or provided for herein with respect to payments, conversion and the like (and the computation thereof) shall be the amounts to be received by the Holder and shall not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance thereof). The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the Holder shall be entitled, in addition to all other available remedies, to an injunction restraining any such breach or any such threatened breach, without the necessity of showing economic loss and without any bond or other security being required. The Company shall provide all information and documentation to the Holder that is reasonably requested by the Holder to enable the Holder to confirm the Company’s compliance with the terms and conditions of this Note.

h) Next Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day.

i) Headings. The headings contained herein are for convenience only, do not constitute a part of this Note and shall not be deemed to limit or affect any of the provisions hereof.

j) Sale Limitation. Notwithstanding anything contained herein, the Holder shall not sell, dispose, or otherwise transfer more than 10% of the daily composite trading volume of the Common Stock as reported by Bloomberg, LP for any Trading Day for the principal trading market for the Common Stock.

k) Reserved.

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l) Counterparts; Integration; Effectiveness. This Note and any amendments, waivers, consents or supplements hereto may be executed in counterparts, each of which shall constitute an original, but all taken together shall constitute a single contract. This Note constitutes the entire contract between the Parties with respect to the subject matter hereof and supersedes all previous agreements and understandings, oral or written, with respect thereto. Delivery of an executed counterpart of a signature page to this Note by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Note.

Section 9. Amendments; Waivers.

Any modifications, amendments or waivers of the provisions hereof shall be subject to approval of the Holder and the Company.

Section 10. Reserved.

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

(Signature Page Follows)

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IN WITNESS WHEREOF, the Company has caused this Amended Note to be duly executed by a duly authorized officer as of the date first above indicated.

VIVAKOR, Inc.
By:
	Name:	James H. Ballengee
	Title:	Chairman, President, & CEO

Agreed and accepted by:

HOLDER:

[___________], individually

13

ANNEX A

NOTICE OF CONVERSION

The undersigned hereby elects to convert principal under that certain Convertible Note due December 31, 2024 of Vivakor, Inc., a company incorporated under the laws of Nevada (the “Company”), into shares of common stock (the “Common Stock”), of the Company according to the conditions hereof, as of the date written below. If shares of Common Stock are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions as reasonably requested by the Company in accordance therewith. No fee will be charged to the holder for any conversion, except for such transfer taxes, if any.

By the delivery of this Notice of Conversion the undersigned represents and warrants to the Company that its ownership of the Common Stock does not exceed the amounts specified under Section 4 of this Note, as determined in accordance with Section 13(d) of the Exchange Act.

The undersigned agrees to comply with the prospectus delivery requirements under the applicable securities laws in connection with any transfer of the aforesaid shares of Common Stock.

Conversion calculations:

Date to Effect Conversion: ________________

Principal and/or Interest Amount of Note to be Converted:

Number of shares of Common Stock to be issued: ________________

Signature: 

Name:

Address for Delivery of Common Stock Certificates:

Or

DWAC Instructions:

Broker No: 

Account No: 

14

EX-10.1

Exhibit 10.1

PRIVATE AND CONFIDENTIAL

July ___, 2024

395 Group LLC

1763 La Cita Way,

Minden, Nevada 89423

917 528 0116

Mr. James Ballengee, CEO

Vivakor, Inc.

5220 Spring Valley Rd., Ste. 415

Dallas, TX 75254

Delivered via email to jballengee@vivakor.com

Dear Mr. Ballengee:

We are pleased that Vivakor, Inc., a Nevada corporation (the “Company”) has decided to retain 395 Group, LLC, a Nevada limited liability company (“395”) to provide general advisory and business development advisory services to the Company as set forth herein. This letter agreement (“Agreement”) will confirm 395’s acceptance of such retention and set forth the terms of our engagement. The Company understands that 395 is providing services as advisor; and is not providing investment banking or financing services. The Company further understands that 395 is an independent advisor and not an employee of the Company. Exhibit A to this Agreement provides additional disclosures and disclaimers regarding services provided by 395 and is a part of this Agreement. 395 disclaims any responsibility for accurately describing or recommending any action or transaction in which the Company may engage. 395’s obligation is solely as described herein and the Company agrees that it shall not make any representation that 395 endorses or sponsors the Company or its securities, has performed any due diligence with respect to the Company or has participated in any way in pricing securities or structuring any financing transaction. The Company agrees that no reference to 395 will be made in any press release or advertisement of any transaction with the referral without the express approval, in writing, of such release or advertisement by 395.

1. Retention. The Company hereby retains 395 as its non-exclusive advisor for period of four (4) months to provide general advisory services, and 395 accepts such retention on the terms and conditions set forth in this Agreement. In such capacity, 395 shall provide to the Company the following advisory services: (i) familiarize itself, to the extent appropriate and feasible, with the business, operations, properties, financial condition, management and prospects of the Company; ii) advise the Company on matters relating to its capitalization; (iii) evaluate alternative structures and arrangements; (iv) assist the Company in developing and identifying appropriate business development criteria and identifying target industries; (v) assist the Company in evaluating and make recommendations concerning the relationships among the Company’s various lines of business and potential areas for business growth; (vi) gather market intelligence (market intelligence describes the set of activities that provide a company with a view of a market using existing sources of information to understand what is happening in a market place, what the issues are, what competitors are doing, what customers or consumers are doing [e.g. social media] and what the likely market potential is for new products or services based on previous activities and responses); and (vii) provide such other advisory upon which the parties may mutually agree (all of the foregoing referred to herein as “Advisory Services”).

2. Information. In connection with 395’s activities hereunder, the Company will cooperate with 395 and furnish 395 upon request with all information regarding the business, operations, properties, financial condition, management and prospects of the Company (all such information so furnished being the “Information”) which 395 deems appropriate and will provide 395 with access to the Company’s officers, directors, consultants, employees, independent accountants and legal counsel (the “Representatives”). Neither the Company nor its Representatives make any express or implied representations, warranties or covenants as to the accuracy or completeness of the Information. Neither the Company nor its Representatives shall have any liability whatsoever to the 395 or its Representatives for any use made by 395 or its Representatives of the Information, or any errors therein or omissions therefrom. 395 and its Representatives shall rely solely upon their own independent estimates, computations, evaluations, reports, studies, examinations, and knowledge with respect to the evaluation and use of the Information. The Company recognizes and confirms that 395: (i) will use and rely primarily on the Information and on information available from generally recognized public sources in performing the services contemplated by this Agreement without having independently verified the same; and (ii) does not assume responsibility for the accuracy or completeness of the Information and such other information. Any advice rendered by 395 pursuant to this Agreement may not be disclosed publicly without 395’s prior written consent. 395 hereby acknowledges that certain of the Information received by 395 may be confidential and/or proprietary, including Information with respect to the Company’s technologies, products, business plans, marketing, and other Information which must be maintained by 395 as confidential. 395 agrees that it will not disclose such confidential and/or proprietary Information to any other companies in the industry in which the Company is involved nor will 395 make such confidential and/or proprietary Information public in any way. The Information does not include information which (i) was or becomes generally available to the public other than as a result of a disclosure by the undersigned or its Representatives in violation of this Agreement, (ii) was or becomes available to the undersigned on a non-confidential basis from a source other than the Company or its Representatives provided that such source is not known to you to be bound by a confidentiality agreement with the Company, or otherwise prohibited from transmitting the information to the undersigned by a contractual, legal or fiduciary obligation or (iii) was within the undersigned’s possession prior to it’s being furnished by or on behalf of the Company.

3. Compensation. As consideration for 395’s services pursuant to this Agreement, 395 shall be entitled to receive, and the Company agrees to pay 395, the following compensation:

3.1. The fees appearing in Exhibit B (hereto, the “Fee Schedule”) shall be earned by and paid to 395 by the Company in connection with this agreement.

4. Expenses. In addition to payment to 395 of the compensation set forth in Section 3 hereof, the Company shall promptly upon request from time to time reimburse 395 for all reasonable expenses (including, without limitation, fees and disbursements of counsel and all travel and other out-of-pocket expenses) incurred by 393 in connection with its engagement hereunder. 395 will provide the Company an invoice and copies of receipts pursuant to its expenses and such expenses shall not exceed $500 without prior authorization of the Company; provided that the foregoing limitation and consent shall not apply to legal fees. Any air travel shall be business or first class for scheduled flights over one hour.

5. Indemnification. The Company agrees to indemnify 395 in accordance with the indemnification and other provisions attached to this Agreement as Exhibit C (the “Indemnification Provisions”), which provisions are incorporated herein by reference and shall survive the termination or expiration of this Agreement.

6. Other Activities. Subject to the confidentiality provisions of 395 contained in Section 2 hereof, the Company acknowledges and agrees that nothing contained in this Agreement shall limit or restrict the right of 395 or of any member, manager, officer, employee, agent or representative of 395, to be a member, manager, partner, officer, director, employee, agent or representative of, investor in, or to engage in, any other business, whether or not of a similar nature to the Company’s business, nor to limit or restrict the right of 395 to render services of any kind to any other corporation, firm, individual or association. 395 may, but shall not be required to, present opportunities to the Company. 395 is not being retained to provide any market making activities and its ability to provide certain services to the Company will be subject to all applicable state and federal securities laws.

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7. Termination; Survival of Provisions. Either 395 or the Company may terminate this Agreement at any time upon 30 days’ prior written notice to the other party. In the event of such termination, the Company shall pay and deliver to 395: (i) all compensation earned through the date of such termination (“Termination Date”) pursuant to any provision of Section 3 hereof, and (ii) all compensation which may be earned by 395 after the Termination Date pursuant to Section 3 hereof, and shall reimburse 395 for all expenses incurred by 395 in connection with its services hereunder pursuant to Section 4 hereof. All such fees and reimbursements due to 395 pursuant to the immediately preceding sentence shall be paid to 395 on or before the Termination Date (in the event such fees and reimbursements are earned or owed as of the Termination Date). Notwithstanding anything expressed or implied herein to the contrary: (i) any Agency Agreement entered into between 395 and the Company may only be terminated in accordance with the terms thereof, notwithstanding an actual or purported termination of this Agreement, and (ii) the terms and provisions of Sections 3, 4, 5 (including, but not limited, to, the Indemnification Provisions attached to this Agreement and incorporated herein by reference), 6, 7, 8, 9, 10 and 15 shall survive the termination of this Agreement.

8. Notices. All notices provided hereunder shall be given in writing and either delivered personally or by overnight courier service or sent by certified mail, return receipt requested, if to 395, to 395 Group, LLC., Attention: Andrew Scott, 1763 La Cita Way, Minden, Nevada, 89423, and if to the Company, to the address and contact person, set forth on the first page of this Agreement. Any notice delivered personally or by fax shall be deemed given upon receipt (with confirmation of receipt required in the case of fax transmissions); any notice given by overnight courier shall be deemed given on the next business day after delivery to the overnight courier; and any notice given by certified mail shall be deemed given upon the second business day after certification thereof.

9. Governing Law; Jurisdiction; Waiver of Jury Trial, Damages. This Agreement shall be construed according to the laws of the State of Nevada and subject to the jurisdiction of the courts of said state, without application of the principles of conflicts of laws. Each of the parties’ consents exclusively to personal jurisdiction in Carson City, Nevada and waives any objection as to jurisdiction or venue, and agrees not to assert any defense based on lack of jurisdiction or venue. In any litigation, arbitration, or other dispute resolution arising out of or relating to this Agreement, the prevailing party shall be reimbursed by the other party (as determined by a court of competent jurisdiction) for reasonable attorneys’ fees and/or arbitration costs. In the event that 395 is the prevailing party in any litigation, arbitration, or other dispute resolution arising out of or relating to this Agreement case where the Company circumvents payment of fees due under this Agreement to 395, 395 shall be due triple the amount of the original fee owed under this Agreement.

10. Amendments. This Agreement may not be modified or amended except in a writing duly executed by the parties hereto.

11. Headings. The section headings in the Agreement have been inserted as a matter of reference and are not part of this Agreement.

12. Successors and Assigns. The benefits of this Agreement shall inure to the parties hereto, their respective successors and assigns and to the indemnified parties hereunder and their respective successors and assigns, and the obligations and liabilities assumed in this Agreement shall be binding upon the parties hereto and their respective successors and assigns. Notwithstanding anything contained herein to the contrary, neither 395 nor the Company shall assign any of its obligations hereunder without the prior written consent of the other party, which shall not be unreasonably delayed or denied.

13. No Third Party Beneficiaries. This Agreement does not create, and shall not be construed as creating, any rights enforceable by any person or entity not a party hereto, except those entitled to the benefits of the Indemnification Provisions, unless specifically agreed to in writing by the parties to this Agreement. Without limiting the foregoing, the Company acknowledges and agrees that 395 is not being engaged as, and shall not be deemed to be, an agent or fiduciary of the Company’s stockholders or creditors or any other person by virtue of this Agreement or the retention of 395 hereunder, all of which are hereby expressly waived.

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14. Waiver. Any waiver or any breach of any of the terms or conditions of this Agreement shall not operate as a waiver of any other breach of such terms or conditions or of any other term or condition, nor shall any failure to insist upon strict performance or to enforce any provision hereof on any one occasion operate as a waiver of such provision or of any other provision hereof or a waiver of the right to insist upon strict performance or to enforce such provision or any other provision on any subsequent occasion. Any waiver must be in writing.

15. Counterparts. This Agreement may be executed in any number of counterparts and by facsimile transmission, each of which shall be deemed to be an original instrument, but all of which taken together shall constitute one and the same agreement. Facsimile signatures shall be deemed to be original signatures for all purposes. If the foregoing correctly sets forth our agreement, please sign the enclosed copy of this Agreement in the space provided below along with initialing each page.

Very truly yours,

395 Group, LLC
By:	/s/ Andrew Scott
Andrew Scott, President
Agreed, entered into, and accepted on:
Vivakor, Inc.
By:	/s/ James Ballengee
James Ballengee, CEO

4

EXHIBIT A

ADVISOR’S DISCLOSURES AND DISCLAIMER

305 Group, LLC (hereinafter “395”) hereby discloses and disclaims the following to Vivakor, Inc. (hereinafter the “Company”).

395 expressly represents and discloses that it DOES NOT GUARANTEE the success of any advice and/or business relationship that is entered into with any contact they may provide to the Company. 395 expressly represents that it is NOT AN INVESTMENT OR FINANCIAL ADVISOR and will not provide investment advice of any kind. None of the advice 395 provides to the Company should be construed by the Company as investment advice. 395 recommends that the Company obtain investment advice from a licensed and qualified investment advisor. 395 further represents that it is NOT A TAX ADVISOR and will not provide any advice with respect to tax implications, consequences and/or responsibilities with respect to any advice it may give to the Company. 395 recommends that the Company obtain tax advice from a licensed and qualified attorney and/or tax advisor. 395 also expressly represents that it DOES NOT HAVE LEGAL TRAINING, does not have legal expertise and will not provide the Company with any legal advice. Furthermore, 395 expressly recommends that the Company obtain legal advice from a licensed and qualified attorney. 395 refers the Company to the following websites for additional disclosure information regarding members of 395: www.sec.gov/litigation/admin/34-51883.pdf.

Any statements made by 395 during its business relationship with the Company that express or involve discussions with respect to predictions, expectations, beliefs, plans, projections, objectives, goals, assumptions or future events or performance are not statements of historical fact and may be “forward looking statements.” Forward looking statements are based on expectations, estimates and projections at the time the statements are made that involve a number of risks and uncertainties which could cause actual results or events to differ materially from those presently anticipated.

When 395 receives compensation from the Company paid in stock, 395 may sell part or all of any such shares during the time in which it is performing consulting services on behalf of the Company. 395’s services for the Company may cause the Company’s stock price to increase, in which event 395 would make a profit when it sells its stock in the Company. In addition, this same selling of the Company’s stock may have a negative effect on the market price of the stock. Please be aware of an inherent conflict of interest resulting from 395’s holdings in the Company due to 395’s intent to profit from the liquidation of these shares. 395 may elect to sell its shares at any time, even after positive and/or negative public statements have been made regarding the Company. THE COMPANY ACKNOWLEDGES THAT IT HAS READ THE FOREGOING DISCLAIMERS PERTAINING TO THE SERVICES TO BE PROVIDED BY 395 AND FULLY UNDERSTANDS THAT 395 WILL NOT GUARANTEE THE SUCCESS OF ANY ADVICE AND/OR BUSINESS RELATIONSHIP ENTERED INTO WITH ANY CONTACT 395 PROVIDES AND 395 WILL NOT PROVIDE ANY INVESTMENT ADVICE, TAX ADVICE AND/OR LEGAL ADVICE OF ANY KIND. THE COMPANY FURTHER ACKNOWLEDGES THAT IT WILL NOT RELY UPON AND/OR CONSTRUE ANY ADVICE RECEIVED BY 395 AS INVESTMENT, TAX AND/OR LEGAL ADVICE AND FURTHER AGREE TO OBTAIN ANY SUCH ADVICE INDEPENDENTLY FROM LICENSED AND QUALIFIED Counselors and accountants.

The Company acknowledges that it has read and understands the foregoing Disclosures and Disclaimers and has been provided with a copy of the same.

Vivakor, Inc.

By:

James Ballengee, CEO

A-1

EXHIBIT B

FEE AND COMPENSATION SCHEDULE

The following sets forth a schedule for payment of services as detailed in the Agreement. Items outlined in Exhibit B are meant to clarify and not limit items covered in the Agreement. For general advising services, the Company shall pay to 395 a retainer of three hundred and forty thousand dollars ($340,000) in cash, and 50,000 shares of Vivakor, Inc. common stock, $0.001 par value, which shares shall be “Restricted Securities” pursuant to the provisions of Rule 144. All stock is non-cancelable and to be deemed earned and issued as of the date of this Agreement. Equity ownership is to be issued within five (5) business days of the execution of this agreement to 395 or its designee. 50% of the cash is to be paid upon execution of this Agreement and 50% is to be paid thirty (30) days after the execution of this Agreement. 395 and the Company understand that the issuance of the Shares is being made pursuant to an exemption from registration under State law and with the Securities and Exchange Commission afforded by Section 4(2) of the Securities Act of 1933 and/or Regulation D adopted by the Commission relating to transactions by an issuer not involving any public offering. Consequently, the Shares are “Restricted Securities” as that term is defined under the federal securities laws and the materials submitted to 395 have not been subject to the review and comment by the Staff of the Commission, FINRA, or any state securities regulators. 395 acknowledges that the securities may not be sold or otherwise transferred unless they are registered under the Act and any applicable state securities law or an exemption from such registration is available.

Vivakor, Inc.

By:

James Ballengee, CEO

B-1

EXHIBIT C

INDEMNIFICATION PROVISIONS

Capitalized terms used in this Exhibit shall have the meanings ascribed to such terms in the Agreement to which this Exhibit is attached. Vivakor, Inc. agrees to indemnify and hold harmless 395 and each of the other Indemnified Parties (as hereinafter defined) from and against any and all losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses and disbursements, and any and all actions, suits, proceedings and investigations in respect thereof and any and all legal and other costs, expenses and disbursements in giving testimony or furnishing documents in response to a subpoena or otherwise (Including, without limitation, the costs, expenses and disbursements, as and when incurred, of investigating, preparing, pursing or defending any such action, suit, proceeding or investigation (whether or not in connection with litigation in which any Indemnified Party is a party)) (collectively, “Losses”), directly or indirectly, caused by, relating to, based upon, arising out of, or in connection with, 395’s acting for the Company, including, without limitation, any act or omission by 395’s in connection with its acceptance of or the performance or non-performance of its obligations under the letter agreement between the Company and 395 to which these indemnification provisions are attached and form a part (the “Agreement”), any breach by the Company of any representation, warranty, covenant or agreement contained in the Agreement (or in any instrument, document or agreement relating thereto, including any Agency Agreement), or the enforcement by 395 of its rights under the Agreement or these indemnification provisions, SAVE and EXCEPT to the extent that any such Losses result from the negligence or willful misconduct of any Indemnified Party. These Indemnification Provisions shall extend to the following persons (collectively, the “Indemnified Parties”): 395, its present and former affiliated entities, managers, members, officers, employees, legal counsel, agents and controlling persons (within the meaning of the federal securities laws), and the officers, directors, partners, stockholders, members, managers, employees, legal counsel, agents and controlling persons of any of them. These indemnification provisions shall be in addition to any liability which the Company may otherwise have to any Indemnified Party. If any action, suit, proceeding or investigation is commenced, as to which an Indemnified Party proposes to demand indemnification, it shall notify the Company with reasonable promptness; provided, however, that any failure by an Indemnified Party to notify the Company shall not relieve the Company from its obligations hereunder. An Indemnified Party shall have the right to participate in, but not control, any such defense and to retain separate counsel of its own choice to represent it, and the fees, expenses and disbursements of such counsel shall be borne by the Company. Any such counsel shall, to the extent consistent with its professional responsibilities, cooperate with the Company and any counsel designated by the Company. The Company shall be liable for any settlement of any claim against any Indemnified Party made with the Company’s written consent. The Company shall not, without the prior written consent of 395, settle or compromise any claim, or permit a default or consent to the entry of any judgment in respect thereof, unless such settlement, compromise or consent (i) includes, as an unconditional term thereof, the giving by the claimant to all of the Indemnified Parties of an unconditional release from all liability in respect of such claim, and (ii) does not contain any factual or legal admission by or with respect to an Indemnified Party or an adverse statement with respect to the character, professionalism, expertise or reputation of any Indemnified Party or any action or inaction of any Indemnified Party. In order to provide for just and equitable contribution, if a claim for indemnification pursuant to these indemnification provisions is made but it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that such indemnification may not be enforced in such case, even though the express provisions hereof provide for indemnification in such case, then the Company shall contribute to the Losses to which any Indemnified Party may be subject (i) in accordance with the relative benefits received by the Company and its stockholders, subsidiaries and affiliates, on the one hand, and the Indemnified Party, on the other hand, and (ii) if (and only if) the allocation provided in clause (i) of this sentence is not permitted by applicable law, in such proportion as to reflect not only the relative benefits, but also the relative fault of the Company, on the one hand, and the Indemnified Party, on the other hand, in connection with the statements, acts or omissions which resulted in such Losses as well as any relevant equitable considerations. No person found liable for a fraudulent misrepresentation shall be entitled to contribution from any person who is not also found liable for fraudulent misrepresentation. The relative benefits received (or anticipated to be received) by the Company and its stockholders, subsidiaries and affiliates shall be deemed to be equal to the aggregate consideration payable or receivable by such parties in connection with any Business Combination or Business Combinations to which the Agreement relates relative to the amount of fees actually received by 395 in connection with such Business Combination or Business Combinations. Notwithstanding anything contained herein to the contrary, in no event shall the amount contributed by all Indemnified Parties exceed the amount of fees previously received by 395 pursuant to the Agreement. Neither termination nor completion of the Agreement shall affect these Indemnification Provisions which shall remain operative and in full force and effect. The Indemnification Provisions shall be binding upon the Company and its successors and assigns and shall inure to the benefit of the Indemnified Parties and their respective successors, assigns, heirs and personal representatives.

By:

James Ballengee, CEO

Vivakor, Inc.

C-1

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Cover	Jul. 05, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Jul. 05, 2024
Entity File Number	001-41286
Entity Registrant Name	VIVAKOR, INC.
Entity Central Index Key	0001450704
Entity Tax Identification Number	26-2178141
Entity Incorporation, State or Country Code	NV
Entity Address, Address Line One	5220 Spring Valley Road
Entity Address, Address Line Two	Suite 500
Entity Address, City or Town	Dallas
Entity Address, State or Province	TX
Entity Address, Postal Zip Code	75254
City Area Code	(949)
Local Phone Number	281-2606
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock
Trading Symbol	VIVK
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	true
Elected Not To Use the Extended Transition Period	false