Vivakor, Inc. (Form: 8-K, Received: 11/03/2022 17:16:23)

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): October 28, 2022

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.)

4101 North Thanksgiving Way

Lehi, UT 84043

(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 Agreement.

Executive Employment Agreement

On October 28, 2022, Vivakor, Inc. (the “Company”) entered into an executive employment agreement with James Ballengee (the “Employment Agreement”) with respect to the Company’s appointment of Mr. Ballengee as Chief Executive Officer and Chairman of the Board of Directors (the “Board”). Pursuant to the Employment Agreement, Mr. Ballengee will receive annual compensation of $1,000,000 payable in shares of the Company’s common stock, priced at the volume weighted average price (VWAP) for the five trading days preceding the date of the Employment Agreement and each anniversary thereof (the “CEO Compensation”). The CEO Compensation shall be subject to satisfaction of Nasdaq rules, the provisions of the Company’s equity incentive plan and other applicable requirements and shall be accrued if such issuance is due prior to satisfaction of such requirements. Additionally, Mr. Ballengee shall be eligible for a discretionary performance bonus. The Employment Agreement may be terminated by either party for any or no reason, by providing a five days’ notice of termination.

Pursuant to the Employment Agreement, Mr. Ballengee is granted the right to nominate two additional directors for appointment to the Board in his sole discretion, as well as a third additional director upon issuance of the Note Payment Shares (defined below), subject to such directors passing a background check.

Membership Interest Purchase Agreement – Note Amendment

As previously disclosed in the Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on June 22, 2022, the Company entered into a Membership Interest Purchase Agreement (the “MIPA”), with Jorgan Development, LLC, a Louisiana limited liability company ("Jorgan") and JBAH Holdings, LLC, a Texas limited liability company ("JBAH" and, together with Jorgan, the "Sellers"), as the equity holders of Silver Fuels Delhi, LLC, a Louisiana limited liability company ("SFD") and White Claw Colorado City, LLC, a Texas limited liability company ("WCCC" ). As previously disclosed in the Current Report on Form 8-K filed with the SEC on August 5, 2022, the transaction documented by the MIPA closed on August 1, 2022 and, as a result, the Company acquired all of the issued and outstanding membership interests in each of SFD and WCCC (the “Membership Interests”), making SFD and WCCC wholly-owned subsidiaries of the Company. The purchase price for the Membership Interests was approximately $37.4 million, subject to post-closing adjustments, payable by the Company in a combination of shares of the Company’s common stock, secured three-year promissory notes made by the Company in favor of the Sellers (the “Notes”), and the assumption of certain liabilities of SFD and WCCC. The shares of the Company’s common stock and the Notes will have an aggregate value of approximately $32,942,939.

On October 28, 2022, in connection with the Employment Agreement, the Company and the Sellers entered into an agreement amending the Notes (the “Note Amendment”), whereby, as soon as is practicable, following and subject to the approval of the Company’s shareholders, and provided there are no applicable prohibitions under the rules of The Nasdaq Capital Market or other restrictions, the Company will issue 7,042,254 restricted shares of the Company’s common stock (the “Note Payment Shares”) in exchange for the forgiveness and cancellation of $10,000,000 of principal under the Notes on a pro rata basis, reflecting a conversion price of $1.42 per share (the “Note Payment”). 6,971,831 shares will be issued to Jorgan and $9,900,000 of principal owed to Jorgan will be cancelled and 70,423 shares will be issued to JBAH and $100,000 of principal owed to JBAH will be cancelled.

No later than thirty (30) days following the date the Note Payment and the Note Payment Shares are approved by the Company’s shareholders, the Company shall use its reasonable best efforts to prepare and file with the SEC, a registration statement on Form S-1 or any other available form (the "Registration Statement") for an offering to be made on a continuous basis pursuant to Rule 415 of the Securities Act or any successor thereto registering the resale from time to time all of the Note Payment Shares. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective by the SEC as soon as possible after filing (the date on which the Registration Statement becomes effective, the "Effectiveness Date"). The Company shall further use its reasonable best efforts to keep the Registration Statement continuously effective and to be supplemented and amended to the extent necessary to ensure that such Registration Statement is available. Once the Registration Statement is declared effective by the SEC, the Note Payment will count against the Threshold Payment Amount, as defined in the Notes and the MIPA.

The foregoing description of the Employment Agreement, the MIPA, the Notes and the Note Amendment do not purport to be complete and are qualified in their entirety by their full text, the forms of which are filed herewith as Exhibit 10.1, 2.1, 4.1 and 4.2, respectively.

Item 5.02

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

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

James Ballengee, 57, Chief Executive Officer and President

Mr. James H. Ballengee combines more than two decades of experience in midstream oil and gas senior management roles. Previously, he had been involved in two major private equity portfolio companies holding positions including Chief Commercial Officer, Chief Financial Officer, Chief Executive Officer, and Chairman of the Board. From 1997 through 2010, Mr. Ballengee served first as Chief Financial Officer, then Chief Executive Officer, then Chief Commercial Officer of Taylor Logistics, LLC, a Halifax Group-backed private equity portfolio company focused on crude oil marketing and logistics, which he led through a successful sale to Gibson Energy, Inc. (TSX: GEI). From 2010 to 2013, he was Chief Executive Officer and Chairman of the Board of Bridger Group, LLC, a private crude oil marketing firm. From 2013 to 2015, he was a board member and Chief Commercial Officer of Bridger, LLC, a Riverstone Holdings-backed private equity portfolio company focused on crude oil marketing and logistics, which he led through a successful sale to Ferrellgas Partners, LP (NYSE: FGP). Mr. Ballengee currently manages an exempt family office, which in turn holds and manages investments principally in the oil and gas, sports and entertainment, and real estate sectors. He has an undergraduate degree in accounting from Louisiana State University—Shreveport.

The Board believes that Mr. Ballengee’s experience in management and operations and his extensive knowledge in the midstream petroleum industry makes him ideally qualified to help lead the Company towards continued growth and success.

Family Relationships

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

Related Party Transactions

Jorgan Development, LLC was the manager of SFD and WCCC at the time the Company purchased such entities. Mr. Ballengee is the sole manager of Jorgan Development, LLC and is the principal beneficiary of the trust that owns Jorgan Development, LLC. As stated above in Item 1.01, the purchase price for the Membership Interests was approximately $37.4 million.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

In reviewing the agreements included or incorporated by reference as exhibits to this Current Report on Form 8-K, please remember that they are included to provide investors with information regarding their terms and are not intended to provide any other factual or disclosure information about the Company or the other parties to the agreements. The agreements may contain representations and warranties by each of the parties to the applicable agreement. These representations and warranties have been made solely for the benefit of the parties to the applicable agreement and:

· should not in all instances be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate;

· have been qualified by disclosures that were made to the other party in connection with the negotiation of the applicable agreement, which disclosures are not necessarily reflected in the agreement;

· may apply standards of materiality in a way that is different from what may be viewed as material to other investors; and

· were made only as of the date of the applicable agreement or such other date or dates as may be specified in the agreement and are subject to more recent developments.

Accordingly, these representations and warranties may not describe the actual state of affairs as of the date they were made or at any other time. Additional information about the Company may be found elsewhere in this Current Report on Form 8-K and in the Company’s other periodic filings which are available without charge through the SEC’s website at http://www.sec.gov.

Exhibit No.		Exhibit

2.1		Membership Interest Purchase Agreement dated as of June 15, 2022, by and among the Registrant, Jorgan Development, LLC and JBAH Holdings LLC (Incorporated by reference to Exhibit 2.1 to the Registrant’s Current Report on Form 8-K filed on June 22, 2022)

4.1		Form of Secured Promissory Note (Incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed on June 22, 2022)

4.2		Form of Note Amendment, dated October 28, 2022

10.1		Executive Employment Agreement, by and between Vivakor, Inc. and James Ballengee, dated October 28, 2022

104		Cover Page Interactive Data File (embedded within the Inline XBRL document).

SIGNATURES

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

	VIVAKOR, INC.

Dated: November 3, 2022	By:	/s/ James Ballengee
		Name: James Ballengee
		Title: Chief Executive Officer

Exhibit 4.2

October 28, 2022

Re. Vivakor, Inc. – Exchange of Shares for Cancellation of Note Principal

Ladies and Gentlemen:

On August 1, 2022, Vivakor, Inc. (the “Company”), Jorgan Development, LLC, a Louisiana limited liability company (“Jorgan”) and JBAH Holdings, LLC, a Texas limited liability company ("JBAH" and, together with Jorgan, the "Sellers"), as the equity holders of Silver Fuels Delhi, LLC, a Louisiana limited liability company (“SFD”) and White Claw Colorado City, LLC, a Texas limited liability company (“WCCC”) closed on a Membership Interest Purchase Agreement among them dated June 15, 2022 (the “MIPA”). In accordance with the terms of the MIPA, the Company acquired all of the issued and outstanding membership interests in each of SFD and WCCC (the “Membership Interests”), making SFD and WCCC wholly owned subsidiaries of the Company. The purchase price for the Membership Interests was approximately $37.4 million, subject to post-closing adjustments, and was paid by the Company to the Sellers in a combination of 3,009,552 shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”) valued at an aggregate of $4,278,655, (the “Purchaser Stock Consideration”), secured three-year promissory notes in the aggregate principal amount of $28,664,284 (the “Notes”), and the assumption of certain liabilities of SFD and WCCC. The shares of Common Stock comprising the Purchaser Stock Consideration represented 19.99% of the number of issued and outstanding shares of the Company’s Common Stock immediately prior to issuance and were valued at the volume-weighted average price for the Company’s Common Stock on Nasdaq during the five trading days immediately preceding the closing date.

On the date hereof, the Company and James Ballengee, the principal owner and manager of the Sellers, entered into an Executive Employment Agreement (the “Employment Agreement”), setting forth the terms for Mr. Ballengee’s employment as the Company’s Chief Executive Officer (the “Ballengee Appointment”). In connection with the Ballengee Appointment, the Company and Ballengee have agreed to certain amendments and modifications to the Notes, as set forth herein.

As soon as is practicable, following and subject to the approval of the Company’s shareholders, and provided there are no applicable prohibitions under the rules of The Nasdaq Capital Market or other restrictions, the Company will issue 7,042,254 restricted shares of the Company’s common stock (the “Note Payment Shares”) in exchange for the forgiveness and cancellation of $10,000,000 of principal under the Notes on pro rata basis, reflecting a conversion price of $1.42 per share, as of the date hereof (the “Note Payment”). 6,971,831 shares will be issued to Jorgan and $9,900,000 of principal owed to Jorgan will be cancelled. 70,423 shares will be issued to JBAH and $100,000 of principal owed to JBAH will be cancelled.

No later than thirty (30) days following the date the Note Payment and the Note Payment Shares are approved by the Company’s shareholders, the Company shall use its reasonable best efforts to prepare and file or cause to be prepared and filed with the Securities and Exchange Commission (the “SEC”), a registration statement on Form S-1 or any other available form (the "Registration Statement") for an offering to be made on a continuous basis pursuant to Rule 415 of the Securities Act or any successor thereto registering the resale from time to time all of the Note Payment Shares. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective by the SEC as soon as possible after filing (the date on which the Registration Statement becomes effective, the "Effectiveness Date"). During the period beginning on the Effectiveness Date and for a period of one (1) year following the Effectiveness Date, the Company shall use its reasonable best efforts to keep the Registration Statement continuously effective and to be supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not available, to ensure that another registration statement meeting the requirements of this paragraph is available, under the Securities Act at all times until all of the Note Payment Shares have been disposed of in accordance with the intended method(s) of distribution set forth in such Registration Statement. The Registration Statement filed with the SEC pursuant to this paragraph shall contain a prospectus in such form as to permit the holders to sell such pro rata portion of the Note Payment Shares pursuant to Rule 415 under the Securities Act (or any successor or similar provision adopted by the SEC then in effect) at any time beginning on the Effectiveness Date, and shall provide that the Note Payment Shares may be sold pursuant to any method or combination of methods legally available to, and requested by, the holders.

Once the Registration Statement is declared effective by the SEC, the Note Payment will count against the Threshold Payment Amount, as defined in the Notes and the MIPA.

The parties agree and acknowledge that, other than as expressly set forth above, the Notes, MIPA and other transaction documents (“Transaction Documents”) will not be changed and will remain in full force and effect, and neither the Ballengee Appointment, nor the terms of the Employment Agreement or execution thereof or performance thereunder shall have any effect on the Notes, MIPA or Transaction Documents. The terms and provisions of Articles IX and X of the MIPA shall apply to this letter agreement, mutatis mutandis.

Very truly yours,

VIVAKOR, INC.

/s/ Tyler Nelson

Name: Tyler Nelson

Title: Chief Financial Officer

Accepted, acknowledged, entered into and agreed as of the date first set forth above:

JORGAN DEVELOPMENT, LLC

/s/ James Ballengee

Name: James Ballengee

Title: Manager

JBAH HOLDINGS, LLC

/s/ James Ballengee

Name: James Ballengee

Title: Manager

Exhibit 10.1

EXECUTIVE EMPLOYMENT AGREEMENT

This EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") dated effective October 28, 2022, is by and between Vivakor, Inc., a Nevada corporation (the "Company"), and JAMES HOWARD BALLENGEE, an individual domiciled in Dallas County, Texas (the "Executive"). The Company and Executive may herein be referred to individually as a "Party" or collectively as the "Parties".

WHEREAS, Executive manages a family office that owns and manages holdings principally in the midstream petroleum industry, sports and entertainment industry, and real estate sectors;

WHEREAS, Executive is currently indirectly vested with 3,009,552 shares of common stock of the Company, which were issued as a result of Company's purchase from Executive's family office of two companies engaged in the midstream petroleum business, being White Claw Colorado City, LLC and Silver Fuels Delhi, LLC;

WHEREAS, Executive possesses substantial knowledge, experience, and relationships in the midstream petroleum business in which the Company is currently engaged, having previously led multiple private equity portfolio companies as a chief executive;

WHEREAS, Company desires to employ the Executive pursuant to the terms and conditions herein contained, and Executive desires to be employed by Company upon the terms and conditions herein contained;

NOW THEREFORE, in consideration of the mutual promises, covenants and obligations set forth herein, the Parties agree as follows:

1. Employment. The Company hereby employs the Executive and the Executive hereby accepts such employment subject to the terms and conditions contained in this Agreement. The Executive is engaged as an employee of the Company and the Executive and the Company do not intend to create a joint venture, partnership or other relationship that might impose similar such fiduciary obligations on the Executive or the Company in the performance of this Agreement. In all respects not controlled by or set forth in this Agreement, the Executive's employment shall be at-will according to the laws of the State of Texas.

2. Executive's Duties. The Executive shall be employed on a full-time basis. Throughout the term of this Agreement, the Executive will use the Executive’s best efforts and due diligence to assist the Company in the objective of achieving the most profitable operation of the Company and the Company’s affiliated entities consistent with developing and maintaining a quality business operation.

(a) Specific Rights and Duties. During the term of this Agreement the Executive shall have the title of President and Chief Executive Officer of the Company (and, if applicable, its subsidiaries), and will be nominated, elected and/or appointed to serve as a Director and Chairman of the Board of Directors of the Company (and, if applicable, its subsidiaries. The Company shall re-nominate the Executive as a Director and Chairman of the Board of the Directors during the term of this Agreement. The Company grants to Executive the right to nominate (i) two (2) additional Directors to the Board of the Company (the "Additional Directors") at any time during the Executive's employment, and, (ii) a third Additional Director upon the issuance of the 7,042,254 shares of restricted common stock of the Company pursuant to that certain letter agreement of even date herewith, regarding the exchange of shares for cancellation of note principal, by and among the Company, Jorgan Development, LLC, a Louisiana limited liability company and JBAH Holdings, LLC, a Texas limited liability company. The Executive may exercise such rights to appoint the Additional Directors by written communication to the then-existing Board of Directors. The Company and the Board of Directors shall elect, confirm, and appoint the Additional Directors subject to their passage of standard and customary background checks. The Executive agrees to perform all of the services required to fully and faithfully execute the offices and positions to which the Executive is appointed and such other services as may be reasonably directed by the Board of Directors of the Company in accordance with this Agreement.

(b) Modifications. The precise duties to be performed by the Executive may be extended or curtailed in the discretion of the Board of Directors of the Company, as reflected in writing. However, except for termination for Cause (as hereinafter defined in this Agreement), the failure of the Executive to be elected, be reelected or serve as a director of the Company during the term of this Agreement, the removal of the Executive as a member of the board of directors of the Company, the withdrawal of the designation of the Executive as President and Chief Executive Officer of the Company or the assignment of the performance of duties incumbent on the foregoing offices to other persons without the prior written consent of the Executive shall constitute termination without Cause by the Company.

(c) Employee Handbook. From time to time, the Company or its parent companies may issue policies and procedures applicable to employees and the Executive including an Employment Policies Manual or Employee Handbook. The Executive agrees to comply with such policies and procedures, except to the extent such policies are inconsistent with this Agreement. Such policies and procedures may be supplemented, modified, changed or adopted without notice in the sole discretion of the Company at any time. In the event of a conflict between such policies and procedures and this Agreement, this Agreement shall control unless compliance with this Agreement will violate any governmental law or regulation applicable to the Company or its affiliated entities. Any activity by the Executive that is expressly permitted by this Agreement is hereby deemed by the Company not to violate such policies and procedures.

3. Other Activities. The Executive shall not be restricted from maintaining or making investments, or engaging in other businesses, enterprises or civic, charitable or public service functions if such activities, investments, businesses or enterprises do not result in a violation of applicable state or federal law. The Executive has in the past conducted business activities individually, and directly and indirectly by, through, and under various entities owned or controlled by the Executive, in whole or in part, more particularly set forth on Exhibit "B" hereto (the "Executive Affiliates"). The Executive shall be permitted to continue to conduct such activities by, through, and under the Executive Affiliates. To the fullest extent permitted by applicable law, and notwithstanding any other provisions of this Agreement, or any other agreement, the Company covenants and agrees not to prosecute, file or maintain any action, controversy, dispute, or proceeding, and does hereby expressly eliminate, waive, disclaim and release, any and all fiduciary duties of the Executive that may arise pursuant to performance of its or their obligations or exercise of its or their rights pursuant to this Agreement, or that may arise pursuant to any other standard, to any party herein, including, without limitation, to the Company, its shareholders, and in the case of insolvency or the zone of insolvency, to creditors of any character or claim, INSOFAR AND ONLY INSOFAR as such actions or controversies may arise out of or relate to the Executive Affiliates or Executive's control over or business dealings by, through, or under the Executive Affiliates. The Company further agrees that for the term of this Agreement, the Executive is expressly permitted and authorized to directly or indirectly own, manage, operate, join, control and/or participate in the ownership, management, operation or control of, or be connected as an officer, employee, partner or otherwise with any business engaged in business or operations that compete or relate to, directly or indirectly, the business of the Company, or any proposed business, products, services, or strategy of the Company, or any business activity substantially and materially related to the Company business INSOFAR AND ONLY INSOFAR as activities may arise out of or relate to the Executive Affiliates or Executive's control over the Executive Affiliates. The legal doctrines of "corporate opportunity," "business opportunity" and similar doctrines shall not be applied to any of Executive's business dealings by, through, with, or under the Executive Affiliates provided that (a) Executive routinely informs the Board of Directors of the Company of any matter involving the Executive Affiliates that might trigger or invoke the "corporate opportunity", "business opportunity", or similar doctrines, and either (b) (i) the disinterested members of the Board of Directors of the Company approves the Executive's pursuit of such opportunities through the Executive Affiliates, or (ii) the disinterested members of the Board of Directors thereafter fails to take any action with respect to such opportunities within thirty (30) calendar days after being so informed of such opportunities. The Company and the Executive agree that the Executive may, upon written notice to the Company, amend, modify, and replace Exhibit "B" to this Agreement at any time or from time to time, in their sole and absolute discretion, to more accurately reflect a then-current listing of the Executive Affiliates. Except as expressly set forth in this Agreement, nothing shall prohibit, prevent, or restrain the Executive from buying, purchasing, selling, forming, or dissolving any Executive Affiliate or other entity that may become an Executive Affiliate.

4. Executive's Compensation. The Company agrees to compensate the Executive as follows:

(a) Base Compensation. Shares of the Company’s common stock equal to the annual amount of not less than One Million and No/100s US Dollars ($1,000,000.00 USD) (the "Base Compensation"), shall be paid to the Executive in equal quarterly installments, beginning on the Effective Date during the Term of this Agreement. The Base Compensation for each year of the term hereof will be 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 this agreement, as applicable. All shares comprising the Base Compensation must be issued under the Company’s 2021 Equity and Incentive Plan or successor plan and otherwise in accordance with applicable law and the rules and regulations of The Nasdaq Capital Market, and, in the event that any such shares cannot be issued because compliance with such requirements has not been met, the obligation to issue such shares will be accrued until such time as such compliance requirements have been satisfied.

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

(c) Benefits. The Company agrees to extend to the Executive retirement benefits, deferred compensation, reimbursement of reasonable expenditures for dues, travel and entertainment and any other benefits the Company provides to other executives or officers from time to time on the same terms as such benefits are provided to such individuals, as well as coverage under the Company’s medical, life and disability insurance plans, if any (the "Benefits"). If the Executive is accepted for coverage under such plans, the Company will provide such coverage on the same terms as is customarily provided by the Company to the plan participants as modified from time to time. The Company may condition any such benefits on the Executive paying any amounts which the Company requires other employees to pay with respect to such benefits.

(d) Vacation. The Executive will be entitled to take paid time off and vacation in accordance with the Company’s general employment policies.

5. Term. This Agreement shall be for a term commencing on the Effective Date and terminating at the conclusion of the Executive's employment by the Company, whether by resignation, termination without cause, termination for cause, or death.

6. Termination. This Agreement may be terminated in accordance with the following terms and conditions:

(a) Termination without Cause. The Executive or the Company may terminate the Executive's employment without Cause at any time by the service of written notice of termination to the Executive specifying an effective date of such termination not sooner than five (5) business days after the date of such notice (the "Termination Date"). In the event the Executive is terminated without Cause, the Executive shall be entitled to a lump sum payment of: (i) the Base Compensation for the remaining period of time until the annual anniversary of this Agreement; (ii) excepting participation in any retirement or deferred compensation plan maintained by the Company, continuation of the Benefits at the levels and on the terms provided on the date of termination hereunder, for the remaining period of time until the annual anniversary of this Agreement; (iv) all accrued but unused paid time off, vacation days, personal days, and sick days (the "Termination Compensation").

(b) Termination for Cause. The Company may terminate this Agreement for Cause. For purposes of this Agreement, "Cause" means: (a) the willful and continued failure of the Executive to perform substantially the Executive’s duties with the Company or one of the Company subsidiaries (other than a failure resulting from incapacity due to physical or mental illness), after a written demand for substantial performance is delivered to the Executive by the Board of Directors which specifically identifies the manner in which the Board of Directors believes that the Executive has not substantially performed the Executive’s duties; or (b) the willful engaging by the Executive in illegal conduct, gross misconduct or a clearly established violation of the Company’s written policies and procedures, in each case which is materially and demonstrably injurious to the Company. For purposes of this provision, an act or failure to act, on the part of the Executive, will not be considered "willful" unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interests of the Company. Any act, or failure to act, based on authority given pursuant to a resolution duly adopted by the Board of Directors or based on the advice of counsel for the Company will be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interests of the Company. In the event this Agreement is terminated for Cause, the Company shall have only the obligation to pay (i) accrued but unpaid Base Compensation and (ii) accrued but unpaid paid time off, including sick days, vacation days, and personal days, to the Executive after the effective date of such termination. This Agreement will not be deemed to have terminated for Cause unless a written determination specifying the reasons for such termination is made, approved by a majority of the independent and disinterested members of the Board of Directors of the Company and delivered to the Executive. Thereafter, the Executive will have the right for a period of thirty (30) days to request a Board of Directors meeting to be held at a mutually agreeable time and location to be attended by the members of the Board of Directors in person, at which meeting the Executive will have an opportunity to be heard. Failing such determination and opportunity for hearing, any termination of this Agreement will be deemed to have occurred without Cause.

(c) Termination for Diminution of Duties or Relocation. If the Executive resigns their Employment for (i) a material and adverse diminution of the Executive's duties, responsibilities or authorities, including removal or failure by the Company to renominate the Executive as a Director or Chairman of the Board of Directors, or (ii) a reduction in the Base Compensation (a "Diminution"), then the Executive shall be entitled to the Termination Compensation. The Executive must deliver written notice of a Diminution to the Board of Directors of the Company and permit the Company thirty (30) days to cure such Diminution.

(d) Termination after Change in Control. If, during the term of this Agreement, (i) a party (other than the Company, its affiliates, the Executive, and the Executive Affiliates) acquires forty percent (40%) or more of the outstanding voting equity interests in the Company or its parent company, (ii) the Company or its parent company sell all or substantially all of the Company's assets, or (iii) the Board of Directors of the Company approve a resolution or plan for liquidation or dissolution of the Company (each, a "Change in Control"), then the Executive shall be entitled to the Termination Compensation.

(e) Payment. The Termination Compensation under this paragraph shall be paid no later than ten (10) calendar days subsequent to termination of the Executive's employment. All payments shall be made in either United States Dollars or shares of the Company’s common stock, in the form in which the Executive was receiving his Base Compensation at the time of termination, unless the parties shall otherwise mutually agree, less applicable governmental withholdings. Subsequent to a termination without Cause of the Executive's employment, the receipt of a notice of Diminution of Duties by the Board of Directors, or a Change in Control, the Company shall be prohibited from terminating the Executive for Cause.

(f) Release. As a condition to receiving the Termination Compensation, the Company may require the Executive to execute a Release in the form attached hereto as Exhibit "A". The Company shall be obligated to pay the Executive in accordance with the terms hereof only if the Executive returns an originally-executed copy of the Release to the Company's designated representative.

7. Death of Executive. If the Executive dies during the term of this Agreement, the Company shall be obligated to pay the Executive's designee or estate the Termination Compensation at the time of the Executive's death in addition to any Benefits that may be due and owing to the Executive.

8. Arbitration. Any dispute, controversy or claim arising out of or relating in any way to the employment of the Executive or this Agreement, including without limitation any dispute concerning the construction, validity, interpretation, enforceability or breach of Agreement, shall be exclusively resolved by confidential, binding arbitration upon a Party’s submission of the dispute to arbitration. The demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made more than four (4) years from when the aggrieved Party knew or should have known of the controversy, claim, dispute or breach.

(a) This agreement to arbitrate shall be specifically enforceable. A Party may apply to any court with jurisdiction for interim or conservatory relief, including without limitation a proceeding to compel arbitration.

(b) The arbitration shall be conducted by one (1) arbitrator to be selected by the Executive. Any Party may initiate arbitration by serving notice upon the other Party and filing a demand for arbitration with the American Arbitration Association.

(c) Unless waived in writing by all parties to the arbitration, the arbitration shall be conducted in accordance with the then-existing Employment Arbitration Rules and Mediation Procedures of the American Arbitration Association, and shall be held and conducted in Dallas County, Texas.

(d) Except as may be required by law, neither Party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of the other Party.

(e) The arbitrator shall have no authority to award punitive, consequential, special, or indirect damages, or equitable relief. The arbitrator shall award interest from the time of the breach to the time of award at the rate equal to the prime rate of interest published in the most recent edition of The Wall Street Journal at the time of any award plus three percent (3%) (the "Adjusted Prime Rate").

(f) The cost of the arbitration proceeding, as applicable (including, without limitation, reasonable attorneys’ fees and costs, expert fees, arbitrator fees, and related costs and expenses), shall be borne by the non-prevailing Party. The cost of any proceeding in court to confirm or to vacate any arbitration award shall be borne by the non-prevailing Party thereto. For purposes of this subsection, the "non-prevailing Party" is the Party obtaining the lesser monetary award, or in the absence of a monetary award between the Parties, the Party against whom the greater equitable relief is to be enforced.

(g) The arbitrator’s award or decision shall be final, binding, and non-appealable. It is specifically understood and agreed that any Party may enforce any award rendered pursuant to the arbitration provisions hereof by bringing suit in a court of competent jurisdiction situated in Dallas County, Texas. IN RESPECT OF ANY ENFORCEMENT ACTION OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, EACH OF THE PARTIES HERETO IRREVOCABLY CONSENTS AND WAIVES ALL OBJECTION TO THE CONTRARY TO THE SOLE AND EXCLUSIVE JURISDICTION AND VENUE OF ANY COURT OF COMPETENT JURISDICTION LOCATED WITHIN HARRIS COUNTY, STATE OF TEXAS, WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON HIM, AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY FIRST CLASS REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, DIRECTED TO HIM AT THE ADDRESS SPECIFIED IN THIS AGREEMENT.

9. Miscellaneous. The Parties further agree as follows:

(a) Time. Time is of the essence with respect to this Agreement.

(b) Notices. Any notice, payment, demand or communication required or permitted to be given by any provision of this Agreement will be in writing and will be deemed to have been given when delivered personally or by facsimile to the party designated to receive such notice, or on the date following the day sent by overnight courier, or on the third (3rd) business day after the same is sent by certified mail, postage and charges prepaid, directed to the following address or to such other or additional addresses as any party might designate by written notice to the other party:

To the Company:

Vivakor, Inc.

4101 North Thanksgiving Way

Lehi, UT 84043

Attn: Tyler Nelson, Chief Financial Officer

With a copy, which shall not constitute service, to:

Lucosky Brookman LLP

101 Wood Ave. South

Woodbridge, NJ 08830

Attn: Scott E. Linsky

To the Executive:

James H. Ballengee

6617 Golf Drive

Dallas, Texas 75205

Email jballengee@ballengeeholdings.com

With a copy, which shall not constitute service, to:

Jackson Walker LLP

2323 Ross Ave., Ste. 600

Dallas, TX 75201

Attn: Pat Knapp

Email pknapp@jw.com

(c) Assignment. The Company may assign this Agreement in whole upon the written consent of Executive, which shall not be unreasonably withheld. The Executive may not assign this Agreement in whole or in part.

(d) Governing Law. This Agreement shall be interpreted in accordance with the laws of the State of Texas, without regard to its rules regarding conflicts of laws.

(e) Construction. This Agreement is intended to be interpreted according to its plain meaning within the four corners of the document. Headings are used for reference only and are not intended to have any binding effect on the construction hereof.

(f) Severance. If any provision of this Agreement or the application thereof is determined, to any extent, to be invalid or unenforceable, the remainder of this Agreement, or the application of such provision, shall not be affected thereby, and each other term and provision of this Agreement shall remain valid and enforceable to the fullest extent permitted by law.

(g) Entire Agreement. This Agreement, together with increases to the Base Compensation and any other compensation owing to Executive as determined by the Board of Directors, constitute the complete Agreement of the Parties with respect to the subject matter contemplated herein. Each and every prior agreement, whether oral or written, concerning the Executive's employment is hereby expressly superseded and replaced by this Agreement. This Agreement may not be modified except in a writing signed by both parties.

(h) Binding Effect. This Agreement shall be binding on the parties and their respective successors, legal representatives and permitted assigns. In the event of a merger, consolidation, combination, dissolution or liquidation of the Company, the performance of this Agreement will be assumed by any entity which succeeds to or is transferred the business of the Company as a result thereof.

[Signature Pages to Follow]

[The Remainder of this page is intentionally blank]

COMPANY'S SIGNATURE PAGE

IN WITNESS WHEREOF, the Company has executed and entered into this Agreement as of the Effective Date.

	COMPANY:

	VIVAKOR, INC., a Nevada corporation


	By: /s/ Tyler Nelson
	Name: Tyler Nelson
	Title: Chief Financial Officer

EXECUTIVE'S SIGNATURE PAGE

IN WITNESS WHEREOF, the Executive has executed and entered into this Agreement as of the Effective Date.

	EXECUTIVE:


	/s/ James H. Ballengee
	James H. Ballengee, individually

EXHIBIT "A"

FORM OF

GENERAL RELEASE AND WAIVER

For and in consideration of the payments and benefits due to the undersigned under that certain Executive Employment Agreement dated October 28, 2022, executed by Vivakor, Inc. and James H. Ballengee (the "Employment Agreement"), and for other good and valuable consideration, the undersigned (the "Employee") hereby agrees, for the Employee, the Employee’s spouse and child or children (if any), the Employee’s heirs, beneficiaries, devisees, executors, administrators, attorneys, personal representatives, successors and assigns, to forever release, discharge and covenant not to sue Vivakor, Inc., any of its subsidiaries, or any of their affiliates (collectively, the "Company"), or any of their predecessors, successors, or assigns, and, with respect to such entities, their officers, directors, trustees, employees, agents, administrators, representatives, attorneys, insurers and fiduciaries, past, present and future (the "Released Parties") from any and all claims relating to the Employee’s employment or other service relationship with the Released Parties, including but not limited to any claims arising out of, or related to the Employee’s compensation as an employee or other service provider of or to the Released Parties, or the Employee’s separation from employment with the Released Parties, in each case which the Employee now has or may have against the Released Parties, whether known or unknown to the Employee, by reason of facts which have occurred on or prior to the date that the Employee has signed this Release. Such released claims include, without limitation, any and all claims under federal, state or local laws pertaining to employment, including, without limitation, the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et. seq., the Fair Labor Standards Act, as amended, 29 U.S.C. Section 201 et. seq., the Americans with Disabilities Act, as amended, 42 U.S.C. Section 12101 et. seq., the Reconstruction Era Civil Rights Act, as amended, 42 U.S.C. Section 1981 et. seq., the Rehabilitation Act of 1973, as amended, 29 U.S.C. Section 701 et. seq., the Family and Medical Leave Act of 1992, 29 U.S.C. Section 2601 et. seq., and any and all federal, state, foreign or local laws regarding employment discrimination or wage payment and/or federal, state, foreign or local laws of any type or description regarding employment.

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

Notwithstanding anything else herein to the contrary, this Release shall not: (i) affect any rights of the Employee to indemnification or liability insurance coverage the Employee may have under the by- laws (or similar governing documents) of any entity constituting the Company or applicable law, (ii) release any claim that cannot be released as a matter of applicable law, (iii) bar Employee’s right to file an administrative charge with the Equal Employment Opportunity Commission (EEOC) and/or to participate in an investigation by the EEOC, although this Release does bar Employee’s right to recover any personal relief if Employee or any person, organization, or entity asserts a charge on Employee’s behalf, including in a subsequent lawsuit or arbitration, (iv) release the Company’s legally binding obligations under the Employment Agreement, (v) claims to any benefit entitlements vested as the date of separation of Employee’s employment, or (vi) release any of the Employee’s rights as a holder of vested equity securities or options or other rights in respect thereof.

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

EMPLOYEE:

______________________________

James H. Ballengee, individually

A-1

EXHIBIT "B"

EXECUTIVE AFFILIATES

AS OF THE EFFECTIVE DATE

	1.	Bacchus Capital Trading, LLC, a Louisiana limited liability company
	2.	Ballengee Group, LLC, a Texas limited liability company
	3.	Ballengee Holdings, LLC, a Texas limited liability company
	4.	Ballengee Interests, LLC, a Louisiana limited liability company
	5.	Bayou Swabbing & Construction, LLC, a Louisiana limited liability company
	6.	BG Football, LLC, a Texas limited liability company
	7.	BSG Holdings, LLC, a Texas limited liability company
	8.	Double J Operating, LLC, a Texas limited liability company
	9.	Endeavor Crude, LLC, a Texas limited liability company
	10.	Frierson Real Estate Holdings, LLC, a Texas limited liability company
	11.	GeneIQ, LLC, a Texas limited liability company
	12.	Hillsboro Processing, LLC, a Texas limited liability company
	13.	iShuttle Specialty Services, LLC, a Louisiana limited liability company
	14.	Jamex Marketing, LLC, a Louisiana limited liability company
	15.	JAW Ventures, LLC, a Texas limited liability company
	16.	JBAH Holdings, LLC, a Texas limited liability company
	17.	Jorgan Development, LLC, a Louisiana limited liability company
	18.	Jupiter Equipment Leasing, LLC, a Texas limited liability company
	19.	Lisbon Refinery JV, LLC, a Louisiana limited liability company
	20.	Meridian Equipment Leasing, LLC, a Texas limited liability company
	21.	Nakota Trucking, LLC, a Montana limited liability company
	22.	Northstar Shipper, LLC, a Texas limited liability company
	23.	Oracle Partners Midstream, LLC, a Texas limited liability company
	24.	Posse Monroe, LLC, a Texas limited liability company
	25.	Posse Wasson, LLC, a Texas limited liability company
	26.	Red River CNG, LLC, a Louisiana limited liability company
	27.	Remuda Parkway, LLC, a Texas limited liability company
	28.	Silver Fuels, LLC, a Texas limited liability company
	29.	Silver Fuels NGL Processing, LLC, a Texas limited liability company
	30.	Silver Fuels Processing, LLC, a Texas limited liability company
	31.	Stellify, LLC, a Texas limited liability company
	32.	Stellify Studios, LLC, a Texas limited liability company
	33.	Waskom Enterprises, LLC, a Texas limited liability company
	34.	White Claw Crude, LLC, a Texas limited liability company
	35.	White Claw Renegade, LLC, a Texas limited liability company

B-1