Vivakor, Inc 10-Q for FY2026 Q1
Vivakor, Inc. (VIVK)
About this 10-Q
Vivakor, Inc filed this 10-Q on May 20, 2026, covering the quarter ended March 31, 2026 (FY2026 Q1).
Headline figures
Quarter ended March 31, 2026, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Revenue
- $19.46M
- down 47.9% from $37.34M a year earlier
- Net loss
- $4.58M
- compared with a net loss of $7.53M a year earlier
- Diluted EPS
- -$2.32
- compared with -$42.32 a year earlier
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
For the Quarterly Period Ended
or
For the Transition Period from _________ to _________
Commission file number:
(Exact name of registrant as specified in its charter)
| (State or other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) |
| (Address of Principal Executive Offices) | (Zip Code) |
(
(Registrant’s telephone number, including area code)
(Former name, former address and former fiscal year, if changed since last report)
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading symbol(s) | Name of exchange on which registered | ||
| The (Nasdaq Capital Market) |
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a small reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” a “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ |
| ☒ | Smaller reporting company | ||
| 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 7(a)(2)(B) of the Securities Act:
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐
As of May 20, 2026, there were shares of the registrant’s common stock outstanding.
EXPLANATORY NOTE
In this Quarterly Report on Form 10-Q, unless the context otherwise requires, all references to “the Company,” “we,” “our”, “us” and “Vivakor” refer to Vivakor, Inc., a Nevada corporation.
At the commencement of trading on March 24, 2026, we completed a 1-for-200 reverse split of our outstanding shares of common stock (the “Reverse Stock Split”) of our quoted common stock. No fractional shares of the Company’s common stock were issued as a result of the Reverse Stock Split. Any fractional shares resulting from the Reverse Stock Split were rounded up to the nearest whole share. Unless otherwise noted, the share and per share information in this Quarterly Report on Form 10-Q has been adjusted to reflect the Reverse Stock Split, including the financial statements and notes thereto.
VIVAKOR, INC.
FORM 10-Q
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 2026
TABLE OF CONTENTS
i
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
VIVAKOR, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
| March 31, 2026 |
December 31, 2025 |
|||||||
| (unaudited) | ||||||||
| ASSETS | ||||||||
| Current assets: | ||||||||
| Cash and cash equivalents | $ | $ | ||||||
| Cash - restricted | ||||||||
| Accounts receivable, net of allowance for credit losses of $1,507,983 and $0 at March 31, 2026 and December 31, 2025, respectively | ||||||||
| Accounts receivable - related party | ||||||||
| Prepaid expenses | ||||||||
| Marketable securities | ||||||||
| Inventories | ||||||||
| Total current assets | ||||||||
| Other assets | ||||||||
| Notes receivable | ||||||||
| Property and equipment, net | ||||||||
| Right of use assets - operating leases | ||||||||
| Intellectual property, net | ||||||||
| Customer relationships, net | ||||||||
| Total assets | $ | $ | ||||||
| LIABILITIES AND STOCKHOLDERS’ EQUITY (DEFICIT) | ||||||||
| Current liabilities: | ||||||||
| Accounts payable and accrued expenses | $ | $ | ||||||
| Accounts payable and accrued expenses - related parties | ||||||||
| Accrued compensation | ||||||||
| Unearned revenue | ||||||||
| Operating lease liabilities, current | ||||||||
| Finance lease liabilities, current | ||||||||
| Loans and notes payable, current | ||||||||
| Loans and notes payable, current - related parties | ||||||||
| Derivative liabilities | ||||||||
| Other liabilities | ||||||||
| Total current liabilities | ||||||||
| Operating lease liabilities, long term | ||||||||
| Loans and notes payable, long term | ||||||||
| Loans and notes payable, long term - related parties | ||||||||
| Total liabilities | ||||||||
| Stockholders’ equity (deficit): | ||||||||
| Preferred stock, $par value; shares authorized, outstanding as of March 31, 2026 and December 31, 2025 | ||||||||
| Common stock, $ par value; shares authorized; and were issued and outstanding as of March 31, 2026 and December 31, 2025, respectively | ||||||||
| Additional paid-in capital | ||||||||
| Treasury stock, at cost | ( |
) | ( |
) | ||||
| Accumulated deficit | ( |
) | ( |
) | ||||
| Total Vivakor, Inc. stockholders’ equity (deficit) | ||||||||
| Noncontrolling interest | ( |
) | ( |
) | ||||
| Total stockholders’ equity (deficit) | ||||||||
| Total liabilities and stockholders’ equity (deficit) | $ | $ | ||||||
See accompanying notes to condensed consolidated financial statements
1
VIVAKOR, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
|
Three Months Ended March 31, |
||||||||
| 2026 | 2025 | |||||||
| Revenues | ||||||||
| Revenues | $ | $ | ||||||
| Revenues - related party | ||||||||
| Total revenues | ||||||||
| Cost of revenues | ||||||||
| Gross profit | ||||||||
| Operating expenses: | ||||||||
| General and administrative | ||||||||
| Amortization and depreciation | ||||||||
| Total operating expenses | ||||||||
| Loss from operations | ( |
) | ( |
) | ||||
| Other income (expense): | ||||||||
| Unrealized gain (loss) on marketable securities | ( |
) | ||||||
| Gain (loss) on disposition of assets | ( |
) | ||||||
| Loss on conversion of debt | ( |
) | ||||||
| Interest income | ||||||||
| Interest expense | ( |
) | ( |
) | ||||
| Interest expense - related parties | ( |
) | ( |
) | ||||
| Other income (loss) | ||||||||
| Total other income (expense) | ( |
) | ( |
) | ||||
| Loss before provision for income taxes | ( |
) | ( |
) | ||||
| Provision for income taxes | ||||||||
| Consolidated net loss | ( |
) | ( |
) | ||||
| Less: Net loss attributable to noncontrolling interests | ( |
) | ||||||
| Net loss attributable to Vivakor, Inc. | $ | ( |
) | $ | ( |
) | ||
| Series A Preferred Stockholder Dividends | ||||||||
| Net loss to common shareholders | $ | ( |
) | $ | ( |
) | ||
| Basic and diluted net loss per share | $ | ) | $ | ) | ||||
| Basic weighted average common shares outstanding | ||||||||
See accompanying notes to condensed consolidated financial statements
2
VIVAKOR, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY
(UNAUDITED)
| Series A Preferred Stock |
Common Stock | Additional Paid-in |
Treasury | Accumulated | Non-controlling | Total | ||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Capital | Stock | Deficit | Interest | Stockholders’ | ||||||||||||||||||||||||||||
| January 1, 2025 | $ | $ | $ | $ | ( |
) | $ | ( |
) | $ | ( |
) | $ | |||||||||||||||||||||||
| Issuance of common stock for cash, net of offering | - | |||||||||||||||||||||||||||||||||||
| Issuance of common stock for a reduction of liabilities | ||||||||||||||||||||||||||||||||||||
| Issuance of common stock for legal settlement | ||||||||||||||||||||||||||||||||||||
| Stock based compensation | ||||||||||||||||||||||||||||||||||||
| Stock based compensation - consultant | ||||||||||||||||||||||||||||||||||||
| Common stock issued - Series A Preferred Stock Dividends | ( |
) | ||||||||||||||||||||||||||||||||||
| Common stock distributable - Series A Preferred Stock Dividends | - | ( |
) | |||||||||||||||||||||||||||||||||
| Shares issued with debt | - | |||||||||||||||||||||||||||||||||||
| Shares issued with debt conversion | ||||||||||||||||||||||||||||||||||||
| Consideration received for divestiture | ( |
) | ( |
) | - | ( |
) | ( |
) | |||||||||||||||||||||||||||
| Excess of consideration for divestiture over net assets transferred | - | - | ||||||||||||||||||||||||||||||||||
| Net loss | - | - | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||
| January 1, 2026 | $ | $ | $ | $ | ( |
) | $ | ( |
) | $ | ( |
) | $ | |||||||||||||||||||||||
| Impact of stock split including issuances for fractional shares | - | ( |
) | |||||||||||||||||||||||||||||||||
| Stock based compensation | ||||||||||||||||||||||||||||||||||||
| Common stock distributable - Series A Preferred Stock Dividends | - | ( |
) | |||||||||||||||||||||||||||||||||
| Shares issued with debt forbearance agreement | - | |||||||||||||||||||||||||||||||||||
| Shares issued with debt conversion | - | |||||||||||||||||||||||||||||||||||
| Net loss | - | - | ( |
) | ( |
) | ||||||||||||||||||||||||||||||
| March 31, 2026 | $ | $ | $ | $ | ( |
) | $ | ( |
) | $ | ( |
) | $ | |||||||||||||||||||||||
See accompanying notes to condensed consolidated financial statements
3
VIVAKOR, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
| March 31, 2026 |
March 31, 2025 |
|||||||
| OPERATING ACTIVITIES: | ||||||||
| Consolidated net loss | $ | ( |
) | $ | ( |
) | ||
| Adjustments to reconcile net loss to net cash used in operating activities: | ||||||||
| Amortization and depreciation | ||||||||
| Stock-based compensation | ||||||||
| Stock-based compensation - consultant | ||||||||
| Unrealized (gain) loss on marketable securities | ( |
) | ||||||
| Loss on disposition of assets | ||||||||
| Loss on conversion of debt | ||||||||
| Noncash interest charges | ||||||||
| Interest on notes receivable | ( |
) | ( |
) | ||||
| Changes in operating assets and liabilities: | ||||||||
| Accounts receivable | ( |
) | ( |
) | ||||
| Prepaid expenses | ( |
) | ||||||
| Inventories | ||||||||
| Other assets | ||||||||
| Other liabilities | ( |
) | ||||||
| Right of use assets - operating leases | ||||||||
| Accounts payable and accrued expenses | ||||||||
| Operating lease liabilities | ( |
) | ( |
) | ||||
| Net cash provided by (used in) operating activities | ( |
) | ( |
) | ||||
| INVESTING ACTIVITIES: | ||||||||
| Proceeds from sale of property and equipment | ||||||||
| Net cash provided by (used in) investing activities | ||||||||
| FINANCING ACTIVITIES: | ||||||||
| Payment on financing lease liabilities | ( |
) | ||||||
| Proceeds from loans and notes payable | ||||||||
| Proceeds from loans and notes payable - related party | ||||||||
| Payment of notes payable | ( |
) | ||||||
| Payment of notes payable - related party | ( |
) | ||||||
| Net cash provided by (used in) financing activities | ( |
) | ||||||
| Net increase (decrease) in cash and cash equivalents | ( |
) | ||||||
| CASH AND CASH EQUIVALENTS, and CASH RESTRICTED, BEGINNING OF PERIOD | ||||||||
| CASH AND CASH EQUIVALENTS, and CASH RESTRICTED, END OF PERIOD | $ | $ | ||||||
| SUPPLEMENTAL CASHFLOW INFORMATION: | ||||||||
| Cash paid during the period for: | ||||||||
| Interest | $ | $ | ||||||
| Noncash transactions: | ||||||||
| Accounts payable on purchase of equipment | ||||||||
| Notes payable settled against working capital items for netting arrangement | ||||||||
| Series A preferred shareholder stock dividends | ||||||||
| Common stock issued with debt | ||||||||
| Common stock issued for a reduction in liabilities | ||||||||
| Common stock issued on conversion of debt | ||||||||
See accompanying notes to condensed consolidated financial statements
4
VIVAKOR, INC.
NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
Note 1. Description of Business
Vivakor, Inc. (collectively “we”, “us,” “our,” “Vivakor,” or the “Company”) is an integrated provider of midstream services and environmental solutions within the oil and gas industry. The Company owns and operates a diversified portfolio of midstream infrastructure assets located in several of the nation’s oil-producing basins, complemented by related environmental service offerings.
The Company conducts its operations through three primary business segments: transportation and logistics, terminaling and storage services, and supply and trading. The transportation and logistics segment includes crude oil gathering and transportation assets, including pipeline and trucking operations in the Permian and Anadarko Basins. The terminaling and storage services segment consists of crude oil terminal facilities located in Colorado City, Texas and Delhi, Louisiana. The supply and trading segment purchases and markets crude oil, condensate, and related hydrocarbon products.
The Company is also developing an environmental services business through the planned deployment of Remediation Processing Centers (“RPCs”), which are designed to recover hydrocarbons from contaminated soils and related waste streams. The RPC is under construction in Harris County, Texas.
On October 1, 2024, the Company acquired certain entities (the “Endeavor Entities”), expanding its midstream operations. During 2025, the Company completed the sale of certain non-core assets acquired in this transaction as part of a strategic review. On July 30, 2025, the Company sold certain non-core business units of Meridian Equipment Leasing, LLC and Equipment Transport, LLC, both subsidiaries included with the Endeavor Entities, in order to streamline operations and focus on core midstream transportation, terminaling, and environmental processing activities. See Note 4 – Business Combination and Divestiture of Wholly Owned Subsidiaries for additional information.
Note 2. Summary of Significant Accounting Policies
The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”) for interim financial information and pursuant to the rules and regulations of the Securities and Exchange Commission (“SEC”). Accordingly, certain information and disclosures normally included in annual financial statements prepared in accordance with U.S. GAAP have been condensed or omitted pursuant to such rules and regulations. In the opinion of management, the accompanying unaudited condensed consolidated financial statements reflect all adjustments, consisting only of normal recurring adjustments, considered necessary for a fair presentation of the interim periods presented.
These interim condensed consolidated financial statements should be read in conjunction with the audited consolidated financial statements and related notes included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2025.
The consolidated financial statements include the accounts of the Company and its wholly owned and majority-owned subsidiaries. All intercompany balances and transactions have been eliminated in consolidation. Operating results for the interim periods presented are not necessarily indicative of the results that may be expected for the full fiscal year.
Use of Estimates
The preparation of condensed consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes. Actual results could differ materially from those estimates.
5
Change in Estimated Useful Lives
During the three months ended March 31, 2026, the Company reassessed the estimated useful lives of certain property and equipment based on operational experience, expected usage, and updated maintenance and replacement assumptions. As a result, the Company revised the estimated useful lives of certain assets on a prospective basis effective January 1, 2026.
The change in estimate was accounted for prospectively in accordance with ASC 250, Accounting Changes and Error Corrections. The effect of the change was to decrease depreciation expense by approximately $
Revenue Recognition
The Company recognizes revenue in accordance with ASC 606, Revenue from Contracts with Customers. Revenue from the sale of crude oil and related petroleum products is recognized at a point in time when control transfers to the customer, generally upon delivery. Revenue from terminaling, storage, pipeline throughput, and transportation services is recognized over time as services are performed.
Segment Reporting
The Company operates through three reportable business segments: (i) Transportation and Logistics, (ii) Terminaling and Storage, and (iii) Supply and Trading.
Related Party Revenues
Revenue from related parties was $
The Company generates revenue from related parties through the sale of crude oil and related products, as well as the provision of terminaling, storage, pipeline throughput, and transportation logistics services under long-term contracts. These contracts were acquired as part of the Company’s acquisitions of Silver Fuels Delhi, LLC and White Claw Colorado City, LLC in August 2022, and Endeavor Crude, LLC in October 2024, and were entered into in the ordinary course of business.
The Company evaluates collectability of related party receivables in a manner consistent with other customers.
Major Customers and Concentration of Credit Risk
During the three months ended March 31, 2026, two customers, including one related party, accounted for approximately
During the three months ended March 31, 2025, two customers, including one related party, accounted for approximately
6
Basic net income (loss) per share is computed by dividing net income (loss) attributable to common stockholders by the weighted-average number of common shares outstanding during the period. Diluted net income (loss) per share reflects the potential dilution that could occur if securities or other contracts to issue common stock were exercised or converted into common stock.
All share and per share amounts have been retroactively adjusted to reflect the reverse stock split effected in March 2026.
Potentially dilutive securities are excluded from the computation of diluted net income (loss) per share when their effect would be antidilutive. Potentially dilutive securities include convertible notes, warrants, and stock options.
Note 3. Going Concern & Liquidity
The Company has historically incurred
net losses and experienced negative cash flows from operations and, as of March 31, 2026, had an accumulated deficit of
approximately $211 (
During the three months ended March 31, 2026, the Company continued executing its strategic plan focused on optimizing its midstream transportation, terminaling, and environmental processing operations, including the integration and operation of the Endeavor Entities acquired in the fourth quarter of 2024. The Company has historically financed its operations through a combination of operating cash flows, debt financings, and private and public equity offerings. During the second quarter 2026, the Company also entered into a financing arrangement with two institutional investors, with RBW Capital Partners LLC acting as placement agent, intended to support working capital and ongoing operations.
Based on the above, we believe there is substantial doubt about the Company’s ability to continue as a going concern. The Company has prepared the consolidated financial statements on a going concern basis. If the Company encounters unforeseen circumstances that place constraints on its capital resources, management will be required to take various measures to conserve liquidity. Management cannot provide any assurance that the Company will be able to execute its plans to raise additional capital, close its merger and acquisitions, or that its operations or business plan will be profitable.
Note 4. Business Combination and Divestiture of Wholly Owned Subsidiaries
On October 1, 2024, the Company acquired all of the issued and outstanding membership interests of Endeavor Crude, LLC, Equipment Transport, LLC, Meridian Equipment Leasing, LLC, and Silver Fuels Processing, LLC (collectively, the “Endeavor Entities”).
On July 30, 2025, the Company completed the divestiture of Meridian Equipment Leasing, LLC and Equipment Transport, LLC (together, the “Divested Entities”), two indirectly wholly owned subsidiaries acquired as part of the Endeavor Entities, pursuant to a Membership Interest Purchase Agreement entered into with Jorgan Development, LLC, an entity controlled by James Ballengee, the Company’s Chief Executive Officer and Chairman.
7
Note 5. Accounts Receivable
Accounts receivable primarily consist of trade receivables related to crude oil sales and transportation services and are recorded net of an allowance for expected credit losses. The Company evaluates the collectability of accounts receivable on an ongoing basis based on historical experience, customer creditworthiness, and current economic conditions. The allowance for expected credit losses is reviewed on a periodic basis, and balances are written off when deemed uncollectible.
During the three months ended March 31, 2026, the Company recorded an allowance for expected credit losses related to certain customer receivable balances based on management’s assessment of collectability and current economic conditions.
Accounts receivable consisted of the following:
| Schedule of accounts receivable | ||||||||
| March 31, 2026 |
December 31, 2025 |
|||||||
| Trade accounts receivable | $ | $ | ||||||
| Less: allowance for credit losses | ( |
) | ||||||
| Accounts receivable, net | $ | $ | ||||||
| Related party receivables | $ | $ | ||||||
The balance of the related party receivable are due from entities affiliated with the Company’s Chief Executive Officer. During the three months ended March 31, 2026, amounts due under related-party commercial agreements were offset against a related party note of approximately $
Note 6. Marketable Securities
The Company holds shares of common stock of Adapti, Inc. (“Adapti”), an entity affiliated with the Company’s Chief Executive Officer. The investment is classified as a marketable equity security and is measured at fair value using quoted market prices, with changes in fair value recognized in earnings.
The carrying value of marketable securities consisted of the following:
| Schedule of marketable securities | ||||||||
| March 31, 2026 |
December 31, 2025 |
|||||||
| Investment in Adapti | $ | $ | ||||||
| Unrealized loss | ( |
) | ( |
) | ||||
| Marketable Securities, net | $ | $ | ||||||
The Company recognized unrealized gains (losses) related to marketable securities of approximately $(
8
Note 7. Property and Equipment
Property and equipment consisted of the following:
| Schedule of property and equipment, net | ||||||||
| March 31, 2026 |
December 31, 2025 |
|||||||
| Vehicles and trailers | $ | $ | ||||||
| Equipment | ||||||||
| Land | ||||||||
| Crude & NGL Terminal and Related Equipment | ||||||||
| Crude Oil Transfer Stations | ||||||||
| Pipeline and Related Facilities | ||||||||
| Tank Expansion | ||||||||
| Construction in process | ||||||||
| Less: Accumulated amortization | ( |
) | ( |
) | ||||
| $ | $ | |||||||
Depreciation expense for the three months ended March 31, 2026 and 2025 was approximately $
Construction in process primarily relates to the Company’s remediation processing systems, wash plant facilities, and terminal expansion projects.
Note 8. Intangible Assets
Intangible assets consisted of the following:
| Schedule of intangible assets | ||||||||
| March 31, 2026 |
December 31, 2025 |
|||||||
| Intangible assets, gross | $ | $ | ||||||
| Accumulated amortization | ( |
) | ( |
) | ||||
| Intangible assets, net | $ | $ | ||||||
Customer relationship intangible assets consisted of the following:
| Customer relationships, gross | $ | $ | ||||||
| Accumulated amortization | ( |
) | ( |
) | ||||
| Customer relationships, net | $ | $ |
Amortization expense was approximately $
9
The Company evaluates long-lived assets and intangible assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable.
Goodwill was fully impaired during the year ended December 31, 2025. Accordingly, the Company had
Note 9. Accounts Payable and Accrued Expenses
Accounts payable and accrued expenses consist of the following:
| Schedule of accounts payable and accrued expenses | ||||||||
| March 31, 2026 |
December 31, 2025 |
|||||||
| Accounts payable | $ | $ | ||||||
| Accrued interest (various notes and loans payable) | ||||||||
| Accrued tax penalties and interest | ||||||||
| Accounts payable and accrued expenses | $ | $ | ||||||
Related-party accounts payable and accrued expenses consisted of the following:
| Schedule of accounts payable and accrued expenses related parties | ||||||||
| March 31, 2026 |
December 31, 2025 |
|||||||
| Accounts payable - related parties | $ | $ | ||||||
| Accrued interest (notes payable) - related parties | ||||||||
| Accounts payable and accrued expenses - related parties | $ | $ | ||||||
Accounts payable primarily consist of trade payables and operating accruals incurred in the ordinary course of business.
Note 10. Unearned Revenue
As of March 31, 2026 and December 31, 2025, the Company had approximately $
10
Note 11. Loans and Notes Payable
Third party debt:
| Schedule of loans and notes payable | ||||||||
|
March 31, 2026 |
December 31, 2025 |
|||||||
| Various promissory notes and convertible notes | $ | $ | ||||||
| Blue Ridge Bank | ||||||||
| Small Business Administration | ||||||||
| Al Dali Intl for Gen. Trading & Cont. Co. | ||||||||
| RSF, LLC | ||||||||
| Cedarview Opportunities Master Fund LP | ||||||||
| Curve Capital, LLC | ||||||||
| William Tuorto | ||||||||
| ClearThink Capital Partners, LLC | ||||||||
| ClearThink Capital Partners, LLC (RBW) | ||||||||
| Agile Capital Funding, LLC | ||||||||
| JJ Astor | ||||||||
| Total notes payable | $ | $ | ||||||
| Loans and notes payable, current | $ | $ | ||||||
| Loans and notes payable, long term | $ | $ | ||||||
Related party debt:
| Schedule of loans and notes payable related parties | ||||||||
| March 31, 2026 |
December 31, 2025 |
|||||||
| Jorgan Development, LLC | $ | $ | ||||||
| James Ballengee Companies | ||||||||
| Meridian Equipment Leasing, LLC | ||||||||
| Triple T Trading Company LLC | ||||||||
| Total notes payable - related parties | $ | $ | ||||||
| Loans and notes payable, current - related parties | $ | $ | ||||||
| Loans and notes payable, long term - related parties | $ | $ | ||||||
Maturity Table
| Schedule of maturities of loans and notes payable | ||||||||
| 2026 | $ | $ | ||||||
| 2027 | ||||||||
| 2028 | ||||||||
| 2029 | ||||||||
| 2030 | ||||||||
| Thereafter | ||||||||
| Total long-term debt | ||||||||
| Less: unamortized OID: | ( |
) | ( |
) | ||||
| Net debt | $ | $ |
11
ClearThink Partners, LLC — On January 9, 2026, the Company issued a promissory note to ClearThink Capital Partners LLC in the principal amount of $
ClearThink
Capital Partners, LLC/RBW Investors — During 2025, the Company entered into multiple twelve-month convertible
promissory notes with investors introduced to us by ClearThink Capital Partners, LLC and RBW totaling approximately $
William Tuorto — During the quarter ending March 31, 2026, the Company entered into a short-term funding arrangement. The outstanding balance was $
JJ Astor & Co. — During 2025, the Company entered into multiple financing and forbearance arrangements with J.J. Astor & Co. related to secured promissory notes issued by the Company. As of December 31, 2025, the Second Note remained outstanding. On February 27, 2026, the Company entered into additional amendment and forbearance agreements with J.J. Astor & Co., which modified repayment terms, extended certain maturity dates, and provided for additional financing. The Company issued an additional secured promissory note in the principal amount of $
Jorgan Development, LLC — During the three months ended March 31, 2026, approximately $
As of March 31, 2026, the Company had outstanding secured notes payable to Cedarview Opportunities Master Fund LP of approximately $
Note 12. Other Current Liabilities
Certain conversion features embedded within the Company’s convertible debt instruments contain variable settlement provisions and are accounted for as derivative liabilities in accordance with ASC 815, Derivatives and Hedging. As of March 31, 2026 and December 31, 2025, the Company had outstanding balances of approximately $
As of March 31, 2026 and December 31, 2025, the Company had outstanding balances of approximately $
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Note 13. Commitments and Contingencies
Finance Leases
The Company has finance lease arrangements related primarily to storage, terminaling, and transportation equipment. Certain finance lease obligations are subject to forbearance arrangements and revised payment terms.
As of March 31, 2026 and December 31, 2025, respectively, finance lease liabilities consisted of the following:
| Schedule of financing lease liability | ||||||||
| Description | March 31, 2026 |
December 31, 2025 |
||||||
| Principal portion of finance lease obligations | $ | $ | ||||||
| Accrued interest | $ | $ | ||||||
| Total finance lease liabilities (current) | $ | $ | ||||||
Operating Leases
The Company leases office space, land, trucking yards, and equipment under non-cancelable operating lease agreements with remaining lease terms ranging from less than one year to approximately three years. The right-of-use assets for operating leases as of March 31, 2026 and December 31, 2025 were $
Operating lease liabilities consisted of the following:
| Schedule of lessee operating lease liability | ||||
| 2026 | ||||
| 2027 | ||||
| 2028 | ||||
| 2029 | ||||
| Thereafter | ||||
| Total undiscounted lease payments | ||||
| Less: Imputed interest | ||||
| Present value of lease payments | ||||
| Operating lease liabilities, current | ||||
| Operating lease liabilities, long-term | ||||
| Operating lease liability | ||||
| Weighted-average remaining lease term(mo.) | ||||
| Weighted-average discount rate | % |
Note 14. Stockholders’ Equity
Series A Preferred Stock
The Company’s Series A Preferred Stock has a stated value of $ per share, carries a cumulative dividend of
13
Pursuant to the Debt Satisfaction and Preferred Stock Amendment Agreement dated November 25, 2025, dividends on the Company’s Series A Convertible Preferred Stock were suspended from April 30, 2026 through April 29, 2027 in connection with amendments to the preferred stock terms and the satisfaction of certain outstanding convertible indebtedness.
Common Stock
The Company has authorized shares of common stock, par value $ per share.
All share and per share amounts presented in the accompanying condensed consolidated financial statements have been retroactively adjusted to reflect the Company’s
The Company maintains the 2023 Equity and Incentive Plan (the “2023 Plan”), pursuant to which the Company may grant stock options, restricted stock awards, restricted stock units, and other equity-based awards to employees, directors, consultants, and service providers.
During the three months ended March 31, 2026 and 2025, the Company issued an aggregate of and , respectively, shares of common stock as stock-based compensation to employees, directors and consultants. For the three months ended March 31, 2026 and 2025, the Company recognized stock-based compensation expense of approximately $ and $, respectively. For the three months ended March 31, 2026 and 2025, the Company recognized consulting stock-based compensation expense of approximately $ and $, respectively.
There were other options or awards granted during the three months ended March 31, 2026. The following table summarizes all stock option activity of the Company for the three months ended March 31, 2026 and March 31, 2025:
| Schedule of warrant assumptions | ||||||||||||
| Number of Shares |
Weighted Average Exercise Price |
Weighted Average Remaining Contractual Life (Years) |
||||||||||
| Outstanding, December 31, 2025 | $ | |||||||||||
|
Granted |
- | |||||||||||
|
Exercised |
- | |||||||||||
| Forfeited | - | |||||||||||
| Outstanding, March 31, 2026 | $ | |||||||||||
|
Outstanding, December 31, 2024 |
$ | |||||||||||
| Granted | - | |||||||||||
|
Exercised |
- | |||||||||||
| Forfeited | - | |||||||||||
| Outstanding, March 31, 2025 | $ | |||||||||||
The Company maintains the 2025 Equity and Incentive Plan (the “2025 Plan”), pursuant to which the Company may grant stock options, restricted stock awards, restricted stock units, and other equity-based awards to employees, directors, consultants, and service providers. No awards have been granted under the 2025 Plan.
14
Note 16. Segments
The Company operates through three reportable operating segments: (i) transportation and logistics services, (ii) terminaling and storage services, and (iii) supply and trading. The Company’s Chief Executive Officer, who is the chief operating decision maker (“CODM”), evaluates segment performance based on gross profit.
Three Months Ended March 31, 2026:
| Schedule of segment reporting information, by segment | ||||||||||||||||
|
Transportation and Logistics |
Terminaling and Storage |
Supply and Trading Segment |
Total Consolidated |
|||||||||||||
| Revenues | $ | $ | $ | $ | ||||||||||||
| Revenues - related party | ||||||||||||||||
| Total revenues | ||||||||||||||||
| Cost of revenues | ||||||||||||||||
| Gross profit | $ | $ | $ | $ | ||||||||||||
Three Months Ended March 31, 2025:
|
Transportation |
Terminaling |
Supply |
Total |
|||||||||||||
| Revenues | $ | $ | $ | $ | ||||||||||||
| Revenues - related party | ||||||||||||||||
| Total revenues | ||||||||||||||||
| Cost of revenues | ||||||||||||||||
| Gross profit | $ | $ | $ | $ | ||||||||||||
Note 17. Income Tax
The Company calculates its quarterly tax provision pursuant to the guidelines in ASC 740 Income Taxes. ASC 740 requires companies to estimate the annual effective tax rate for current year ordinary income. In calculating the effective tax rate, permanent differences between financial reporting and taxable income are factored into the calculation, and temporary differences are not. The estimated annual effective tax rate represents the Company’s estimate of the tax provision in relation to the best estimate of pre-tax ordinary income or loss. The estimated annual effective tax rate is then applied to year-to-date ordinary income or loss to calculate the year-to-date interim tax provision.
The Company recorded a provision for income taxes of $
15
Note 18. Related Party Transactions
The Company engages in transactions with entities affiliated with James Ballengee, the Company’s Chief Executive Officer and principal shareholder, in the ordinary course of business. The Company is party to various commercial agreements with White Claw Crude, LLC (“WC Crude”), Jorgan Development, LLC (“Jorgan”), and other affiliated entities, including storage, throughput, transportation, and supply agreements.
The Company also leases certain yard and transportation equipment from related parties affiliated with the Company’s Chief Executive Officer. Certain lease arrangements are accounted for as operating leases, with related amounts included in operating lease right-of-use assets and liabilities, while short-term lease payments are expensed as incurred.
As of March 31, 2026 and
December 31, 2025, accounts receivable – related party included a balance of approximately $
Note 19. Subsequent Events
The Company has evaluated subsequent events through the date the financial statements were available to issue.
In May 2026, the Company entered into an Independent Contractor Agreement with William Tuorto for consulting services he is performing for the Company dating back to April 1, 2026. In connection with the agreement, on May 7, 2026, the Company issued shares of common stock under the 2023 Plan, which shares were issued without a restrictive legend pursuant to a Form S-8 registration statement.
On May 4, 2026, the Company entered into a Forbearance Agreement with Cedarview Opportunities Master Fund LP related to the Company’s existing secured notes payable. Under the agreement, Cedarview agreed to extend the forbearance period through October 31, 2026, subject to certain repayment and financing conditions. In connection with the agreement, the Company issued Cedarview shares of common stock.
On May 11, 2026, the Company issued shares of restricted common stock to Kimberly Hawley as a discretionary bonus pursuant to the terms of her Executive Employment Agreement dated July 24, 2025. The shares were issued at a value of $1.71 per share and were issued with a standard Rule 144 restrictive legend.
On May 6, 2026, the Company entered into an additional forbearance and note payment amendment agreement with J.J. Astor & Co. related to the Company’s outstanding secured promissory notes they hold. Pursuant to the agreement, the parties revised certain repayment terms associated with the Company’s May 2026 Financing Transaction and extended certain repayment obligations through January 2027.
On May 8, 2026, the
16
ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis should be read in conjunction with the condensed consolidated financial statements and related notes included elsewhere in this Quarterly Report on Form 10-Q.
Business Overview
Vivakor, Inc. (“Vivakor” or the “Company”) is an integrated provider of midstream services and environmental solutions within the oil and gas industry. The Company operates through three reportable segments: transportation and logistics, terminaling and storage services, and supply and trading. These segments support the movement, storage, and marketing of crude oil and related hydrocarbon products across key producing regions, including the Permian Basin and mid-continent regions.
The Company’s transportation and logistics segment includes trucking and pipeline transportation operations for, including the Omega Gathering Pipeline in Blaine County, Oklahoma, which serves as a direct connect to the Plains STACK Pipeline and provides access to the Cushing, Oklahoma storage hub. The terminaling and storage segment includes crude oil storage and blending facilities in Colorado City, Texas and Delhi, Louisiana. The supply and trading segment purchases, aggregates, markets, and resells crude oil, condensate, natural gas liquids, and related hydrocarbon products.
The Company is also developing an environmental services business through the planned deployment of Remediation Processing Centers (“RPCs”), are designed to recover hydrocarbons from oil contaminated soils and related waste streams. The deployment plan begins with the construction of a RPC in Harris County, Texas, currently scheduled for the third quarter of 2026.
On October 1, 2024, the Company acquired certain entities (the “Endeavor Entities”), expanding its midstream operations. During 2025, the Company completed the sale of certain non-core assets acquired in this transaction as part of a strategic review. On July 30, 2025, the Company sold certain non-core business units of Meridian Equipment Leasing, LLC and Equipment Transport, LLC, both subsidiaries included with the Endeavor Entities, in order to streamline operations and focus on core midstream transportation, terminaling, and environmental processing activities.
During the first quarter of 2026 and subsequent thereto, the Company continued to pursue additional financing transactions and capital restructuring initiatives intended to support working capital requirements, reduce indebtedness, and support ongoing operations and strategic growth initiatives.
Recent Developments
March 2026 Reverse Stock Split
On March 24, 2026, the Company effected a 1-for-200 reverse stock split of its common stock pursuant to a Certificate of Amendment to the Company’s Amended and Restated Articles of Incorporation following shareholder approval obtained at the Company’s Special Meeting held on December 22, 2025.
Private Financing Transaction (the “Financing”)
Convertible Promissory Notes
The following summary of the Notes does not purport to be complete and is qualified in its entirety by reference to the forms of SPA and Notes filed as exhibits to the registration statement of which this prospectus forms a part.
17
On May 8, 2026, the Company entered into a Securities Purchase Agreement (the “SPA”) with certain institutional investors providing for the issuance of convertible promissory notes (the “Notes”) with aggregate gross proceeds to the Company of up to $12.0 million, before fees and expenses, in two closings. The Notes have an aggregate principal amount of $15.0 million, reflecting a $3.0 million original issue discount of 20%.
The initial closing occurred on May 8, 2026, pursuant to which the Company received $6.0 million in gross proceeds. A second closing for an additional $6.0 million remains subject to the effectiveness of the registration statement of which this prospectus forms a part and other customary closing conditions pursuant to the terms of the SPA and the Note.
The Notes are convertible into shares of the Company’s Common Stock at a conversion price equal to the greater of $0.37 per share and 80% of the lowest daily volume weighted average price (“VWAP”) of the Company’s common stock during the five trading days immediately preceding conversion.
Conversions under the Notes are generally subject to a 4.99% beneficial ownership limitation, which may be waived upon notice by the applicable holder. In addition, absent shareholder approval, conversions are limited to the extent necessary to comply with Nasdaq’s 19.99% issuance limitation.
The Notes contain customary events of default, including payment and covenant defaults, which may result in acceleration of amounts due under the notes and certain additional default-related remedies, including an increase in the outstanding principal amount upon the occurrence of certain events of default.
The Company agreed to register for resale shares issuable upon conversion of the Notes, and this prospectus forms part of the related registration statement.
The Company intends to use proceeds from the Financing for working capital, debt reduction, and general corporate purposes.
RBW Capital Partners LLC, a division of Dawson James Securities, Inc., acted as placement agent in connection with the Financing.
Standby Equity Purchase Agreement
The following summary of the Standby Equity Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the form of the Standby Equity Purchase Agreement filed as an exhibit to the registration statement of which this prospectus forms a part.
On May 8, 2026, the Company entered into a standby equity purchase agreement (the “SEPA”) with an institutional investor (the “SEPA Investor”) providing for the potential purchase by the SEPA Investor of up to $100 million of the Company’s common stock over a 36-month period, subject to the terms and conditions of the SEPA.
Under the SEPA, the Company may, at its discretion, direct the SEPA Investor to purchase shares of common stock from time to time, subject to specified volume limitations, pricing formulas, and beneficial ownership limitations set forth in the agreement. Shares issued under the SEPA will generally be purchased at a discount to prevailing market prices.
The Company controls the timing and amount of any sales under the SEPA, subject to the terms and limitations contained in the agreement. Actual sales under the SEPA will depend on a variety of factors, including market conditions, trading prices of the Company’s common stock, and the Company’s capital needs.
The Company is required to file a separate registration statement covering shares issuable under the SEPA before any sales may occur under the agreement.
18
Reclassifications
Certain reclassifications have been made to prior years’ amounts to conform to the 2025 presentation, including adjustments related to the purchase price allocation of accrued interest and principal note payable amounts to conform to the 2025 presentation.
Change in Segment Reporting
Beginning in the third quarter of 2025, the Company revised its segment reporting structure to better reflect how the chief operating decision maker evaluates performance and allocates resources across the business. The Company now reports three operating and reportable segments: transportation and logistics, terminaling and storage services, and supply and trading. Revenue generated from supply and trading were previously reported under Terminaling and Storage and Transportation and Logistics in the first two quarters of 2025.
The Company’s chief operating decision maker evaluates segment performance primarily based on segment gross profit. Prior-period segment information has been recast, where applicable, to conform to the current presentation.
Concurrent with this change, we no longer report “Corporate and Other” as a separate category, as these activities do not represent an operating segment and are not separately reviewed by our chief operating decision maker. Corporate expenses, including executive and shared services personnel, stock-based compensation, professional fees, and other overhead costs, are now allocated to the operating segments or reflected in consolidated results, as appropriate.
Results of Consolidated Operations for the three months ended March 31, 2026 and 2025
Revenue
For the three months ended March 31, 2026 and 2025, revenues were $19,458,110 and $37,340,291, respectively, representing a decrease of $17,882,181, or 47.89%. The decrease in revenue was primarily attributable to the July 2025 divestiture of Meridian Equipment Leasing, LLC and Equipment Transport, LLC.
Excluding the impact of the 2025 divestitures, the Company’s earnings and cash flows from its midstream business operations are primarily affected by market conditions, commodity price fluctuations, and crude oil production levels within the Company’s operating regions, which influence throughput volumes, transportation activity, storage utilization, and trading margins.
Cost of Revenue
For the three months ended March 31, 2026 and 2025, cost of revenues was $13,734,880 and $32,581,857, respectively, representing a decrease of $18,846,977, or 57.85%.
Cost of revenues primarily consists of costs associated with the Company’s transportation and logistics operations, terminaling and storage services, and crude oil supply and trading activities, and generally fluctuates based on operating activity levels, throughput volumes, and commodity trading volumes.
Gross Profit
For the three months ended March 31, 2026 and 2025, gross profit was $5,723,230 and $4,758,434, respectively, representing an increase of $964,796, or 20.28%.
The increase in gross profit was primarily attributable to improved margins within the Company’s core midstream operations, supported by fee-based commercial arrangements and take-or-pay contracts with minimum volume commitments. In addition, the Company’s supply and trading activities continued to contribute meaningful revenues during the quarter, although these activities generally generate lower margins due to the high-volume nature of the business.
19
Operating Expenses
For the three months ended March 31, 2026 and 2025, operating expenses were $8,148,496 and $11,200,915, respectively, representing a decrease of $3,052,419, or 27.25%. The decrease in operating expenses was primarily attributable to lower depreciation and amortization expense resulting from the July 2025 divestiture of Meridian Equipment Leasing, LLC and Equipment Transport, LLC, as well as changes in estimated useful lives of certain fixed assets during the 2026 period. These decreases were partially offset by increased legal and accounting expenses and the establishment of an allowance for expected credit losses during the 2026 period.
Interest Expense
For the three months ended March 31, 2026 and 2025, total interest expense, including related-party interest expense, was $2,013,411 and $1,184,198, respectively, representing an increase of $829,213, or 234.85%. The increase in interest expense was primarily attributable to refinancing and forbearance arrangements entered into during the period, including the amortization of original issue discounts, deferred financing costs, and default-related fees. Interest expense also increased due to finance lease and debt obligations assumed in connection with the acquisition of the Endeavor Entities on October 1, 2024.
Unrealized Gain (Loss) on Marketable Securities
For the three months ended March 31, 2026 and 2025, the Company recognized an unrealized loss on marketable securities of $11,378 and an unrealized gain of $1,652,754, respectively, representing a decrease of $1,664,132.
The Company’s marketable securities are recorded at fair value based on quoted market prices, with unrealized gains and losses recognized in earnings during the applicable reporting period.
Segment Operating Results for the three months ended March 31, 2026 and 2025
Operating Results of our Terminaling and Storage Segment:
| 2026 | 2025 | Change ($) |
Change (%) |
|||||||||||||
| Revenues | $ | 140,532 | $ | 16,231,043 | $ | (16,090,511 | ) | -99.13 | % | |||||||
| Revenues - related party | 1,732,218 | 2,037,534 | (305,316 | ) | -14.98 | % | ||||||||||
| Total revenues | 1,872,750 | 18,268,577 | (16,395,827 | ) | -89.75 | % | ||||||||||
| Cost of revenues | 195,336 | 17,232,060 | (17,036,724 | ) | -98.87 | % | ||||||||||
| Gross profit | $ | 1,677,414 | $ | 1,036,517 | $ | 640,897 | 61.83 | % | ||||||||
Revenues generated by the terminaling and storage segment decreased primarily due to reduced throughput and related service activities during the period. Gross profit increased primarily due to improved operating margins supported by fee-based commercial arrangements and take-or-pay contracts with minimum volume commitments.
Operating Results of our Transportation Logistics Segment:
| 2026 | 2025 | Change ($) | Change (%) | |||||||||||||
| Revenues | $ | 402,728 | $ | 3,287,663 | $ | (2,884,935 | ) | -87.75 | % | |||||||
| Revenues - related party | 3,632,508 | 2,514,241 | 1,118,267 | 100.00 | % | |||||||||||
| Total revenues | 4,035,235 | 5,801,904 | (1,766,669 | ) | -30.45 | % | ||||||||||
| Cost of revenues | - | 2,106,371 | (9,766,845 | ) | -100.00 | % | ||||||||||
| Gross profit | $ | 4,035,235 | $ | 3,695,533 | $ | 339,702 | 9.19 | % | ||||||||
20
Revenues in the transportation and logistics segment decreased primarily due to reduced service activities and a more concentrated customer base following the July 2025 divestiture of certain non-core operations. Gross profit increased primarily due to improved operating margins supported by fee-based commercial arrangements and take-or-pay contracts with minimum volume commitments.
Operating Results of our Supply and Trading Segment:
| 2026 | 2025 | Change ($) |
Change (%) |
|||||||||||||
| Revenues | $ | 13,550,125 | $ | 13,269,810 | $ | 280,315 | 100.00 | % | ||||||||
| Revenues - related party | - | - | - | 0.00 | % | |||||||||||
| Total revenues | 13,550,125 | 13,269,810 | 280,315 | 100.00 | % | |||||||||||
| Cost of revenues | 13,539,544 | 13,243,426 | 296,118 | 100.00 | % | |||||||||||
| Gross profit | $ | 10,581 | $ | 26,384 | $ | (15,803 | ) | 100.00 | % | |||||||
Revenues in the supply and trading segment increased primarily due to higher volumes under the Company’s crude oil and condensate purchase and resale activities. Gross profit decreased primarily due to the high-volume, low-margin nature of supply and trading activities, as well as commodity price volatility and market pricing differentials affecting crude oil sales during the period.
Cash Flow
The following table sets forth the primary sources and uses of cash and cash equivalents for the three months ended March 31, 2026 and 2025 as presented below:
| March 31, | ||||||||
| 2026 | 2025 | |||||||
| Net cash (used) by operating activities | $ | (3,315,302 | ) | $ | (35 | ) | ||
| Net cash provided by investing activities | - | 1,482,000 | ||||||
| Net cash provided (used) by financing activities | 1,294,457 | (370,174 | ) | |||||
Liquidity and Capital Resources
Operating Activities
Net cash used in operating activities was approximately $3.3 million for the three months ended March 31, 2026, compared to minimal cash usage during the comparable 2025 period. Operating cash flows during the 2026 period were primarily impacted by the Company’s net loss and working capital changes, including increases in accounts receivable, partially offset by non-cash expenses including depreciation and amortization, stock-based compensation, and non-cash interest expense.
During the three months ended March 31, 2026, amounts due under related-party commercial agreements were offset against approximately $1.1 million outstanding under a related-party note payable pursuant to existing offset arrangements between the parties.
As of March 31, 2026, the Company had approximately $5.3 million outstanding under its accounts receivable factoring arrangement with B1 Bank. During the quarter, B1 Bank applied approximately $1.8 million of restricted cash maintained by the Company against amounts outstanding under the facility.
21
Investing Activities
There were no investing activities during the three months ended March 31, 2026.
During the three months ended March 31, 2025, investing activities primarily consisted of approximately $1.0 million related to the manufacturing of the Company’s remediation processing centers (“RPCs”), as well as capital expenditures associated with wash plant facilities and pipeline infrastructure projects, partially offset by approximately $1.5 million of proceeds received from the sale of vehicles and trailers.
Financing Activities
Net cash provided by financing activities was approximately $1.3 million for the three months ended March 31, 2026, primarily attributable to proceeds received from loans and notes payable.
During the three months ended March 31, 2025, financing activities included approximately $6.3 million of proceeds from the issuance of notes payable and other financing arrangements, partially offset by approximately $6.6 million of repayments on notes payable and finance lease liabilities.
Liquidity Outlook
Although the Company had no firm contractual commitments for capital expenditures as of March 31, 2026, management expects to continue investing in the development of its Texas remediation and wash plant facilities as market conditions and available capital permit.
The Company expects to continue funding operations and strategic growth initiatives through a combination of operating cash flows, financing activities, and capital management initiatives. The Company’s ability to access additional capital will depend on a variety of factors, including market conditions, operating performance, and capital market availability. Management continues to evaluate opportunities to enhance liquidity and support ongoing operations and development activities.
Contractual Obligations
The Company remains in discussions with Maxus Capital Group, LLC regarding certain finance lease obligations that were subject to a prior forbearance agreement entered into during 2025. As of March 31, 2026, the related finance lease liabilities continue to be classified as current due to the existing payment status and ongoing negotiations with the lessor.
| Description | March 31, 2026 |
December 31, 2025 |
||||||
| Principal portion of finance lease obligations | $ | 8,711,783 | $ | 8,711,784 | ||||
| Accrued interest | $ | 651,422 | $ | 390,068 | ||||
| Total finance lease liabilities (current) | $ | 9,363,205 | $ | 9,101,852 | ||||
22
Our contractual obligations as of March 31, 2026 for operating lease liabilities are for office warehouse space, land, and truck yards, which leases end in 2026 through 2028. Contractual payments under operating lease obligations as of March 31, 2026 are as follows:
| 2026 | $ | 226,467 | ||
| 2027 | $ | 181,559 | ||
| 2028 | $ | 56,220 | ||
| 2029 | - | |||
| Thereafter | - | |||
| Total Remaining | $ | 464,246 |
Interest Rate and Market Risk
Interest rate risk is the potential for reduced net interest income and other rate-sensitive income resulting from adverse changes in the level of interest rates. We do not have variable interest rate-sensitive income agreements. We do have financing arrangements that were issued on August 1, 2022 as consideration for the business combination and acquisition of SFD and WCCC, in which notes have variable interest rates based on the prime rate, which exposes us to further interest expense if the prime rate increases.
Market Risk - Equity Investments
Market risk is the potential for loss arising from adverse changes in the fair value of fixed-income securities, equity securities, other earning assets, and derivative financial instruments as a result of changes in interest rates or other factors. We own equity securities that are publicly traded. Because the fair value of these securities may fall below the cost at which we acquired them, we are exposed to the possibility of loss. Equity investments are approved, monitored, and evaluated by members of management.
Inflation
Prolonged periods of slow growth, significant inflationary pressures, volatility and disruption in financial markets, could lead to increased costs of doing business. Inflation generally will cause suppliers to increase their rates, and inflation may also increase employee salaries and benefits. In connection with such rate increases, we may or may not be able to increase our pricing to consumers. Inflation could cause both our investment and cost of revenue to increase, thereby lowering our return on investment and depressing our gross margins.
Off Balance Sheet Arrangements
None.
Critical Accounting Policies & Use of Estimates
Except for revisions to the estimated useful lives of certain property and equipment disclosed in Note X to the condensed consolidated financial statements, there have been no material changes to our critical accounting policies or use of estimates from those disclosed in our Annual Report on Form 10-K for the fiscal year ended December 31, 2025 filed with the SEC on April 15, 2026.
23
Item 3. Quantitative and Qualitative Disclosures about Market Risk
As a smaller reporting company, we are not required to provide the information required by this Item.
Item 4. Controls and Procedures
Our management, with the participation of our Chief Executive Officer (Principal Executive Officer) and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer), evaluated the effectiveness of our disclosure controls and procedures as of March 31, 2026 pursuant to Rules 13a-15(e) and 15d-15(e) under the Exchange Act.
Based on this evaluation, our Chief Executive Officer and Chief Financial Officer concluded that, as of March 31, 2026, our disclosure controls and procedures were not effective due to the material weaknesses in internal control over financial reporting described below.
The material weaknesses primarily relate to insufficient personnel within our accounting and financial reporting functions, which has impacted segregation of duties and effective review controls over certain accounting processes, including technical accounting matters and the work of specialists involved in the estimation process. These deficiencies create a reasonable possibility that material misstatements of the financial statements may not be prevented or detected on a timely basis.
Management continues to implement remediation measures intended to address these material weaknesses, including enhanced review procedures, expanded use of external accounting and valuation specialists, improved oversight processes, and efforts to strengthen the Company’s accounting and financial reporting personnel resources. While progress has been made, the material weaknesses had not been fully remediated as of March 31, 2026.
Changes in Internal Control Over Financial Reporting
Other than the remediation activities described above, there were no other changes in our internal control over financial reporting during the quarter ended March 31, 2026 that materially affected, or are reasonably likely to materially affect, the Company’s our internal control over financial reporting.
24
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Vivakor, Inc. v. Al-Dali International General Trading and Contracting Company, et al., Case No. JDFC603 251052410 (Kuwait Court of First Instance, Mar. 25, 2025)—Plaintiff, Vivakor, Inc., has asserted claims for breach of contract, unjust enrichment, and injunctive relief against Defendants Al-Dali Global Trading and Contracting Company, Al-Sayer Construction General Trading and Contracting Company, and Kuwait Oil Company relating to the placement and operation of oilfield remediation processing equipment in Kuwait. Plaintiff seeks total damages in excess of $15,000,000.00.
Vivakor, Inc., et al., v. Unique Funding Solutions, LLC et al., Cause No. DC-25-05926 (95th Dist. Ct., Dallas Cty., Tex.—April 15, 2025)—Plaintiffs allege fraud, fraudulent liens, fraudulent inducement, conversion, money had and received, and seek a declaratory judgment relating to claims of Defendants for payment on a receivables factoring contract claiming damages in excess of $5 million. The case is in initial pleadings. Plaintiffs intend to vigorously pursue the case. The parties are in the process of settling this litigation through mediation.
AE Systems, LLC v. VivaVentures Remediation Corporation, (In re AE Systems, LLC) Ch. 7 Case No. 25-30186, Adv. No. 460285 (Bankr. S.D. Tex., filed Aug. 8, 2025)—Debtor claims breach of contract and damages of $156,356.00 for goods provided and services performed at Defendant’s site in Harris County, Texas. Defendant has contested the amount due on grounds that Debtor materially breached with their contract. Defendant has contested Debtor’s claims. No amount has been reserved in connection with the dispute.
Echo Contracting, LLC v. CPE Gathering Midcon, LLC, et al., Case No. CJ-2025-73 (Dist. Ct., Blaine Cty., Okla.—Feb. 14, 2025)—Plaintiff Echo Contracting asserted claims of breach of contract, quantum meriut, and foreclosure of mechanics and materialmen’s lien filed in Blaine County against properties of Defendants. Defendants CPE Gathering Midcon, LLC and Vivakor, Inc. settled such claims pursuant to confidential agreement on March 28, 2025. Co-Defendant Validus Energy II Midcon, LLC prevailed upon a motion to consolidate Case No. CJ-2025-7 with the proceeding involving YellowJacket Services, LLC. Defendant and Cross-Plaintiff Validus Energy II Midcon, LLC has levied claims for breach of contract, declaratory judgment, indemnification, contribution, and unjust enrichment against Defendants CPE Gathering Midcon, LLC and Vivakor, Inc. and seeks damages of more than $500,000.00, plus attorneys fees and costs of court. Defendants CPE Gathering Midcon, LLC, Vivakor, Inc., and Validus Energy II Midcon, LLC prevailed on motions against consolidated Plaintiff YellowJacket Services, LLC to remove liens against property of Validus Energy II Midcon, LLC and to compel arbitration against Defendants CPE Gathering Midcon, LLC and Vivakor, Inc. Claims of Plaintiff YellowJacket Services, LLC against Defendants CPE Gathering Midcon, LLC and Vivakor, Inc. are stayed pending arbitration, while claims of Defendant and Cross-Plaintiff Validus Energy II Midcon, LLC are proceeding.
Kush Properties, LLC d/b/a Motel 6 – Floresville d/b/a Eagle Ford Inn, et al., v. Endeavor Crude, LLC, et al Case No. CVW2505285 (81st Dist. Ct. Wilson Cty., Tex.—May 8, 2025)—Plaintiff alleges breach of contract, unjust enrichment, suit on sworn account, fraud, fraudulent inducement, and negligent misrepresentation relating to lodging charges for truck drivers, seeking $256,070.00, plus attorneys fees, costs of court, and pre- and post-judgment interest. Defendants’ are vigorously contesting the claims. The parties are in the process of settling this litigation.
Misty Kitson, Blaine County Assessor v. Meridian Equipment Leasing, LLC, Case No. EQ-2023-57 (Ct. of Tax Review, Okla.—Aug. 2, 2023)—Plaintiff governmental taxing authority seeks appeal of Defendant’s fair cash value valuation of certain personal property in Blaine County, Oklahoma. Plaintiff seeks a property tax valuation of $27,463,542.00 in contrast to Defendant’s valuation of $4,000,000.00, and overdue taxes in excess of $1,126,005.22, plus statutory interest, penalties, and fees. The case is in discovery.
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MV Purchasing, LLC et al., v. Endeavor Crude, LLC, et al., v. Unique Funding Solutions, LLC, et al., No. 3:25-cv-01112-K (U.S. Dist. Ct.—N. Tex.)—Plaintiffs Endeavor Crude, LLC, et al., assert claims for fraud, fraudulent misrepresentation, unjust enrichment, and declaratory relief for more than $1.5 million relating to an accounts receivable factoring contract. Cross-plaintiffs MV Purchasing, LLC and Echo Canyon Energy Products Supply, LLC assert claims for declaratory relief. Cross-plaintiffs and Defendants Unique Funding Solutions, LLC, Rocket Capital NY LLC, and Regain Group LLC assert claims of breach of contract against Defendants Endeavor Crude, LLC, et al., seek declaratory relief against Cross-plaintiffs MV Purchasing, LLC and Echo Canyon Energy Products Supply, LLC, and collectively seek damages in excess of $3,000,000. Defendants Endeavor Crude, LLC, et al., are vigorously defending the case.
Novella Strmiska v. Endeavor Crude, LLC, et al., Case No. 25-01-00013-CVK (81st Dist. Ct., Karnes Cty., Tex.—Jan. 27, 2025)—Plaintiff obtained a default judgment for breach of contract, trespass to land, trespass to chattels, negligence, and unjust enrichment, for $256,717.00 USD, plus post-judgment interest, attorneys fees, and costs of court.
Texas Premier Resources, LLC et al., v. Vivakor, Inc., et al., Cause No. 2025-39438 (190th Dist. Ct., Harris Cty., Tex.—Jun. 16, 2025)—Plaintiffs have asserted claims for breach of contract, fraud, fraudulent misrepresentation, and alter ego, and seek damages in excess of $5,000,000.00, plus attorneys fees and costs of court, and injunctive relief to compel the purchase of Plaintiff’s business and property. Defendants are vigorously contesting the case.
Viva Wealth Fund I, LLC v. Vivakor, Inc., et al., Case No. 30-2025-01469418-CU-FR-WJC (Sup. Ct., Orange Cty., Cal.—Mar. 21, 2025)—Plaintiff alleges fraud, conversion, unfair competition, tortious interference in contractual relations, interference with prospective economic advantage, money had and received, breach of contract, constructive fraudulent transfer, among other counts, and seeks declaratory relief and damages in excess of $50 million relating to equipment purchased by Plaintiff and leased to Defendant VivaVentures Remediation Corporation. Defendants intend to vigorously contest the case.
VivaVentures Remediation Corp. v. Viva Wealth Fund I, LLC, Case No. 250907053 (Dist. Ct., Salt Lake City, Utah—August 27, 2025)—Plaintiff, a Vivakor subsidiary, alleges breach of contract, breach of the covenant of good faith and fair dealing, quantum meruit, and unjust enrichment against Defendants, seeking damages exceeding $5.3 million, plus attorney’s fees and costs of court, relating to a lease for RPC equipment. Defendant has not yet responded.
Tyler Nelson v. Vivakor, Inc., et al., Case No. 30-2025-01503021-CU-OE-CJC (Sup. Ct. Orange Cty., Cal.—Aug. 11, 2025)—Plaintiff, former Chief Financial Officer of the Company, its subsidiary, and certain unnamed defendants for claims of breach of contract, breach of implied covenant in contract, and claims related to failure to pay wages, alleging total damages of $2,154,158.47, plus interest, attorneys fees, and costs of court. On November 5, 2025, the Company entered into a Settlement Agreement (the “Nelson Settlement Agreement”) with Tyler Nelson (“Nelson”), in order to settle claims made by Nelson that he was not paid for work performed for the Company, which claims formed the basis of a lawsuit entitled Tyler Nelson v. Vivakor, Inc., et al., Case No. 30-2025-01503021-CU-OE-CJC (Sup. Ct. Orange Cty., Cal.—Aug. 11, 2025) (the “Nelson Lawsuit”). Under the terms of the Nelson Settlement Agreement the Company was obligated to pay Nelson as full satisfaction of all alleged wage losses and alleged non-wage damages: (i) $250,000 on or before November 5, 2026, (ii) $100,000 within 30 days from the date of the Nelson Settlement Agreement, (iii) $100,000 within 60 days from the date of the Nelson Settlement Agreement, and (iv) $1,550,000 within 90 days from the date of the Nelson Settlement Agreement. The Company paid Nelson the initial $250,000 payment. Nelson was formerly the Company’s Chief Financial Officer and a Director. As a result of the Nelson Settlement Agreement, all dates and deadlines related to the Nelson Lawsuit have been taken off calendar by the Court, which will retain jurisdiction of the Nelson Lawsuit through the final payment of the Nelson Settlement Agreement consideration. The Company made the first three payments under the Nelson Settlement Agreement but did not make the final $1,550,000 payment. As a result, the Plaintiff entered the stipulated judgment against the Company and is attempting to collect the remaining amount owed from the Company, its subsidiaries and certain of its executive officers.
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SRAX, Inc. v. Vivakor, Inc., et al., Case No. 2023CUB014131 (Sup. Ct. Ventura Cty., Cal.—Sept. 18, 2023)—Plaintiff asserts claims for breach of contract for Defendant’s failure to pay Plaintiff for financial technology services. Plaintiff obtained a default judgment. Defendant has filed a motion to set aside the default judgment, which is pending before the court.
Herminio Adriano, et al v. Vivakor, Inc. et al, Case No 8:26-cv-00485-DOC (US District Court Central District of California Southern Division)—Plaintiff asserts claims for Securities violations related to Vivakor’s role in fundraising for the construction of certain assets that were to be constructed and leased back to Vivakor. Vivakor is vigorously defending the case.
From time to time, we may become involved in various legal actions that arise in the normal course of business. We intend to defend vigorously against any future claims and litigation. We are not currently involved in any material disputes and do not have any material litigation matters pending.
ITEM 1A. RISK FACTORS
Our business, financial condition, results of operations, and cash flows may be impacted by a number of factors, many of which are beyond our control, including those set forth in our most recent Annual Report on Form 10-K and in our other filings with the SEC, the occurrence of any one of which could have a material adverse effect on our actual results. There have been no material changes to the Risk Factors previously disclosed in our Annual Report on Form 10-K and our other filings with the SEC.
ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
The following sets forth information regarding all unregistered securities sold by us in transactions that were exempt from the requirements of the Securities Act during the three months ended March 31, 2026, and subsequent thereto. Except where noted, all of the securities discussed in this Item 2 were all issued in reliance on the exemption under Section 4(a)(2) of the Securities Act as the investors were sophisticated or accredited investors and familiar with our operations.
On May 19, 2026, the Company issued 48,888 shares of its common stock to certain holders of its Series A Preferred Stock for the dividends owed to them for the period from March 31, 2026 to April 30, 2026, in accordance with the terms of the Series A Preferred Stock Certificate of Designation.
On May 12, 2026, the Company issued 393,547 shares of its common stock to James Ballengee, the Company’s Chief Executive Officer and a member of the Board of Directors, for dividends owed to him as dividends on the Company’s Series A Preferred Stock for the periods ended January 31, 2026 and April 30, 2026, in accordance with the terms of the Series A Preferred Stock Certificate of Designation.
On May 11, 2026, the Company issued 693,492 shares of its common stock to certain holders of its Series A Preferred Stock for the dividends owed to them for the periods ended January 31, 2026 and March 31, 2026, in accordance with the terms of the Series A Preferred Stock Certificate of Designation.
On May 11, 2026, the Company issued 250,000 shares of its common stock to Kimberly Hawley, the Company’s Chief Financial Officer and Secretary as a discretionary bonus for services performed for the Company under the terms of her Employment Agreement. The shares were issued with a standard Rule 144 restrictive legend.
On May 7, 2026, the Company issued 142,716 shares of common stock to ClearThink Capital Partners under the terms of a Consulting Agreement. The shares were issued with a standard Rule 144 restrictive legend.
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As previously disclosed, between June 6, 2025 and June 9, 2025, the Company issued convertible promissory notes (the “Lender Notes”), to seven non-affiliated accredited investors (the “Lenders”), in the aggregate principal amount of $5,117,647.06 in connection with a Securities Purchase Agreement entered into by and between the Company and the Lenders (the “Lender SPA”). Under the terms of the Lender SPA and the Lender Notes, the Company received $4,350,000 prior to deducting customary fees. On January 30, 2026, the Company entered into Forbearance and Note Amendment Agreements (the “Agreements”) with the each of the seven investors. As of the date the Agreements were entered into the Company owes approximately $2,242,793 under the Lender Notes, having satisfied approximately $2,874,854 of the aggregate principal amount since the Lender Notes were issued. Under the terms of the Agreements, (i) the parties agreed to extend the maturity date of the Lender Notes until January 31, 2027; (ii) the Company agreed to issue an aggregate of 280,839 shares of its restricted common stock (the “Agreement Shares”); (iii) the Company agreed to pay the following aggregate amounts to payoff the Lender Notes: $378,433.25 on or before March 1, 2026, $396,414.53 on or before April 30, 2026, $258,903.84 on or before June 30, 2026, $454,796.89 on or before July 31, 2026, $17,433.25 on or before September 30, 2026, $356,193.98 on or before October 31, 2026, $372,627.23 on or before January 31, 2027; and (iv) no conversions will be permitted under the Lender Notes unless the Company either fails to pay the Lender Notes in accordance with the above payment terms. The Company issued the Agreement Shares on May 7, 2026. On April 30, 2026, the Company received a Notice of Conversion from one of the investors and issued 76,431 shares of common stock to the investor in exchange for the conversion of $73,183.25 owed to that investor under the Lender Notes.
On March 17, 2025, Company issued a junior secured convertible promissory note (the “Initial Note”) to J.J. Astor & Co. (the “Lender”), in the principal amount of $6,625,000 (the “Principal Amount”), in relation to a Loan and Security Agreement by and between the Company, its subsidiaries, and the Lender (the “Loan Agreement”). The Company received $5,000,000, before fees. The Company received the funds on March 18, 2025. In relation to the Loan Agreement, the Company also entered into a Registration Rights Agreement with the Lender (the “RRA”), under which the Company was obligated to file a resale registration statement with the SEC registering any shares of its common stock issuable under the Note no later than sixty (60) days after closing. The information regarding this transaction was filed in a Current Report on Form 8-K filed with the Commission on March 21, 2025. As previously reported, on July 9, 2025, the Company entered into a Forbearance and Amendment to Loan Agreement and Note, which amended the terms of the Loan Agreement, Initial Note and RRA (the “First Forbearance Agreement”). Under the terms of the First Forbearance Agreement, the Lender agreed to loan us additional funds under a Second Junior Secured Promissory Note (the “Second Note”) and agreed to forbear any default under the Initial Note in exchange for certain consideration. The information regarding this transaction was filed in a Current Report on Form 8-K filed with the Commission on July 21, 2025.
On October 8, 2025, the Company entered into a Second Forbearance and Amendment to Loan Agreement and Notes, which amended the terms of the Loan Agreement, Initial Note, the RRA, the Second Note and the First Forbearance Agreement (the “Second Forbearance Agreement”). Under the terms of the Second Forbearance Agreement: (i) the Lender agreed to loan us an additional amount up to $2,450,000, (ii) the Outstanding Principal Amount of the Initial Note was $2,259,319.89 and the Outstanding Principal Balance on the Second Note was $5,685,805.13 on the Forbearance Agreement Effective Date, (iii) the Lender provided notice of default to the under the Second Note, thereby accelerating all amounts due thereunder, (iv) the Lender agreed the Company was not in default of the Initial Note, Second Note or other Transaction Documents effective September 30, 2025 and to forbear declaring an Event of Default going forward and accelerating all amounts due under the Initial Note and the Second Note, subject to the Company complying with the terms of the Second Forbearance Agreement, (v) all amounts due under the Initial Note and the Second Note, with any accrued interest, will be due on or before November 30, 2025, (vi) interest under the Initial Note and Second Note will continue at the default interest rate of 19%, (vii) the conversion terms under the Initial Note and Second Note will remain on the Default Conversion Price under those instruments, and (viii) the Lender agreed to a standstill period until November 30, 2025, during which time the Lender will not declare an event of default or accelerate any payment obligations under the Initial Note or the Second Note, so long at the Company (a) pays interest at the Default Interest Rate on the Initial Note and the Second Note, (b) issues the Third Note to the Lender, and (c) pays in full all past due payments on the Initial Note and the Second Note on or before November 30, 2025. In connection with the Second Forbearance Agreement the Lender agreed to loan the Company up to an additional $2,450,000. On October 9, 2025, the Company entered and Lender into an Additional Junior Secured Convertible Note (the “Third Note”), under which the Company agreed to issue the Lender the Third Note in the principal amount of $1,620,000, with the Company receiving proceeds of $1,152,000 before subtracting $53,000 for legal fees and origination fees. The Company received the first funds from the Third Note on October 9, 2025 with the remainder received on October 10, 2025. As additional consideration for the Second Forbearance Agreement and the Third Note, the Company agreed to issue the Lender 286,000 shares of its common stock for $286 (the “Commitment Shares”). The information regarding this transaction was filed in a Current Report on Form 8-K filed with the Commission on October 14, 2025.
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The Initial Note was satisfied in full on November 20, 2025 and the Third Note was satisfied in full on or about October 27, 2025, which left only the Second Note outstanding. As previously reported, on February 5, 2026, the Company and the Lender entered into a fourth Forbearance, Note Payment and Registration Rights Amendment Agreement (the “Fourth Forbearance Agreement”), pursuant to which (a) the parties agreed that $5,995,722.21 was then outstanding, due and payable under the Second Note and (b) the Maturity Date of the Second Note was extended to as late as January 1, 2027, and (c) the Company agreed to pay the outstanding balance of the Second Note in the following installments, with payments, payable, at the option of the Company, either in cash or under certain conditions in Conversion Shares issued at the Default Conversion Price that are immediately salable by the Lender under Rule 144, as follows: (i) $50,000 per week commencing Monday, April 6, 2026, (ii) $100,000 per week commencing Monday, July 6, 2026, (iii) $150,000 per week commencing Monday, October 5, 2026, and (iv) $250,000 per week commencing Monday, December 7, 2026, with the outstanding balance to be paid in full by January 1, 2027 (the “Amended Repayment Terms”). The information regarding this transaction was filed in a Current Report on Form filed with the Commission on February 5, 2026.
On February 27, 2026, the Company and the Lender entered into a Third Amendment to Loan Agreement Fourth Forbearance Agreement and Registration Rights Agreement (the “Loan Agreement Amendment No. 3”) and $993,750 Original Principal Amount Junior Secured Promissory Note (the “Fourth Note”). Under the terms of the Fourth Note the Lender agreed to loan us an additional $750,000, which matures on April 6, 2026. In the event we default on the Fourth Note, the note begins accruing interest at 19% per annum, the principal amount due under the note is increased to 110% of the principal amount owed at the time of default, and the amounts due under the note become convertible with the Lender allowed to convert 200% of the amount due under the note at a conversion price equal to an 80% discount to the lesser of (a) the closing price of the Company’s common stock on (x) the Funding Date of the Initial Note and (y) the Funding Date of the Second Note (whichever closing price is lower), or (b) 20% of the closing price of the Company Common Stock on such applicable Funding Date. Under the terms of the Loan Agreement Amendment No. 3, the Lender and Company agreed the date by which the Company has to relist on Nasdaq under the Fourth Forbearance Agreement was extended to April 6, 2026, and the Second Note default terms were amended in certain respects to the default terms in the Fourth Note. The Company received the funds from the Fourth Note on February 27, 2026, minus $40,000 for legal and transaction fees. The Company and the Lender also entered into a Subsidiary Guarantee, under which the Company’s subsidiaries are guaranteeing the amounts due under the Fourth Note (the “Subsidiary Guarantee”) and a Pledge and Security Agreement, under which the Company and its subsidiaries secured the repayment of the amounts due under the Second Note and the Fourth Note with their assets as collateral (the “Pledge and Security Agreement”). Additionally, the Company conveyed certain real property and improvements it owns in Blaine County, Oklahoma to the Lender to secure the repayment of the Fourth Note. In the event the Fourth Note is paid in full by the maturity date, the Oklahoma property will be reconveyed to the Company.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. MINE SAFETY DISCLOSURES
Not Applicable.
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ITEM 5.
J.J. Astor Forbearance Agreement
On March 17, 2025, the Company issued a junior secured convertible promissory note (the “Initial Note”) to J.J. Astor & Co. (the “Lender”), in the principal amount of $6,625,000 (the “Principal Amount”), in relation to a Loan and Security Agreement by and between the Company, its subsidiaries, and the Lender (the “Loan Agreement”). The Company received $5,000,000, before fees. The Company received the funds on March 18, 2025. In relation to the Loan Agreement, the Company also entered into a Registration Rights Agreement with the Lender (the “RRA”), under which the Company was obligated to file a resale registration statement with the SEC registering any shares of its common stock issuable under the Note no later than sixty (60) days after closing. The information regarding this transaction was filed in a Current Report on Form 8-K filed with the Commission on March 21, 2025. As previously reported, on July 9, 2025, the Company entered into a Forbearance and Amendment to Loan Agreement and Note, which amended the terms of the Loan Agreement, Initial Note and RRA (the “First Forbearance Agreement”). Under the terms of the First Forbearance Agreement, the Lender agreed to loan us additional funds under a Second Junior Secured Promissory Note (the “Second Note”) and agreed to forbear any default under the Initial Note in exchange for certain consideration. The information regarding this transaction was filed in a Current Report on Form 8-K filed with the Commission on July 21, 2025.
On October 8, 2025, the Company entered into a Second Forbearance and Amendment to Loan Agreement and Notes, which amended the terms of the Loan Agreement, Initial Note, the RRA, the Second Note and the First Forbearance Agreement (the “Second Forbearance Agreement”). Under the terms of the Second Forbearance Agreement: (i) the Lender agreed to loan us an additional amount up to $2,450,000, (ii) the Outstanding Principal Amount of the Initial Note was $2,259,319.89 and the Outstanding Principal Balance on the Second Note was $5,685,805.13 on the Forbearance Agreement Effective Date, (iii) the Lender provided notice of default to the Company under the Second Note, thereby accelerating all amounts due thereunder, (iv) the Lender agreed the Company was not in default of the Initial Note, Second Note or other Transaction Documents effective September 30, 2025 and to forbear declaring an Event of Default going forward and accelerating all amounts due under the Initial Note and the Second Note, subject to the Company complying with the terms of the Second Forbearance Agreement, (v) all amounts due under the Initial Note and the Second Note, with any accrued interest, will be due on or before November 30, 2025, (vi) interest under the Initial Note and Second Note will continue at the default interest rate of 19%, (vii) the conversion terms under the Initial Note and Second Note will remain on the Default Conversion Price under those instruments, and (viii) the Lender agreed to a standstill period until November 30, 2025, during which time the Lender will not declare an event of default or accelerate any payment obligations under the Initial Note or the Second Note, so long as the Company (a) pays interest at the Default Interest Rate on the Initial Note and the Second Note, (b) issues the Third Note to the Lender, and (c) pays in full all past due payments on the Initial Note and the Second Note on or before November 30, 2025. In connection with the Second Forbearance Agreement the Lender agreed to loan the Company up to an additional $2,450,000. On October 9, 2025, the Company and Lender entered into an Additional Junior Secured Convertible Note (the “Third Note”), under which the Company agreed to issue the Lender the Third Note in the principal amount of $1,620,000, with the Company receiving proceeds of $1,152,000 before subtracting $53,000 for legal fees and origination fees. The Company received the first funds from the Third Note on October 9, 2025 with the remainder received on October 10, 2025. As additional consideration for the Second Forbearance Agreement and the Third Note, the Company agreed to issue the Lender 286,000 shares of its common stock for $286 (the “Commitment Shares”). The information regarding this transaction was filed in a Current Report on Form 8-K filed with the Commission on October 14, 2025.
The Initial Note was satisfied in full on November 20, 2025 and the Third Note was satisfied in full on or about October 27, 2025, which left only the Second Note outstanding. As previously reported, on February 5, 2026, the Company and the Lender entered into a fourth Forbearance, Note Payment and Registration Rights Amendment Agreement (the “Fourth Forbearance Agreement”), pursuant to which (a) the parties agreed that $5,995,722.21 was then outstanding, due and payable under the Second Note and (b) the Maturity Date of the Second Note was extended to as late as January 1, 2027, and (c) the Company agreed to pay the outstanding balance of the Second Note in the following installments, with payments, payable, at the option of the Company, either in cash or under certain conditions in Conversion Shares issued at the Default Conversion Price that are immediately salable by the Lender under Rule 144, as follows: (i) $50,000 per week commencing Monday, April 6, 2026, (ii) $100,000 per week commencing Monday, July 6, 2026, (iii) $150,000 per week commencing Monday, October 5, 2026, and (iv) $250,000 per week commencing Monday, December 7, 2026, with the outstanding balance to be paid in full by January 1, 2027 (the “Amended Repayment Terms”). The information regarding this transaction was filed in a Current Report on Form 8-K filed with the Commission on February 5, 2026.
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As previously reported, on February 27, 2026, the Company and the Lender entered into a Third Amendment to Loan Agreement Fourth Forbearance Agreement and Registration Rights Agreement (the “Loan Agreement Amendment No. 3”) and $993,750 Original Principal Amount Junior Secured Promissory Note (the “Fourth Note”). Under the terms of the Fourth Note the Lender agreed to loan us an additional $750,000, which matures on April 6, 2026. In the event we default on the Fourth Note, the note begins accruing interest at 19% per annum, the principal amount due under the note is increased to 110% of the principal amount owed at the time of default, and the amounts due under the note become convertible with the Lender allowed to convert 200% of the amount due under the note at a conversion price equal to an 80% discount to the lesser of (a) the closing price of the Company’s common stock on (x) the Funding Date of the Initial Note and (y) the Funding Date of the Second Note (whichever closing price is lower), or (b) 20% of the closing price of the Company Common Stock on such applicable Funding Date. Under the terms of the Loan Agreement Amendment No. 3, the Lender and Company agreed the date by which the Company has to relist on Nasdaq under the Fourth Forbearance Agreement was extended to April 6, 2026, and the Second Note default terms were amended in certain respects to the default terms in the Fourth Note. The Company received the funds from the Fourth Note on February 27, 2026, minus $40,000 for legal and transaction fees. The Company and the Lender also entered into a Subsidiary Guarantee, under which the Company’s subsidiaries are guaranteeing the amounts due under the Fourth Note (the “Subsidiary Guarantee”) and a Pledge and Security Agreement, under which the Company and its subsidiaries secured the repayment of the amounts due under the Second Note and the Fourth Note with their assets as collateral (the “Pledge and Security Agreement”). Additionally, the Company conveyed certain real property and improvements it owns in Blaine County, Oklahoma to the Lender to secure the repayment of the Fourth Note. In the event the Fourth Note is paid in full by the maturity date, the Oklahoma property will be reconveyed to the Company.
On May 6, 2026, the Company entered into a Forbearance and Note Payment Amendment Agreement (“May 2026 Forbearance Agreement”), under which the Lender agreed to forbear their rights under the Loan Agreement, as amended, if the Company agrees and complies with the following terms: (i) the Company acknowledges that $6,815,805.71 adjusted outstanding balance is due and payable as of the Effective Date of the May 2026 Forbearance Agreement under the Second Note and $1,111,151.74 is outstanding, due and payable as of the Effective Date of this May 2026 Forbearance Agreement under the Fourth Note, (ii) the Company will pay Lender One Million Five Hundred Thousand Dollars ($1,500,000) upon the closing of the first funding of that certain financing transaction being conducted for the Company by RBW Capital Partners LLC, a division of Dawson James Securities, Inc. (the “RBW Financing”), to occur on or before May 7, 2026, to be applied to the outstanding balance of the Second Note, (iii) the Company will pay Lender Two Million Five Hundred Thousand Dollars ($2,500,000) upon the second closing of the RBW Financing, to be applied to the outstanding balance of the Second Note, to occur upon the effectiveness of an S-1 Registration Statement, to be filed on or before May 13, 2026 and be effective on or before July 15, 2026, (iv) the remaining balance of the Second Note upon the earlier to occur of (a) closing of the transaction by and between the Company and Olenox Industries, Inc. that is the subject of a Term Sheet dated January 27, 2026 (the “Olenox Transaction”) or (b) receipt by the Company of any proceeds from an Advance under the Standby Equity Purchase Agreement (the SEPA”) that is a component of the RBW Financing, with the first Advance to be on or before August 15, 2026, in which fifty percent (50%) of the net proceeds of each Advance shall be paid directly to the Lender until the Second Note is paid in full; and (v) the outstanding balance of the Fourth Note upon the earlier to occur of (a) closing of the Olenox Transaction, (b) fifty percent (50%) of the net proceeds from an Advance under the SEPA that is a component of the RBW Financing, with the first Advance to occur on or before August 15, 2026 and so long as the Second Note has been repaid in full, on or before November 5, 2026.
Cedarview Forbearance Agreement
On May 6, 2026, the Company entered into a Forbearance Agreement (the “Cedarview Forbearance Agreement”) with Cedarview Opportunities Master Fund, LP (the “Investor”), under which the Investor agreed to forbear its rights under that certain Loan and Security Agreement (the “Cedarview Agreement”), dated February 5, 2024, the senior secured note to the Investor in an aggregate principal amount of $3,000,000 (the “Initial Note”), that certain Loan and Security Agreement, dated October 31, 2024, and a senior secured note to the Investor in an aggregate principal amount of $3,670,160.77 (the “Investor Second Note”, together with the Initial Note, the “Investor Notes”), as those documents have previously been amended, and the Investor agreed to extend the maturity date of the Initial Note and the Second Note to October 31, 2026, so long as the Company (i) make certain prepayments under the Existing Notes from the RBW SEPA or other financings, (ii) pays the Investor $250,000 from the second tranche of the RBW Financing, as a mandatory required prepayment of the Existing Notes, (iii) that if the Company closes the contemplated Olenox Transaction, by no later than the second (2nd) Business Day after such closing, the Company will pledge 2,000,000 shares of Olenox common stock the Company receives in the Olenox Transaction as additional collateral securing the Company’s payment obligations under the Existing Notes, in form and substance satisfactory to the Investor, in its sole discretion, and (iv) the Company issues the Investor 275,000 shares of its common stock, restricted in accordance with Rule 144 (the “Investor Shares”).
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March 2026 Reverse Stock Split
On March 24, 2026, the Company effected a 1-for-200 reverse stock split of its common stock pursuant to a Certificate of Amendment to the Company’s Amended and Restated Articles of Incorporation following shareholder approval obtained at the Company’s Special Meeting held on December 22, 2025.
Relisting On Nasdaq
On April 23, 2026, the Company received a letter (the “April Letter”) from the Listing Qualifications Department (the “Staff”) of The Nasdaq Stock Market LLC (“Nasdaq”) notifying the Company that the Nasdaq Hearing Panel (the “Panel”) determined that the Company is in compliance with the Minimum Bid Price Requirement and that trading in the Company’s securities will resume trading on the Exchange effective April 27, 2026. Pursuant to Listing Rule 5815(d)(4)(B), the Company will be subject to a Mandatory Panel Monitor for a period of one year from the date of the April Letter. In the event that the Company becomes deficient with the Minimum Bid Price Requirement, the Company will not be afforded the opportunity to submit a compliance plan for the Staff’s consideration and the Staff will issue a Delisting Determination Letter, following which the Company may request review by the Panel, at which the Company may present a compliance plan for the Panel’s consideration.
Consulting Agreement
In May 2026, the Company entered into an Independent Contractor Agreement with William Tuorto for consulting services he is performing for the Company dating back to April 1, 2026. In connection with the agreement, the Company issued 69,083 shares of common stock under the 2023 Plan, which shares were issued without a restrictive legend pursuant to a Form S-8 registration statement. Under the terms of the agreement, the consultant is Consultant responsible for assisting in the management and operations related to the Company being a public company; providing advice regarding the strategy of the Company and its subsidiaries; general advice regarding dispositions and/or acquisitions and negotiation assistance, which the Company believes will be beneficial to it; and any other consulting and project management services the Company may stand in need of as communicated in writing (the “Services”). In exchange for the Services, the Company agreed to pay the consultant $50,000 per month, with additional fees due if the Company achieves certain EBITDA thresholds for the quarters ending June 30, 2026, September 30, 2026 and December 31, 2026. The Company also agreed to pay the Consultant a $300,000 contract signing fee. All fees owed to the Consultant are payable in shares of the Company’s common stock, priced at the 52-week low closing price preceding the applicable calendar quarter, with such price not subject to adjustment for stock splits, and payable out of any applicable equity incentive plan the Company has in place that has been registered under Form S-8 so the shares may be issued without a restrictive legend.
Private Financing Transaction (the “Financing”)
Convertible Promissory Notes
The following summary of the Notes does not purport to be complete and is qualified in its entirety by reference to the forms of SPA and Notes filed as exhibits to the registration statement of which this prospectus forms a part.
On May 8, 2026, the Company entered into a Securities Purchase Agreement (the “SPA”) with certain institutional investors (collectively, the “Selling Stockholders”) providing for the issuance of convertible promissory notes (the “Notes”) with aggregate gross proceeds to the Company of up to $12.0 million, before fees and expenses, in two closings. The Notes have an aggregate principal amount of $15.0 million, reflecting a $3.0 million original issue discount of 20%.
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The initial closing occurred on May 8, 2026, pursuant to which the Company received $6.0 million in gross proceeds. A second closing for an additional $6.0 million remains subject to the effectiveness of the registration statement of which this prospectus forms a part and other customary closing conditions pursuant to the terms of the SPA and the Note.
The Notes are convertible into shares of the Company’s Common Stock at a conversion price equal to the greater of $0.37 per share and 80% of the lowest daily volume weighted average price (“VWAP”) of the Company’s common stock during the five trading days immediately preceding conversion.
Conversions under the Notes are generally subject to a 4.99% beneficial ownership limitation, which may be waived upon notice by the applicable holder. In addition, absent shareholder approval, conversions are limited to the extent necessary to comply with Nasdaq’s 19.99% issuance limitation.
The Notes contain customary events of default, including payment and covenant defaults, which may result in acceleration of amounts due under the notes and certain additional default-related remedies, including an increase in the outstanding principal amount upon the occurrence of certain events of default.
The Company agreed to register for resale shares issuable upon conversion of the Notes, and this prospectus forms part of the related registration statement.
The Company intends to use proceeds from the Financing for working capital, debt reduction, and general corporate purposes.
RBW Capital Partners LLC, a division of Dawson James Securities, Inc., acted as placement agent in connection with the Financing.
Standby Equity Purchase Agreement
The following summary of the Standby Equity Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the form of the Standby Equity Purchase Agreement filed as an exhibit to the registration statement of which this prospectus forms a part.
On May 8, 2026, the Company entered into a standby equity purchase agreement (the “SEPA”) with an institutional investor (the “SEPA Investor”) providing for the potential purchase by the SEPA Investor of up to $100 million of the Company’s common stock over a 36-month period, subject to the terms and conditions of the SEPA.
Under the SEPA, the Company may, at its discretion, direct the SEPA Investor to purchase shares of common stock from time to time, subject to specified volume limitations, pricing formulas, and beneficial ownership limitations set forth in the agreement. Shares issued under the SEPA will generally be purchased at a discount to prevailing market prices.
The Company controls the timing and amount of any sales under the SEPA, subject to the terms and limitations contained in the agreement. Actual sales under the SEPA will depend on a variety of factors, including market conditions, trading prices of the Company’s common stock, and the Company’s capital needs.
The Company is required to file a separate registration statement covering shares issuable under the SEPA before any sales may occur under the agreement.
This summary is not a complete description of all of the terms of the related agreements and are qualified in their entirety by reference to the full text of the documents, forms of which are filed as exhibits hereto and/or incorporated by reference into this disclosure from prior filings.
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ITEM 6. EXHIBITS
EXHIBIT INDEX
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35
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| * | Management contract or compensatory plan or arrangement. |
| ** | These exhibits are being furnished rather than filed and shall not be deemed incorporated by reference into any filing, in accordance with Item 601 of Regulation S-K. |
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| VIVAKOR, INC. | ||
| By: | /s/ James Ballengee | |
| James Ballengee | ||
| Chief Executive Officer (Principal Executive Officer) | ||
Date: May 20, 2026
| VIVAKOR, INC. | ||
| By: | /s/ Kimberly Hawley | |
| Kimberly Hawley | ||
| Chief Financial Officer (Principal Financial and Accounting Officer) | ||
Date: May 20, 2026
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Exhibit 10.97
VIVAKOR, INC.
2025 EQUITY AND INCENTIVE PLAN
SECTION 1. GENERAL PURPOSE OF THE PLAN: DEFINITIONS
The name of the plan is the VIVAKOR, INC. 2025 EQUITY AND INCENTIVE PLAN (the “Plan”). The purpose of the Plan is to encourage, retain and enable the officers, employees, directors, Consultants and other key persons of VIVAKOR, INC., a Nevada corporation (including any successor entity, the “Company”) and its Subsidiaries, upon whose judgment, initiative and efforts the Company largely depends for the successful conduct of its business, to acquire a proprietary interest in the Company.
The following terms shall be defined as set forth below:
“Affiliate” of any Person means a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with the first mentioned Person. A Person shall be deemed to control another Person if such first Person possesses directly or indirectly the power to direct, or cause the direction of, the management and policies of the second Person, whether through the ownership of voting securities, by contract or otherwise.
“Award” or “Awards,” except where referring to a particular category of grant under the Plan, shall include Incentive Stock Options, Non-Qualified Stock Options, Stock Appreciation Rights (“SAR”), Restricted Stock Awards (including preferred stock), Unrestricted Stock Awards, Restricted Stock Units, Performance Awards or any combination of the foregoing.
“Award Agreement” means a written or electronic agreement setting forth the terms and provisions applicable to an Award granted under the Plan. Each Award Agreement may contain terms and conditions in addition to those set forth in the Plan; provided, however, in the event of any conflict in the terms of the Plan and the Award Agreement, the terms of the Plan shall govern.
“Board” means the Board of Directors of the Company.
“Cause” shall have the meaning as set forth in the Award Agreement(s). In the case that any Award Agreement does not contain a definition of “Cause,” it shall mean (i) the grantee’s dishonest statements or acts with respect to the Company or any Affiliate of the Company, or any current or prospective customers, suppliers vendors or other third parties with which such entity does business; (ii) the grantee’s commission of (A) a felony or (B) any misdemeanor involving moral turpitude, deceit, dishonesty or fraud; (iii) the grantee’s failure to perform his assigned duties and responsibilities to the reasonable satisfaction of the Company which failure continues, in the reasonable judgment of the Company, after written notice given to the grantee by the Company; (iv) the grantee’s gross negligence, willful misconduct or insubordination with respect to the Company or any Affiliate of the Company; or (v) the grantee’s material violation of any provision of any agreement(s) between the grantee and the Company relating to noncompetition, nonsolicitation, nondisclosure and/or assignment of inventions.
“Chief Executive Officer” means the Chief Executive Officer of the Company or, if there is no Chief Executive Officer, then the President of the Company.
“Code” means the Internal Revenue Code of 1986, as amended, and any successor Code, and related rules, regulations and interpretations.
“Committee” means the Committee of the Board referred to in Section 2.
“Consultant” means any entity or natural person that provides bona fide services to the Company (including a Subsidiary), and such services are not in connection with the offer or sale of securities in a capital-raising transaction and do not directly or indirectly promote or maintain a market for the Company’s securities.
“Disability” means such condition which renders a Person (A) unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expect to last for a continuous period of not less than 12 months, (B) by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than 3 months under an accident and health plan covering employees of the Company, (C) determined to be totally disabled by the Social Security Administration, or (D) determined to be disabled under a disability insurance program which provides for a definition of disability that meets the requirements of this section.
“Effective Date” means the date on which the Plan is adopted as set forth in this Plan.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
“Fair Market Value” of the Stock on any given date means the fair market value of the Stock determined in good faith by the Committee based on the reasonable application of a reasonable valuation method that is consistent with Section 409A of the Code. If the Stock is admitted to trade on a national securities exchange, the determination shall be made by reference to the closing price reported on such exchange. If there is no closing price for such date, the determination shall be made by reference to the last date preceding such date for which there is a closing price. If the date for which Fair Market Value is determined is the first day when trading prices for the Stock are reported on a national securities exchange, the Fair Market Value shall be the “Price to the Public” (or equivalent).
“Good Reason” shall have the meaning as set forth in the Award Agreement(s). In the case that any Award Agreement does not contain a definition of “Good Reason,” it shall mean (i) a material diminution in the grantee’s base salary except for across-the-board salary reductions similarly affecting all or substantially all similarly situated employees of the Company or (ii) a change of more than 100 miles in the geographic location at which the grantee provides services to the Company, so long as the grantee provides at least 90 days’ notice to the Company following the initial occurrence of any such event and the Company fails to cure such event within 30 days thereafter.
“Grant Date” means the date that the Committee designates in its approval of an Award in accordance with applicable law as the date on which the Award is granted, which date may not precede the date of such Committee approval.
“Holder” means, with respect to an Award or any Shares, the Person holding such Award or Shares, including the initial recipient of the Award or any Permitted Transferee.
“Incentive Stock Option” means any Stock Option designated and qualified as an “incentive stock option” as defined in Section 422 of the Code.
“Non-Qualified Stock Option” means any Stock Option that is not an Incentive Stock Option.
“Option” or “Stock Option” means any option to purchase shares of Stock granted pursuant to Section 5.
“Permitted Transferees” shall mean any of the following to whom a Holder may transfer Shares hereunder (as set forth in Section 10(a)(ii)(A)): the Holder’s child, stepchild, grandchild, parent, step-parent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, any person sharing the Holder’s household (other than a tenant or employee), a trust in which these persons have more than fifty percent of the beneficial interest, a foundation in which these persons control the management of assets, and any other entity in which these persons own more than fifty percent of the voting interests; provided, however, that any such trust does not require or permit distribution of any Shares during the term of the Award Agreement unless subject to its terms. Upon the death of the Holder, the term Permitted Transferees shall also include such deceased Holder’s estate, executors, administrators, personal representatives, heirs, legatees and distributees, as the case may be.
“Person” shall mean any individual, corporation, partnership (limited or general), limited liability company, limited liability partnership, association, trust, joint venture, unincorporated organization or any similar entity.
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“Restricted Stock Award” means Awards granted pursuant to Section 7 and “Restricted Stock” means Shares issued pursuant to such Awards.
“Restricted Stock Unit” means an Award of phantom stock units to a grantee, which may be settled in cash or Shares as determined by the Committee, pursuant to Section 9.
“Sale Event” means the consummation of i) a change in the ownership of the Company, ii) a change in effective control of the Company, or iii) a change in the ownership of a substantial portion of the assets of the Company. The occurrence of a Sale Event shall be acknowledged by the plan administrator or board of directors, by strictly applying these provisions without any discretion to deviate from the objective application of the definitions provided herein.; provided, however, that any capital raising event, or a merger effected solely to change the Company’s domicile shall not constitute a “Sale Event.”
Except as otherwise provided herein, a change in the ownership of the Company occurs on the date that any one person, or more than one person acting as a group acquires ownership of stock of the Company that, together with stock held by such person or group, constitutes more than 50 percent of the total fair market value or total voting power of the stock of the Company. However, if any one person, or more than one person acting as a group, is considered to own more than 50 percent of the total fair market value or total voting power of the stock of the Company the acquisition of additional stock by the same person or persons is not considered to cause a change in the ownership of the Company (or to cause a change in the effective control of the Company). An increase in the percentage of stock owned by any one person, or persons acting as a group, as a result of a transaction in which the corporation acquires its stock in exchange for property will be treated as an acquisition of stock for purposes of this section. This section applies only when there is a transfer of stock of the Company (or issuance of stock) which remains outstanding after the transaction.
A change in the effective control of the Company occurs only on either of the following dates: (1) The date any one person, or more than one person acting as a group acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the Company possessing 30 percent or more of the total voting power of the stock of the Company; (2) The date a majority of members of the Company’s board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Company’s board of directors before the date of the appointment or election.
A change in the ownership of a substantial portion of the Company’s assets occurs on the date that any one person, or more than one person acting as a group acquires (or has acquired during the 12- month period ending on the date of the most recent acquisition by such person or persons) assets from the Company that have a total gross fair market value equal to or more than 40 percent of the total gross fair market value of all of the assets of the Company immediately before such acquisition or acquisitions. For this purpose, gross fair market value means the value of the assets of the corporation, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets.
“Section 409A” means Section 409A of the Code and the regulations and other guidance promulgated thereunder.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder.
“Service Relationship” means any relationship as a full-time employee, part-time employee, director or other key person (including Consultants) of the Company or any Subsidiary or any successor entity (e.g., a Service Relationship shall be deemed to continue without interruption in the event an individual’s status changes from full-time employee to part-time employee or Consultant).
“Shares” means shares of Stock.
“Stock” means the Common Stock, par value $0.001 per share, of the Company.
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“Stock Appreciation Right” or “SAR” means any right to receive from the Company upon exercise by an optionee or settlement, in cash, Shares, or a combination thereof, the excess of (i) the Fair Market Value of one Share on the date of exercise or settlement over (ii) the exercise price of the right on the date of grant, or if granted in connection with an Option, on the date of grant of the Option.
“Subsidiary” means any corporation or other entity (other than the Company) in which the Company has more than a 50 percent interest, either directly or indirectly.
“Ten Percent Owner” means an employee who owns or is deemed to own (by reason of the attribution rules of Section 424(d) of the Code) more than 10 percent of the combined voting power of all classes of stock of the Company or any parent of the Company or any Subsidiary.
“Termination Event” means the termination of the Award recipient’s Service Relationship with the Company and its Subsidiaries for any reason whatsoever, regardless of the circumstances thereof, and including, without limitation, upon death, disability, retirement, discharge or resignation for any reason, whether voluntarily or involuntarily. The following shall not constitute a Termination Event: (i) a transfer to the service of the Company from a Subsidiary or from the Company to a Subsidiary, or from one Subsidiary to another Subsidiary or (ii) an approved leave of absence for military service or sickness, or for any other purpose approved by the Committee, if the individual’s right to re-employment is guaranteed either by a statute or by contract or under the policy pursuant to which the leave of absence was granted or if the Committee otherwise so provides in writing.
“Unrestricted Stock Award” means any Award granted pursuant to Section 8 and “Unrestricted Stock” means Shares issued pursuant to such Awards.
SECTION 2. ADMINISTRATION OF PLAN; COMMITTEE AUTHORITY TO SELECT GRANTEES AND DETERMINE AWARDS
(a) Administration of Plan. The Plan shall be administered by the Compensation Committee of the Board, comprised of not less than three directors or the Board of Directors in the absence of a Compensation Committee of the Board. All references herein to the “Committee” shall be deemed to refer to the group then responsible for administration of the Plan at the relevant time (i.e., either the Board of Directors or a committee or committees of the Board, as applicable).
(b) Powers of Committee. The Committee shall have the power and authority to grant Awards consistent with the terms of the Plan, including the power and authority:
(i) to select the individuals to whom Awards may from time to time be granted;
(ii) to determine the time or times of grant, and the amount, if any, of Incentive Stock Options, Non-Qualified Stock Options, SARs, Restricted Stock Awards, Unrestricted Stock Awards, Restricted Stock Units, or any combination of the foregoing, granted to any one or more grantees;
(iii) to determine the number and types of Shares to be covered by any Award and, subject to the provisions of the Plan, the price, exercise price, conversion ratio or other price relating thereto;
(iv) to determine and, subject to Section 13, to modify from time to time the terms and conditions, including restrictions, not inconsistent with the terms of the Plan, of any Award, which terms and conditions may differ among individual Awards and grantees, and to approve the form of Award Agreements;
(v) to accelerate at any time the exercisability or vesting of all or any portion of any Award;
(vi) to impose any limitations on Awards, including limitations on transfers, repurchase provisions and the like, and to exercise repurchase rights or obligations;
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(vii) subject to Section 5(a)(ii) and any restrictions imposed by Section 409A, to extend at any time the period in which Stock Options may be exercised; and
(viii) at any time to adopt, alter and repeal such rules, guidelines and practices for administration of the Plan and for its own acts and proceedings as it shall deem advisable; to interpret the terms and provisions of the Plan and any Award (including Award Agreements); to make all determinations it deems advisable for the administration of the Plan; to decide all disputes arising in connection with the Plan; and to otherwise supervise the administration of the Plan.
All decisions and interpretations of the Committee shall be binding on all persons, including the Company and all Holders.
(c) Award Agreement. Awards under the Plan shall be evidenced by Award Agreements that set forth the terms, conditions and limitations for each Award.
(d) Indemnification. Neither the Board nor the Committee, nor any member of either or any delegate thereof, shall be liable for any act, omission, interpretation, construction or determination made in good faith in connection with the Plan, and the members of the Board and the Committee (and any delegate thereof) shall be entitled in all cases to indemnification and reimbursement by the Company in respect of any claim, loss, damage or expense (including, without limitation, reasonable attorneys’ fees) arising or resulting therefrom to the fullest extent permitted by law and/or under the Company’s governing documents, including its certificate of incorporation or bylaws, or any directors’ and officers’ liability insurance coverage which may be in effect from time to time and/or any indemnification agreement between such individual and the Company.
(e) Foreign Award Recipients. Notwithstanding any provision of the Plan to the contrary, in order to comply with the laws in other countries in which the Company and any Subsidiary operate or have employees or other individuals eligible for Awards, the Committee, in its sole discretion, shall have the power and authority to: (i) determine which Subsidiaries, if any, shall be covered by the Plan; (ii) determine which individuals, if any, outside the United States are eligible to participate in the Plan; (iii) modify the terms and conditions of any Award granted to individuals outside the United States to comply with applicable foreign laws; (iv) establish subplans and modify exercise procedures and other terms and procedures, to the extent the Committee determines such actions to be necessary or advisable (and such subplans and/or modifications shall be attached to the Plan as appendices); provided, however, that no such subplans and/or modifications shall increase the share limitation contained in Section 3(a) hereof; and (v) take any action, before or after an Award is made, that the Committee determines to be necessary or advisable to obtain approval or comply with any local governmental regulatory exemptions or approvals.
SECTION 3. STOCK ISSUABLE UNDER THE PLAN; MERGERS AND OTHER TRANSACTIONS; SUBSTITUTION
(a) Stock Issuable. The maximum number of Shares reserved and available for issuance under the Plan shall be 100,000,000 Shares (the “Share Reserve”), subject to adjustment as provided in Section 3(b) and the following sentence regarding the annual increase. In addition, the Share Reserve will automatically increase on January 1st of each year, for a period of not more than ten years, commencing on January 1, 2026, and ending on (and including) January 1, 2035, in an amount equal to 3,000,000 shares. Notwithstanding the foregoing, the Board may act prior to January 1st of a given year to provide that there will be no January 1st increase in the Share Reserve for such year or that the increase in the Share Reserve for such year will be a lesser number of shares of Stock than would otherwise occur pursuant to the preceding sentence. If a Stock Award or any portion thereof (i) expires or otherwise terminates without all of the shares covered by such Stock Award having been issued or (ii) is settled in cash (i.e., the Participant receives cash rather than stock), the Shares subject to such Stock Award, to the extent of any such expiration, termination or settlement, will again be available for issuance under the Plan. If any shares of Stock issued pursuant to a Stock Award are forfeited back to or repurchased by the Company because of the failure to meet a contingency or condition required to vest such shares in the Participant, then the shares that are forfeited or repurchased will revert to and again become available for issuance under the Plan. Any shares reacquired by the Company in satisfaction of tax withholding obligations on a Stock Award or as consideration for the exercise or purchase price of a Stock Award will again become available for issuance under the Plan. For purposes of this limitation, the Shares underlying any Awards that are forfeited, canceled, reacquired by the Company prior to vesting, satisfied without the issuance of Stock or otherwise terminated (other than by exercise) shall be added back to the Shares available for issuance under the Plan. Subject to such overall limitations, Shares may be issued up to such maximum number pursuant to any type or types of Award, and no more than 5,000,000 Shares may be issued pursuant to Incentive Stock Options. The value of any Shares granted to a non-employee director of the Company, solely for services as a director, when added to any annual cash payments or awards, shall not exceed an aggregate value of four hundred thousand dollars ($400,000) in any calendar year.
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(b) Changes in Stock. Subject to Section 3(c) hereof, if, as a result of any reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in the Company’s capital stock, the outstanding Shares are increased or decreased or are exchanged for a different number or kind of shares or other securities of the Company, or additional Shares or new or different shares or other securities of the Company or other non-cash assets are distributed with respect to such Shares or other securities, in each case, without the receipt of consideration by the Company, or, if, as a result of any merger or consolidation, or sale of all or substantially all of the assets of the Company, the outstanding Shares are converted into or exchanged for other securities of the Company or any successor entity (or a parent or subsidiary thereof), the Committee shall make an appropriate and proportionate adjustment in (i) the maximum number of Shares reserved for issuance under the Plan, (ii) the number and kind of Shares or other securities subject to any then outstanding Awards under the Plan, (iii) the repurchase price, if any, per Share subject to each outstanding Award, and (iv) the exercise price for each Share subject to any then outstanding Stock Options under the Plan, without changing the aggregate exercise price (i.e., the exercise price multiplied by the number of Stock Options) as to which such Stock Options remain exercisable. The Committee shall in any event make such adjustments as may be required by the laws of Nevada and the rules and regulations promulgated thereunder. The adjustment by the Committee shall be final, binding and conclusive. No fractional Shares shall be issued under the Plan resulting from any such adjustment, but the Committee in its discretion may make a cash payment in lieu of fractional shares.
(c) Sale Events.
(i) Options.
(A) In the case of and subject to the consummation of a Sale Event, the Plan and all outstanding Options and SARs issued hereunder shall become one hundred percent (100%) vested upon the effective time of any such Sale Event. New stock options or other awards of the successor entity or parent thereof shall be substituted therefor, with an equitable or proportionate adjustment as to the number and kind of shares and, if appropriate, the per share exercise prices, as such parties shall agree (after taking into account any acceleration hereunder and/or pursuant to the terms of any Award Agreement).
(B) In the event of the termination of the Plan and all outstanding Options and SARs issued hereunder pursuant to Section 3(c), each Holder of Options shall be permitted, within a period of time prior to the consummation of the Sale Event as specified by the Committee, to exercise all such Options or SARs which are then exercisable or will become exercisable as of the effective time of the Sale Event; provided, however, that the exercise of Options not exercisable prior to the Sale Event shall be subject to the consummation of the Sale Event.
(C) Notwithstanding anything to the contrary in Section 3(c)(i)(A), in the event of a Sale Event, the Company shall have the right, but not the obligation, to make or provide for a cash payment to the Holders of Options, without any consent of the Holders, in exchange for the cancellation thereof, in an amount equal to the difference between (A) the value as determined by the Committee of the consideration payable per share of Stock pursuant to the Sale Event (the “Sale Price”) times the number of Shares subject to outstanding Options being cancelled (to the extent then vested and exercisable, including by reason of acceleration in connection with such Sale Event, at prices not in excess of the Sale Price) and (B) the aggregate exercise price of all such outstanding vested and exercisable Options.
(ii) Restricted Stock and Restricted Stock Unit Awards.
(A) In the case of and subject to the consummation of a Sale Event, all unvested Restricted Stock and unvested Restricted Stock Unit Awards issued hereunder shall become one hundred percent (100%) vested, with an equitable or proportionate adjustment as to the number and kind of shares subject to such awards as such parties shall agree (after taking into account any acceleration hereunder and/or pursuant to the terms of any Award Agreement).
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(B) Such Restricted Stock shall be repurchased from the Holder thereof at the then Fair Market Value of such shares, (subject to adjustment as provided in Section 3(b)) for such Shares.
(C) Notwithstanding anything to the contrary in Section 3(c)(ii)(A), in the event of a Sale Event, the Company shall have the right, but not the obligation, to make or provide for a cash payment to the Holders of Restricted Stock or Restricted Stock Unit Awards, without consent of the Holders, in exchange for the cancellation thereof, in an amount equal to the Sale Price times the number of Shares subject to such Awards, to be paid at the time of such Sale Event or upon the later vesting of such Awards.
SECTION 4. ELIGIBILITY
Grantees under the Plan will be such full or part-time officers and other employees, directors, Consultants and key persons of the Company and any Subsidiary who are selected from time to time by the Committee in its sole discretion; provided, however, that Awards shall be granted only to those individuals described in Rule 701(c) of the Securities Act.
SECTION 5. STOCK OPTIONS
Upon the grant of a Stock Option, the Company and the grantee shall enter into an Award Agreement. The terms and conditions of each such Award Agreement shall be determined by the Committee, and such terms and conditions may differ among individual Awards and grantees.
Stock Options granted under the Plan may be either Incentive Stock Options or Non-Qualified Stock Options. Incentive Stock Options may be granted only to employees of the Company or any Subsidiary that is a “subsidiary corporation” within the meaning of Section 424(f) of the Code. To the extent that any Option does not qualify as an Incentive Stock Option, it shall be deemed a Non-Qualified Stock Option.
(a) Terms of Stock Options. The Committee in its discretion may grant Stock Options to those individuals who meet the eligibility requirements of Section 4. Stock Options shall be subject to the following terms and conditions and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Committee shall deem desirable.
(i) Exercise Price. The exercise price per share for the Shares covered by a Stock Option shall be determined by the Committee at the time of grant but shall not be less than 100 percent of the Fair Market Value on the Grant Date. In the case of an Incentive Stock Option that is granted to a Ten Percent Owner, the exercise price per share for the Shares covered by such Incentive Stock Option shall not be less than 110 percent of the Fair Market Value on the Grant Date.
(ii) Option Term. The term of each Stock Option shall be fixed by the Committee, but no Stock Option shall be exercisable more than ten years from the Grant Date. In the case of an Incentive Stock Option that is granted to a Ten Percent Owner, the term of such Stock Option shall be no more than five years from the Grant Date.
(iii) Exercisability; Rights of a Stockholder. Stock Options shall become exercisable and/or vested at such time or times, whether or not in installments, as shall be determined by the Committee at or after the Grant Date. The Award Agreement may permit a grantee to exercise all or a portion of a Stock Option immediately at grant; provided that the Shares issued upon such exercise shall be subject to restrictions and a vesting schedule identical to the vesting schedule of the related Stock Option, such Shares shall be deemed to be Restricted Stock for purposes of the Plan, and the optionee may be required to enter into an additional or new Award Agreement as a condition to exercise of such Stock Option. An optionee shall have the rights of a stockholder only as to Shares acquired upon the exercise of a Stock Option and not as to unexercised Stock Options. An optionee shall not be deemed to have acquired any Shares unless and until a Stock Option shall have been exercised pursuant to the terms of the Award Agreement and this Plan and the optionee’s name has been entered on the books of the Company as a stockholder.
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(iv) Method of Exercise. Stock Options may be exercised by an optionee in whole or in part, by the optionee giving written or electronic notice of exercise to the Company, specifying the number of Shares to be purchased. Payment of the purchase price may be made by one or more of the following methods (or any combination thereof) to the extent provided in the Award Agreement:
(A) In cash, by certified or bank check, by wire transfer of immediately available funds, or other instrument acceptable to the Committee;
(B) If permitted by the Committee, by the optionee delivering to the Company a promissory note, if the Board has expressly authorized the loan of funds to the optionee for the purpose of enabling or assisting the optionee to effect the exercise of his or her Stock Option; provided, that at least so much of the exercise price as represents the par value of the Stock shall be paid in cash if required by state law;
(C) If permitted by the Committee, through the delivery (or attestation to the ownership) of Shares that have been purchased by the optionee on the open market or that are beneficially owned by the optionee and are not then subject to restrictions under any Company plan. To the extent required to avoid variable accounting treatment under applicable accounting rules, such surrendered Shares if originally purchased from the Company shall have been owned by the optionee for at least six months. Such surrendered Shares shall be valued at Fair Market Value on the exercise date;
(D) If permitted by the Committee and by the optionee delivering to the Company a properly executed exercise notice together with irrevocable instructions to a broker to promptly deliver to the Company cash or a check payable and acceptable to the Company for the purchase price; provided that in the event the optionee chooses to pay the purchase price as so provided, the optionee and the broker shall comply with such procedures and enter into such agreements of indemnity and other agreements as the Committee shall prescribe as a condition of such payment procedure; or
(E) If permitted by the Committee, and only with respect to Stock Options that are not Incentive Stock Options, by a “net exercise” arrangement pursuant to which the Company will reduce the number of Shares issuable upon exercise by the largest whole number of Shares with a Fair Market Value that does not exceed the aggregate exercise price.
Payment instruments will be received subject to collection. No certificates for Shares so purchased will be issued to the optionee or, with respect to uncertificated Stock, no transfer to the optionee on the records of the Company will take place, until the Company has completed all steps it has deemed necessary to satisfy legal requirements relating to the issuance and sale of the Shares, which steps may include, without limitation, (i) receipt of a representation from the optionee at the time of exercise of the Option that the optionee is purchasing the Shares for the optionee’s own account and not with a view to any sale or distribution of the Shares or other representations relating to compliance with applicable law governing the issuance of securities, (ii) the legending of the certificate (or notation on any book entry) representing the Shares to evidence the foregoing restrictions, and (iii) obtaining from optionee payment or provision for all withholding taxes due as a result of the exercise of the Option. The delivery of certificates representing the shares of Stock (or the transfer to the optionee on the records of the Company with respect to uncertificated Stock) to be purchased pursuant to the exercise of a Stock Option will be contingent upon (A) receipt from the optionee (or a purchaser acting in his or her stead in accordance with the provisions of the Stock Option) by the Company of the full purchase price for such Shares and the fulfilment of any other requirements contained in the Award Agreement or applicable provisions of laws and (B) if required by the Company, the optionee shall have entered into any stockholders agreements or other agreements with the Company and/or certain other of the Company’s stockholders relating to the Stock. In the event an optionee chooses to pay the purchase price by previously-owned Shares through the attestation method, the number of Shares transferred to the optionee upon the exercise of the Stock Option shall be net of the number of Shares attested to by the Optionee.
(b) Annual Limit on Incentive Stock Options. To the extent required for “incentive stock option” treatment under Section 422 of the Code, the aggregate Fair Market Value (determined as of the Grant Date) of the Shares with respect to which Incentive Stock Options granted under the Plan and any other plan of the Company or its parent and any Subsidiary that become exercisable for the first time by an optionee during any calendar year shall not exceed $100,000 or such other limit as may be in effect from time to time under Section 422 of the Code. To the extent that any Stock Option exceeds this limit, it shall constitute a Non-Qualified Stock Option.
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(c) Termination. Any portion of a Stock Option that is not vested and exercisable on the date of termination of an optionee’s Service Relationship shall immediately expire and be null and void. Once any portion of the Stock Option becomes vested and exercisable, the optionee’s right to exercise such portion of the Stock Option (or the optionee’s representatives and legatees as applicable) in the event of a termination of the optionee’s Service Relationship shall continue until the earliest of: (i) the date which is: (A) 12 months following the date on which the optionee’s Service Relationship terminates due to death or Disability (or such longer period of time as determined by the Committee and set forth in the applicable Award Agreement), or (B) three months following the date on which the optionee’s Service Relationship terminates if the termination is due to any reason other than death or Disability (or such longer period of time as determined by the Committee and set forth in the applicable Award Agreement), or (ii) the Expiration Date set forth in the Award Agreement; provided that notwithstanding the foregoing, an Award Agreement may provide that if the optionee’s Service Relationship is terminated for Cause, the Stock Option shall terminate immediately and be null and void upon the date of the optionee’s termination and shall not thereafter be exercisable.
SECTION 6. STOCK APPRECIATION RIGHTS
The Committee is authorized to grant SARs to optionees with the following terms and conditions and with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Committee shall determine –
(a) SARs may be granted under the Plan to optionees either alone or in addition to other Awards granted under the Plan and may, but need not, relate to specific Option granted under Section 5.
(b) The exercise price per Share under a SAR shall be determined by the Committee, provided, however, that except in the case of a substitute Award, such exercise price shall not be less than the fair market value of a Share on the date of grant of such SAR.
(c) The term of each SAR shall be fixed by the Committee but shall not exceed 10 years from the date of grant of such SAR.
(d) The Committee shall determine the time or times at which a SAR may be exercised or settled in whole or in part. Unless otherwise determined by the Committee or unless otherwise set forth in an Award Agreement, the provisions set forth in Section 5 above with respect to exercise of an Award following termination of service shall apply to any SAR. The Committee may specify in an Award Agreement that an “in-the-money” SAR shall be automatically exercised on its expiration date.
SECTION 7. RESTRICTED STOCK AWARDS
(a) Nature of Restricted Stock Awards. The Committee may, in its sole discretion, grant (or sell at par value or such other purchase price determined by the Committee) to an eligible individual under Section 4 hereof a Restricted Stock Award under the Plan. The Committee shall determine the restrictions and conditions applicable to each Restricted Stock Award at the time of grant. Conditions may be based on the type of stock upon which restrictions are placed, continuing employment (or other Service Relationship), achievement of pre-established performance goals and objectives and/or such other criteria as the Committee may determine. Upon the grant of a Restricted Stock Award, the Company and the grantee shall enter into an Award Agreement. The terms and conditions of each such Award Agreement shall be determined by the Committee, and such terms and conditions may differ among individual Awards and grantees.
(b) Rights as a Stockholder. Upon the grant of the Restricted Stock Award and payment of any applicable purchase price, a grantee of Restricted Stock shall be considered the record owner of and shall be entitled to vote the Restricted Stock if, and to the extent, such Shares are entitled to voting rights, subject to such conditions contained in the Award Agreement. The grantee shall be entitled to receive all dividends and any other distributions declared on the Shares; provided, however, that the Company is under no duty to declare any such dividends or to make any such distribution. Unless the Committee shall otherwise determine, certificates evidencing the Restricted Stock shall remain in the possession of the Company until such Restricted Stock is vested as provided in subsection (d) below of this Section, and the grantee shall be required, as a condition of the grant, to deliver to the Company a stock power endorsed in blank and such other instruments of transfer as the Committee may prescribe.
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(c) Restrictions. Restricted Stock may not be sold, assigned, transferred, pledged or otherwise encumbered or disposed of except as specifically provided herein or in the Award Agreement. Except as may otherwise be provided by the Committee either in the Award Agreement or, subject to Section 13 below, in writing after the Award Agreement is issued, if a grantee’s Service Relationship with the Company and any Subsidiary terminates, the Company or its assigns shall have the right, as may be specified in the relevant instrument, to repurchase some or all of the Shares subject to the Award at such purchase price as is set forth in the Award Agreement.
(d) Vesting of Restricted Stock. The Committee at the time of grant shall specify in the Award Agreement the date or dates and/or the attainment of pre-established performance goals, objectives and other conditions on which the substantial risk of forfeiture imposed shall lapse and the Restricted Stock shall become vested, subject to such further rights of the Company or its assigns as may be specified in the Award Agreement.
SECTION 8. UNRESTRICTED STOCK AWARDS
The Committee may, in its sole discretion, grant (or sell at par value or such other purchase price determined by the Committee) to an eligible person under Section 4 hereof an Unrestricted Stock Award under the Plan. Unrestricted Stock Awards may be granted in respect of past services or other valid consideration, or in lieu of cash compensation due to such grantee.
SECTION 9. RESTRICTED STOCK UNITS
(a) Nature of Restricted Stock Units. The Committee may, in its sole discretion, grant to an eligible person under Section 4 hereof Restricted Stock Units under the Plan. The Committee shall determine the restrictions and conditions applicable to each Restricted Stock Unit at the time of grant. Vesting conditions may be based on continuing employment (or other Service Relationship), achievement of pre-established performance goals and objectives which may be based on targets for revenue, revenue growth, EBITDA, net income, earnings per share and/or other such criteria as the Committee may determine. Upon the grant of Restricted Stock Units, the grantee and the Company shall enter into an Award Agreement. The terms and conditions of each such Award Agreement shall be determined by the Committee and may differ among individual Awards and grantees. On or promptly following the vesting date or dates applicable to any Restricted Stock Unit, but in no event later than March 15 of the year following the year in which such vesting occurs, such Restricted Stock Unit(s) shall be settled in the form of cash or shares of Stock, as specified in the Award Agreement. Restricted Stock Units may not be sold, assigned, transferred, pledged, or otherwise encumbered or disposed of.
(b) Rights as a Stockholder. A grantee shall have the rights of a stockholder only as to Shares, if any, acquired upon settlement of Restricted Stock Units. A grantee shall not be deemed to have acquired any such Shares unless and until the Restricted Stock Units shall have been settled in Shares pursuant to the terms of the Plan and the Award Agreement, the Company shall have issued and delivered a certificate representing the Shares to the grantee (or transferred on the records of the Company with respect to uncertificated stock), and the grantee’s name has been entered in the books of the Company as a stockholder.
(c) Termination. Except as may otherwise be provided by the Committee either in the Award Agreement or in writing after the Award Agreement is issued, a grantee’s right in all Restricted Stock Units that have not vested shall automatically terminate upon the grantee’s cessation of Service Relationship with the Company and any Subsidiary for any reason.
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SECTION 10. TRANSFER RESTRICTIONS; COMPANY RIGHT OF FIRST REFUSAL; COMPANY REPURCHASE RIGHTS
(a) Restrictions on Transfer.
(i) Non-Transferability of Certain Awards. Restricted Stock awards granted under Section 7, Stock Options, SARs and, prior to exercise, the Shares issuable upon exercise of such Stock Option, shall not be transferable by the optionee otherwise than by will, or by the laws of descent and distribution, and all Stock Options shall be exercisable, during the optionee’s lifetime, only by the optionee, or by the optionee’s legal representative or guardian in the event of the optionee’s incapacity. Notwithstanding the foregoing, the Committee, in its sole discretion, may provide in the Award Agreement regarding a given Stock Option or Restricted Stock award that the optionee may transfer by gift, without consideration for the transfer, his or her Non-Qualified Stock Options to his or her family members (as defined in Rule 701 of the Securities Act), to trusts for the benefit of such family members, or to partnerships in which such family members are the only partners (to the extent such trusts or partnerships are considered “family members” for purposes of Rule 701 of the Securities Act), provided that the transferee agrees in writing with the Company to be bound by all of the terms and conditions of this Plan and the applicable Award Agreement, including the execution of a stock power upon the issuance of Shares. Stock Options, SARs and the Shares issuable upon exercise of such Stock Options, shall be restricted as to any pledge, hypothecation, or other transfer, including any short position, any “put equivalent position” (as defined in the Exchange Act) or any “call equivalent position” (as defined in the Exchange Act) prior to exercise.
(ii) Shares. No Shares shall be sold, assigned, transferred, pledged, hypothecated, given away or in any other manner disposed of or encumbered, whether voluntarily or by operation of law, unless (i) the transfer is in compliance with the terms of the applicable Award Agreement, all applicable securities laws (including, without limitation, the Securities Act), and with the terms and conditions of this Section 10, (ii) the transfer does not cause the Company to become subject to the reporting requirements of the Exchange Act, and the transferee consents in writing to be bound by the provisions of the Plan and the Award Agreement, including this Section 10. In connection with any proposed transfer, the Committee may require the transferor to provide at the transferor’s own expense an opinion of counsel to the transferor, satisfactory to the Committee, that such transfer is in compliance with all foreign, federal and state securities laws (including, without limitation, the Securities Act). Any attempted transfer of Shares not in accordance with the terms and conditions of this Section 10 shall be null and void, and the Company shall not reflect on its records any change in record ownership of any Shares as a result of any such transfer, shall otherwise refuse to recognize any such transfer and shall not in any way give effect to any such transfer of Shares. The Company shall be entitled to seek protective orders, injunctive relief and other remedies available at law or in equity including, without limitation, seeking specific performance or the rescission of any transfer not made in strict compliance with the provisions of this Section 10. Subject to the foregoing general provisions, and unless otherwise provided in the applicable Award Agreement, Shares may be transferred pursuant to the following specific terms and conditions (provided that with respect to any transfer of Restricted Stock, all vesting and forfeiture provisions shall continue to apply with respect to the original recipient):
(A) Transfers to Permitted Transferees. The Holder may transfer any or all of the Shares to one or more Permitted Transferees; provided, however, that following such transfer, such Shares shall continue to be subject to the terms of this Plan (including this Section 10) and such Permitted Transferee(s) shall, as a condition to any such transfer, deliver a written acknowledgment to that effect to the Company and shall deliver a stock power to the Company with respect to the Shares. Notwithstanding the foregoing, the Holder may not transfer any of the Shares to a Person whom the Company reasonably determines is a direct competitor or a potential competitor of the Company or any of its Subsidiaries.
(B) Transfers Upon Death. Upon the death of the Holder, any Shares then held by the Holder at the time of such death and any Shares acquired after the Holder’s death by the Holder’s legal representative shall be subject to the provisions of this Plan, and the Holder’s estate, executors, administrators, personal representatives, heirs, legatees and distributees shall be obligated to convey such Shares to the Company or its assigns under the terms contemplated by the Plan and the Award Agreement.
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(b) Right of First Refusal. In the event that a Holder desires at any time to sell or otherwise transfer all or any part of his or her Shares (other than shares of Restricted Stock which by their terms are not transferrable), the Holder first shall give written notice to the Company of the Holder’s intention to make such transfer. Such notice shall state the number of Shares that the Holder proposes to sell (the “Offered Shares”), the price and the terms at which the proposed sale is to be made and the name and address of the proposed transferee. At any time within 30 days after the receipt of such notice by the Company, the Company or its assigns may elect to purchase all or any portion of the Offered Shares at the price and on the terms offered by the proposed transferee and specified in the notice. The Company or its assigns shall exercise this right by mailing or delivering written notice to the Holder within the foregoing 30-day period. If the Company or its assigns elect to exercise its purchase rights under this Section 10(b), the closing for such purchase shall, in any event, take place within 45 days after the receipt by the Company of the initial notice from the Holder. In the event that the Company or its assigns do not elect to exercise such purchase right, or in the event that the Company or its assigns do not pay the full purchase price within such 45-day period, the Holder shall be required to pay a transaction processing fee of $10,000 to the Company (unless waived by the Committee) and then may, within 60 days thereafter, sell the Offered Shares to the proposed transferee and at the same price and on the same terms as specified in the Holder’s notice. Any Shares not sold to the proposed transferee shall remain subject to the Plan. If the Holder is a party to any stockholders agreements or other agreements with the Company and/or certain other of the Company’s stockholders relating to the Shares, (i) the transferring Holder shall comply with the requirements of such stockholders agreements or other agreements relating to any proposed transfer of the Offered Shares, and (ii) any proposed transferee that purchases Offered Shares shall enter into such stockholders agreements or other agreements with the Company and/or certain of the Company’s stockholders relating to the Offered Shares on the same terms and in the same capacity as the transferring Holder.
(c) Company’s Right of Repurchase.
(i) Right of Repurchase for Unvested Shares Issued Upon the Exercise of an Option. Upon a Termination Event, the Company or its assigns shall have the right and option to repurchase from a Holder of Shares acquired upon exercise of a Stock Option which is still subject to a risk of forfeiture as of the Termination Event. Such repurchase rights may be exercised by the Company within the later of (A) six months following the date of such Termination Event or (B) seven months after the acquisition of Shares upon exercise of a Stock Option. The repurchase price shall be equal to the lower of the original per share price paid by the Holder, subject to adjustment as provided in Section 3(b) of the Plan, or the current Fair Market Value of such Shares as of the date the Company elects to exercise its repurchase rights.
(ii) Right of Repurchase With Respect to Restricted Stock. Upon a Termination Event, the Company or its assigns shall have the right and option to repurchase from a Holder of Shares received pursuant to a Restricted Stock Award any Shares that are still subject to a risk of forfeiture as of the Termination Event. Such repurchase right may be exercised by the Company within six months following the date of such Termination Event. The repurchase price shall be the lower of the original per share purchase price paid by the Holder, subject to adjustment as provided in Section 3(b) of the Plan, or the current Fair Market Value of such Shares as of the date the Company elects to exercise its repurchase rights.
(iii) Procedure. Any repurchase right of the Company shall be exercised by the Company or its assigns by giving the Holder written notice on or before the last day of the repurchase period of its intention to exercise such repurchase right. Upon such notification, the Holder shall promptly surrender to the Company, free and clear of any liens or encumbrances, any certificates representing the Shares being purchased, together with a duly executed stock power for the transfer of such Shares to the Company or the Company’s assignee or assignees. Upon the Company’s or its assignee’s receipt of the certificates from the Holder, the Company or its assignee or assignees shall deliver to him, her or them a check for the applicable repurchase price; provided, however, that the Company may pay the repurchase price by offsetting and canceling any indebtedness then owed by the Holder to the Company.
(d) Escrow Arrangement.
(i) Escrow. In order to carry out the provisions of this Section 10 of this Plan more effectively, the Company shall hold any Shares issued pursuant to Awards granted under the Plan in escrow together with separate stock powers executed by the Holder in blank for transfer. The Company shall not dispose of the Shares except as otherwise provided in this Plan. In the event of any repurchase by the Company (or any of its assigns), the Company is hereby authorized by the Holder, as the Holder’s attorney-in-fact, to date and complete the stock powers necessary for the transfer of the Shares being purchased and to transfer such Shares in accordance with the terms hereof. At such time as any Shares are no longer subject to the Company’s repurchase and first refusal rights, the Company shall, at the written request of the Holder, deliver to the Holder a certificate representing such Shares with the balance of the Shares to be held in escrow pursuant to this Section.
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(ii) Remedy. Without limitation of any other provision of this Plan or other rights, in the event that a Holder or any other Person is required to sell a Holder’s Shares pursuant to the provisions of Sections 10(b) or (c) hereof and in the further event that he or she refuses or for any reason fails to deliver to the Company or its designated purchaser of such Shares the certificate or certificates evidencing such Shares together with a related stock power, the Company or such designated purchaser may deposit the applicable purchase price for such Shares with a bank designated by the Company, or with the Company’s independent public accounting firm, as agent or trustee, or in escrow, for such Holder or other Person, to be held by such bank or accounting firm for the benefit of and for delivery to him, her, them or it, and/or, in its discretion, pay such purchase price by offsetting any indebtedness then owed by such Holder as provided above. Upon any such deposit and/or offset by the Company or its designated purchaser of such amount and upon notice to the Person who was required to sell the Shares to be sold pursuant to the provisions of Sections 10(b) or (c), such Shares shall at such time be deemed to have been sold, assigned, transferred and conveyed to such purchaser, such Holder shall have no further rights thereto (other than the right to withdraw the payment thereof held in escrow, if applicable), and the Company shall record such transfer in its stock transfer book or in any appropriate manner.
(e) Lockup Provision. If requested by the Company, a Holder shall not sell or otherwise transfer or dispose of any Shares (including, without limitation, pursuant to Rule 144 under the Securities Act) held by him or her for such period following the effective date of a public offering by the Company of Shares as the Company shall specify reasonably and in good faith. If requested by the underwriter engaged by the Company, each Holder shall execute a separate letter confirming his or her agreement to comply with this Section.
(f) Adjustments for Changes in Capital Structure. If, as a result of any reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in the Common Stock, the outstanding Shares are increased or decreased or are exchanged for a different number or kind of securities of the Company, the restrictions contained in this Section 10 shall apply with equal force to additional and/or substitute securities, if any, received by Holder in exchange for, or by virtue of his or her ownership of, Shares.
(g) Termination. The terms and provisions of Section 10(b) and Section 10(c) (except for the Company’s right to repurchase Shares still subject to a risk of forfeiture upon a Termination Event) shall terminate upon consummation of any Sale Event, in either case as a result of which Shares are registered under Section 12 of the Exchange Act and publicly-traded on any national security exchange.
SECTION 11. TAX WITHHOLDING
(a) Payment by Grantee. Each grantee shall, no later than the date as of which the value of an Award or of any Shares or other amounts received thereunder first becomes includable in the gross income of the grantee for income tax purposes, pay to the Company, or make arrangements satisfactory to the Committee regarding payment of, any Federal, state, or local taxes of any kind required by law to be withheld by the Company with respect to such income. The Company and any Subsidiary shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to the grantee. The Company’s obligation to deliver stock certificates (or evidence of book entry) to any grantee is subject to and conditioned on any such tax withholding obligations being satisfied by the grantee.
(b) Payment in Stock. The Company’s minimum required tax withholding obligation may be satisfied, in whole or in part, by the Company withholding from Shares to be issued pursuant to an Award a number of Shares having an aggregate Fair Market Value (as of the date the withholding is effected) that would satisfy the minimum withholding amount due.
SECTION 12. SECTION 409A AWARDS
To the extent that any Award is determined to constitute “nonqualified deferred compensation” within the meaning of Section 409A (a “409A Award”), the Award shall be subject to such additional rules and requirements as may be specified by the Committee from time to time. In this regard, if any amount under a 409A Award is payable upon a “separation from service” (within the meaning of Section 409A) to a grantee who is considered a “specified employee” (within the meaning of Section 409A), then no such payment shall be made prior to the date that is the earlier of (i) six months and one day after the grantee’s separation from service, or (ii) the grantee’s death, but only to the extent such delay is necessary to prevent such payment from being subject to interest, penalties and/or additional tax imposed pursuant to Section 409A. The Company makes no representation or warranty and shall have no liability to any grantee under the Plan or any other Person with respect to any penalties or taxes under Section 409A that are, or may be, imposed with respect to any Award. It is the intent of the Board that payments and benefits under the Plan comply with or be exempt from Section 409A and the regulations and guidance promulgated thereunder and, accordingly, to the maximum extent permitted the Plan shall be interpreted to be in compliance therewith or exempt therefrom. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed upon a Participant by Section 409A or damages to a Participant for failing to comply with Section 409A.
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SECTION 13. AMENDMENTS AND TERMINATION
The Board may, at any time, amend or discontinue the Plan and the Committee may, at any time, amend or cancel any outstanding Award for the purpose of satisfying changes in law or for any other lawful purpose, but no such action shall adversely affect rights under any outstanding Award without the consent of the holder of the Award. The Committee may exercise its discretion to reduce the exercise price of outstanding Stock Options or effect repricing through cancellation of outstanding Stock Options and by granting such holders new Awards in replacement of the cancelled Stock Options. To the extent determined by the Committee to be required either by the Code to ensure that Incentive Stock Options granted under the Plan are qualified under Section 422 of the Code or otherwise, Plan amendments shall be subject to approval by the Company stockholders entitled to vote at a meeting of stockholders. Nothing in this Section 13 shall limit the Board’s or Committee’s authority to take any action permitted pursuant to Section 3(c). The Board reserves the right to amend the Plan and/or the terms of any outstanding Stock Options to the extent reasonably necessary to comply with the requirements of the exemption pursuant to Rule 12h-1 of the Exchange Act.
SECTION 14. STATUS OF PLAN
With respect to the portion of any Award that has not been exercised and any payments in cash, Stock or other consideration not received by a grantee, a grantee shall have no rights greater than those of a general creditor of the Company unless the Committee shall otherwise expressly so determine in connection with any Award.
SECTION 15. GENERAL PROVISIONS
(a) No Distribution; Compliance with Legal Requirements. The Committee may require each person acquiring Shares pursuant to an Award to represent to and agree with the Company in writing that such person is acquiring the Shares without a view to distribution thereof. No Shares shall be issued pursuant to an Award until all applicable securities law and other legal and stock exchange or similar requirements have been satisfied. The Committee may require the placing of such stop-orders and restrictive legends on certificates for Stock and Awards, as it deems appropriate.
(b) Delivery of Stock Certificates. Stock certificates to grantees under the Plan shall be deemed delivered for all purposes when the Company or a stock transfer agent of the Company shall have mailed such certificates in the United States mail, addressed to the grantee, at the grantee’s last known address on file with the Company; provided that stock certificates to be held in escrow pursuant to Section 10 of the Plan shall be deemed delivered when the Company shall have recorded the issuance in its records. Uncertificated Stock shall be deemed delivered for all purposes when the Company or a stock transfer agent of the Company shall have given to the grantee by electronic mail (with proof of receipt) or by United States mail, addressed to the grantee, at the grantee’s last known address on file with the Company, notice of issuance and recorded the issuance in its records (which may include electronic “book entry” records).
(c) No Employment Rights. The adoption of the Plan and the grant of Awards do not confer upon any Person any right to continued employment or Service Relationship with the Company or any Subsidiary.
(d) Trading Policy Restrictions. Option exercises and other Awards under the Plan shall be subject to the Company’s insider trading policy-related restrictions, terms and conditions as may be established by the Committee, or in accordance with policies set by the Committee, from time to time.
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(e) Designation of Beneficiary. Each grantee to whom an Award has been made under the Plan may designate a beneficiary or beneficiaries to exercise any Award on or after the grantee’s death or receive any payment under any Award payable on or after the grantee’s death. Any such designation shall be on a form provided for that purpose by the Committee and shall not be effective until received by the Committee. If no beneficiary has been designated by a deceased grantee, or if the designated beneficiaries have predeceased the grantee, the beneficiary shall be the grantee’s estate.
(f) Legend. Any certificate(s) representing the Shares shall carry substantially the following legend (and with respect to uncertificated Stock, the book entries evidencing such shares shall contain the following notation):
The transferability of this certificate and the shares of stock represented hereby are subject to the restrictions, terms and conditions (including repurchase and restrictions against transfers contained in the Plan and any agreements entered into thereunder by and between the company and the holder of this certificate (a copy of which is available at the offices of the company for examination).
(g) Information to Holders of Options. In the event the Company is relying on the exemption from the registration requirements of Section 12(g) of the Exchange Act contained in paragraph (f)(1) of Rule 12h-1 of the Exchange Act, the Company shall provide the information described in Rule 701(e)(3), (4) and (5) of the Securities Act to all holders of Options in accordance with the requirements thereunder. The foregoing notwithstanding, the Company shall not be required to provide such information unless the option holder has agreed in writing, on a form prescribed by the Company, to keep such information confidential.
SECTION 16. EFFECTIVE DATE OF PLAN
The Plan shall become effective upon adoption by the Board and shall be approved by stockholders in accordance with applicable state law and the Company’s articles of incorporation and bylaws within 12 months thereafter. If the stockholders fail to approve the Plan within 12 months after its adoption by the Board of Directors, then any Awards granted or sold under the Plan shall be rescinded and no additional grants or sales shall thereafter be made under the Plan. Subject to such approval by stockholders and to the requirement that no Shares may be issued hereunder prior to such approval, Stock Options and other Awards may be granted hereunder on and after adoption of the Plan by the Board. No grants of Stock Options and other Awards may be made hereunder after the tenth anniversary of the date the Plan is adopted by the Board or the date the Plan is approved by the Company’s stockholders, whichever is earlier.
SECTION 17. GOVERNING LAW
This Plan, all Awards and any controversy arising out of or relating to this Plan and all Awards shall be governed by and construed in accordance with the laws of the State of Nevada as to matters within the scope thereof, without regard to conflict of law principles that would result in the application of any law other than the law of the State of Delaware.
| DATE ADOPTED BY THE BOARD OF DIRECTORS: | November 25, 2025 |
DATE ADOPTED BY THE
SHAREHOLDERS: December 22, 2025
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Exhibit 10.98
INDEPENDENT CONTRACTOR AGREEMENT
THIS INDEPENDENT CONTRACTOR AGREEMENT (the “Agreement”) is made and entered into as of May ____, 2026 (the “Effective Date”), for services which were performed commencing April 1, 2026, by and between William Tuorto (the “Consultant”), and Vivakor, Inc., a Nevada corporation and its subsidiaries (the “Client”) whose principal place of business is 5220 Spring Valley Rd. #500, Dallas, Texas 75254 (together the “Parties”).
WHEREAS, Tuorto has previously served as Consultant to the Client for the period January 1, 2025 through its termination on December 31, 2025; and
WHEREAS, the Parties desire to enter into a new consulting agreement to engage Consultant upon the terms and conditions as provided for herein.
NOW THEREFORE, in consideration of the mutual promises and covenants set forth in this Agreement, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Consulting Services.
(a) The Client hereby retains the Consultant as an independent contractor to the Client and the Consultant hereby accepts and agrees to such retention.
(b) Consultant shall have such duties and responsibilities as are consistent with Consultant’s position as determined by the CEO and CFO. Specifically, Consultant shall be responsible for assisting in the management and operations related to Client being a public company; providing advice regarding the strategy of the Client and its subsidiaries; general advice regarding dispositions and/or acquisitions and negotiation assistance, which the Client believes will be beneficial to it; and any other consulting and project management services the Client may stand in need of as communicated in writing (the “Services”).
(c) It is acknowledged and agreed by the Client that the Consultant is not required to maintain nor acquire any specific professional license(s), and is not rendering legal advice, nor acting as an investment advisor or broker/dealer within the meaning of the applicable state and federal securities laws to perform the Services. The Services of the Consultant shall not be exclusive, nor shall the Consultant be required to render any specific number of hours of Services.
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2. Independent Contractor. Consultant is not an employee of Client for any purpose whatsoever, including local, state, federal and foreign taxes and workers’ compensation insurance, but is an independent contractor. Neither this Agreement, the relationship created between Parties hereto pursuant to this Agreement, nor any course of dealing between the Parties hereto is intended to create, or shall create, an employment relationship, a joint venture, partnership or any similar relationship. Client is interested in the results obtained by Consultant, who is responsible for the manner and means of performing under this Agreement. Consultant does not have, nor shall Consultant hold itself (or any of its personnel) out as having, any right, power or authority to create any contract or obligation, either express or implied, on behalf of, in the name of, or binding Client, or to pledge Client’s credit, or to extend credit in Client’s name unless expressly authorized to do so by Client and, if so authorized, then only to the extent so authorized. Consultant will pay any and all taxes (local, state, federal or foreign) owed on any compensation received by Consultant pursuant to this Agreement. Consultant agrees to defend, indemnify and hold Client harmless from any and all claims made by any person or entity on account of an alleged failure by Consultant to satisfy any tax, withholding, or other similar regulatory or statutory obligations, or arising out of Consultant’s employment or engagement of persons to provide the Services. Consultant’s relationship with Client is further defined as below:
(a) Client will not withhold any monies for any local, state, federal or foreign taxing authorities from compensation earned by Consultant pursuant to this Agreement. Client shall prepare and file a Form 1099 with the U.S. Internal Revenue Service reporting the compensation paid to Consultant if such reporting is required by law. Consultant will comply with all requests for information to be provided to the Client to be able to prepare and file a Form 1099.
(b) Consultant shall not receive any fringe benefits under this Agreement or from Client whatsoever, and accordingly, shall receive no insurance benefits, disability income, pension, 401(k), vacation, holiday pay, sick pay, expense reimbursement or any other benefits.
(c) Client shall not provide any workers’ compensation coverage for Consultant. Any and all workers’ compensation coverage shall be the sole responsibility of Consultant.
(d) Client shall not provide any employment insurance coverage for Consultant. Any and all employment insurance remittances shall be the sole responsibility of Consultant.
(e) Consultant shall be responsible for establishing and incurring the expense of Consultant’s office.
3. Time, Place and Manner of Performance. The Consultant shall be available for advice and counsel to the officers and directors of the Client as such reasonable and convenient times and places as may be mutually agreed upon. Except as aforesaid, the time, place and manner of performance of the services hereunder, including the amount of time to be allocated by the Consultant to any specific service, shall be determined at the sole discretion of the Consultant. The Consultant will be notified by the Client regarding the consulting and management services it desires from the Consultant from time to time after the execution of this Agreement. The primary principal place of performance of this Agreement and of the Services is at the Consultant’s offices in the state of South Carolina, but Consultant can perform the Services at the location of his choosing unless the Services require him to be at a specific location for a specific meeting or event.
4. Compensation and Expenses.
In exchange for the Services, the Client shall pay the Consultant:
(a) Flat consulting fee of $50,000 per month beginning on the Effective Date payable on the 15th day of each calendar month or, if such day falls on a weekend or holiday, on the next business day (“Regular Consulting Fees”).
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(b) The Consultant will also be entitled to additional quarterly special consulting fees, which shall increase if the Client meets certain quarterly performance thresholds, payable on the 15th day subsequent to the applicable calendar quarter upon which fees are due, or if such day falls on a weekend or holiday, on the next business day (collectively, the “Special Consulting Fees”), namely:
(i) If the Client achieves at least $3,000,000 in Earnings Before Interest, Taxes, Depreciation, and Amortization (“EBITDA”) for the quarter ended June 30, 2026 (or as applicable June 30, 2027, if this Agreement is extended pursuant to Section 7), then the Consultant will receive $300,000 in Special Consulting Fees. Notwithstanding the above, the Special Consulting Fees will not be less than $200,000 for the quarter ended June 30, 2026 (or as applicable June 30, 2027, if this Agreement is extended pursuant to Section 7);
(ii) If the Client achieves at least $4,000,000 in EBITDA for the quarter ended September 30, 2026 (or as applicable September 30, 2027, if this Agreement is extended pursuant to Section 7), then the Consultant will receive $350,000 in Special Consulting Fees. Notwithstanding the above, the Special Consulting Fees will not be less than $200,000 for the quarter ended September 30, 2026 (or as applicable September 30, 2027, if this Agreement is extended pursuant to Section 7);
(iii) If the Client achieves at least $5,000,000 in EBITDA for the quarter ended December 31, 2026 (or as applicable December 31, 2027, if this Agreement is extended pursuant to Section 7), then the Consultant will receive $400,000 in Special Consulting Fees. Notwithstanding the above, the Special Consulting Fee will not be less than $200,000 for the quarter ended December 31, 2026 (or as applicable December 31, 2027, if this Agreement is extended pursuant to Section 7).
(c) The Consultant will also be entitled to, as an additional inducement for entering into this Agreement with Client, a contract signing fee of $300,000 (the “Contract Signing Fee”) and an additional $300,000 if this Agreement is extended pursuant to Section 7 (the “Contract Extension Fee”), each of which shall be payable on the 15th day subsequent to which each Fee shall be due, if applicable, or, if such day falls on a weekend or holiday, on the next business day.
(d) The Regular Consulting Fees, Special Consulting Fee, Contract Signing Fee and Contract Extension Fee, if applicable, will be paid in common stock, par value $0.001, (“Common Stock”) of the Client. Such Common Stock shall be priced per share based on the 52-week low closing price preceding the end of the prior calendar quarter for each of the Regular Consulting Fee, Special Consulting Fees Contract Signing Fee and Contract Extension Fee, if applicable, but in no event greater than the closing bid price on the Effective Date of this Agreement (the “Closing Price”). The Closing Price shall not be adjusted if the Client effectuates a reverse stock split. Such shares shall be issued pursuant to a Registration Statement filed on Form S-8 with the Securities and Exchange Commission. Any shares issued pursuant to a Registration Statement on Form S-8 will be issued to, and in the name of an individual as designated by the Consultant. In the event that a Registration Statement filed on Form S-8 is unavailable for use, the shares of Common Stock issued in the amount equal to the Regular Consulting Fees or Special Consulting Fees, such Common Stock shall be eligible for Piggy-Back Registration Rights, subject to underwriter approval (if applicable), on all future Registration Statements filed on Form S-1. The Client will not issue any Common Stock to the Consultant if the issuance of such shares would cause the Consultant to beneficially own more than 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of the shares of Common Stock (the “Beneficial Ownership Limitation”). The Consultant may increase or decrease the Beneficial Ownership Limitation provisions of this Section, provided that the Beneficial Ownership Limitation may in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of the shares of Common Stock. Notwithstanding the above, the Consultant has represented to the Client that it, and its members and managers, are knowledgeable regarding the prohibitions on using shares registered in an S-8 Registration Statement for services related to the offer or sale of securities in a capital-raising transaction, or services that are directly or indirectly related to promoting or maintaining a market in the Client’s securities. The Consultant agrees that to the extent it provides any services related to those prohibited activities it will notify the Client and the Parties agree that the shares of Common Stock owed for those activities will not be issued pursuant to an S-8 Registration Statement and will either be registered on another form of registration statement, such as an S-1 Registration Statement consistent with this Agreement, or such shares will be issued to the Consultant as unregistered, restricted stock.
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(e) The Client will not pay the Consultant for expenses or costs incurred for the performance of services unless the Client authorizes the expense in writing to the Consultant prior to its occurrence, while this Agreement between the Consultant and the Client remains in effect. Notwithstanding the foregoing, expenses which do not require approval are (i) airfare expenses, (ii) lodging expenses, (iii) transportation services and (iv) other miscellaneous expenses such as parking expenses incurred pertaining to the Client’s business, none of which shall exceed the amount $1,000, while this Agreement between the Consultant and the Client remains in effect.
5. Representations and Warranties of the Client.
The Client represents and warranties the following:
(a) Corporate Good Standing. The Client is a corporation, duly organized, validly existing, and in good standing under the laws of Nevada, and has all requisite corporate power and authority to carry on its business as now conducted by it and to own and operate its assets as now owned and operated by it.
(b) Authority; Enforceability.
(i) The Client has the right, power, and authority to execute and deliver this Agreement, and to perform its obligations hereunder. This Agreement constitutes (or will, when executed and delivered as contemplated herein, constitute) the legally binding obligations of the Client, enforceable in accordance with its terms.
(ii) The execution, delivery, and performance of this Agreement by the Client, and the consummation of the transactions contemplated hereby, do not and will not: (i) require the consent, waiver, approval, license, or other authorization of any person, except as provided for herein; (ii) violate any of provision of applicable law; (iii) contravene, conflict with, or result in a violation of any provision of the Client’s organizational documents; (iv) conflict with, require a consent or waiver under, result in the termination of any provisions of, constitute a default under, accelerate any obligations arising under, trigger any payment under, result in the creation of any lien pursuant to, or otherwise adversely affect, any contract to which the Client is a party or by which any of its assets are bound, in each such case whether with or without the giving of notice, the passage of time, or both.
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(c) All requisite corporate action has been taken by the Client to authorize and approve the execution and delivery of this Agreement, the performance by the Client of its obligations hereunder, and of all other acts necessary or appropriate for the consummation of the transactions contemplated by this Agreement.
6. Representations and Warranties of the Consultant.
The Consultant represents and warranties the following:
(a) Corporate Good Standing. The Consultant is a limited liability company, duly organized, validly existing, and in good standing under the laws of South Carolina, and has all requisite corporate power and authority to carry on its business as now conducted by it and to own and operate its assets as now owned and operated by it.
(b) Authority; Enforceability.
(i) The Consultant has the right, power, and authority to execute and deliver this Agreement, and to perform its obligations hereunder. This Agreement constitutes (or will, when executed and delivered as contemplated herein, constitute) the legally binding obligations of the Consultant, enforceable in accordance with its terms.
(ii) The execution, delivery, and performance of this Agreement by the Consultant, and the consummation of the transactions contemplated hereby, do not and will not: (i) require the consent, waiver, approval, license, or other authorization of any person, except as provided for herein; (ii) violate any of provision of applicable law; (iii) contravene, conflict with, or result in a violation of any provision of the Consultant’s organizational documents; (iv) conflict with, require a consent or waiver under, result in the termination of any provisions of, constitute a default under, accelerate any obligations arising under, trigger any payment under, result in the creation of any lien pursuant to, or otherwise adversely affect, any contract to which the Consultant is a party or by which any of its assets are bound, in each such case whether with or without the giving of notice, the passage of time, or both.
(c) All requisite corporate action has been taken by the Consultant to authorize and approve the execution and delivery of this Agreement, the performance by the Consultant of its obligations hereunder, and of all other acts necessary or appropriate for the consummation of the transactions contemplated by this Agreement.
(d) The Consultant hereby represents that it has in place policies and procedures relating to, and addressing, with the commercially reasonable intent to ensure compliance with, applicable securities laws, rules and regulations, including, but not limited to:
(i) The use, release or other publication of forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act of 1934 (the “Exchange Act”).
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(ii) Disclosure requirements outlined in Section 17B of the Exchange Act regarding the required disclosure of the nature and terms of the Consultant’s relationship with the Client in any and all of the Consultant’s literature or other communication(s) relating to the Client, including, but not limited to: press releases, letters to investors and telephone or other personal communication(s) with potential or current investors.
(e) The Consultant further acknowledges that by the very nature of its relationship with the Client it will, from time to time, have knowledge of or access to material, non-public information (as such term is defined by the Exchange Act) and the Consultant hereby agrees and covenants that:
(i) The Consultant will not make any purchases or sales in the shares of the Client in the public marketplace while in possession or having knowledge of any material, non-public information.
(ii) The Consultant will utilize its commercially reasonable efforts to safeguard and prevent the dissemination of any such material, non-public information to third parties unless authorized in writing by the Client to do so as may be necessary or appropriate in the performance of its services under this Agreement.
(iii) The Consultant will not, in any way, utilize or otherwise include such material, non-public information, in actual form or in substantive content, in its analysis for, preparation of or release of any of the Consultant’s literature or other communication(s) relating to the Client, including, but not limited to: press releases, letters to investors and telephone or other personal communication(s) with potential or current investors; provided, however, that the Consultant may use such material non-public information in its analysis for only the Client’s review and in its preparation of any documents meant only for the Client to receive.
(f) Consultant represents that it, and its members and managers, are knowledgeable regarding the prohibitions on using shares registered in an S-8 Registration Statement for services related to the offer or sale of securities in a capital-raising transaction, or services that are directly or indirectly related to promoting or maintaining a market in the Client’s securities.
(g) The manager of Consultant is also the President of E-Starts Money Co., a Delaware corporation, which is an investor in the Client, and is a former officer and director of Empire Diversified Energy, Inc., a Delaware corporation, that Client entered into an Agreement and Plan of Merger (the “Merger Agreement”) with on February 26, 2024, but has not closed.
7. Term and Termination.
(a) The term of this Agreement shall commence on the date of this Agreement and continues for the term of twelve (12) months which shall automatically be extended for an additional twelve (12) months unless either Party gives the other Party written notice at least thirty (30) days prior to the end of initial twelve (12) month term that the Party is terminating this Agreement at the end of the initial term.
(b) This Agreement may be terminated by Consultant at any time, for any reason, upon giving thirty (30) days written notice to the Client.
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(c) This Agreement may be terminated by either party at any time for material breach upon giving thirty (30) days written notice to the other party and that party’s failure to cure such identified material breach within such time.
(d) Both Parties agree to act with commercially reasonable efforts to cure any such material breaches of this Agreement within fourteen (14) days of written notice of any material breach under this Agreement.
(e) Consultant and Client shall have the right and discretion to terminate this Agreement should the other party: (i) violate any law, ordinance, permit or regulation of any governmental entity, except for violations which either singularly or in the aggregate do not have or will not have a material adverse effect on the operations of the Client, or (ii) engage in activities which may, in the reasonable opinion of the terminating party, bring the reputation of the terminating party into disrepute.
(f) This Agreement shall automatically terminate upon the dissolution, assignment for the benefit of creditors, or bankruptcy of the Client or the Consultant.
(g) In the event of any termination of this Agreement for the reasons set forth in Sections 8(b) through 8(f), all amounts owed to the Consultant for services rendered through the date of termination shall be fully earned and non-refundable, including the Contract Signing Fee and Contract Extension Fee, if applicable. For the avoidance of doubt, the Special Consulting Fees shall be fully earned upon the substantial performance of the Consultant’s duties for any relevant quarter under Section 4(b). Further, termination of this Agreement shall not be valid if it serves to frustrate payment of Special Consulting Fees for any particular quarter.
(h) In the event of any termination of this Agreement, the Consultant shall be responsible to comply with the provisions of Sections 8 and 9, below.
8. Proprietary Information.
(a) Consultant understands that Client possesses and will possess Proprietary Information that is important to its business. For purposes of this Agreement, “Proprietary Information” is all information that is disclosed to Consultant or that was or will be developed, learned, created, or discovered by Consultant (or others) for or on behalf of Client, or that became or will become known by, or was or is conveyed to Client and has commercial value in Client’s business, or that is developed at Client’s facilities or with use of Client’s equipment. Proprietary Information includes, but is not limited to, information (and all tangible items in any form incorporating, embodying or containing information) relating to (i) all client/customer lists, vendor lists and all lists or other compilations containing client, customer or vendor information; (ii) information about services, proposed services, research, product development, know-how, techniques, processes, costs, profits, markets, marketing plans, strategies, forecasts, sales and commissions, and unpublished information relating to technological and scientific developments; (iii) plans for future development and new service concepts; (iv) plans, information or proposed terms regarding any merger or acquisition, or any other business transaction involving Client or any of its assets; (v) financial performance or financial projections; (vi) all documents, books, papers, drawings, schematics, models, sketches, computer programs, databases, and other data of any kind and descriptions including electronic data recorded or retrieved by any means; (vii) the compensation, performance and terms of employment of Client employees; (viii) software in various stages of development, and any designs, drawings, schematics, specifications, techniques, models, data, source code, algorithms, object code, documentation, diagrams, flow charts, research and development, processes and procedures relating to any software; and (ix) all other information that has been or will be given to Consultant in confidence by Client (or any affiliate) concerning Client’s actual or anticipated business, research or development, or that is received in confidence by or for Client from any other person or entity. Proprietary Information does not include information that (i) is in the public domain through lawful means that do not directly or indirectly result from any act or omission of Consultant in breach of his obligations hereunder or (ii) was already rightfully known to Consultant (other than in connection with this Agreement or Consultant’s prior employment work with the Client) without restriction on use or disclosure at the time of Client’s disclosure to Consultant.
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(b) Non-Disclosure. Consultant understands that this Agreement creates a relationship of confidence and trust between Consultant and Client with regard to Proprietary Information. Consultant will at all times, both during and after the term of this Agreement, keep the Proprietary Information in confidence and trust. Consultant will not, without the prior written consent of an executive officer of Client, (i) copy, use or disclose any Proprietary Information, or (ii) deliver any Proprietary Information to any person or entity outside of the Client. Notwithstanding the foregoing, Consultant may use the Proprietary Information, without disclosing it to any other party, as may be necessary and appropriate in the ordinary course of performing the Services.
(c) Return and Destruction of Proprietary Information. Consultant agrees that upon termination of this Agreement for any reason or upon Client’s request, Consultant shall promptly deliver to Client all Proprietary Information, any document or media that contains Proprietary Information (and all copies thereof), and any apparatus or equipment (and other physical property or any reproduction of such property), and delete or otherwise irrevocably destroy all such Proprietary Information in the custody of Consultant, excepting only Consultant’s copy of this Agreement.
9. Confidentiality. The Consultant recognizes and acknowledges that it has and will have access to certain confidential information of the Client and its affiliates that are valuable, special and unique assets and property of the Client and such affiliates. The Consultant will not, during the term of this Agreement, disclose, without the prior written consent or authorization of the Client, any of such information to any person, for any reason or purpose whatsoever, save and except for the employees, officers, directors, accountants, auditors, attorneys, advisors, agents and representatives of the Client. In this regard, the Client agrees that such authorization or consent to disclose may be conditioned upon the disclosure being made pursuant to a secrecy agreement, protective order, provision of statute, rule, regulation or procedure under which the confidentiality of the information is maintained in the hands of the person to whom the information is to be disclosed or in compliance with the terms of a judicial order or administrative process.
10. Conflict of Interest. The Consultant shall be free to perform Services for other persons. The Consultant will notify the Client of its performance of Services for any other person that could conflict with its obligations under the Agreement.
11. Disclaimer of Responsibility for Act of the Client. In no event shall Consultant be required by this Agreement to represent or make management decisions for the Client. Consultant shall, under no circumstances, be liable for any expense incurred or loss suffered by the Client as a consequence of such decisions made by the Client or any affiliates or subsidiaries of the Client.
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12. Indemnification.
(a) The Client shall protect, defend, indemnify and hold Consultant and its assigns and attorneys, accountants, employees, officers and director harmless from and against all losses, liabilities, damages, judgments, claims, counterclaims, demands, actions, proceedings, costs and expenses (including reasonable attorneys’ fees) of every kind and character resulting from, relating to or arising out of (a) the inaccuracy, non-fulfillment or breach of any representation, warranty, covenant or agreement made by the Client herein, (b) negligence or willful misconduct with respect to any of the decisions made by the Client or any of its directors, officers, employees, agents or affiliates, or (c) a violation of state or federal securities laws by the Client or any of its directors, officers, employees, agents or affiliates.
(b) The Consultant shall protect, defend, indemnify and hold Client and its assigns and attorneys, accountants, employees, officers and director harmless from and against all losses, liabilities, damages, judgments, claims, counterclaims, demands, actions, proceedings, costs and expenses (including reasonable attorneys’ fees) of every kind and character resulting from, relating to or arising out of (a) the inaccuracy, non-fulfillment or breach of any representation, warranty, covenant or agreement made by the Consultant herein, (b) negligence or willful misconduct with respect to any of the decisions made by the Consultant, or (c) a violation of state or federal securities laws by the Consultant.
13. Notices. Any notices required or permitted to be given under this Agreement shall be sufficient if in writing and delivered or sent by email, registered or certified mail, or by Federal Express or other recognized overnight courier to the addresses set forth above for each party.
14. Waiver of Breach. Any waiver by either party or a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach by any party.
15. Assignment. This Agreement and the right and obligations of the Consultant hereunder shall not be assignable without the written consent of the Client, except that the Consultant may fully assign its rights and obligations of this Agreement to a company that is wholly owned by the Consultant.
16. Applicable Law/Venue. It is the intention of the Parties hereto that this Agreement and the performance hereunder and all suits and special proceedings hereunder be construed in accordance with and under and pursuant to the laws of the State of Texas and that in any action, special proceeding or other proceedings that may be brought arising out of, in connection with or by reason of this Agreement, the law of the State of Texas shall be applicable and shall govern to the exclusion of the law of any other forum, without regard to the jurisdiction on which any action or special proceeding may be instituted. If any legal action is filed by either party regarding this Agreement, the parties hereto irrevocably and unconditionally submit to the exclusive jurisdiction of the state or federal courts sitting in and for Dallas County, Texas. The Parties hereby consent to such exclusive jurisdiction and venue. IN THE EVENT OF ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTIES HERETO KNOWINGLY, IRREVOCABLY, AND UNCONDITIONALLY WAIVE ANY RIGHT TO DEMAND A TRIAL BY JURY.
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17. Severability. All agreements and covenants contained herein are severable, and in the event any of them shall be held to be invalid by any competent court, the Agreement shall be interpreted as if such invalid agreements or covenants were not contained herein.
18. Entire Agreement. This Agreement constitutes and embodies the entire understanding and agreement of the Parties and supersedes and replaces all other or prior understandings, agreements and negotiations between the Parties.
19. Waiver and Modification. Any waiver, alteration, or modification of any of the provisions of this Agreement shall be valid only if made in writing and signed by the Parties hereto. Each party hereto, may waive any of its rights hereunder without affecting a waiver with respect to any subsequent occurrences or transactions hereof.
20. Counterparts and Facsimile Signature. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Execution and delivery of this Agreement by exchange of facsimile copies bearing the facsimile signature of a party hereto shall constitute a valid and binding execution and delivery of this Agreement by such party. Such facsimile copies shall constitute enforceable original documents.
21. Headings; Interpretation. All captions and section headings used in this Agreement are for convenient reference only and do not form a part of this Agreement. As used in this Agreement, unless the context expressly indicates otherwise, the word “or” is inclusive and means “and/or” and the word “including” (or any variation of that word) means “including without limitation” or a phrase of equivalent meaning.
[signature page follows]
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IN WITNESS WHEREOF, the Parties have duly executed and delivered this Agreement, effective as of the Effective Date.
CONSULTANT:
William Tuorto
| By: | /s/ William Tuorto | |
| William Tuorto |
CLIENT:
Vivakor, Inc., a Nevada corporation
| By: | /s/ James Ballengee | |
| James Ballengee, Chief Executive Officer |
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Exhibit 31.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
PURSUANT TO RULES 13a-14(a) AND 15d-14(a)
OF THE SECURITIES EXCHANGE ACT OF 1934
I, James Ballengee, Chief Executive Officer of Vivakor, Inc. (the “Company”), certify that:
(1) I have reviewed this Quarterly Report on Form 10-Q for the fiscal period ended March 31, 2026;
(2) Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
(3) Based on my knowledge, the financial statements, and other financial information included in the report, fairly present in all material respects the financial condition, results of operations and cash flows of the Company as of, and for, the periods represented in this report;
(4) The Company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Company and have:
(a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which the report is being prepared;
(b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) evaluated the effectiveness of the Company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) disclosed in this report any change in the Company’s internal control over financial reporting that occurred during the Company’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting; and
(5) The Company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Company’s auditors and to the audit committee of the board of directors (or persons fulfilling the equivalent function):
(a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and
(b) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting.
| May 20, 2026 | /s/ James Ballengee |
| James Ballengee | |
| Chief Executive Officer | |
| (Principal Executive Officer) |
Exhibit 31.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO RULES 13a-14(a) AND 15d-14(a)
OF THE SECURITIES EXCHANGE ACT OF 1934
I, Kimberly Hawley, Chief Financial Officer of Vivakor, Inc. (the “Company”), certify that:
(1) I have reviewed this Quarterly Report on Form 10-Q for the fiscal period ended March 31, 2026;
(2) Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
(3) Based on my knowledge, the financial statements, and other financial information included in the report, fairly present in all material respects the financial condition, results of operations and cash flows of the Company as of, and for, the periods represented in this report;
(4) The Company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Company and have:
(a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which the report is being prepared;
(b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) evaluated the effectiveness of the Company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) disclosed in this report any change in the Company’s internal control over financial reporting that occurred during the Company’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting; and
(5) The Company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Company’s auditors and to the audit committee of the board of directors (or persons fulfilling the equivalent function):
(a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and
(b) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting.
| May 20, 2026 | /s/ Kimberly Hawley |
| Kimberly Hawley | |
| Chief Financial Officer | |
| (Principal Financial Officer and Principal Accounting Officer) |
Exhibit 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report on Form 10-Q of Vivakor, Inc. (the “Company”) for the period ended March 31, 2026, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned, James Ballengee, Chief Executive Officer of the Company hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| /s/ James Ballengee | |
| James Ballengee | |
| Chief Executive Officer | |
| (Principal Executive Officer) | |
| May 20, 2026 |
Exhibit 32.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report on Form 10-Q of Vivakor, Inc. (the “Company”) for the period ended March 31, 2026, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned, Kimberly Hawley, Chief Financial Officer of the Company hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| /s/ Kimberly Hawley | |
| Kimberly Hawley | |
| Chief Financial Officer | |
| (Principal Financial Officer and Principal Accounting Officer) | |
| May 20, 2026 |