COMMON STOCK PURCHASE AGREEMENT
EXHIBIT
10.1
THIS COMMON STOCK PURCHASE
AGREEMENT (the “Agreement”) is entered into
as of August 19, 2009 (the “Effective Date”) by and among
Vivakor, Inc., a Nevada
corporation (the “Seller” or “Company”), and Newport Capital Management,
LLC (the “Investor”).
WHEREAS, the Seller desires to
sell to the Investor, and the Investor desires to purchase from Seller, all of
the Shares, upon the terms and conditions set forth in this
Agreement;
NOW THEREFORE, in
consideration of the mutual promises, covenants and conditions hereinafter set
forth, the parties hereto agree as follows:
1.
DEFINITIONS.
1.1 Certain Defined Terms. As
used in this Agreement, the following terms shall have the following respective
meanings:
“Common Stock” shall
mean, collectively, the Company’s Common Stock, which is the Company’s only
voting capital stock.
“Material Adverse Effect” shall
mean a material adverse effect on the financial condition, business, assets or
operations of the Company and its subsidiaries, taken as a whole; provided,
however, that no effects resulting from the announcement of the execution of
this Agreement, the consummation of the investment by Investor contemplated by
this Agreement, or the pendency of such investment by Investor shall be deemed
to be or constitute a Material Adverse Effect or be taken into account when
determining whether a Material Adverse Effect has occurred or
exists.
2.
AGREEMENT TO PURCHASE
AND SELL STOCK
2.1.
Agreement to Purchase. Subject to the terms
and conditions hereof (including, without limitation 6.1 below), on
the date of the Closing, the Seller will sell to the Investor, and Investor
shall purchase from the Seller, an aggregate of 3,185,000 shares of Common Stock (the “Shares”) of the Company for a purchase price of $0.23 per
share, resulting in an aggregate purchase price of seven hundred
thirty two thousand five hundred fifty dollars U.S. ($732,550.00 USD). The
purchase price for the Shares shall be paid by wire transfer of funds to a
designated account of the Seller. The purchase price shall be paid
within three days of the execution of this Agreement; provided, however, the
Investor may, in lieu thereof, deliver a promissory note (the “Note”) in the principal amount of the purchase price in the
form attached hereto as “Exhibit
A”. Upon payment of the purchase price or
payment of the Note, the Shares shall be freely tradable and registered under
the Act, pursuant to Section 4.7 below.
3.
CLOSING;
DELIVERY.
3.1. The Closing. The purchase
and sale of the Shares hereunder shall take place remotely via the exchange of
documents and signature pages at 10:00 a.m., Pacific time, on the date that is
two (2) business days following the satisfaction of all of the conditions
set forth in Sections 7 and 8 hereof, or at such other time and place as the
Seller and Investor may mutually agree upon (the “Closing”); provided, however,
if the Investor elects to pay pursuant to the terms of the Note, each payment of
the principal amount shall be considered a “Closing.” A Closing with respect to
any Shares shall occur only upon receipt of the purchase price for such
Shares.
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(a) As total consideration for the purchase and
sale of the Shares, pursuant to this Agreement and upon receipt of freely
tradable shares, the Investor shall pay to the Company seven hundred thirty two thousand five hundred fifty
dollars U.S. ($732,550.00 USD). Such total consideration shall be
referred to in this Agreement as the "Purchase Price."
3.2. Delivery. Upon each
Closing, the Seller will deliver to the Investor a certificate representing the
Shares purchased by the Investor hereunder validly issued, fully paid for and
non-assessable.
4. REPRESENTATIONS
AND WARRANTIES REGARDING THE COMPANY. The Company hereby represents and
warrants to each Investor, except as disclosed in the Schedule of Exceptions
(“Schedule of
Exceptions”) attached to this Agreement as “Exhibit B” (which disclosures shall be
deemed to apply to all representations or warranties to the extent the
applicability of the disclosure is reasonably apparent on its face), as of the
Effective Date and as of the Closing, as follows:
4.1. Organization, Good Standing and
Qualification of the Company. The Company and any subsidiary of the
Company is duly organized, validly existing and, when such concept is
applicable, in good standing under the laws of the state of Nevada and has all
requisite corporate power and authority to own its properties and assets and to
carry on its business as now conducted and as presently proposed to be conducted
except, in the case of any subsidiary of the Company, where the failure to be so
organized, existing and in good standing or to have such corporate power and
authority, would not have or result in, individually or in the aggregate, a
Material Adverse Effect. The Company has the corporate power and authority to
enter into this Agreement and perform its obligations hereunder and thereunder.
The Company and each of its subsidiaries is qualified to do business as a
foreign corporation in each jurisdiction where failure to be so qualified would
have or result in, individually or in the aggregate, a Material
Adverse Effect.
4.2.
Capitalization.
(a) As of
the Effective Date, the authorized capital stock of the Company consists of the
following:
(i)
Common Stock. A total of 242,500,000 authorized shares of Class A Common
Stock ($0.001 par value per share) of which 50,660,660 shares are issued and
outstanding.
(ii)
Preferred Stock. A total of 10,000,000 authorized shares of Preferred Stock
($0.001 par value per share), none of which is designated as to series, issued
or outstanding.
(b)
Options, Warrants, Reserved Shares. As of the Effective Date, 7,500,000 shares
of Common Stock have been reserved for issuance under the 2008 Stock Incentive
Plan, of which 420,000 options are outstanding, plus, an additional 6,000,000
options outside of the 2008 Stock Incentive Plan are outstanding.
(c)
Status of Capital Stock. All of the outstanding shares of the capital stock of
the Company are duly authorized, validly issued, fully paid and non-assessable,
and free and clear of all liens, claims and encumbrances, other than liens,
claims and encumbrances created or imposed by or through the holder of the
securities.
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4.3. Subsidiaries. Each
subsidiary of the Company is majority-owned, directly or indirectly, by the
Company. The shares of each subsidiary owned by the Company are duly authorized,
validly issued, fully paid and non-assessable, and are free and clear of all
liens, claims and encumbrances.
4.4. Due Authorization. All
corporate action on the part of the Company necessary for the authorization,
execution and delivery of, and the performance of all obligations of the Company
under this Agreement, and necessary for the consummation of the transactions
contemplated hereby and thereby has been taken or will be taken prior to the
Closing. The execution, delivery and performance by the Company of this
Agreement and the consummation of the transactions contemplated hereby and
thereby will not conflict with or constitute or result in, with or without the
passage of time or the giving of notice or both, a violation, breach or default
by the Company of (i) any order of any government authority binding upon
the Company or (ii) the Amended and Restated Certificate of Incorporation
of the Company as in effect on the date of this Agreement or bylaws
of the Company. This Agreement, when executed, shall constitute the valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy, insolvency, moratorium,
reorganization and similar laws affecting creditors’ rights generally and to
general equitable principles, and, with regard to the indemnification provisions
contained therein, to the extent such indemnification provisions may be limited
by applicable federal and state securities laws and principles of public
policy.
4.5. Valid Issuance of
Stock.
(a) The
Shares are duly and validly issued, fully paid and non assessable and free of
all liens, claims and encumbrances (other than any such matters created or
imposed by or through the Investor).
(b) The
outstanding shares of the capital stock of the Company are duly and validly
issued, fully paid and non assessable, and such shares of such capital stock,
and all outstanding stock, options and other securities of the Company have been
issued in full compliance with the registration and prospectus delivery
requirements of the Securities Act of 1933, as amended (the “Act”), and the registration
and qualification requirements of all applicable state securities laws, or in
compliance with applicable exemptions therefrom, and all other provisions of
applicable federal and state securities laws, including, without limitation,
anti-fraud provisions.
4.6. Government and Third Party
Consents. Except for filings required under the 1933 Act and any consent,
waiver, approval, order, permit, authorization, declaration, notification,
filing, designation, qualification or registration which, if not obtained or
made, would not have or result in, individually or in the aggregate, a Material
Adverse Effect, no consent, waiver, approval, order, permit, authorization,
declaration, notification, filing, designation, qualification or registration of
or with any governmental authority or any other person is required to be made or
obtained by the Company in connection with (i) the execution and delivery
of this Agreement by the Company or the performance by the Company of its
obligations hereunder; or (ii) the consummation of the transactions
contemplated hereby and thereby.
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4.7. Registration Statement;
Financial Statements.
(a) The
Company has filed with the Securities and Exchange Commission (the “SEC”) a registration statement
on Form S-1 dated August 12, 2009, (such registration statement, as so amended,
the “Registration
Statement”). The Registration Statement complied at the time of filing in
all material respects with all applicable requirements of the Act. The
Registration Statement, including any financial statements or schedules included
or incorporated by reference therein, did not when filed, does not at the
Effective Date and will not (as it may be amended prior to Closing) at the
Closing contain any untrue statement of a material fact or omit to state a
material fact required to be stated or incorporated by reference therein or
necessary in order to make the statements therein not misleading. The Company
has delivered to Investor true and complete copies of all comments received from
the SEC with respect to the Registration Statement. The audited consolidated
financial statements of the Company included in the Registration
Statement fairly present in all material respects, in conformity with
United States generally accepted accounting principles applied on a consistent
basis (except as may be indicated in the notes thereto), the consolidated
financial position of the Company and its consolidated subsidiaries as of the
dates thereof and their consolidated results of operations and changes in
financial position for the periods then ended.
(b) The
Company has heretofore made, and hereafter will make, available to Investor a
complete and correct copy of the Registration Statement and any amendments or
modifications filed with the SEC.
4.8. Registration Rights.
Except as disclosed in the Registration Statement, the Company has not granted
or agreed to grant any person or entity any rights (including piggyback
registration rights) to have any securities of the Company registered with the
SEC or any other governmental authority that are senior to or in conflict with
the rights granted to Investor under this agreement.
4.9. Interested Party
Transactions. Except as disclosed in the Registration Statement, there
are no material contracts, agreements or proposed transactions between the
Company and any of its executive officers, directors or controlling
stockholders, and to the Company’s knowledge, none of the Company’s directors or
executive officers has a material interest in any material contract or business
transaction involving the Company.
5. REPRESENTATIONS
AND WARRANTIES OF INVESTOR. Each Investor represents and warrants to the
Company, as of the Effective Date and as of the Closing, as
follows:
5.1 Organization, Corporate
Power. Each Investor is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is incorporated and has
all requisite corporate power and authority to enter into this Agreement and to
perform its obligations hereunder.
5.2. Authorization. All
corporate action on the part of each Investor necessary for the authorization,
execution and delivery of, and the performance of all obligations of such
Investor under this Agreement, and necessary for the consummation of the
transactions contemplated hereby and thereby has been taken or will be taken by
the Closing. The execution, delivery and performance by each Investor of this
Agreement and the consummation of the transactions contemplated hereby and
thereby will not conflict with or constitute or result in, with or without the
passage of time or the giving of notice or both, either a violation, breach or
default by such Investor of (i) any order of any government authority
binding upon Investor or (ii) the certificate of incorporation or bylaws of
Investor. This Agreement constitutes valid and binding obligations of each
Investor enforceable against such Investor in accordance with its terms, subject
to applicable bankruptcy, insolvency, moratorium, reorganization and similar
laws affecting creditors’ rights generally and to general equitable
principles.
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5.3. Investigation; Economic
Risk. Each Investor acknowledges that it has had an opportunity to
discuss the business and affairs of the Company and its subsidiaries with its
officers. Each Investor further acknowledges having had access to information
about the Company that it has requested. Each Investor acknowledges that it has
knowledge and experience in financial and business matters such that it is
capable of evaluating the risks of the transactions contemplated by this
Agreement and has the ability to bear the economic risks of holding the Shares
for an indefinite period. The parties acknowledge and agree that nothing in this
Section 5.3
shall limit or modify any representation or warranty of the Company in Section 4
hereof, or the right of Investor to rely thereon.
5.4. Accredited Investor.
Investor is an “Accredited
Investor” as defined in Rule 501 of Regulation D promulgated under the
Act.
6. CONDITIONS
TO INVESTOR’S OBLIGATIONS AT THE CLOSING. The obligation of Investor
to purchase the Shares at the Closing is subject to the fulfillment on or prior
to the Closing of the following conditions:
6.1
Representations and Warranties Correct.
The
representations and warranties made by the Company in Section 4 hereof
shall be true and correct as if made on and as of the Closing Date (or in the
case of representations and warranties that expressly refer to a specific date,
as of such specific date), except where the failure to be true and correct would
not have or result in, individually or in the aggregate, a Material Adverse
Effect.
6.2 Performance of
Obligations. The Company shall have performed and complied in all
material respects with all agreements, obligations and conditions contained in
this Agreement that are required to be performed or complied with by the Company
on or before the Closing.
6.3 Litigation. Except as
disclosed in the Registration Statement, the Company shall have no outstanding
material litigation (litigation in which the amount in dispute is in excess of
$10,000.00 USD), shall not have declared bankruptcy nor be in default in any of
its material contracts which were in place at the time of the signing of this
Agreement. In the event that any of these circumstances occur after the signing
of this Agreement, any remaining obligations of Investor due under this
Agreement shall be deemed null and void.
6.4 Securities Laws. The offer
and sale of the Shares to Investor pursuant to this Agreement shall comply with
the registration requirements of the Act and the registration and/or
qualification requirements of all applicable state securities laws.
7. CONDITIONS
TO SELLER’S OBLIGATIONS AT THE CLOSING. The obligation of the Seller
to effect the Closing under this Agreement is subject to the fulfillment on or
prior to the Closing of the following conditions:
7.1. Representations and
Warranties. The representations and warranties made by each Investor in
Section 5 shall be true and correct as if made on and as of the Closing
Date (or in the case of representations and warranties that expressly refer to a
specific date, as of such specific date), in each case, except (other than with
respect to the representations and warranties set forth in Sections 5.3 and
5.4, which must
be true and correct in all respects) where the failure to be true and correct
would not materially and adversely affect such Investor’s ability to perform its
obligations under this Agreement.
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7.2. Performance of
Obligations. Each Investor shall have performed and complied in all
material respects with all agreements, obligations and conditions contained in
this Agreement that are required to be performed or complied with by it on or
before the Closing.
7.3. Payment of Purchase
Price. Each Investor shall have delivered to the Seller the purchase
price in accordance with the provisions of Section 3.
8.
MISCELLANEOUS
8.1. Governing Law. This
Agreement shall be governed by and construed in accordance with the Nevada
Revised Statutes as to matters within the scope thereof, and as to all other
matters shall be governed and construed in accordance with the internal laws of
the state of Nevada without regard to principles of conflicts of
laws.
8.2. Survival. The
representations, warranties, covenants and agreements made herein shall survive
any investigation made by any party hereto and (other than the covenants
contained in Section 6, which shall survive until terminated as provided in
Section 6) until the first anniversary of the Closing.
8.3. Successors and Assigns; No Third
Party Beneficiaries. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
This Agreement and the rights and obligations therein may not be assigned by
Investor without the written consent of the Seller except to a parent
corporation, a subsidiary or affiliate of Investor. This Agreement and the
rights and obligations therein may not be assigned by the Seller without the
written consent of Investor. Nothing contained in this Agreement, express or
implied, is intended to confer any rights, remedies or benefits upon any person
or entity, other than the parties hereto or their respective successors and
permitted assigns.
8.4. Entire Agreement. This
Agreement, the schedules and exhibits hereto constitute the entire understanding
and agreement between the parties with regard to the subjects hereof and
thereof; provided, however, that nothing
in this Agreement shall be deemed to terminate or supersede the provisions of
any confidentiality and nondisclosure agreements executed by the parties hereto
prior to the Effective Date, which agreements shall continue in full force and
effect until terminated in accordance with their respective terms.
8.5. Notices. All notices,
requests, waivers and other communications made pursuant to this Agreement shall
be in writing and shall be conclusively deemed to have been duly
given:
(a) when
hand delivered to the other parties;
(b) when
sent by facsimile if sent during normal business hours of the recipient with
confirmation of sending to the fax number set forth below, or if sent outside
normal business hours with confirmation of sending, then notice shall be deemed
to have been duly given on the next business day;
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(c) three
(3) business days after deposit in the U.S. mail with first class or
certified mail receipt requested postage prepaid and addressed to the other
parties as set forth below; or
(d) the
next business day after deposit with a national overnight delivery service,
postage prepaid, addressed to the parties as set forth below with
next-business-day delivery guaranteed, provided that the sending party receives
a confirmation of delivery from the delivery service provider.
To
Investor:
Newport
Capital
________________________
________________________
________________________
To
Seller:
0000
Xxxxxxx Xxxx. Xxxxx 000,
Xxxxxxxxxx,
XX 00000,
(000)
000-0000
Each
person making a communication hereunder by facsimile shall promptly confirm by
telephone to the person to whom such communication was addressed each
communication made by it by facsimile pursuant hereto but the absence of such
confirmation shall not affect the validity of any such communication. A party
may change or supplement the addresses given above, or designate additional
addresses, for purposes of this Section 9.5 by giving the other parties
written notice of the new address in the manner set forth above.
8.6. Amendments and Waivers.
Any term of this Agreement may be amended only with the written consent of each
party hereto.
8.7. Delays or Omissions. No
delay or omission to exercise any right, power or remedy accruing to any party
hereto, upon any breach or default of any other party under this Agreement,
shall impair any such right, power or remedy of the non-breaching parties nor
shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of any similar breach of default thereafter occurring;
nor shall any waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any party hereto of any breach of default under this Agreement or
any waiver on the part of any party hereto of any provisions or conditions of
this Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, or by law or otherwise afforded to any party hereto shall be
cumulative and not alternative.
8.8. Legal Fees. Each party
hereto shall pay its own legal expenses in connection with the transactions
contemplated by this Agreement.
8.9. Finder’s Fees. Each party
represents and warrants to the other parties hereto that it has retained no
finder or broker in connection with the transactions contemplated by this
Agreement.
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8.10. Titles and Subtitles.
The titles of the sections and subsections of this Agreement are for convenience
of reference only and are not to be considered in construing or interpreting
this Agreement.
8.11. Counterparts; Facsimile
Signature. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one instrument. This Agreement may be executed by facsimile
signature.
8.12. Severability. Should any
provision of this Agreement be determined to be illegal or unenforceable, such
determination shall not affect the validity or enforceability of any other
provisions of this Agreement.
8.13. No Commitment for Additional
Financing. The Seller acknowledges and agrees that Investor has not made
any representation, undertaking, commitment or agreement to provide or assist
the Company or any subsidiary in obtaining any financing, investment or other
assistance, other than the purchase of the Shares as set forth herein and
subject to the conditions set forth herein.
8.14. Required Filings;
Cooperation. (a) The Seller and each Investor agree that they will
use their reasonable best efforts to make all filings required to be made by
them in order to complete the transactions contemplated under this; and (b)
between the Effective Date and the Closing, each party hereto will
(i) reasonably cooperate with the other party with respect to all filings
that such other party elects to make or is required by applicable laws to make
in connection with the transactions contemplated under this Agreement, and
(ii) reasonably cooperate with the other parties, including, without
limitation, taking all actions reasonably requested by such other parties,
provided that if any party reasonably requests confidentiality restrictions with
respect to the foregoing:
(a) the
parties hereto will consult with each other with respect thereto;
and
(b) if
agreement is not reached with respect to such confidentiality restriction, the
other party shall request confidential treatment with respect to the affected
item; and
(c) if
the confidential treatment request is not approved, then such other party shall
be free to disclose the affected item as required by applicable
law.
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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the day and year herein above
first written.
SELLER:
By: /s/ Xxxx
Xxxxxxx
Name: Xxxx
Xxxxxxx
Title:
Executive
Chairman
INVESTOR:
Newport
Capital Management, LLC
By:
/s/ Xxxx
Xxxxxxx
Name: Xxxx X.
Xxxxxxx
Title: Managing Member
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EXHIBIT
A
FORM OF PROMISSORY
NOTE
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EXHIBIT
B
SCHEDULE OF
EXCEPTIONS
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