vivakor_10q-ex1004.htm


    EXHIBIT
10.4

     

    THIS
PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.  NO SALE OR DISPOSITION MAY BE EFFECTED EXCEPT IN COMPLIANCE
WITH RULE 144 UNDER SAID ACT OR AN EFFECTIVE REGISTRATION STATEMENT RELATED
THERETO OR AN OPINION OF COUNSEL FOR THE HOLDER, SATISFACTORY TO THE COMPANY,
THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT OR RECEIPT OF A NO-ACTION
LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION.

     

    PROMISSORY
NOTE

    
       

      
        	$682,550.00         	August 21,
  2009


      

                                                                                                  

    

    IME
Capital, LLC (the “Investor”), for value
received, promises to pay to the order of Vivakor, Inc., a Nevada
corporation (the “Holder”), the principal sum of
Six Hundred Eighty Two Thousand Five Hundred Fifty dollars U.S. ($682,550.00
USD). This Note (the “Note”) is secured by shares
purchased under that certain Stock Purchase Agreement to which this note
relates.  Capitalized terms used herein but not otherwise defined
shall have the meanings ascribed them in the Common Stock Purchase
Agreement.

     

    1. Maturity. This Note shall mature
automatically and the entire outstanding principal amount shall become due and
payable on or before sixty (60) days after the date of this Note (the “Maturity Date”).

     

    2. Payment
of Principal and Interest. Payments of principal in
lawful money of the United States of America are to be made on or before the
Maturity Date at the address of Holder set forth on the signature page of this
Note or at such other place in the United States as Holder designates to the
Investor in writing. This Note shall bear interest at an annual rate of five
percent (5%), calculated on the basis of three hundred sixty (360) days per
year.  All interest shall accrue and be paid on the Maturity
Date.

     

    3. Prepayment. The Investor may pay any or all of the balance owed
hereunder at any time up to and including the Maturity date.

     

    4. Waiver of
Presentment. The Investor hereby waives presentment of this Note,
protest, dishonor and notice of dishonor. 

     

    5. Litigation. Other than any matters disclosed in
Holder’s registration statement filed with the Securities and Exchange
Commission on Form S-1 dated August 12, 2009, as amended, Holder 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 Note.  In the event that any of these circumstances occur
after the signing of this Note, any remaining obligations due under this Note
shall be deemed null and void.

     

    6. Loss,
Theft or Destruction of Note. Upon receipt by the Investor
of evidence reasonably satisfactory to the Investor of the loss, theft or
destruction of this Note and of indemnity or security reasonably satisfactory to
the Investor, the Investor shall make and deliver a new Note that shall carry
the same rights carried by this Note, stating that such Note is issued in
replacement of this Note, making reference to the original date of issuance of
this Note (and any successor hereto) and dated as of such cancellation, in lieu
of this Note. 

     

    7. Severability. Every provision of this Note
is intended to be severable. If any term or provision hereof is declared by a
court of competent jurisdiction to be illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the balance of the
terms and provisions hereof, which terms and provisions shall remain binding and
enforceable.

     

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

     

    8. Miscellaneous.

     

    (a) Issue Date. The provisions of
this Note shall be construed and shall be given effect in all respects as if
this Note had been issued and delivered by the Investor on the earlier of the
date hereof or the date of issuance of any Note for which this Note is issued in
replacement. This Note shall be binding on any successor or assign of the
Investor.

     

    (b) Governing Law. This Note shall
constitute a contract under the laws of the State of Nevada and for all purposes
shall be construed in accordance with and governed by the laws of the State of
Nevada, without regard to the conflicts of laws provisions thereof.

     

    (c) Legal Representation. Holder
agrees and represents that such party has been represented by such party's own
legal counsel with regard to all aspects of this Note, or if such party is
acting without legal counsel, that such party has had adequate opportunity and
has been encouraged to seek the advice of such party's own legal counsel prior
to the execution of this Agreement.

     

    (d) Jurisdiction. Any action
whatsoever brought upon or relating to this Note shall be instituted and
prosecuted in the state courts located in Nevada, or the federal district court
therefore, and each party waives the right to change the venue. The parties
hereto further consent to accept service of process in any such action or
proceeding by certified mail, return receipt requested.

     

    (e) Assignment. Holder shall not
assign this Note or any of the rights, interests or obligations hereunder, by
operation of law or otherwise, in whole or in part, to any person or
entity.

     

    (f) Notices. Any notice, request
or other communication required or permitted hereunder shall be given upon
personal delivery, overnight courier or upon the fifth (5th) day following
mailing by registered mail (or certified first class mail if both the addresser
and addressee are located in the United States), postage prepaid and addressed
to the parties hereto as follows:

     

    To
Investor:

     

    IME
Capital, LLC

    __________________

    ___________________

    __________________

    


     

    To
Holder:

     

    Vivakor,
Inc.

    2590
Holiday Road. Suite 100,

    Coralville,
IA 52241

    (319)
625-2172

     

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

    
 

    IN WITNESS WHEREOF, Investor
has caused this Promissory Note to be executed by its officer thereunto duly
authorized.

     

    The
“Investor”:

    IME
Capital LLC

    


    By: /s/ Todd C.
Smith                       


          Name:
Todd C. Smith

     

    Title:       Manager                            


    
 

     

     

     3