Exhibit
10.1


 


THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES
LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED, OR OTHERWISE TRANSFERRED OR DISPOSED OF UNLESS AND UNTIL THIS NOTE IS REGISTERED UNDER
THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.


 


PROMISSORY
NOTE 


 


	June
    1, 2018	$2,500,000.00


 


FOR
VALUE RECEIVED, and subject to the terms and conditions set forth herein, EVO Transportation & Energy Services, Inc., a Delaware
corporation, on behalf of itself and its successors and assigns (collectively, the “Maker”), hereby unconditionally
promises to pay to the order of Billy (Trey) Peck Jr. (the “Noteholder,” and together with the Maker, the “Parties”),
the principal amount of TWO MILLION FIVE HUNDRED THOUSAND AND 00/100 DOLLARS ($2,500,000) (the “Loan”), together
with all accrued interest thereon, as provided in this Promissory Note (the “Note,” as the same may be amended,
restated, supplemented or otherwise modified from time to time in accordance with its terms).


 


1. Definitions.
Capitalized terms used herein and not defined elsewhere in this Note shall have the meanings set forth in this Section 1.


 


“Default
Rate” means nine percent (9%) per annum.


 


“Employment
Agreement” means that certain employment agreement between Maker and Holder dated June 1, 2018.


 


“Equity
Purchase Agreement” means that certain agreement for the equity interest in Thunder Ridge Transport, Inc. by and between
EVO Transportation & Energy Services, Inc. as Buyer and Billy (Trey) Peck. Jr. as Equity Holder dated June 1, 2018.


 


“Event
of Default” has the meaning set forth in Section 5.


 


“Governmental
Authority” means the government of any nation or any political subdivision thereof, whether at the national, state,
territorial, provincial, municipal or any other level, and any agency, authority, instrumentality, regulatory body, court, central
bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of,
or pertaining to, government (including any supranational bodies such as the European Union or the European Central Bank).


 


“Interest
Rate” means the rate equal to six percent (6%) per annum, unless the Default Rate is applicable.


 






     

     


    

 


“Law” as
to any Person means any law (including common law), statute, ordinance, treaty, rule, regulation, policy or requirement of any
Governmental Authority and authoritative interpretations thereon, whether now or hereafter in effect, in each case, applicable
to or binding on such Person or any of its properties or to which such Person or any of its properties is subject.


 


“Loan” has
the meaning set forth in the introductory paragraph.


 


“Maker” has
the meaning set forth in the introductory paragraph.


 


“Maturity
Date” means the earlier of (a) the date Maker raises Forty Million Dollars ($40,000,000) at a Public Offering and/or
Private Offerings as defined in the Equity Purchase Agreement; (b) December 31, 2018; and (c) termination of Noteholder’s
employment with Maker by Maker without Cause (as defined in the Employment Agreement) or by Holder for Good Reason (as defined
in the Employment Agreement).


 


“Note” has
the meaning set forth in the introductory paragraph.


 


“Noteholder” has
the meaning set forth in the introductory paragraph.


 


“Order” as
to any Person, means any order, decree, judgment, writ, injunction, settlement agreement, requirement or determination of an arbitrator
or a court or other Governmental Authority, in each case, applicable to or binding on such Person or any of its properties or
to which such Person or any of its properties is subject.


 


“Parties” has
the meaning set forth in the introductory paragraph.


 


“Person” means
any individual, corporation, limited liability company, trust, joint venture, association, company, limited or general partnership,
unincorporated organization, Governmental Authority or other entity.


 


2. Repayment
of Principal.


 


2.1 Monthly
Payments. The Maker will pay to Holder monthly principal payments of $14,000 each on or before the 5th day following
the end of each calendar month until the Loan is paid in full, whether at maturity, upon acceleration, by prepayment or otherwise,
with the first principal payment due on or before July 5, 2018.


 


2.2 Final
Payment Date. The aggregate unpaid principal amount of the Loan, all accrued and unpaid interest and all other amounts payable
under this Note shall be due and payable on the Maturity Date.


 


2.3 Optional
Prepayment. The Maker may prepay the Loan in whole or in part at any time or from time to time without penalty or premium
by paying the principal amount to be prepaid and all accrued interest thereon to the date of prepayment. No prepaid amount may
be reborrowed.


 






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3. Interest.


 


3.1 Interest
Rate; Payment. Except as otherwise provided herein, the outstanding principal amount of the Loan made hereunder shall bear
interest at the Interest Rate, calculated monthly, from the date of this Note until the Loan is paid in full, whether at maturity,
upon acceleration, by prepayment or otherwise. All accrued and unpaid interest will be due and payable on the Maturity Date.


 


3.2 Default
Interest. If any payment of principal or interest hereof is more than Thirty (30) calendar days delinquent, whether or not
notice of default has been given, and at the option of the Noteholder by written notice to Maker, Maker shall pay interest on
the entire principal balance and any other amounts due under this Note at the rate equal to the Default Rate. The Default Rate
shall be computed from the date which is thirty (30) days following the date the payment was due, and shall continue until the
payment is made. Amounts of interest accrued at the Default Rate shall constitute part of the Loan. This paragraph, however, shall
not be construed as an agreement or privilege to extend the date of the payment of the Loan, or as a waiver of any other right
or remedy accruing to Noteholder by reason of the occurrence of any Event of Default.


 


3.3 Computation
of Interest. All computations of interest shall be made on the basis of a year of 365/366 days, as the case may be, and the
actual number of days elapsed. Interest shall accrue on the Loan beginning on the date hereof, and shall not accrue on the Loan
on the day on which it is paid.


 


4. Payment
Mechanics.


 


4.1 Manner
of Payment. All payments of interest and principal shall be made in lawful money of the United States of America on the date
on which such payment is due, without set-off or deduction of any kind, by cashier’s check delivered to the address as set
forth in, or otherwise provided pursuant to, the notice provisions hereof or by wire transfer of immediately available funds to
the Noteholder’s account at a bank specified by the Noteholder to the Maker from time to time.


 


4.2 Application
of Payments. All payments made hereunder shall be applied first, to the payment of any fees or charges outstanding hereunder,
second, to accrued interest and third, to the payment of the principal amount outstanding under the Note.


 


4.3 Business
Day Convention. Whenever any payment to be made hereunder shall be due on a day that is not a Business Day, such payment shall
be made on the next succeeding Business Day and such extension will be taken into account in calculating the amount of interest
payable under this Note.


 






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5. Events
of Default. The occurrence of any of the following shall constitute an Event of Default hereunder:


 


5.1 Failure
to Pay. The Maker fails to pay any amount of the Loan when amount is due and such default continues ten (10) calendar days
after the date the Noteholder gives notice that the amount is past due.


 


5.2 Late
Fee. If any installment payable under this Note (including the final installment due on the Maturity Date) is not received
by Noteholder on or prior to ten (10) calendar days after the same is due (without regard to any applicable cure or notice period,
and regardless of whether notice of the failure to pay has been given), Maker shall pay to Noteholder upon demand an amount equal
to two percent (2%) of such unpaid sum to defray the expenses incurred by Maker in handling and processing such delinquent payment
and to compensate Maker for the loss of the use of such delinquent payment.


 


5.3 Bankruptcy.
 


 


(a) the
Maker commences any case, proceeding or other action (i) under any existing or future law relating to bankruptcy, insolvency,
reorganization, or other relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate
it as bankrupt or insolvent, or other relief with respect to it or its debts, or (ii) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any substantial part of its assets, or the Maker makes a
general assignment for the benefit of its creditors;


 


(b) there
is commenced against the Maker any case, proceeding or other action of a nature referred to in clause (a) above which (i) results
in the entry of an order for relief or any such adjudication or appointment or (ii) remains undismissed, undischarged or unbonded
for a period of sixty (60) days;


 


(c) there
is commenced against the Maker any case, proceeding or other action seeking issuance of a warrant of attachment, execution or
similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which
has not been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof;


 


(d) the
Maker takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth
in clause (a), (b) or (c) above; or


 


(e) the
Maker is generally not, or is unable to, or admits in writing its inability to, pay its debts as they become due.


 


5.4 The
Maker defaults under the terms of the Equity Purchase Agreement and such default continues for a period of Ten (10) calendar days
after notice of default is given.


 






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5.5 The
Maker defaults under the terms of the Security Agreement, Pledge Agreement or any other document or agreement securing Maker’s
performance under the Loan and the Note and such default continues for a period of Ten (10) calendar days after notice of default
is given.


 


6. Remedies.
Upon the occurrence of an Event of Default and at any time thereafter during the continuance of such Event of Default, the Noteholder
may, at its option by written notice to the Maker, (a) declare the entire principal amount of this Note, together with all accrued
interest thereon and all other amounts payable hereunder, immediately due and payable and/or (b) exercise any or all of its rights,
powers or remedies under applicable law; provided, however that, if an Event of Default described in Section 5.3
shall occur, the principal of and accrued interest on the Loan shall become immediately due and payable without any notice, declaration
or other act on the part of the Noteholder.


 


7. Additional
Note Terms.


 


7.1 Lien.
This Note and the obligations evidenced hereunder are secured by a Security Agreement and Pledge Agreement of even date herewith
as set forth in the Equity Purchase Agreement.


 


7.2 Reserved.


 


7.3 Securities
Act. This Note has not been registered under the Securities Act of 1933, as amended, or under the securities law of any state.
This Note may not be sold or transferred in the absence of registration or exemption therefrom under said Act and any applicable
state laws.


 


8. Miscellaneous.


 


8.1 Notices.
 


 


(a) All
payments, notices, requests or other communications required or permitted to be delivered hereunder shall be delivered in writing
to such address as a Party may from time to time specify in writing.


 


(b) Notices
shall be deemed to have been given (i) if mailed by certified or registered mail, four (4) days after the date of mailing, (ii)
if hand delivered, on the date of delivery, (iii) if sent by overnight courier service, on the day after the date of delivery
to the courier, (iv) if sent by facsimile during the normal business hours of the recipient, on the day sent (and if sent after
normal business hours, on the opening of the recipient’s business on the next day that is not a Saturday, Sunday or federal
legal holiday) and (v) sent by email, on the sender’s receipt of an acknowledgment from the intended recipient (such as
by the “return receipt requested” function, as available, return e-mail or other written acknowledgment).


 






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8.2 Governing
Law. This Note and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon,
arising out of or relating to this Note and the transactions contemplated hereby shall be governed by the laws of the State of
Missouri.


 


8.3 Submission
to Jurisdiction.


 


(a) The
Maker hereby irrevocably and unconditionally (i) agrees that any legal action, suit or proceeding arising out of or relating to
this Note may be brought in the federal or state courts of the State of Missouri, County of Greene, and (ii) submits to the
jurisdiction of any such court in any such action, suit or proceeding, and (iii) agrees that the venue for any such action, suit
or proceeding shall be only in such courts. Final judgment against the Maker in any action, suit or proceeding shall be conclusive
and may be enforced in any other jurisdiction by suit on the judgment.


 


(b) Nothing
in this Section 8.3 shall affect the right of the Noteholder to (i) commence legal proceedings or otherwise sue the
Maker in any other court having jurisdiction over the Maker or (ii) serve process upon the Maker in any manner authorized by the
laws of any such jurisdiction.


 


8.4 Waiver
of Jury Trial. THE MAKER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY RELATING TO THIS NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY
WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY.


 


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


 


8.6 Waiver
of Notice. The Maker hereby waives presentment, demand for payment, protest, notice of dishonor, notice of protest or nonpayment,
notice of acceleration of maturity and diligence in connection with the enforcement of this Note or the taking of any action to
collect sums owing hereunder.


 


8.7 Amendments
and Waivers. No term of this Note may be waived, modified or amended except by an instrument in writing signed by both of
the parties hereto. Any waiver of the terms hereof shall be effective only in the specific instance and for the specific purpose
given.


 






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8.8 Headings.
The headings of the various Sections and subsections herein are for reference only and shall not define, modify, expand or limit
any of the terms or provisions hereof.


 


8.9 No
Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising on the part of the Noteholder, of any right,
remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.


 


8.10 Severability.
If any term or provision of this Note is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other term or provision of this Note or invalidate or render unenforceable such term or
provision in any other jurisdiction.


 


[Signature
page follows.]


 






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IN
WITNESS WHEREOF, the Maker has executed this Note as of date first written above.


 


	 	EVO TRANSPORTATION & ENERGY SERVICES, INC.



	 	 
	 	By:	/s/
                                         John Yeros

	 	Name:

        
	John
    Yeros
	 	Title:

        
	CEO


  


	Accepted
    and agreed to by:	 
	 	 
	/s/ Billy
    (Trey) Peck Jr.	 
	Billy (Trey)
    Peck Jr.	 


 


 


 


Signature Page to Seller Note