INVO INVO BioScience Inc

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

 

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

Date of Report (Date of earliest event reported): May 1, 2024

 

INVO BIOSCIENCE, INC.

(Exact name of registrant as specified in its charter)

 

Nevada		001-39701		20-4036208
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

 

5582 Broadcast Court

Sarasota, Florida 34240

(Address of principal executive offices)

(Zip Code)

 

Registrant’s telephone number, including area code: (978) 878-9505

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Common Stock, $0.0001 par value		INVO		The Nasdaq Stock Market LLC
(Title of Each Class)		(Trading Symbol)		(Name of Each Exchange on Which Registered)

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (CFR §230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (CFR §240.12b-2 of this chapter). Emerging growth company ☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

 

Item 1.01 Entry into a Material Definitive Agreement.

 

Third Amendment to Agreement and Plan of Merger

 

Effective as of May 1, 2024, INVO Bioscience, Inc., a Nevada corporation (the “Company”) entered into third amendment (“Third Amendment”) to the previously announced agreement and plan of merger (the “Merger Agreement”) by and among the Company, INVO Merger Sub, Inc. (“Merger Sub”), and NAYA Biosciences, Inc., a Delaware corporation (“NAYA”).

 

Pursuant to the Third Amendment, the parties agreed to extend the end date (the date by which either the Company or NAYA may terminate the Merger Agreement, subject to certain exceptions) of the merger contemplated by the Merger Agreement (the “Merger”) to June 30, 2024. The parties further agreed to modify the definition of an “Interim PIPE” to mean (a) a sale of shares of the Company’s Series A Preferred Stock pursuant to that certain Securities Purchase Agreement dated as of December 29, 2023, as amended pursuant to an Amendment to Securities Purchase Agreement dated as of May 1, 2024 (as amended, the “Securities Purchase Agreement”) (“Phase 1”), plus (b) a sale of shares of the Company’s preferred stock at a price per share of $5.00 per share in a private offering, to be consummated prior to the closing of the Merger, resulting in an amount as may be required, to be determined in good faith by the parties to the Merger Agreement, to adequately support the Company’s fertility business activities per an agreed forecast of the Company as well as for a period of twelve (12) months following the closing, including a catch-up on the Company’s past due accrued payables still outstanding (“Phase 2”). The parties agreed that Phase I must be consummated pursuant to the terms of the Securities Purchase Agreement and that Phase II much be consummated prior to the closing of the Merger. The parties also confirmed that the Company remains free to secure any amount of funding from third parties on any terms the Company deems reasonably acceptable under SEC and Nasdaq regulations without the prior written consent of NAYA. Under the Third Amendment, the Company may terminate the Merger Agreement if NAYA breaches or fails to perform any of its covenants and agreements set forth in the Securities Purchase Agreement in any respect.

 

The foregoing description of the Third Amendment does not purport to be complete and is qualified in its entirety by reference to the Third Amendment, which is attached hereto as Exhibit 2.1 and is incorporated herein by reference.

 

 

Amendment to Securities Purchase Agreement

 

Effective as of May 1, 2024, the Company entered into an Amendment (the “SPA Amendment”) to the Securities Purchase Agreement. Pursuant to the SPA Amendment, the parties agreed to the following closing schedule for NAYA’s purchases of the remaining 838,800 shares of the Company’s Series A Preferred Stock at a purchase price of $5.00 per share:

 

Closing Date		Shares				Aggregate Purchase Price
May 10, 2024			20,000			$	100,000
May 17, 2024			30,000			$	150,000
May 24, 2024			30,000			$	150,000
May 31, 2024			30,000			$	150,000
June 7, 2024			30,000			$	150,000
June 14, 2024			30,000			$	150,000
June 21, 2024			30,000			$	150,000
June 28, 2024			30,000			$	150,000
July 5, 2024			30,000			$	150,000
On or before the closing of the Merger Agreement, to be determined in good faith by the Subscriber and the Company			598,800			$	2,894,000

 

The foregoing description of the SPA does not purport to be complete and is qualified in its entirety by reference to the SPA, which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.

 

Item 3.02 Unregistered Sale of Equity Securities.

 

The information set forth in Item 1.01 is incorporated herein by reference. The Company offered the Series A Preferred Stock pursuant to an exemption from registration under Section 4(a)(2) of the Securities Act of 1933, as amended.

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit		Description
2.1		Third Amendment to Agreement and Plan of Merger by and among INVO Bioscience, Inc., INVO Merger Sub, Inc., and NAYA Biosciences, Inc. dated as of May 1, 2024.
10.1		Amendment to Securities Purchase Agreement by and between INVO Bioscience, Inc. and NAYA Biosciences, Inc. dated as of May 1, 2024.
104		Cover Page Interactive Data File (embedded within the Inline XBRL document).

 

 

SIGNATURE

 

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

 

Date: May 6, 2024

 

	INVO BIOSCIENCE, INC.
	By:	/s/ Steven Shum
		Steven Shum
		Chief Executive Officer

 

 

 

Exhibit 2.1

 

THIRD AMENDMENT TO AGREEMENT AND PLAN OF MERGER

 

This Third Amendment (the “Amendment”), dated as of May 1, 2024, to the Agreement and Plan of Merger, originally entered into as of October 22, 2023, and amended thereafter on October 25, 2023 and December 26, 2023 (as amended, the “Merger Agreement”), by and among NAYA Biosciences, Inc., a Delaware corporation (the “Company”), INVO Bioscience, Inc., a Nevada corporation (“Parent”), and INVO Merger Sub Inc., a Delaware corporation and a wholly owned Subsidiary of Parent (“Merger Sub”). Capitalized terms used herein (including in the immediately preceding sentence) and not otherwise defined herein shall have the meanings set forth in the Merger Agreement.

 

WHEREAS, Section 8.6 of the Merger Agreement provides that it may be amended or supplemented by written agreement signed by each of the parties thereto.

 

WHEREAS, each of the Company, the Parent, and the Merger Sub desire to amend the Merger Agreement as provided herein.

 

NOW, THEREFORE, in consideration of the foregoing and of the representations, warranties, covenants, and agreements contained in this Amendment, the parties, intending to be legally bound, agree as follows:

 

1. Amendment of Section 1.53 of the Merger Agreement. Section 1.53 of the Merger Agreement is amended and restated in its entirety to read as follows:

 

“End Date” shall mean June 30, 2024.

 

2. Amendment of Section 1.72 of the Merger Agreement. Section 1.72 of the Merger Agreement is amended and restated in its entirety to read as follows:

 

“Interim PIPE” means (a) a sale of shares of the Parent’s Series A Preferred Stock pursuant to that certain Securities Purchase Agreement dated as of December 29, 2023, as amended pursuant to an Amendment to Securities Purchase Agreement dated as of April 30, 2024 (as amended, the “Securities Purchase Agreement”) (“Phase 1”), plus (b) a sale of shares of the Parent’s preferred stock at a price per share of $5.00 per share in a private offering, to be consummated prior to the Closing of the Merger, resulting in an amount as may be required, to be determined in good faith by the parties hereto, to adequately support the Parent’s fertility business activities per an agreed forecast of the Parent as well as for a period of twelve (12) months following the Closing, including a catch-up on Parent’s past due accrued payables still outstanding (“Phase 2”).

 

3. Amendment of Section 6.17 of the Merger Agreement. Section 6.17 of the Merger Agreement is amended and restated in its entirety to read as follows:

 

“Company shall consummate Phase I of the Interim PIPE pursuant to the Securities Purchase Agreement in accordance with its terms and shall consummate the Phase II of the Interim PIPE prior to the Closing. Notwithstanding anything to the contrary stated in this Agreement, Parent shall be free to secure any amount of funding from third parties on any terms Parent deems reasonably acceptable under SEC and Nasdaq regulations without the prior written consent of Company.”

 

4. Termination by Parent. Notwithstanding anything in the Merger Agreement to the contrary, the Merger Agreement may be terminated by Parent at any time prior to the Closing if Company breaches or fails to perform any of its covenants and agreements set forth in the Securities Purchase Agreement in any respect.

 

5. Further Amendment. The parties shall negotiate in good faith to arrive at a mutually acceptable amendment to the Merger Agreement for approval, execution, and delivery on the earliest reasonably practicable date; provided, however, that the parties agree that Parent will not file an amendment to the Form S-4 or the Proxy Statement/Prospectus until the parties arrive at a mutually acceptable amendment to the Merger Agreement.

 

6. Amendment. This Amendment shall be deemed an amendment of the Agreement in accordance with Section 8.6 of the Agreement. Except as specifically modified hereby, the Agreement shall be deemed controlling and effective, and the parties hereby agree to be bound by each of its terms and conditions.

 

6. Counterparts; Effectiveness. This Amendment may be executed in any number of counterparts, all of which will be one and the same agreement. This Amendment will become effective when each party to this Amendment will have received counterparts signed by all of the other parties. A signed copy of this Amendment delivered by email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Amendment. This Amendment shall be considered signed when the signature of a party is delivered by .PDF, DocuSign or other generally accepted electronic signature. Such .PDF, DocuSign, or other generally accepted electronic signature shall be treated in all respects as having the same effect as an original signature.

 

[signature pages follow]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above by their respective officers thereunto duly authorized.

 

COMPANY:
NAYA BIOSCIENCES, INC.
By:
Name:	Daniel Teper
Title:	CEO
PARENT:
INVO BIOSCIENCE, INC.
By:
Name:	Steven Shum
Title:	CEO
MERGER SUB:
INVO MERGER SUB INC.
By:
Name:	Steven Shum
Title:	CEO

 

  

 

Exhibit 10.1

 

AMENDMENT TO SECURITIES PURCHASE AGREEMENT

 

THIS AMENDMENT TO SECURITIES PURCHASE AGREEMENT (this “Amendment”), dated as of May 1, 2024, by and between INVO Bioscience, Inc., a Nevada corporation (the “Company”), and NAYA Biosciences, Inc., a Delaware corporation (the “Subscriber”).

 

WHEREAS, the Company and the Subscriber are parties to that certain Securities Purchase Agreement dated as of December 29, 2023 (the “Agreement”), pursuant to which the Subscriber agreed to purchase One Million (1,000,000) shares (the “Shares”) of the Company’s Series A Preferred Stock (the “Series A Preferred Stock”) for a purchase price of $5.00 per Share (the “Purchase Price”), which Shares are convertible into shares (“Conversion Shares”) of the Company’s common stock, par value $0.0001 per share (“Common Stock”) pursuant to the terms and conditions set forth in the Company’s Certificate of Designation Establishing Series A Preferred Stock (the “Certificate of Designation”) in reliance upon an exemption from securities registration afforded by the provisions of Section 4(a)(2), Section 4(a)(6) and/or Regulation D (“Regulation D”) as promulgated by the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”).

 

WHEREAS, as of the date hereof, the Subscriber has purchased 161,200 Shares pursuant to the Securities Purchase Agreement.

 

WHEREAS, the Company and the Subscriber desire to amend the Agreement to provide for the purchase of an additional 838,800 Shares of Series A Preferred Stock for the Purchase Price on the terms and conditions set forth herein.

 

WHEREAS, the Agreement and this Amendment are entered into pursuant to that certain Agreement and Plan of Merger, originally entered into as of October 22, 2023, and amended thereafter on October 25, 2023, December 26, 2023, and April 30, 2024 (as amended, the “Merger Agreement”), by and among the Subscriber, the Company, and INVO Merger Sub Inc..

 

NOW, THEREFORE, in consideration of the mutual covenants and other agreements contained in this Agreement the Company and the Subscribers hereby agree as follows:

 

1. Section 1 of the Agreement is amended in its entirety as follows:

 

(a) Closings. On or before each of the following dates (each a “Closing Date”), the Company shall sell, and the Subscriber shall purchase, the number of corresponding Shares for the aggregate Purchase Price as follows (each purchase and sale, a “Closing”):

 

Closing Date		Shares				Aggregate Purchase Price
January 4, 2024			100,000			$	500,000
April 15, 2024			61,200			$	306,000
May 10, 2024			20,000			$	100,000
May 17, 2024			30,000			$	150,000
May 24, 2024			30,000			$	150,000
May 31, 2024			30,000			$	150,000
June 7, 2024			30,000			$	150,000
June 14, 2024			30,000			$	150,000
June 21, 2024			30,000			$	150,000
June 28, 2024			30,000			$	150,000
July 5, 2024			30,000			$	150,000
On or before the closing of the Merger Agreement, to be determined in good faith by the Subscriber and the Company			598,800			$	2,994,000

 

 

(b) Use of Proceeds. The Company agrees to use the proceeds from the sale of the Shares in accordance with the use of proceeds set forth in a side letter between the Company and the Subscriber of even date herewith. The Company agrees to provide the Subscriber with written records and documentation of such expenditures upon reasonable request by the Subscriber.

 

2. Section 2 of the Agreement is amended in its entirety as follows:

 

Deliveries.

 

(a) On each Closing Date, the Subscriber shall deliver the aggregate Purchase Price for the Shares purchased on such Closing Date by wire transfer to the account specified in writing by the Company.

 

(b) On each Closing Date, the Company shall deliver or cause to be delivered to the Subscriber the Shares purchased on such Closing Date, registered in the name of the Subscriber.

 

(c) On each Closing Date, the representations and warranties of the Company in the Agreement shall be true and correct as of the applicable Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specific date).

 

(d) On each Closing Date, the representations and warranties of the Subscriber in the Agreement shall be true and correct as of the applicable Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specific date).

 

3. Time is of the Essence. It is very important to the Parties that each Closing is performed in a timely manner.  Time is of the essence, thus all things which are required to be done by certain dates must be done, otherwise such failure shall be deemed a material default. If either party breaches the Agreement or this Amendment, the non-breaching party may elect to declare this null and void and all right of the defaulting party hereunder shall terminate. If the non-breaching party does not exercise its option to terminate the Agreement, as amended by this Amendment, said non-breaching party may require specific performance and also exercise any other legal rights and remedies available to it, and said non-breaching party shall be entitled to recover from the breaching party its cost, expenses, and attorney fees incurred in enforcing the terms of this agreement or pursuing a remedy as a result of the breach of the Agreement and this Amendment.

 

4. Effectiveness. This Amendment shall be deemed an amendment of the Agreement in accordance with Section 8(b) of the Agreement. Except as specifically modified hereby, the Agreement shall be deemed controlling and effective, and the parties agree to be bound by each of its terms and conditions.

 

5. Counterparts/Execution. This Amendment may be executed in any number of counterparts and by the different signatories hereto on separate counterparts, each of which, when so executed, shall be deemed an original, but all such counterparts shall constitute but one and the same instrument. This Agreement may be executed by electronic signature (including, without limitation, DocuSign) and delivered by electronic mail transmission.

 

[THIS SPACE INTENTIONALLY LEFT BLANK]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above by their respective officers thereunto duly authorized.

 

SUBCRIBER:
NAYA BIOSCIENCES, INC.
By:
Name:	Daniel Teper
Title:	CEO
COMPANY:
INVO BIOSCIENCE, INC.
By:
Name:	Steven Shum
Title:	CEO

 

 

v3.24.1.u1

Cover	May 01, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	May 01, 2024
Entity File Number	001-39701
Entity Registrant Name	INVO BIOSCIENCE, INC.
Entity Central Index Key	0001417926
Entity Tax Identification Number	20-4036208
Entity Incorporation, State or Country Code	NV
Entity Address, Address Line One	5582 Broadcast Court
Entity Address, City or Town	Sarasota
Entity Address, State or Province	FL
Entity Address, Postal Zip Code	34240
City Area Code	(978)
Local Phone Number	878-9505
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock, $0.0001 par value
Trading Symbol	INVO
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	false

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