Form 8-K - Current report

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): September 12, 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.

Fourth Amendment to Agreement and Plan of Merger

Effective as of September 12, 2024, INVO Bioscience, Inc., a Nevada corporation (the “Company”) entered into a fourth amendment (“Fourth 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 Fourth 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 October 14, 2024. The parties further agreed that NAYA would purchase 27,500 shares of the Company’s Series A Preferred Stock for $137,500 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”) and could purchase up to an additional 72,500 shares of Series A Preferred Stock for an aggregate of $362,500 pursuant to the Securities Purchase Agreement prior to or concurrently with the closing of the Merger. Each party waived prior breaches of the Merger Agreement.

Each party also agreed to use its best efforts to consummate the transactions contemplated by the Fourth Amendment, including to negotiate in good faith to amend and restate the Merger Agreement (the “A&R Merger Agreement”) to, among other things, (1) provide that the closing of the Merger shall occur simultaneously or shortly after the execution and delivery of the A&R Merger Agreement, and that the parties shall commit to use its respective best efforts to cause the closing to occur on or about October 1, 2024, but, in any case, no later than October 14, 2024, (2) ensure that the revised structure of the Merger shall be in compliance in all material respects with the applicable current listing and governance rules and regulations of the Nasdaq Stock Market, (3) provide that the aggregate merger consideration to be paid by the Company for all of the outstanding shares of NAYA’s capital stock shall consist of (a) such number of shares of the Company’s common stock as shall represent a number of shares equal to no more than 19.9% of the outstanding shares of the Company’s common stock as of immediately before the effective time of the Merger (the “Common Stock Payment Shares”) and (b) shares of a newly designated Series C Convertible Preferred Stock of the Company (the “Parent Preferred Stock Payment Shares”), (4) include an acknowledgment by the parties that NAYA shall transfer 85% of the Common Stock Payment Shares to Five Narrow Lane LP (“FNL”), as a secured lender of NAYA, (5) provide that the Company shall take all action necessary under applicable law to (i) call, give notice of, and hold a meeting of its stockholders as soon as possible after the closing of the Merger, but in any case, no later than 120 days thereafter (the “Stockholder Meeting Deadline”; provided, that, the Company acknowledges that, if the Parent receives comments from the Securities and Exchange Commission (“SEC”) on the proxy statement filed in connection with such stockholder meeting and the Parent uses its best efforts to revise and refile the proxy statement to address such comments, the date of such stockholder meeting may be after the Stockholder Meeting Deadline), for the purpose of, among other things, seeking stockholder approval (the “Stockholder Approval”) of the issuance of all shares of the Company’s common stock issuable upon conversion (the “Series C Conversion Shares”) of the Preferred Stock Payment Shares in accordance with the terms of the Certificate of Designations of Series C Convertible Preferred Stock (the “Series C Certificate of Designations”), and (ii) to file with the SEC a proxy statement for the purpose of obtaining the Stockholder Approval, no later than 35 days after the closing of the Merger, (6) provide that, upon receipt of the Stockholder Approval, the Preferred Stock Payment Shares shall be automatically converted into the Series C Conversion Shares at the conversion price in effect as set forth in the Series C Certificate of Designations; provided that, following such conversion, the Series C Conversion Shares shall represent approximately 60.1% of the outstanding shares of the Company’s common stock; and (7) provide that, as soon as possible after the closing of the Merger, the Company shall file a resale registration statement with the SEC to register the Common Stock Payment Shares and the Series C Conversion Shares in accordance with the terms of a registration rights agreement to be entered into between the parties.

The foregoing description of the Fourth Amendment does not purport to be complete and is qualified in its entirety by reference to the Fourth Amendment, which is attached hereto as Exhibit 2.1 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. On September 16, 2024, the Company issued 27,500 shares of the Company’s Series A Preferred Stock for $137,500 pursuant to the Securities Purchase Agreement. 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		Fourth Amendment to Agreement and Plan of Merger by and among INVO Bioscience, Inc., INVO Merger Sub, Inc., and NAYA Biosciences, Inc. dated as of September 12, 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: September 18, 2024

	INVO BIOSCIENCE, INC.

	By:	/s/ Steven Shum
		Steven Shum
		Chief Executive Officer

Exhibit 2.1

FOURTH AMENDMENT TO AGREEMENT AND PLAN OF MERGER

This Fourth Amendment (the “Amendment”), dated as of September 12, 2024, to the Agreement and Plan of Merger, originally entered into as of October 22, 2023 (as amended by the First Amendment to Agreement and Plan of Merger, dated as of October 25, 2023, the Second Amendment to Agreement and Plan of Merger, dated as of December 27, 2023, the Third Amendment to Agreement and Plan of Merger, dated as of May 1, 2024, and as further amended from time to time, the “Merger Agreement”), by and among NAYA Biosciences, Inc., a Delaware corporation (the “Company”), INVO Bioscience, Inc., a Nevada corporation (the “Parent”), and INVO Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of the Parent (the “Merger Sub”). Capitalized terms used (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 the Merger Agreement 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 and restate the Merger Agreement (the “A&R Merger Agreement”), to, among other things, do the following:

	(1)	provide that the Closing shall occur simultaneously or shortly after the execution and delivery of the A&R Merger Agreement, and that the parties shall commit to use its respective best efforts to cause the Closing Date to occur on or about October 1, 2024, but, in any case, no later than October 14, 2024;

	(2)	ensure that the revised structure of the Merger shall be in compliance in all material respects with the applicable current listing and governance rules and regulations of the Nasdaq Stock Market;

	(3)	provide that the aggregate merger consideration to be paid by the Parent for all of the outstanding shares of the Company’s capital stock at the Closing shall consist of (a) such number of shares of common stock of the Parent (the “Parent Common Stock”) as shall represent a number of shares equal to no more than 19.9% of the outstanding shares of Parent Common Stock as of immediately before the effective time of the Merger (the “Parent Common Stock Consideration Cap”; and such shares, the “Parent Common Stock Payment Shares”) and (b) shares of a newly designated Series C Convertible Preferred Stock of the Parent (“Parent Preferred Stock Payment Shares”);

	(4)	include an acknowledgment by the Company and the Parent that the Company shall transfer 85% of the Parent Common Stock Payment Shares to Five Narrow Lane LP, as a secured lender of the Company (“FNL”);

	(5)	provide that, the Parent shall take all action necessary under applicable law to call, give notice of and hold a meeting of the stockholders of the Parent as soon as possible after the Closing Date, but in any case, no later than 120 days after the Closing Date (the “Stockholder Meeting Deadline”; provided, that, the Company acknowledges that, if the Parent receives comments from the Securities and Exchange Commission on the proxy statement filed in connection with such stockholder meeting and the Parent uses its best efforts to revise and refile the proxy statement to address such comments, the date of such stockholder meeting may be after the Stockholder Meeting Deadline), for the purpose of, among other things, seeking stockholder approval (the “Stockholder Approval”) of the issuance of all shares of Parent Common Stock issuable upon conversion (the “Series C Conversion Shares”) of the Parent Preferred Stock Payment Shares in accordance with the terms of the Certificate of Designations of Series C Convertible Preferred Stock (the “Series C Certificate of Designations”);

	(6)	provide that, upon receipt of the Stockholder Approval, the Parent Preferred Stock Payment Shares shall be automatically converted into the Series C Conversion Shares at the conversion price in effect as set forth in the Series C Certificate of Designations; provided that, following such conversion, the Series C Conversion Shares shall represent approximately 60.1% of the outstanding shares of Parent Common Stock; and

(7)

provide that, as soon as possible after the Closing Date, the Parent shall file a resale registration statement with the Securities and Exchange Commission to register the Parent Common Stock Payment Shares and the Parent Common Stock issuable upon conversion of the Parent Preferred Stock Payment Shares, in accordance with the terms of a registration rights agreement to be entered into between the parties (each of (1) through (7), the “Proposed Amendments”).

WHEREAS, the parties are negotiating in good faith to amend and restate the Merger Agreement to reflect, among other modified terms, the Proposed Amendments and, accordingly, desire to enter into this Amendment to extend the End Date to October 14, 2024;

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. The parties hereby agree that, at the Effective Time, Section 1.53 of the Merger Agreement shall be amended and restated in its entirety to read as follows:

“End Date” shall mean October 14, 2024.

2. Stock Purchase. Promptly following the execution of this Amendment, and in no event later than September 13, 2024, the Company shall purchase 27,500 shares of the Parent’s Series A Convertible Preferred Stock for $137,500, 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 (the “Securities Purchase Agreement”; and the time of the consummation of such purchase, the “Effective Time”).

3. Waiver. Effective upon the Effective Time, each party hereby waives any prior breaches of the Merger Agreement. The waiver herein is a limited waiver and shall not be deemed to constitute a waiver with respect to any future breaches of the Merger Agreement, and shall not be deemed to prejudice any right or rights which either party may now have or may have in the future under or in connection with the Merger Agreement. The foregoing waiver set forth herein shall also not be deemed to operate as, or obligate any party to grant any future consent to or modification or waiver of any other term, condition, breach of, or default under the Merger Agreement.

4. Further Assurances. Each of the parties shall use its best efforts, on and after the Effective Time, to take, or cause to be taken, all actions, and to do, or cause to be done, all things, reasonably necessary, proper or advisable under applicable laws, regulations and agreements to consummate and make effective the transactions contemplated by this Amendment, including but not limited to promptly negotiate in good faith the A&R Merger Agreement and to fulfill such party’s respective conditions precedents and obligations to ensure a timely Closing.

5. Additional SPA Closings. The Company may purchase, and the Parent may sell, in one or more tranches, up to an additional 72,500 shares of the Parent’s Series A Preferred Stock for an aggregate of $362,500 pursuant to the Securities Purchase Agreement prior to or concurrently with the Closing.

6. FNL Pledge. The Company hereby agrees and that Parent acknowledges that any shares of the Parent’s Series A Preferred Stock purchased by the Company pursuant to the Securities Purchase Agreement, in accordance with Sections 2 and 5 above, will be pledged by the Company to FNL, as a secured party under that certain Security Agreement, dated as of January 3, 2024, between the Company, the other debtors party thereto from time to time and FNL.

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

8. 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.

9. Governing Law. The terms of Section 9.2 (Governing Law) of the Merger Agreement are hereby incorporated by reference mutatis mutandis.

[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:	/s/ Daniel Teper
Name:	Daniel Teper
Title:	CEO

PARENT:

INVO BIOSCIENCE, INC.

By:	/s/ Steven Shum
Name:	Steven Shum
Title:	CEO

MERGER SUB:

INVO MERGER SUB INC.

By:	/s/ Steven Shum
Name:	Steven Shum
Title:	CEO

Cover	Sep. 12, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Sep. 12, 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