UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
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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. |
On July 7, 2023, INVO Bioscience, Inc., a Nevada corporation (the “Company”), entered into an Amendment to Securities Purchase Agreement (the “Armistice Amendment”) with Armistice Capital Markets Ltd. to delete Section 4.12(a) of our March 23, 2023 Securities Purchase Agreement (the “Armistice SPA”) with Armistice pursuant to which we agreed that from March 23, 2023 until 45 days after the effective date of the Resale Registration Statement (as defined) we would not (i) issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents or (ii) file any registration statement or any amendment or supplement thereto, other than the prospectus supplement filed in connection with that offering and the Resale Registration Statement (the “Subsequent Equity Financing Provision”). In consideration of Armistice’s agreement to enter into the Armistice Amendment and delete the Subsequent Equity Financing Provision from the Armistice SPA, we agreed to pay Armistice a fee a $1,000,000 (the “Armistice Amendment Fee”) within two days of the closing of this Offering. Additionally, we agreed to include a proposal in our proxy statement for our 2023 Annual Meeting of Stockholders for the purpose of obtaining the approval of the holders of a majority of our outstanding voting common stock, to effectuate the reduction of the exercise price set forth in Section 2(b) of the Common Stock Purchase Warrants issued to Armistice on March 27, 2023 (the “Existing Warrants”) to the per unit public offering price of this Offering, in accordance with Nasdaq Rule 5635(d) (the “Shareholder Approval”) with the recommendation of our board of directors that such proposal be approved. We also agreed to solicit proxies from our shareholders in connection therewith in the same manner as all other management proposals in such proxy statement and that all management-appointed proxyholders shall vote their proxies in favor of such proposal. Further, if we do not obtain Shareholder Approval at the first meeting, we will call a meeting every six (6) months thereafter to seek Shareholder Approval until the earlier of the date Shareholder Approval is obtained or the Existing Warrants are no longer outstanding. Until such approval is obtained, the exercise price of the Existing Warrants will remain unchanged.
In connection with the Armistice Amendment, the Company also entered into a Payoff Commitment Agreement and Confession of Judgment (the “Payoff Agreement”) with Armistice on July 7, 2023 which provides that if INVO fails to pay the Armistice Amendment Fee when due, the Company confesses judgment in favor of Armistice.
The foregoing does not purport to be a complete description of each of the Armistice Amendment and the Payoff Agreement and is qualified in its entirety by reference to the full text of each of such document, which are filed as Exhibits 10.1 and 10.2, respectively, to this Current Report on Form 8-K (this “Form 8-K”) and incorporated herein by reference.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits
Exhibit No. |
Description | |
| 10.1 | Amendment to Securities Purchase Agreement dated July 7, 2023, between the Company and Armistice. | |
| 10.2 | Payoff Commitment Agreement and Confession of Judgment dated July7, 2023, between the Company and Armistice. | |
| 104 | Cover Page Interactive Data File (embedded within the XBRL document) |
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SIGNATURES
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: July 7, 2023 | INVO BIOSCIENCE, INC. |
| /s/ Steven Shum | |
| Steven Shum | |
| Chief Executive Officer |
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Exhibit 10.1
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
This AMENDMENT TO SECURITIES PURCHASE AGREEMENT (this “Amendment”) is made and entered into as of July 7, 2023 by and among INVO Bioscience, Inc., a Nevada corporation (the “Company”) and Armistice Capital Master Fund Ltd. (“Purchaser”).
WHEREAS, pursuant to Section 4.12(a) of that certain Securities Purchase Agreement dated March 23, 2023 between the Company and Purchaser (the “SPA”), the Company agreed that from March 23, 2023 until 45 days after the effective date of the Resale Registration Statement, the Company would not (i) issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents or (ii) file any registration statement or any amendment or supplement thereto, other than the Prospectus Supplement and the registration statement contemplated pursuant to Section 4.17 of the SPA. (the “Subsequent Equity Financing Provision”).
WHEREAS, the Company and the Purchaser desire to amend the SPA by deleting the Subsequent Equity Financing Provision contained in Section 4.12(a) of the SPA.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions; Transaction Documents. Capitalized terms used herein without definition shall have the meanings assigned to such terms in the SPA. This Amendment shall constitute a Transaction Document for all purposes of the SPA and the other Transaction Documents.
2. Amendment to SPA. The SPA is hereby amended by deleting the Subsequent Equity Financing Provision contained in Section 4.12(a) of the SPA in its entirety and inserting “Reserved” in lieu thereof.
3. Conditions to Effectiveness of Amendment. This Amendment shall become effective upon receipt by the Company and the Purchaser of counterpart signatures to this Amendment duly executed and delivered by the Company and the Purchaser and upon receipt by the Purchaser of counterpart signatures to the Payoff Commitment Agreement and Confession of Judgment duly executed and delivered by the Company and the Purchaser. Accordingly, the Company acknowledges and agrees that by no later than 5:00 p.m. on the date that is two (2) business days following the closing date of the offering of Units pursuant to the Company’s Registration Statement on Form S-1 (File no. 333-XXXXXX) (the “Offering”), the Company is obligated to pay the Purchaser, as consideration for entering into this Amendment, $1,00,000.00 by wire to the Purchaser. Additionally, the Company agrees to include a proposal in its proxy statement for its 2023 Annual Meeting of Stockholders for the purpose of obtaining the approval of the holders of a majority of the Company’s outstanding voting Common Stock, to effectuate the reduction of the exercise price set forth in Section 2(b) of the Common Stock Purchase Warrants issued to Purchaser on March 27, 2023 (the “Existing Warrants”) to the per unit public offering price of the Offering, in accordance with Nasdaq Rule 5635(d) (the “Shareholder Approval”) with the recommendation of the Company’s Board of Directors that such proposal be approved, and the Company shall solicit proxies from its shareholders in connection therewith in the same manner as all other management proposals in such proxy statement and all management-appointed proxyholders shall vote their proxies in favor of such proposal. The Company shall use its reasonable best efforts to obtain such Shareholder Approval. If the Company does not obtain Shareholder Approval at the first meeting, the Company shall call a meeting every six (6) months thereafter to seek Shareholder Approval until the earlier of the date Shareholder Approval is obtained or the Existing Warrants are no longer outstanding. Until such approval is obtained, the exercise price of the Existing Warrants will remain unchanged. In addition, the parties agree to amend this Amendment promptly after filing the Registration Statement on Form S-1 referred to above solely to fill in the registration statement filing number assigned by the Securities and Exchange Commission.
4. Counterparts. This Amendment may be executed by the parties hereto in several counterparts, each of which shall be an original and all of which shall constitute together but one and the same agreement. Delivery of an executed counterpart of a signature page of this Amendment by e-mail (e.g., “pdf” or “tiff”) or fax transmission shall be effective as delivery of a manually executed counterpart of this Amendment.
5. Governing Law. THIS AMENDMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PREPARED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the day and year first above written.
| INVO BIOSCIENCE, INC. | ||
| By: | /s/ Steven Shum | |
| Name: | Steven Shum, | |
| Title: | Chief Executive Officer | |
| PURCHASER: | ||
| ARMISTICE CAPITAL MASTER FUND LTD. | ||
| By: | /s/ Steven Boyd | |
| Name: | Steve Boyd | |
| Title: | CIO of Armistice Capital LLC, the Investment Manager | |
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Exhibit 10.2
PAYOFF COMMITMENT AGREEMENT AND CONFESSION OF JUDGMENT
1. INVO Bioscience, Inc., a Nevada corporation (the “Company”), hereby acknowledges its indebtedness of $1,000,000 (the “Payoff Amount”) to Armistice Capital Master Fund Ltd. (the “Holder”), in consideration of Holder’s waiver of Section 4.12(a) of that certain of section Securities Purchase Agreement (the “Purchase Agreement”) and any related documents, dated as of dated March 23, 2023, pursuant to that certain Amendment to Securities Purchase Agreement dated on July 7, 2023 between Company and Holder (the “Amendment”).
2. The Company further acknowledges that, in consideration of the waiver of Section 4.12(a) of that certain Purchase Agreement pursuant to the Amendment, the Company is required to repay the Payoff Amount to Holder on or before the Payoff Deadline (as defined below).
3. The Company further acknowledges that the Payoff Amount is outstanding and immediately due and owing to the Holder.
4. Accordingly, the Company agrees that, by no later than 5:00 p.m. on the date that is two (2) business days following the closing date of the offering of Units pursuant to the Company’s Registration Statement on Form S-1 (File no. 333-XXXXXX) (the “Offering”), it will cause the entire Payoff Amount to be transferred by wire to the Holder (the “Payoff Deadline”). In addition, the parties agree to amend this Agreement (as defined below) promptly after filing the Registration Statement on Form S-1 referred to above solely to fill in the registration statement filing number assigned by the Securities and Exchange Commission.
5. In the event that the Holder does receive the Payoff Amount by the Payoff Deadline, the Company knowingly, voluntarily and intentionally confesses judgment in favor of the Holder against the Company in any proceeding or action to recover the Payoff Amount brought by the Holder in any court with jurisdiction over the Purchase Agreement. In so doing, the Company expressly (i) waives issuance and service of process, (ii) agrees that it its failure to satisfy its indebtedness to Holder by the Payoff Deadline constitutes a breach of the Purchase Agreement, and (iii) agrees not to contest the entry of a judgement in any such proceeding or action brought by the Holder for (a) the Payoff Amount, (b) interest accruing at the highest rate allowable under the law from the date immediately following the Payoff Deadline through the date on which the Company fully satisfies such judgment, and (iii) the Holder’s attorney fees and costs incurred in connection with any action or proceeding to enforce the Purchase Agreement or this Payoff Commitment Agreement and Confession of Judgment (this “Agreement”).
[Signature Page Follow]
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IN WITNESS WHEREOF, the parties hereto, by their duly authorized officers or other authorized signatory, have executed this Agreement as of July 7, 2023. This Agreement may be signed in counterparts and facsimile signatures are treated as original signatures.
| Agreed to by: | ||
| INVO BIOSCIENCE, INC. | ||
| By: | /s/ Steven Shum |
|
| Name: | Steven Shum | |
| Title: | Chief Executive Officer | |
| Acknowledged by: | ||
| ARMISTICE CAPITAL MASTER FUND LTD. | ||
| By: | /s/ Steven Boyd |
|
| Name: | Steven Boyd | |
| Title: | CIO of Armistice Capital, LLC, the Investment Manager | |
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Cover |
Jul. 07, 2023 |
|---|---|
| Cover [Abstract] | |
| Document Type | 8-K |
| Amendment Flag | false |
| Document Period End Date | Jul. 07, 2023 |
| 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 |
| Entity Information, Former Legal or Registered Name | Not Applicable |