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): November 19, 2023

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. ☐

INTRODUCTORY NOTE

The Company is filing this Current Report on Form 8-K (this “Form 8-K”) to disclose (a) the execution of the Share Exchange Agreement, (b) the filing with the Nevada Secretary of State a Certificate of Designation of Series A Convertible Preferred Stock and of a Certificate of Designation of Series B Convertible Preferred Stock, and (c) the closing of the transactions contemplated by the Share Exchange Agreement (together, the “Transactions”). All capitalized terms in this introductory note not otherwise defined here are defined below in this Form 8-K.

The closing of the Transactions resulted in an $6,000,000 increase in the Company’s stockholders’ equity, which the Company believes – as detailed in this Form 8-K below – is sufficient to evidence compliance with the Nasdaq listing criteria and to maintain its listing on Nasdaq. Neither the Series A Preferred Stock nor the Series B Preferred Stock is redeemable or has voting rights, and may not be converted into shares of the Company’s Common Stock if, after giving effect to the conversion or issuance, the holder, together with its affiliates, would beneficially own more than 19.99% of the Company’s outstanding Common Stock, until the Company’s shareholders approve such conversion at a special meeting of stockholders.

Item 1.01 Entry into a Material Definitive Agreement.

Share Exchange Agreement

On November 19, 2023, the Company entered into a share exchange agreement (the “Share Exchange Agreement”) with Cytovia Therapeutics Holdings, Inc., a Delaware corporation (“Cytovia”) for Cytovia’s acquisition of 1,200,000 shares of the Company’s newly designated Series B Preferred Stock in exchange for 163,637 shares of common stock of NAYA held by Cytovia valued at $6,000,000 (the “Share Exchange”). On November 20, 2023, the Company and Cytovia closed on the exchange of shares.

The terms of the private offering are more fully set forth in the Share Exchange Agreement attached hereto as Exhibit 10.1 and 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 and sold the Series B Preferred Stock pursuant to an exemption from registration under Section 4(a)(2) of the Securities Act of 1933, as amended.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

Series A Preferred Stock

The Company’s Articles of Incorporation, as amended, authorizes the Company to issue 100,000,000 shares of preferred stock, $0.0001 par value per share, issuable from time to time in or more series (“Preferred Stock”). On November 20, 2023, the Company filed with the Nevada Secretary of State a Certificate of Designation of Series A Convertible Preferred Stock (the “Series A Certificate of Designation”) which sets forth the rights, preferences, and privileges of the Series A Preferred Stock (the “Series A Preferred”). One million (1,000,000) shares of Series A Preferred with a stated value of $5.00 per share were authorized under the Series A Certificate of Designation.

Each share of Series A Preferred has a stated value of $5.00, which is convertible into shares of the Company’s common stock (the “Common Stock”) at a fixed conversion price equal to $2.20 per share, subject to adjustment. The Company may not effect the conversion of any shares of Series A Preferred if, after giving effect to the conversion or issuance, the holder, together with its affiliates, would beneficially own more than 9.99% of the Company’s outstanding Common Stock. Moreover, the Company may not effect the conversion of any shares of Series A Preferred if, after giving effect to the conversion or issuance, the holder, together with its affiliates, would beneficially own more than 19.99% of the Company’s outstanding Common Stock unless and until the Company receives the approval required by the applicable rules and regulations of The Nasdaq Stock Market LLC (or any subsequent trading market).

Each share of Series A Preferred stock shall automatically convert into Common Stock upon the closing of the previously announced merger with NAYA.

The holders of Series A Preferred shall be entitled to receive a pro-rata portion, on an as-if converted basis, of any dividends payable on Common Stock.

The Series A Preferred Stock is being designated in anticipation of the proposed interim private offering of shares of Company in an estimated amount of $5,000,000 or more of gross proceeds, as contemplated by the merger agreement with NAYA Biosciences, Inc., previously announced on the Company’s Current Report on Form 8-K filed on October 26, 2023.

In the event of any voluntary or involuntary liquidation, dissolution, or winding up, or sale of the Company (other than the previously announced merger with NAYA Biosciences, Inc.), each holder of Series A Preferred shall be entitled to receive its pro rata portion of an aggregate payment equal to (i) $5.00, multiplied by (ii) the total number of shares of Series A Preferred Stock issued under the Series A Certificate of Designation.

Other than those rights provided by law, the holders of Series A Preferred shall not have any voting rights.

The foregoing summary of the Series A Certificate of Designation is not complete and is qualified in its entirety by reference to the Series A Certificate of Designation, a copy of which was filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference.

Series B Preferred Stock

On November 20, 2023, the Company filed with the Nevada Secretary of State a Certificate of Designation of Series B Convertible Preferred Stock (the “Series B Certificate of Designation”) which sets forth the rights, preferences, and privileges of the Series B Preferred Stock (the “Series B Preferred”). One million two hundred (1,200,000) shares of Series B Preferred with a stated value of $5.00 per share were authorized under the Series B Certificate of Designation.

Each share of Series B Preferred has a stated value of $5.00, which is convertible into shares of the Company’s common stock (the “Common Stock”) at a fixed conversion price equal to $5.00 per share, subject to adjustment. The Company may not effect the conversion of any shares of Series B Preferred if, after giving effect to the conversion or issuance, the holder, together with its affiliates, would beneficially own more than 19.99% of the Company’s outstanding Common Stock unless and until the Company receives the approval required by the applicable rules and regulations of Nasdaq (or any subsequent trading market).

Each share of Series B Preferred stock shall automatically convert into Common Stock upon the closing of the previously announced merger with NAYA.

The holders of Series B Preferred shall be entitled to receive a pro-rata portion, on an as-if converted basis, of any dividends payable on Common Stock.

In the event of any voluntary or involuntary liquidation, dissolution, or winding up, or sale of the Company (other than the previously announced merger with NAYA), each holder of Series B Preferred shall be entitled to receive its pro rata portion of an aggregate payment equal to (i) $5.00, multiplied by (ii) the total number of shares of Series B Preferred Stock issued under the Series B Certificate of Designation.

Other than those rights provided by law, the holders of Series B Preferred shall not have any voting rights.

The foregoing summary of the Series B Certificate of Designation is not complete and is qualified in its entirety by reference to the Series B Certificate of Designation, a copy of which was filed as Exhibit 3.2 to this Current Report on Form 8-K and is incorporated herein by reference.

Item 8.01. Other Events

In its most recent decision dated September 27, 2023, a Nasdaq Hearings Panel granted the Company an extension through November 20, 2023, to demonstrate a minimum of $2,500,000 in stockholders’ equity, as required by Nasdaq Listing Rule 5550(b)(1) (the “Rule”), for continued listing on The Nasdaq Capital Market.

As a result of the closing of the Transactions discussed above, we believe, as of the date of this filing, that the Company has stockholders’ equity in excess of $2,500,000 and has thereby regained compliance with the Rule. We await Nasdaq’s confirmation of the same.

Additionally, as a result of the Transactions and based on the significant reduction in net loss demonstrated in our Form 10-Q for the quarter ended September 30, 2023, the ongoing and further expected reduction in certain operating costs, including the end of research and development expenses related to securing FDA clearance for the INVOcell label update, and profits from the operations of our previously-acquired clinic, Wisconsin Fertility Institute, the Company believes its stockholders’ equity today should be sufficient to maintain our Nasdaq listing.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

Exhibit		Description

3.1		Certificate of Designation Establishing Series A Preferred Stock of INVO Bioscience, Inc.

3.2		Certificate of Designation Establishing Series B Preferred Stock of INVO Bioscience, Inc.

10.1		Share Exchange Agreement by and between INVO Bioscience, Inc. and Cytovia Therapeutics Holdings, Inc. dated as of November 19, 2023.

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: November 20, 2023

	INVO BIOSCIENCE, INC.

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

Exhibit 3.1

EXHIBIT A

CERTIFICATE OF DESIGNATION

ESTABLISHING SERIES A PREFERRED STOCK OF

INVO BIOSCIENCE, INC.

A Nevada Corporation

By resolution of the board of directors pursuant to a provision in the articles of incorporation of the Corporation, this certificate establishes this series, which consists of 1,000,000 shares of preferred stock, par value $0.0001 per share, hereby designated as the “Series A Preferred Stock”. The rights, preferences, and privileges of the Series A Preferred Stock relative to those of the Common Stock are set forth in this Certificate of Designation of Series A Preferred Stock (the “Certificate”).

1. Definitions. For purposes of this Certificate the following definitions shall apply and shall be equally applicable to both the singular and plural forms of the defined terms:

1.1. “Affiliate” of any Person shall mean any Person who directly or indirectly controls, is controlled by, or is under common control with, the indicated Person. For the purposes of this definition, “control” has the meaning specified as of the date hereof for that word in Rule 405 promulgated by the United States Securities and Exchange Commission under the Securities Act of 1933, as amended.

1.2. “Attribution Parties” means, collectively, the following Persons and entities: (i) any investment vehicle, including, any funds, feeder funds or managed accounts, currently, or from time to time after the Issuance Date, directly or indirectly managed or advised by a Holder’s investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of such Holder or any of the foregoing, (iii) any Person acting or who could be deemed to be acting as a Group together with such Holder or any of the foregoing and (iv) any other Persons whose beneficial ownership of the Corporation’s Common Stock would or could be aggregated with such Holder’s and the other Attribution Parties for purposes of Section 13(d) of the 1934 Act. For clarity, the purpose of the foregoing is to subject collectively such Holder and all other Attribution Parties to the Maximum Percentage.

1.3. “Board” shall mean the Board of Directors of the Corporation.

1.4. “Common Stock” shall mean the common stock, par value $0.0001 per share, of the Corporation.

1.5. “Conversion Rights” shall have the meaning set forth in Section 5 below

1.6. “Conversion Stock” shall mean the Common Stock into which the Series A Preferred Stock is convertible and the Common Stock issued upon such conversion.

1.7. “Corporation” shall mean INVO Bioscience, Inc., a Nevada corporation.

1.8. “Excess Shares” shall have the meaning set forth in Section 5.5(A) below.

1.9. “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

1.10. “Holder” shall have the meaning set forth in Section 2.1 below.

1.11. “Junior Security” shall mean any class or series of capital stock of the Corporation hereafter created that does not, by its terms, rank senior to or pari passu with the Series A Preferred Stock.

1.12. “Liquidation Event” shall have the meaning set forth in Section 4.1 below.

1.13. “Liquidation Payment” shall mean the product of (i) the Stated Value per share of Series A Preferred Stock multiplied by (ii) the total number of shares of Series A Preferred Stock issued under the Certificate as of the date of such Liquidation Event.

1.14. “Maximum Percentage” shall have the meaning set forth in Section 5.5(A) below.

1.15. “NAYA Merger” shall mean the proposed merger of INVO Merger Sub Inc., a wholly owned subsidiary of the Corporation and a Delaware corporation (“Merger Sub”) with and into NAYA Biosciences, Inc., a Delaware corporation (“NAYA”), with NAYA continuing as the surviving corporation and a wholly owned subsidiary of the Corporation, pursuant to that Agreement and Plan of Merger, dated October 22, 2023, and as amended on October 25, 2023 (collectively, the “Merger Agreement”), by and among the Corporation, Merger Sub, and NAYA.

1.16. “Person” shall include all natural persons, corporations, business trusts, associations, limited liability companies, partnerships, joint ventures and other entities, governments, agencies and political subdivisions.

1.17. “Reported Outstanding Share Number” shall have the meaning set forth in Section 5.5(A) below.

1.18. “Sale” means any sale of the Corporation to one or more third party purchasers who or which are not Affiliates of the Corporation, whether by way of (i) the sale or other disposition of all or substantially all of the assets of the Corporation, (ii) the merger or consolidation of the Corporation with or into another Person, or (iii) the sale or other transfer of greater than a majority of the capital stock of the Corporation.

1.19. “Securities Act” shall mean the Securities Act of 1933, as amended.

1.20. “Senior Security” shall mean any class or series of capital stock of the Corporation hereafter created that, by its terms, ranks senior to the Series A Preferred Stock.

1.21. “Series A Conversion Price” shall have the meaning set forth in Section 5.1 below.

1.22. “Stated Value” shall mean $5.00.

1.23. “Subsequent Market” means the New York Stock Exchange, American Stock Exchange, Nasdaq SmallCap Market, or Nasdaq National Market.

1.24. “Total Series A Votes” shall have the meaning set forth in Section 2 below.

1.25. “Trading Day” means a day on which the principal Trading Market is open for trading.

1.26. “Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, and the New York Stock Exchange (or any successors to any of the foregoing).

2. Voting Rights. Other than those rights provided by law, the holders of the Series A Preferred Stock (each a “Holder” and, collectively, the “Holders”) shall not have any voting rights.

3. Dividends.

3.1. Dividends. The Holders shall be entitled to receive a pro-rata portion, on an as-if converted basis, of any dividends payable on Common Stock. Dividends on shares of capital stock of the Corporation shall be payable, whether payable in cash or other property, only out of funds legally available therefor.

3.2. Non-Cash Dividends. Whenever a dividend provided for in this Section 3 shall be payable in property other than cash, the value of such dividend shall be deemed to be the fair market value of such property as determined in good faith by the Board.

4. Liquidation Rights.

4.1. Preference of Series A Preferred Stock. In the event of any liquidation, dissolution, winding up or Sale of the Corporation (other than the NAYA Merger), whether voluntary or involuntary (each, a “Liquidation Event”), after payment of all amounts required under Section 3 hereunder, the Holders (as a class) shall be entitled to receive out of the assets of the Corporation available for distribution to its shareholders, whether such assets are capital, surplus, or earnings, before any payment, declaration, or setting apart for payment of any amount shall be made in respect of the Common Stock or any Junior Security (but after payment to any Senior Security) of the Corporation, an aggregate amount equal to the Liquidation Payment. Each individual holder will receive that amount of the Liquidation Payment equal to the product of (i) the Liquidation Payment multiplied by (y) the ratio of (1) shares of Series A Preferred Stock held by such Holder divided by (2) the total shares of Series A Preferred Stock then outstanding, at the time of such Liquidation Event with respect to such Liquidation Event. If, upon any Liquidation Event, the assets to be distributed to the Holders shall be insufficient to permit the payment to such shareholders of the full Liquidation Payment, then all of the assets of the Corporation (after payment to any Senior Security) shall be distributed solely and ratably to the Holders.

4.2. Remaining Assets. If the assets of the Corporation available for distribution to the Corporation’s shareholders exceed the aggregate amount payable to the Holders pursuant to Section 4.1 hereof, then after the payments required by Section 4.1 shall have been made the Corporation’s remaining assets shall be distributed pro rata, on a per share basis, among the holders of the Common Stock.

4.3. Notice. Written notice of such liquidation, dissolution or winding up, stating a payment date and the place where said payments shall be made, shall be given by mail, postage prepaid, or, if to non-U.S. residents, by facsimile, not less than twenty (20) days prior to the payment date stated therein, to the Holders of record, such notice to be addressed to each such holder at its address as shown by the records of the Corporation.

4.4. Determination of Consideration. To the extent any distribution pursuant to Section 4.1 or Section 4.2 consists of property other than cash, the value thereof shall, for purposes of Section 4.1 or Section 4.2, be the fair value at the time of such distributions as determined in good faith by the Board.

4.5. Conversion Prior to Liquidating Distributions. Any Holder may, at its option, convert all or a portion of its shares into Common Stock upon a liquidation, dissolution or winding up of the Corporation and thereby receive distributions with the holders of the Common Stock in lieu of receiving distributions as a holder of the Series A Preferred Stock.

5. Conversion. The Holders shall have the following conversion rights (the “Conversion Rights”):

5.1. Optional Conversion of the Series A Preferred Stock. Any or all shares of the Series A Preferred Stock shall be convertible, without the payment of any additional consideration by the Holder thereof and at the option of the holder thereof, at any time after the first issuance of shares of Series A Preferred Stock by the Corporation and from time to time, at the office of the Corporation or any transfer agent for the Common Stock, into such whole number of fully paid and nonassessable shares of Common Stock as is determined by dividing the Stated Value by the Series A Conversion Price (determined as hereinafter provided) in effect at the time of conversion and then multiplying such quotient by the number of shares of Series A Preferred Stock to be converted. The Conversion Price at which shares of Common Stock shall be deliverable upon conversion without the payment of any additional consideration by the holder thereof shall initially be $2.20 (the “Series A Conversion Price”). Such initial Series A Conversion Price shall be subject to adjustment, as hereinafter provided.

5.2. Fractional Shares. No fractional shares of Common Stock shall be issued upon conversion of the Series A Preferred Stock, and the number of shares of Common Stock to be issued shall be determined by rounding to the nearest whole share (a half share being treated as a full share for this purpose). Such conversion shall be determined on the basis of the total number of shares of Series A Preferred Stock the holder is at the time converting into Common Stock and such rounding shall apply to the number of shares of Common Stock issuable upon such aggregate conversion.

5.3. Mechanics of Optional Conversion. Before any Holder shall be entitled to convert the same into full shares of Common Stock, such holder shall surrender the certificate or certificates therefor, endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or by such holder’s attorney duly authorized in writing, at the office of the Corporation or of any transfer agent for the Common Stock, and shall give at least five (5) days’ prior written notice (in the form attached hereto as Schedule I) to the Corporation at such office that such Holder elects to convert the same or such portion thereof as such Holder elects to convert and shall state therein such holder’s name or the name of the nominees in which such Holder wishes the certificate or certificates for shares of Common Stock to be issued,. The Corporation shall, as soon as practicable thereafter, issue and deliver to such Holder, or to such holder’s nominee or nominees, a certificate or certificates for the number of shares of Common Stock to which such holder shall be entitled as aforesaid. Such conversion shall be deemed to have been made immediately prior to the close of business on the date of such surrender of the shares of Series A Preferred Stock to be converted, and the person or persons entitled to receive the shares of Common Stock issuable upon conversion shall be treated for all purposes as the record holder or holders of such shares of Common Stock on such date. From and after such date, all rights of the holder with respect to the Series A Preferred Stock so converted shall terminate, except only the right of such holder, upon the surrender of his, her or its certificate or certificates therefor, to receive certificates for the number of shares of Common Stock issuable upon conversion thereof. Upon conversion of only a portion of the number of shares covered by a certificate representing shares of Series A Preferred Stock surrendered for conversion, the Corporation shall issue and deliver to the holder of the certificate so surrendered for conversion, at the expense of the Corporation, a new certificate covering the number of shares of the Series A Preferred Stock representing the unconverted portion of the certificate so surrendered, which new certificate shall entitle the record holder thereof to all rights in respect of the shares of Series A Preferred Stock represented thereby to the same extent as if the portion of the certificate theretofore covering such unconverted shares had not been surrendered for conversion.

5.4. Certain Adjustments to Conversion Price for Stock Splits, Dividends, Mergers, Reorganizations, Etc.

A. Adjustment for Stock Splits, Stock Dividends and Combinations of Common Stock. In the event the outstanding shares of Common Stock shall be subdivided (split), or combined (reverse split), by reclassification or otherwise, or in the event of any dividend or other distribution payable on the Common Stock in shares of Common Stock, the Series A Conversion Price in effect immediately prior to such subdivision, combination, dividend or other distribution shall be adjusted so that the registered holder of any share of Series A Preferred Stock thereafter surrendered for conversion shall be entitled to receive the number and kind of shares of Common Stock and other securities which such holder would have owned or have been entitled to receive after the happening of any of the events described above had such share been converted immediately prior to the happening of such event. An adjustment made pursuant to this subparagraph (A) shall become effective immediately after the record date in the case of a dividend or other distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.

B. Adjustment for Merger or Reorganization, Etc. In the event of a reclassification, reorganization, or exchange (other than described in Section 5.4(A) above) or any merger, acquisition, consolidation, or reorganization of the Corporation with another Corporation (other than the NAYA Merger), each share of Series A Preferred Stock shall thereafter be convertible into the kind and number of shares of stock or other securities or property to which a holder of the number of shares of Common Stock of the Corporation deliverable upon conversion of the Series A Preferred Stock would have been entitled upon such reclassification, reorganization, exchange, consolidation, merger or acquisition had the conversion occurred immediately prior to the event; and, in any such case, appropriate adjustment (as determined in good faith by the Board) shall be made in the application of the provisions herein set forth with respect to the rights and interests thereafter of the holders of the Series A Preferred Stock, to the end that the provisions set forth herein (including provisions with respect to changes in and other adjustments of the applicable Series A Conversion Price) shall thereafter be applicable, as nearly as reasonably may be, in relation to any shares of stock or other property thereafter deliverable upon the conversion of the Series A Preferred Stock.

5.5. Conversion Limitations.

A. The Corporation shall not effect the conversion of any shares of Series A Preferred Stock held by a Holder, and such Holder shall not have the right to convert any of the Series A Preferred Stock held by such Holder pursuant to the terms and conditions of this Certificate of Designations and any such conversion shall be null and void and treated as if never made, to the extent that after giving effect to such conversion, such Holder together with the other Attribution Parties collectively would beneficially own in excess of 9.99% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such conversion. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such Holder and the other Attribution Parties shall include the number of shares of Common Stock held by such Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon conversion of the Series A Preferred Stock with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (A) conversion of the remaining, nonconverted Series A Preferred Stock beneficially owned by such Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Corporation (including, without limitation, any convertible notes, convertible preferred stock or warrants, including the Warrants) beneficially owned by such Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this Section 5.5(A). For purposes of this Section 5.5(A), beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the number of outstanding shares of Common Stock a Holder may acquire upon the conversion of such Series A Preferred Stock without exceeding the Maximum Percentage, such Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Corporation’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (y) a more recent public announcement by the Corporation or (z) any other written notice by the Corporation or the Corporation’s transfer agent, if any, setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Corporation receives a conversion notice from a Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Corporation shall notify such Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Conversion Notice would otherwise cause such Holder’s beneficial ownership, as determined pursuant to this Section 5.5(A), to exceed the Maximum Percentage, such Holder must notify the Corporation of a reduced number of shares of Common Stock to be purchased pursuant to such conversion notice. For any reason at any time, upon the written or oral request of any Holder, the Corporation shall within one (1) Business Day confirm orally and in writing or by electronic mail to such Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Corporation, including such Series A Preferred Stock, by such Holder and any other Attribution Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to a Holder upon conversion of such Series A Preferred Stock results in such Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the 1934 Act), the number of shares so issued by which such Holder’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and such Holder shall not have the power to vote or to transfer the Excess Shares. Upon delivery of a written notice to the Corporation, any Holder may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the Maximum Percentage of such Holder to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Corporation and (ii) any such increase or decrease will apply only to such Holder and the other Attribution Parties and not to any other Holder. For purposes of clarity, the shares of Common Stock issuable to a Holder pursuant to the terms of this certificate of designations in excess of the Maximum Percentage shall not be deemed to be beneficially owned by such Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the 1934 Act. No prior inability to convert such Series A Preferred Stock pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of convertibility. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 5.5(A) to the extent necessary to correct this paragraph (or any portion of this paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 5.5(A) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor Holder.

B. The Corporation shall not effect the conversion of any shares of Series A Preferred Stock held by a Holder, and such Holder shall not have the right to convert any of the Series A Preferred Stock held by such Holder pursuant to the terms and conditions of this Certificate of Designations and any such conversion shall be null and void and treated as if never made, to the extent that after giving effect to such conversion, such Holder together with the other Attribution Parties collectively would beneficially own in excess of 19.99% (the “Exchange Cap”) of the shares of Common Stock outstanding immediately after giving effect to such conversion, unless and until the Corporation receives the approval required by the applicable rules and regulations of any Trading Market on which any securities of the Corporation (or any successor entity) from the stockholders of the Corporation of the provisions of this Certificate.

C. No holder of Series A Preferred Stock shall be entitled to convert the same into shares of Common Stock pursuant to Section 5.1, and no conversion of Series A Preferred Stock into shares of Common Stock pursuant to Section 6.1 shall occur, to the extent such conversion would require the Corporation to issue shares of Common Stock in excess of the Corporation’s then sufficient authorized and unissued shares of Common Stock.

5.6. Notices of Record Date. In the event of any taking by the Corporation of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution, any capital reorganization of the Corporation, any reclassification or recapitalization of the Corporation’s capital stock, any consolidation or merger with or into another Corporation, any transfer of all or substantially all of the assets of the Corporation or any dissolution, liquidation or winding up of the Corporation, the Corporation shall mail to each holder of Series A Preferred Stock at least ten (10) days prior to the date specified for the taking of a record, a notice specifying the date on which any such record is to be taken for the purpose of such dividend or distribution.

5.7. Additional Notices. In the event the Corporation shall propose to take any action of the types described in Sections 5.4, 5.5, or 5.6 the Corporation shall give notice to each holder of shares of Series A Preferred Stock, which notice shall specify the record date, if any, with respect to such action and the date on which such action is to take place. Such notice shall also set forth such facts with respect thereto as shall be reasonably necessary to indicate the effect of such action (to the extent such effect may be at the date of such notice) on the Series A Conversion Price and the number, kind or class of shares or other securities or property which shall be deliverable or purchasable upon the occurrence of such action or deliverable upon conversion of shares of Series A Preferred Stock. In the case of any action which would require the fixing of a record date, such notice shall be given at least ten (10) days prior to the date so fixed, and in case of all other action, such notice shall be given at least ten (10) days prior to the taking of such proposed action.

5.8. Pro Rata Conversion. In the event that the Corporation receives a Conversion Notice from more than one Holder for the same conversion date and the Corporation can convert some, but not all, of such shares of Series A Preferred Stock submitted for conversion, the Corporation shall convert from each holder electing to have Series A Preferred Stock converted on such date a pro rata amount of such holder’s Series A Preferred Stock submitted for conversion on such date based on the number of shares of Series Preferred Stock submitted for conversion on such date by such holder relative to the aggregate number of shares of Series A Preferred Stock submitted for conversion on such date.

5.9. Payment of Taxes. The Corporation will pay all taxes (other than taxes based upon income) and other governmental charges that may be imposed with respect to the issue or delivery of shares of Common Stock upon conversion of shares of Series A Preferred Stock, other than any tax or other charge imposed in connection with any transfer involved in the issue and delivery of shares of Common Stock in a name other than that in which the shares of Series A Preferred Stock so converted were registered.

6. Mandatory Conversion.

6.1. Triggering Events. Upon either (a) the closing of the NAYA Merger or (b) the date and time, or the occurrence of an event, specified by vote or written consent of the holders of at least 51% of the then outstanding shares of Series A Preferred Stock (the time of such closing or the date and time specified or the time of the event specified in such vote or written consent is referred to herein as the “Mandatory Conversion Time”), then (i) all outstanding shares of Series A Preferred Stock shall automatically be converted into shares of Common Stock, at the then effective conversion rate as calculated pursuant to Section 5, and (ii) such shares may not be reissued by the Corporation.

6.2. Procedural Requirements. All holders of record of shares of Series A Preferred Stock shall be sent written notice of the Mandatory Conversion Time and the place designated for mandatory conversion of all such shares of Series A Preferred Stock pursuant to this Section 6. Such notice need not be sent in advance of the occurrence of the Mandatory Conversion Time. Upon receipt of such notice, each holder of shares of Series A Preferred Stock in certificated form shall surrender his, her, or its certificate or certificates for all such shares (or, if such holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate) to the Corporation at the place designated in such notice. If so required by the Corporation, any certificates surrendered for conversion shall be endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or by his, her or its attorney duly authorized in writing. All rights with respect to the Series A Preferred Stock converted pursuant to Section 6.1, including the rights, if any, to receive notices and vote (other than as a holder of Common Stock), will terminate at the Mandatory Conversion Time (notwithstanding the failure of the holder or holders thereof to surrender any certificates at or prior to such time), except only the rights of the holders thereof, upon surrender of any certificate or certificates of such holders (or lost certificate affidavit and agreement) therefor, to receive the items provided for in the next sentence of this Section 6.2. As soon as practicable after the Mandatory Conversion Time and, if applicable, the surrender of any certificate or certificates (or lost certificate affidavit and agreement) for Series A Preferred Stock, the Corporation shall (a) issue and deliver to such holder, or to his, her or its nominees, a certificate or certificates for the number of full shares of Common Stock issuable on such conversion in accordance with the provisions hereof and (b) pay cash as provided in Section 5.2 in lieu of any fraction of a share of Common Stock otherwise issuable upon such conversion and the payment of any declared but unpaid dividends on the shares of Series A Preferred Stock converted. Such converted Series A Preferred Stock shall be retired and cancelled and may not be reissued as shares of such series, and the Corporation may thereafter take such appropriate action (without the need for stockholder action) as may be necessary to reduce the authorized number of shares of Series A Preferred Stock accordingly.

7. No Reissuance of Series A Preferred Stock. No share or shares of Series A Preferred Stock acquired by the Corporation by reason of redemption, purchase, conversion, or otherwise shall be reissued.

8. Notices. Unless otherwise specified in the Corporation’s Amended and Restated Articles of Incorporation or By-Laws, all notices or communications given hereunder shall be in writing and, if to the Corporation, shall be delivered to it as its principal executive offices, and if to any holder of Series A Preferred Stock, shall be delivered to it at its address as it appears on the stock books of the Corporation.

9. No Preemptive Rights. Holders of Series A Preferred Stock shall have no preemptive rights except as granted by the Corporation pursuant to written agreements.

10. Reservation of Stock Issuable Upon Conversion. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of the shares of the Series A Preferred Stock, such number of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of the Series A Preferred Stock; and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of the Series A Preferred Stock, in addition to such other remedies as shall be available to the holder of such Series A Preferred Stock, the Corporation will take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes.

11. Special Approval Rights. Until all shares of the Series A Preferred Stock are converted to Common Stock, without the consent of the Holders of at least a majority of the Series A Preferred Stock, given in writing or by vote as a separate class, amending, altering, or repealing any provision of the Articles of Incorporation, By-laws, this Certificate of Designation, or any other organizational documents of the Corporation if it would adversely alter the rights, preferences, privileges, or powers of or restrictions on the Series A Preferred Stock.

12. Amendment. Notwithstanding any provision in this Certificate of Designation to the contrary, any provision contained herein and any right of the holders of Series A Preferred Stock granted hereunder may be waived as to all shares of Series A Preferred Stock (and the Holders thereof) upon the written consent of the Holders of at least a majority of the issued and outstanding Series A Preferred Stock, provided further. Notwithstanding the foregoing, on or after December 15, 2023, if no Series A Preferred Stock is outstanding, the Board may amend the terms of the Series A Preferred Stock before issuance of new Series A Preferred Stock.

13. No Impairment. For as long as any Series A Preferred Stock is outstanding and unless otherwise agreed to or waived in writing by the Holders of the majority of the issued and outstanding Series A Preferred Stock, the Corporation will not, by amendment of this certificate of designation or through any reorganization, transfer of assets, consolidation, merger, dissolution or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Corporation but will at all times in good faith assist in the carrying out of all the provisions of this Section and in the taking of all such action as may be necessary or appropriate in order to protect the conversion rights of the Holders of the Series A Preferred Stock against impairment.

INVO BIOSCIENCE, INC.

CONVERSION NOTICE

Reference is made to the Certificate of Designations of the Series A Preferred Stock of INVO Bioscience, Inc. (the “Certificate of Designations”). In accordance with and pursuant to the Certificate of Designations, the undersigned hereby elects to convert the number of shares of Series A Preferred Stock, $0.0001 par value per share (the “Preferred Shares”), of INVO Bioscience, Inc., a Nevada corporation (the “Corporation”), indicated below into shares of common stock, $0.0001 value per share (the “Common Stock”), of the Corporation, as of the date specified below.

Date of Conversion:

Aggregate number of Preferred Shares to be converted

Aggregate Stated Value of such Preferred Shares to be converted:

Aggregate accrued and unpaid Dividends with respect to such Preferred Shares and such Aggregate Dividends to be converted:

AGGREGATE CONVERSION AMOUNT TO BE CONVERTED:

Please confirm the following information:

Conversion Price:

Number of shares of Common Stock to be issued:

Please issue the Common Stock into which the applicable Preferred Shares are being converted to Holder, or for its benefit, as follows:

	☐	Check here if requesting delivery as a certificate to the following name and to the following address:

	Issue to:



	☐	Check here if requesting delivery by Deposit/Withdrawal at Custodian as follows:

	DTC Participant:
	DTC Number:
	Account Number:

Date: _____________ __,


Name of Registered Holder

By:
Name:
Title:

Tax ID:

Facsimile:

E-mail Address:

Exhibit 3.2

EXHIBIT A

CERTIFICATE OF DESIGNATION

ESTABLISHING SERIES B PREFERRED STOCK OF

INVO BIOSCIENCE, INC.

A Nevada Corporation

By resolution of the board of directors pursuant to a provision in the articles of incorporation of the Corporation, this certificate establishes this series, which consists of 1,200,000 shares of preferred stock, par value $0.0001 per share, hereby designated as the “Series B Preferred Stock”. The rights, preferences, and privileges of the Series B Preferred Stock relative to those of the Common Stock are set forth in this Certificate of Designation of Series B Preferred Stock (the “Certificate”).

1. Definitions. For purposes of this Certificate the following definitions shall apply and shall be equally applicable to both the singular and plural forms of the defined terms:

1.3. “Board” shall mean the Board of Directors of the Corporation.

1.4. “Common Stock” shall mean the common stock, par value $0.0001 per share, of the Corporation.

1.5. “Conversion Rights” shall have the meaning set forth in Section 5 below

1.6. “Conversion Stock” shall mean the Common Stock into which the Series B Preferred Stock is convertible and the Common Stock issued upon such conversion.

1.7. “Corporation” shall mean INVO Bioscience, Inc., a Nevada corporation.

1.8. “Excess Shares” shall have the meaning set forth in Section 5.5(A) below.

1.9. “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

1.10. “Holder” shall have the meaning set forth in Section 2.1 below.

1.12. “Liquidation Event” shall have the meaning set forth in Section 4.1 below.

1.13. “Liquidation Payment” shall mean the product of (i) the Stated Value per share of Series B Preferred Stock multiplied by (ii) the total number of shares of Series B Preferred Stock issued under the Certificate as of the date of such Liquidation Event.

1.14. “NAYA Merger” shall mean the proposed merger of INVO Merger Sub Inc., a wholly owned subsidiary of the Corporation and a Delaware corporation (“Merger Sub”) with and into NAYA Biosciences, Inc., a Delaware corporation (“NAYA”), with NAYA continuing as the surviving corporation and a wholly owned subsidiary of the Corporation, pursuant to that Agreement and Plan of Merger, dated October 22, 2023, and as amended on October 25, 2023 (collectively, the “Merger Agreement”), by and among the Corporation, Merger Sub, and NAYA.

1.15. “Person” shall include all natural persons, corporations, business trusts, associations, limited liability companies, partnerships, joint ventures and other entities, governments, agencies and political subdivisions.

1.16. “Sale” means any sale of the Corporation to one or more third party purchasers who or which are not Affiliates of the Corporation, whether by way of (i) the sale or other disposition of all or substantially all of the assets of the Corporation, (ii) the merger or consolidation of the Corporation with or into another Person, or (iii) the sale or other transfer of greater than a majority of the capital stock of the Corporation.

1.17. “Securities Act” shall mean the Securities Act of 1933, as amended.

1.18. “Senior Security” shall mean any class or series of capital stock of the Corporation hereafter created that, by its terms, ranks senior to the Series B Preferred Stock.

1.19. “Series B Conversion Price” shall have the meaning set forth in Section 5.1 below.

1.20. “Stated Value” shall mean $5.00.

1.21. “Subsequent Market” means the New York Stock Exchange, American Stock Exchange, Nasdaq SmallCap Market, or Nasdaq National Market.

1.22. “Total Series B Votes” shall have the meaning set forth in Section 2 below.

1.23. “Trading Day” means a day on which the principal Trading Market is open for trading.

1.24. “Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, and the New York Stock Exchange (or any successors to any of the foregoing).

2. Voting Rights. Other than those rights provided by law, the holders of the Series B Preferred Stock (each a “Holder” and, collectively, the “Holders”) shall not have any voting rights.

3. Dividends.

4. Liquidation Rights.

4.1. Preference of Series B Preferred Stock. In the event of any liquidation, dissolution, winding up or Sale of the Corporation (other than the NAYA Merger), whether voluntary or involuntary (each, a “Liquidation Event”), after payment of all amounts required under Section 3 hereunder, the Holders (as a class) shall be entitled to receive out of the assets of the Corporation available for distribution to its shareholders, whether such assets are capital, surplus, or earnings, before any payment, declaration, or setting apart for payment of any amount shall be made in respect of the Common Stock or any Junior Security (but after payment to any Senior Security) of the Corporation, an aggregate amount equal to the Liquidation Payment. Each individual holder will receive that amount of the Liquidation Payment equal to the product of (i) the Liquidation Payment multiplied by (y) the ratio of (1) shares of Series B Preferred Stock held by such Holder divided by (2) the total shares of Series B Preferred Stock then outstanding, at the time of such Liquidation Event with respect to such Liquidation Event. If, upon any Liquidation Event, the assets to be distributed to the Holders shall be insufficient to permit the payment to such shareholders of the full Liquidation Payment, then all of the assets of the Corporation (after payment to any Senior Security) shall be distributed solely and ratably to the Holders.

5. Conversion. The Holders shall have the following conversion rights (the “Conversion Rights”):

5.1. Optional Conversion of the Series B Preferred Stock. Any or all shares of the Series B Preferred Stock shall be convertible, without the payment of any additional consideration by the Holder thereof and at the option of the holder thereof, at any time after the first issuance of shares of Series B Preferred Stock by the Corporation and from time to time, at the office of the Corporation or any transfer agent for the Common Stock, into such whole number of fully paid and nonassessable shares of Common Stock as is determined by dividing the Stated Value by the Series B Conversion Price (determined as hereinafter provided) in effect at the time of conversion and then multiplying such quotient by the number of shares of Series B Preferred Stock to be converted. The Conversion Price at which shares of Common Stock shall be deliverable upon conversion without the payment of any additional consideration by the holder thereof shall initially be $5.00 (the “Series B Conversion Price”). Such initial Series B Conversion Price shall be subject to adjustment, as hereinafter provided.

5.2. Fractional Shares. No fractional shares of Common Stock shall be issued upon conversion of the Series B Preferred Stock, and the number of shares of Common Stock to be issued shall be determined by rounding to the nearest whole share (a half share being treated as a full share for this purpose). Such conversion shall be determined on the basis of the total number of shares of Series B Preferred Stock the holder is at the time converting into Common Stock and such rounding shall apply to the number of shares of Common Stock issuable upon such aggregate conversion.

5.3. Mechanics of Optional Conversion. Before any Holder shall be entitled to convert the same into full shares of Common Stock, such holder shall surrender the certificate or certificates therefor, endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or by such holder’s attorney duly authorized in writing, at the office of the Corporation or of any transfer agent for the Common Stock, and shall give at least five (5) days’ prior written notice (in the form attached hereto as Schedule I) to the Corporation at such office that such Holder elects to convert the same or such portion thereof as such Holder elects to convert and shall state therein such holder’s name or the name of the nominees in which such Holder wishes the certificate or certificates for shares of Common Stock to be issued,. The Corporation shall, as soon as practicable thereafter, issue and deliver to such Holder, or to such holder’s nominee or nominees, a certificate or certificates for the number of shares of Common Stock to which such holder shall be entitled as aforesaid. Such conversion shall be deemed to have been made immediately prior to the close of business on the date of such surrender of the shares of Series B Preferred Stock to be converted, and the person or persons entitled to receive the shares of Common Stock issuable upon conversion shall be treated for all purposes as the record holder or holders of such shares of Common Stock on such date. From and after such date, all rights of the holder with respect to the Series B Preferred Stock so converted shall terminate, except only the right of such holder, upon the surrender of his, her or its certificate or certificates therefor, to receive certificates for the number of shares of Common Stock issuable upon conversion thereof. Upon conversion of only a portion of the number of shares covered by a certificate representing shares of Series B Preferred Stock surrendered for conversion, the Corporation shall issue and deliver to the holder of the certificate so surrendered for conversion, at the expense of the Corporation, a new certificate covering the number of shares of the Series B Preferred Stock representing the unconverted portion of the certificate so surrendered, which new certificate shall entitle the record holder thereof to all rights in respect of the shares of Series B Preferred Stock represented thereby to the same extent as if the portion of the certificate theretofore covering such unconverted shares had not been surrendered for conversion.

5.4. Certain Adjustments to Conversion Price for Stock Splits, Dividends, Mergers, Reorganizations, Etc.

A. Adjustment for Stock Splits, Stock Dividends and Combinations of Common Stock. In the event the outstanding shares of Common Stock shall be subdivided (split), or combined (reverse split), by reclassification or otherwise, or in the event of any dividend or other distribution payable on the Common Stock in shares of Common Stock, the Series B Conversion Price in effect immediately prior to such subdivision, combination, dividend or other distribution shall be adjusted so that the registered holder of any share of Series B Preferred Stock thereafter surrendered for conversion shall be entitled to receive the number and kind of shares of Common Stock and other securities which such holder would have owned or have been entitled to receive after the happening of any of the events described above had such share been converted immediately prior to the happening of such event. An adjustment made pursuant to this subparagraph (A) shall become effective immediately after the record date in the case of a dividend or other distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.

B. Adjustment for Adjustment in Exchange Ratio. In the event of an adjustment in the Exchange Ratio (as defined in the Merger Agreement) pursuant to Sections 3.4 and 3.5 of the Merger Agreement, the Series B Conversion Price in effect immediately prior to such adjustment shall be adjusted to equal the product of (1) the Series B Conversion Price in effect immediately prior to such adjustment, multiplied by (2) the quotient of (a) the Exchange Ratio in effect immediately prior to such adjustment, divided by (b) the Exchange Ratio as adjusted pursuant to Sections 3.4 and 3.5 of the Merger Agreement.

C. Adjustment for Merger or Reorganization, Etc. In the event of a reclassification, reorganization, or exchange (other than described in Section 5.4(A) above) or any merger, acquisition, consolidation, or reorganization of the Corporation with another Corporation (other than the NAYA Merger), each share of Series B Preferred Stock shall thereafter be convertible into the kind and number of shares of stock or other securities or property to which a holder of the number of shares of Common Stock of the Corporation deliverable upon conversion of the Series B Preferred Stock would have been entitled upon such reclassification, reorganization, exchange, consolidation, merger or acquisition had the conversion occurred immediately prior to the event; and, in any such case, appropriate adjustment (as determined in good faith by the Board) shall be made in the application of the provisions herein set forth with respect to the rights and interests thereafter of the holders of the Series B Preferred Stock, to the end that the provisions set forth herein (including provisions with respect to changes in and other adjustments of the applicable Series B Conversion Price) shall thereafter be applicable, as nearly as reasonably may be, in relation to any shares of stock or other property thereafter deliverable upon the conversion of the Series B Preferred Stock.

5.5. Conversion Limitations.

A. The Corporation shall not effect the conversion of any shares of Series B Preferred Stock held by a Holder, and such Holder shall not have the right to convert any of the Series B Preferred Stock held by such Holder pursuant to the terms and conditions of this Certificate of Designations and any such conversion shall be null and void and treated as if never made, to the extent that after giving effect to such conversion, such Holder together with the other Attribution Parties collectively would beneficially own in excess of 19.99% (the “Exchange Cap”) of the shares of Common Stock outstanding immediately after giving effect to such conversion, unless and until the Corporation receives the approval required by the applicable rules and regulations of any Trading Market on which any securities of the Corporation (or any successor entity) from the stockholders of the Corporation of the provisions of this Certificate.

B. No holder of Series B Preferred Stock shall be entitled to convert the same into shares of Common Stock pursuant to Section 5.1, and no conversion of Series B Preferred Stock into shares of Common Stock pursuant to Section 6.1 shall occur, to the extent such conversion would require the Corporation to issue shares of Common Stock in excess of the Corporation’s then sufficient authorized and unissued shares of Common Stock.

5.6. Notices of Record Date. In the event of any taking by the Corporation of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution, any capital reorganization of the Corporation, any reclassification or recapitalization of the Corporation’s capital stock, any consolidation or merger with or into another Corporation, any transfer of all or substantially all of the assets of the Corporation or any dissolution, liquidation or winding up of the Corporation, the Corporation shall mail to each holder of Series B Preferred Stock at least ten (10) days prior to the date specified for the taking of a record, a notice specifying the date on which any such record is to be taken for the purpose of such dividend or distribution.

5.7. Additional Notices. In the event the Corporation shall propose to take any action of the types described in Sections 5.4, 5.5, or 5.6 the Corporation shall give notice to each holder of shares of Series B Preferred Stock, which notice shall specify the record date, if any, with respect to such action and the date on which such action is to take place. Such notice shall also set forth such facts with respect thereto as shall be reasonably necessary to indicate the effect of such action (to the extent such effect may be at the date of such notice) on the Series B Conversion Price and the number, kind or class of shares or other securities or property which shall be deliverable or purchasable upon the occurrence of such action or deliverable upon conversion of shares of Series B Preferred Stock. In the case of any action which would require the fixing of a record date, such notice shall be given at least ten (10) days prior to the date so fixed, and in case of all other action, such notice shall be given at least ten (10) days prior to the taking of such proposed action.

5.8. Pro Rata Conversion. In the event that the Corporation receives a Conversion Notice from more than one Holder for the same conversion date and the Corporation can convert some, but not all, of such shares of Series B Preferred Stock submitted for conversion, the Corporation shall convert from each holder electing to have Series B Preferred Stock converted on such date a pro rata amount of such holder’s Series B Preferred Stock submitted for conversion on such date based on the number of shares of Series Preferred Stock submitted for conversion on such date by such holder relative to the aggregate number of shares of Series B Preferred Stock submitted for conversion on such date.

5.9. Payment of Taxes. The Corporation will pay all taxes (other than taxes based upon income) and other governmental charges that may be imposed with respect to the issue or delivery of shares of Common Stock upon conversion of shares of Series B Preferred Stock, other than any tax or other charge imposed in connection with any transfer involved in the issue and delivery of shares of Common Stock in a name other than that in which the shares of Series B Preferred Stock so converted were registered.

6. Mandatory Conversion.

6.1. Triggering Events. Upon either (a) the closing of the NAYA Merger or (b) the date and time, or the occurrence of an event, specified by vote or written consent of the holders of at least 51% of the then outstanding shares of Series B Preferred Stock (the time of such closing or the date and time specified or the time of the event specified in such vote or written consent is referred to herein as the “Mandatory Conversion Time”), then (i) all outstanding shares of Series B Preferred Stock shall automatically be converted into shares of Common Stock, at the then effective conversion rate as calculated pursuant to Section 5, and (ii) such shares may not be reissued by the Corporation.

6.2. Procedural Requirements. All holders of record of shares of Series B Preferred Stock shall be sent written notice of the Mandatory Conversion Time and the place designated for mandatory conversion of all such shares of Series B Preferred Stock pursuant to this Section 6. Such notice need not be sent in advance of the occurrence of the Mandatory Conversion Time. Upon receipt of such notice, each holder of shares of Series B Preferred Stock in certificated form shall surrender his, her, or its certificate or certificates for all such shares (or, if such holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate) to the Corporation at the place designated in such notice. If so required by the Corporation, any certificates surrendered for conversion shall be endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or by his, her or its attorney duly authorized in writing. All rights with respect to the Series B Preferred Stock converted pursuant to Section 6.1, including the rights, if any, to receive notices and vote (other than as a holder of Common Stock), will terminate at the Mandatory Conversion Time (notwithstanding the failure of the holder or holders thereof to surrender any certificates at or prior to such time), except only the rights of the holders thereof, upon surrender of any certificate or certificates of such holders (or lost certificate affidavit and agreement) therefor, to receive the items provided for in the next sentence of this Section 6.2. As soon as practicable after the Mandatory Conversion Time and, if applicable, the surrender of any certificate or certificates (or lost certificate affidavit and agreement) for Series B Preferred Stock, the Corporation shall (a) issue and deliver to such holder, or to his, her or its nominees, a certificate or certificates for the number of full shares of Common Stock issuable on such conversion in accordance with the provisions hereof and (b) pay cash as provided in Section 5.2 in lieu of any fraction of a share of Common Stock otherwise issuable upon such conversion and the payment of any declared but unpaid dividends on the shares of Series B Preferred Stock converted. Such converted Series B Preferred Stock shall be retired and cancelled and may not be reissued as shares of such series, and the Corporation may thereafter take such appropriate action (without the need for stockholder action) as may be necessary to reduce the authorized number of shares of Series B Preferred Stock accordingly.

7. No Reissuance of Series B Preferred Stock. No share or shares of Series B Preferred Stock acquired by the Corporation by reason of redemption, purchase, conversion, or otherwise shall be reissued.

8. Notices. Unless otherwise specified in the Corporation’s Amended and Restated Articles of Incorporation or By-Laws, all notices or communications given hereunder shall be in writing and, if to the Corporation, shall be delivered to it as its principal executive offices, and if to any holder of Series B Preferred Stock, shall be delivered to it at its address as it appears on the stock books of the Corporation.

9. No Preemptive Rights. Holders of Series B Preferred Stock shall have no preemptive rights except as granted by the Corporation pursuant to written agreements.

10. Reservation of Stock Issuable Upon Conversion. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of the shares of the Series B Preferred Stock, such number of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of the Series B Preferred Stock; and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of the Series B Preferred Stock, in addition to such other remedies as shall be available to the holder of such Series B Preferred Stock, the Corporation will take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes.

11. Special Approval Rights. Until all shares of the Series B Preferred Stock are converted to Common Stock, without the consent of the Holders of at least a majority of the Series B Preferred Stock, given in writing or by vote as a separate class, amending, altering, or repealing any provision of the Articles of Incorporation, By-laws, this Certificate of Designation, or any other organizational documents of the Corporation if it would adversely alter the rights, preferences, privileges, or powers of or restrictions on the Series B Preferred Stock.

12. Amendment. Notwithstanding any provision in this Certificate of Designation to the contrary, any provision contained herein and any right of the holders of Series B Preferred Stock granted hereunder may be waived as to all shares of Series B Preferred Stock (and the Holders thereof) upon the written consent of the Holders of at least a majority of the issued and outstanding Series B Preferred Stock, provided further. Notwithstanding the foregoing, on or after December 15, 2023, if no Series B Preferred Stock is outstanding, the Board may amend the terms of the Series B Preferred Stock before issuance of new Series B Preferred Stock.

13. No Impairment. For as long as any Series B Preferred Stock is outstanding and unless otherwise agreed to or waived in writing by the Holders of the majority of the issued and outstanding Series B Preferred Stock, the Corporation will not, by amendment of this certificate of designation or through any reorganization, transfer of assets, consolidation, merger, dissolution or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Corporation but will at all times in good faith assist in the carrying out of all the provisions of this Section and in the taking of all such action as may be necessary or appropriate in order to protect the conversion rights of the Holders of the Series B Preferred Stock against impairment.

INVO BIOSCIENCE, INC.

CONVERSION NOTICE

Reference is made to the Certificate of Designations of the Series B Preferred Stock of INVO Bioscience, Inc. (the “Certificate of Designations”). In accordance with and pursuant to the Certificate of Designations, the undersigned hereby elects to convert the number of shares of Series B Preferred Stock, $0.0001 par value per share (the “Preferred Shares”), of INVO Bioscience, Inc., a Nevada corporation (the “Corporation”), indicated below into shares of common stock, $0.0001 value per share (the “Common Stock”), of the Corporation, as of the date specified below.

Date of Conversion:

Aggregate number of Preferred Shares to be converted

Aggregate Stated Value of such Preferred Shares to be converted:

Aggregate accrued and unpaid Dividends with respect to such Preferred Shares and such Aggregate Dividends to be converted:

AGGREGATE CONVERSION AMOUNT TO BE CONVERTED:

Please confirm the following information:

Conversion Price:

Number of shares of Common Stock to be issued:

Please issue the Common Stock into which the applicable Preferred Shares are being converted to Holder, or for its benefit, as follows:

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Date: _____________ __,


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Exhibit 10.1

SHARE EXCHANGE AGREEMENT

THIS SHARE EXCHANGE AGREEMENT (this “Agreement”) is entered into as of November 19, 2023, by and among INVO Bioscience, Inc., a Nevada corporation (“INVO”) and Cytovia Therapeutics Holdings, Inc., a Delaware corporation (“Cytovia,” and together with INVO, the “Parties,” and each a “Party”).

WHEREAS, the Company desires to exchange shares of common stock of its wholly-owned subsidiary, NAYA Biosciences, Inc., a Delaware corporation (“NAYA”) in exchange for shares of newly-issued Class B common stock, par value $0.0001 of INVO, in connection with such exchange, upon the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements herein, and intending to be legally bound hereby, the Parties agree as follows:

1.	Exchange of Shares.

(a)

Exchange. On the terms and subject to the conditions set forth in this Agreement, at the Closing (i) Cytovia will sell, convey, transfer and assign to INVO, free and clear of all liens, pledges, encumbrances, changes, restrictions or known claims of any kind, nature or description, and INVO will purchase and accept the transfer from Cytovia of, 163,637 shares of common stock of NAYA, in the aggregate (the “NAYA Shares”), and (ii) in exchange for the transfer of such securities by Cytovia, INVO will sell, convey, transfer and issue to Cytovia, and Cytovia will purchase and accept from INVO, 1,200,000 shares of newly-issued shares of Series B preferred stock of INVO, par value $0.0001, in the aggregate (the “INVO Shares”, and such exchange referred to herein as the “Exchange”).

(b)

Closing. The closing of the Purchase shall occur on November 20, 2023 (the “Closing”). The Closing will take place at or before 3:00 p.m. Eastern Time, or at such other date, time, and place or manner as may be agreed upon by the Parties. At Closing, the Company shall deliver to Cytovia a certificate representing the INVO Shares against delivery of the NAYA Shares, along with a duly endorsed stock assignment separate from certificate for purposes of transferring all of Cytovia’s right, title, and interest in and to the NAYA Shares to INVO.

2.	Representations and Warranties.

(a)

Representations and Warranties of Cytovia. Cytovia hereby represents and warrants to Cytovia, all of which representations and warranties are true, complete, and correct in all respects as of the date hereof and will be as of the Closing, as follows:

(i)

Authorization; No Restrictions, Consents or Approvals. Cytovia has the right, power, legal capacity and authority to enter into and perform its obligations under this Agreement; and no approvals or consents are necessary in connection with it that have not been received. All of the NAYA Shares are owned by Cytovia free and clear of all liens, pledges, encumbrances, changes, restrictions or known claims of any kind, nature or description.

(ii)

Transfer of NAYA Shares. The NAYA Shares owned by Cytovia will, at the Closing, be validly transferred to INVO free and clear of any encumbrances and from all taxes, liens and charges with respect to the transfer thereof and the NAYA Shares shall be fully paid and non-assessable with the holder being entitled to all rights accorded to a holder of the NAYA Shares.

(iii)

Investment Representations.

(A)

Cytovia understands that the INVO Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act”) or any other applicable securities laws. Cytovia also understands that the INVO Shares are being offered and issued pursuant to an exemption from the registration requirements of the Securities Act, under Section 4(2) and/or Regulation D of the Securities Act. Cytovia acknowledges that INVO will rely on Cytovia’s representations, warranties and certifications set forth below for purposes of determining Cytovia’s suitability as an investor in the INVO Shares and for purposes of confirming the availability of the Section 4(2) and/or Regulation D exemption from the registration requirements of the Securities Act.

(B)

Cytovia has received all the information it considers necessary or appropriate for deciding whether to acquire the INVO Shares. Cytovia represents that it has received and reviewed copies of INVO’s reports, schedules, forms, statements and other documents filed by INVO under the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof. Cytovia understands the risks involved in an investment in the INVO Shares. Cytovia further represents that Cytovia has had an opportunity to ask questions and receive answers from INVO regarding the terms and conditions of the offering of the INVO Shares and the business, properties, prospects, and financial condition of INVO and to obtain such additional information necessary to verify the accuracy of any information furnished to Cytovia or to which Cytovia had access. Cytovia further represents that it is an “accredited investor” within the meaning of Rule 501(a) of the Securities Act.

(C)

Cytovia is acquiring the INVO Shares for its own account for investment only and not with a view towards their resale or “distribution” (within the meaning of the Securities Act) of any part of the INVO Shares.

(D)

Cytovia understands that the INVO Shares may not be offered, sold, or otherwise transferred except in compliance with the registration requirements of the Securities Act and any other applicable securities laws or pursuant to an exemption therefrom, and in each case in compliance with the conditions set forth in this Agreement. Cytovia acknowledges and is aware that the INVO Shares may not be sold pursuant to Rule 144 adopted under the Securities Act unless certain conditions are met and until Cytovia has held the INVO Shares for the applicable holding period under Rule 144.

(E)

Cytovia acknowledges and agrees that each certificate representing INVO Shares shall bear a legend substantially in the following form:

“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS.”

(iv)

No Reliance. Cytovia has not relied on and is not relying on any representations, warranties or other assurances regarding INVO other than the representations and warranties expressly set forth in this Agreement.

(b)

Representations and Warranties of INVO. INVO hereby represents and warrants to Cytovia, all of which representations and warranties are true, complete, and correct in all respects as of the date hereof and will be as of the Closing, as follows:

(i)

Organization and Qualification. INVO is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation.

(ii)

Authorization; No Restrictions, Consents or Approvals. INVO has full power and authority to enter into and perform its obligations under this Agreement. This Agreement has been duly executed by INVO and constitutes the legal, valid, binding, and enforceable obligation of INVO, enforceable against INVO in accordance with its terms. The execution and delivery of this Agreement and the consummation by INVO of the transactions contemplated herein (including the issuance of INVO Shares in exchange for the NAYA Shares) do not and will not on the Closing (A) conflict with or violate any of the terms of the Amended and Restated Articles of Incorporation and By-Laws of INVO or any applicable law relating to INVO, (B) conflict with, or result in a breach of any of the terms of, or result in the acceleration of any indebtedness or obligations under, any material agreement, obligation or instrument by which INVO is bound or to which any property of INVO is subject, or constitute a default thereunder, other than those material agreements, obligations or instruments for which INVO has obtained consent for the transactions contemplated under this Agreement, (C) result in the creation or imposition of any lien on any of the assets of INVO, (D) constitute an event permitting termination of any material agreement or instrument to which INVO is a party or by which any property or asset of INVO is bound or affected, pursuant to the terms of such agreement or instrument, other than those material agreements or instruments for which INVO has obtained consent for the transactions contemplated under this Agreement, or (E) conflict with, or result in or constitute a default under or breach or violation of or grounds for termination of, any license, permit or other governmental authorization to which INVO is a party or by which INVO may be bound, or result in the violation by INVO of any laws to which INVO may be subject, which would materially adversely affect the transactions contemplated herein. No authorization, consent or approval of, notice to, or filing with, any public body or governmental authority or any other person is necessary or required in connection with the execution and delivery by INVO of this Agreement or the performance by INVO of its obligations hereunder.

(iii)

Issuance of Shares. The INVO Shares have been duly authorized and, upon issuance in accordance with the terms hereof, shall be validly issued and free from all taxes, liens and charges with respect to the issue thereof, and the INVO Shares shall be fully paid and non-assessable with the holder being entitled to all rights accorded to a holder of the INVO Shares.

(iv)

Investment Representations.

(A)

INVO understands that the NAYA Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act”) or any other applicable securities laws. INVO also understands that the NAYA Shares are being offered pursuant to an exemption from the registration requirements of the Securities Act, under the so-called “Section 4(1 1/2) exemption and/or Section 4(a)(7) of the Securities Act. INVO acknowledges that Cytovia will rely on INVO representations, warranties and certifications set forth below for purposes of determining INVO suitability as an investor in the NAYA Shares and for purposes of confirming the availability of the so-called “Section 4(1 1/2) exemption and/or Section 4(a)(7) exemption from the registration requirements of the Securities Act.

(B)

INVO has received all the information it considers necessary or appropriate for deciding whether to acquire the NAYA Shares. INVO understands the risks involved in an investment in the NAYA Shares. INVO further represents that it, through its authorized representatives, has had an opportunity to ask questions and receive answers from Cytovia regarding the terms and conditions of the offering of the NAYA Shares and the business, properties, prospects, and financial condition of INVO and to obtain such additional information necessary to verify the accuracy of any information furnished to INVO or to which INVO had access. INVO further represents that it is an “accredited investor” within the meaning of Rule 501(a) of the Securities Act.

(C)

INVO is acquiring the NAYA Shares for its own account for investment only and not with a view towards their resale or “distribution” (within the meaning of the Securities Act) of any part of the NAYA Shares.

(D)

INVO understands that the NAYA Shares may not be offered, sold or otherwise transferred except in compliance with the registration requirements of the Securities Act and any other applicable securities laws or pursuant to an exemption therefrom, and in each case in compliance with the conditions set forth in this Agreement. INVO acknowledges and is aware that the NAYA Shares may not be sold pursuant to Rule 144 adopted under the Securities Act unless certain conditions are met and until INVO has held the NAYA Shares for the applicable holding period under Rule 144.

(E)

INVO acknowledges and agrees that each certificate representing the NAYA Shares shall bear a legend substantially in the following form:

(v)

No Reliance. INVO has not relied on and is not relying on any representations, warranties or other assurances regarding NAYA other than the representations and warranties expressly set forth in this Agreement.

3.	Closing.

(a)

Conditions to Cytovia’s Obligations. The obligations of Cytovia under this Agreement, (including, without limitation, the obligation to transfer the NAYA Shares in exchange for the INVO Shares) shall be subject to satisfaction of the following conditions, unless waived by Cytovia: (i) NAYA and INVO shall have performed in all material respects all agreements, and satisfied in all material respects all conditions on its part to be performed or satisfied hereunder, at or prior to the Closing; (ii) all of the representations and warranties of NAYA and INVO herein shall have been true and correct in all respects when made, shall have continued to have been true and correct in all respects at all times subsequent thereto, and shall be true and correct in all material respects on and as of the Closing as though made on, as of, and with reference to such Closing; (iii) NAYA and INVO shall have executed and delivered to Cytovia all documents necessary to issue the INVO Shares to Cytovia, as contemplated by this Agreement (including those documents described in Section 3(c)); (iv) INVO has filed with the Secretary of State of the State of Nevada a Certificate of Designation to create the class of Series B Preferred Stock in the form attached hereto as Exhibit A; and (v) NAYA and INVO shall have obtained or made, as applicable, all consents, authorizations and approvals from, and all declarations, filings, and registrations required to consummate the transactions contemplated by this Agreement, including all items required under the incorporation document and bylaws of NAYA and INVO, respectively.

(b)

Conditions to INVO Obligations. The obligations of INVO under this Agreement, (including, without limitation, the obligation to issue the INVO Shares in exchange for the transfer by Cytovia of the NAYA Shares) shall be subject to satisfaction of the following conditions, unless waived by INVO: (i) Cytovia and NAYA shall have performed in all respects all agreements, and satisfied in all respects all conditions on their part to be performed or satisfied hereunder, at or prior to the Closing; (ii) all of the representations and warranties of Cytovia and NAYA herein shall have been true and correct in all material respects when made, shall have continued to have been true and correct in all material respects at all times subsequent thereto, and shall be true and correct in all material respects on and as of the Closing as though made on, as of, and with reference to such Closing; (iii) Cytovia and NAYA shall have executed and delivered to INVO all documents necessary to transfer the NAYA Shares to INVO, as contemplated by this Agreement (including those documents described in Section 3(c)); and (iv) Cytovia and NAYA shall have obtained or made, as applicable, all consents, authorizations and approvals from, and all declarations, filings, and registrations required to consummate the transactions contemplated by this Agreement, including all items required under the incorporation document and bylaws of NAYA and INVO, respectively.

(c)

Closing Documents. At the Closing:

	(i)	Cytovia shall deliver to INVO, in form and substance reasonably satisfactory to INVO, (i) stock powers duly executed for such certificates to allow such certificates to be registered in the name INVO, and (ii) copies of resolutions adopted by the board of directors of Cytovia authorizing the execution and delivery of, and performance of Cytovia’s obligations under, this Agreement.

	(ii)	The Parties shall deliver the duly executed stock power to Naya to duly register the transfer of the Naya Shares from Cytovia to INVO in its record of stockholders.

4.	General Provisions.

(a)

Governing Law. This Agreement is to be construed in accordance with and governed by the internal laws of the State of Delaware without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Delaware to the rights and duties of the parties.

	(b)	Submission to Jurisdiction. Any legal suit, action, proceeding, or dispute arising out of or related to this Agreement or the transactions contemplated hereby or thereby may be instituted in the federal courts of the United States of America or the Chancery Court of the State of Delaware in each case located in Wilmington, Delaware, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, proceeding, or dispute.

	(c)	Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS AND SCHEDULES ATTACHED TO THIS AGREEMENT, THE ANCILLARY DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT: (I) NO REPRESENTATIVE OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION; (II) EACH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (III) EACH PARTY MAKES THIS WAIVER KNOWINGLY AND VOLUNTARILY; AND (IV) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

	(d)	Severability. If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be invalid or unenforceable for any reason, the remaining provisions shall continue in full force and effect without being impaired or invalidated in any way, and the parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision.

(e)

Waiver. The waiver by either party of a breach of or default under any provision of this Agreement shall not be effective unless in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement. Further, any failure or delay on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder shall not operate as a waiver of any such right or remedy or preclude other or further exercise thereof or of any other right or remedy.

(f)

Notices. Any notices required or permitted hereunder shall be given to the appropriate party at the address specified below or at such other address as the party may specify in writing. Such notice shall be deemed given: (i) if delivered personally, upon delivery as evidenced by delivery records; (ii) if sent by telephone facsimile, upon confirmation of receipt; (iii) if sent by certified or registered mail, postage prepaid, five (5) days after the date of mailing; of (iv) if sent by nationally recognized express courier, two (2) business days after date of placement with such courier.

If to Cytovia:

Cytovia Therapeutics Holdings, Inc.

19505 Biscayne Blvd

Suite 2350 3rd floor

Aventura, FL 33180

Attention: Daniel Teper, CEO

Email: daniel@nayabiosciences.com

with a copy (which will not constitute notice to Cytovia) to

Pearl Cohen Zedek Latzer Baratz LLP

131 Dartmouth St, 3rd Floor

Suite 2350 3rd floor

Boston, MA 02116

Attention: Oded Kadosh, Esq.

Email: okadosh@pearlcohen.com

If to INVO:

INVO Bioscience, Inc.

5582 Broadcast Court

Sarasota, FL 34240

Attention: Steven Shum, CEO

Email: sshum@invobio.com

with a copy (which will not constitute notice to INVO) to

Glaser Weil Fink Howard Jordan & Shapiro LLP

10250 Constellation Boulevard, 19th Floor

Los Angeles, CA 90067

Attention: Marc Indeglia, Esq.

Email: mindeglia@glaserweil.com

(i)

No Third Party Beneficiaries. Nothing in this Agreement shall be construed to confer any rights or benefits upon any person other than the parties hereto, and no other person shall have any rights or remedies hereunder.

(j)

Public Announcements. Each of Cytovia and INVO will consult with each other before issuing, and provide each other the opportunity to review and comment upon, any press release or other public statements with respect to this Agreement and the transaction contemplated hereby and shall not issue any such press release or make any such public statement prior to such consultation, except as may be required by applicable law, court process, or by obligations pursuant to any listing agreement with any national securities exchange.

(k)

Termination. This Agreement may be terminated upon written notice at any time prior to Closing by mutual written consent of the parties. Termination of this Agreement will terminate all rights and obligations of the parties under this Agreement and this Agreement will become void and have no force or effect.

(l)

Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior oral and written agreements between the parties hereto with respect to the subject matter hereof.

(m)

Counterparts. This Agreement may be executed in one or more counterparts (including scanned and fax counterparts) each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.

[SIGNATURE PAGES FOLLOW]

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

Cytovia, Inc.

By:	/s/Daniel Teper
	Daniel Teper
	President and Chief Executive Officer

INVO Bioscience, Inc.

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

EXHIBIT A

Certificate of Designation

Cover	Nov. 19, 2023
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Nov. 19, 2023
Current Fiscal Year End Date	--12-31
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