Vivos Therapeutics(VVOS)以1200万美元新设C类可转优先股换取SOD Sciences 11%股权及假性缺氧测试50%权益，意在做高账面权益规避Nasdaq退市

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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):
October 14, 2026
VIVOS
THERAPEUTICS, INC.
(Exact
name of registrant as specified in its charter)
Delaware
001-39796
81-3224056
(State
or other jurisdiction
of incorporation)
(Commission
File
Number)
(I.R.S.
Employer
Identification
No.)
7921
Southpark Plaza
,
Suite 210
,
Littleton
,
Colorado
80120
(Address
of principal executive offices) (Zip Code)
(866)
908-4867
(Registrant’s
telephone number, including area code)
N/A
(Former
name or former address, if changed since last report)
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:
Title
of each class
Trading
Symbol(s)
Name
of each exchange on which registered
Common
Stock, par value $0.0001 per share
VVOS
The
Nasdaq Stock Market LLC
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company
☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
1.01 Entry into a Material Definitive Agreement.
Mutual
Stock Purchase and Asset Exchange Agreement
On
October 14, 2026, Vivos Therapeutics, Inc., a Delaware corporation (the “Company”), entered into a Mutual Stock Purchase
and Asset Exchange Agreement (the “Agreement”) with SOD Sciences, Inc., a Florida corporation (“SOD”). SOD owns
the ReBalU Protocol, a test/treat/retest platform, the architecture and related patent filings for a pseudohypoxia early-warning test
(the “Test”), and has a marketing arrangement opportunity with American Health Associates (“AHA”), and a Memorandum
of Understanding with Cleveland Clinic Weston.
Pursuant
to the Agreement, at the closing under the Agreement (the “Closing”), which is expected to occur on October 15, 2026, the
Company will issue to SOD 12,000 shares of a newly created series of the Company’s preferred stock designated “Series C Convertible
Preferred Stock,” par value $0.0001 per share (the “Series C Preferred”), with a stated value of $1,000 per share and
an aggregate stated value of $12,000,000, in exchange for (i) 2,907,338 shares of SOD common stock (the “SOD Shares”), representing
at least eleven percent (11%) of SOD’s fully diluted capital stock immediately after the Closing, and (ii) an undivided fifty percent
(50%) co-ownership interest in the Test and related intellectual property (the “Test Interest”), to be conveyed pursuant
to an Assignment and Co-Ownership Agreement between the Company and SOD, in the form attached to the Agreement (the “Assignment
Agreement”), described below.
No
cash consideration will be paid by either party, and no placement agent, broker, or finder was used in connection with the transaction.
To the Company’s knowledge, no officer, director, or substantial shareholder of the Company has any interest in SOD or in the consideration
payable under the Agreement.
Terms
of the Series C Preferred
The
terms of the Series C Preferred are set forth in a Certificate of Designations of Series C Convertible Preferred Stock, in the form attached
to the Agreement (the “Certificate of Designations”), which the Company will file with the Secretary of State of the State
of Delaware at or before the Closing, creating a series of 12,000 authorized shares of Series C Preferred, par value $0.0001 per share.
Under the Certificate of Designations, the Series C Preferred will rank pari passu with the Company’s Series A Convertible Preferred
Stock and senior to the Company’s common stock with respect to dividend rights and rights upon liquidation, dissolution, or winding
up; will bear no mandatory or cumulative dividend, with holders participating with the common stock on an as-converted basis in any dividends
declared on the common stock, payable, at the Company’s election, in cash or in shares of common stock valued at the conversion
price then in effect; and will not be redeemable, with no holder put right, no mandatory conversion into a cash-settleable instrument,
and no cash-settlement feature of any kind.
Each
share of Series C Preferred will be convertible, at the option of the holder, into the number of shares of common stock determined by
dividing the stated value by the conversion price. The conversion price was fixed at the signing of the Agreement at $0.15 per share
and is not subject to any price reset or other price-based adjustment; the conversion price and the number of shares issuable upon conversion
adjust proportionally only for stock splits (including the Company’s pending reverse stock split), reverse stock splits, combinations,
stock dividends, and similar events, so that the capped percentage of outstanding common stock issuable upon conversion is not increased
by any such event. At the $0.15 conversion price, the Series C Preferred is convertible into up to 80,000,000 shares of common stock
in the aggregate.
The
Certificate of Designations contains (i) an exchange cap providing that the aggregate number of shares of common stock issuable upon
conversion of the Series C Preferred may not exceed 19.99% of the shares of common stock outstanding immediately prior to the signing
of the Agreement, unless and until the Company’s stockholders approve the issuance in excess of that cap for purposes of Nasdaq
Listing Rule 5635(a); the cap is not waivable by the Company or any holder, and shares of common stock issued upon conversion under the
cap are not entitled to vote on the approval proposal; and (ii) a beneficial ownership limitation prohibiting conversion to the extent
the holder, together with its affiliates, would beneficially own in excess of 4.99% of the outstanding common stock, which the holder
may increase to not more than 9.99% upon 61 days’ prior written notice. The Series C Preferred will vote with the common stock
on an as-converted basis, subject to the lesser of the beneficial ownership limitation and the exchange cap, and carries no right to
elect or designate directors and no board observer right. The Company will be required to reserve sufficient authorized but unissued
shares of common stock to permit conversion in full, subject to the exchange cap.
Pursuant
to the Agreement, the Company will include in the proxy statement for its stockholder meeting relating to the Company’s pending
reverse stock split a proposal to approve, for purposes of Nasdaq Listing Rule 5635(a), the issuance of common stock upon conversion
of the Series C Preferred in excess of the exchange cap, and the Company’s board of directors will recommend that stockholders
approve the proposal. The Closing and the issuance of the Series C Preferred are not conditioned on stockholder approval.
The
Agreement contains customary representations, warranties, and covenants of the parties, including representations of SOD regarding its
capitalization, its title to the Test and related intellectual property, its financial condition, its channel relationships with AHA
and Cleveland Clinic Weston, and the accuracy of the information SOD supplied to the Company and its valuation advisors. The representations
and warranties survive the Closing for twelve months (with certain title and intellectual property representations in the Assignment
Agreement surviving longer).
Under
the Agreement, following the Closing the parties will negotiate and enter into (i) a joint marketing or distribution agreement (the “Joint
Marketing Agreement”) governing SOD’s marketing of the Company’s testing and device products through the AHA and Cleveland
Clinic Weston channels and the sharing of contribution margin on the Test, which must contain, at a minimum, agreed terms attached to
the Agreement, including retention by the Company of 80% of the contribution margin on sales of Company products through those channels
(with SOD receiving 20%) and a 50/50 sharing of contribution margin on all sales of the Test through any channel, and (ii) a separate
agreement addressing marketing of the ReBalU Protocol to U.S. sleep-testing centers. If the Joint Marketing Agreement is not executed
within 90 days after the Closing, either party may submit the unresolved terms to binding determination by an independent expert; pending
execution, the agreed minimum terms govern the covered activities. SOD also agreed to a standstill on issuances of additional SOD equity
through April 16, 2027 without the Company’s consent, coupled with a pro rata participation right designed to maintain the Company’s
fully diluted ownership of SOD at not less than 11%, subject to a carve-out for new-hire incentive equity. In addition, SOD agreed to
use reasonable best efforts to negotiate and enter into definitive agreements with American Health Associates and Cleveland Clinic Weston
containing terms consistent in all material respects with the rights and economic arrangements described in the Agreement, and not to
enter into any such definitive agreement on terms materially less favorable to the Company without the Company’s prior written
consent.
The
Company’s obligation to close is subject to, among other conditions: (a) receipt by the Company’s board of directors of an
independent valuation opinion from a firm selected by the board, supporting the recording of $12,000,000 of stated value of the Series
C Preferred in stockholders’ equity; (b) concurrence with management by the Company’s independent registered public
accounting firm that the Series C Preferred will be classified in permanent stockholders’ equity and that the acquired assets will
be recorded at fair value; (c) receipt of the written consent of Streeterville Capital, LLC, the holder of the Company’s Series
B Convertible Preferred Stock, to the creation and issuance of the Series C Preferred (the “Streeterville Consent”); (d)
submission by the Company of a Notification Form: Listing of Additional Shares to The Nasdaq Stock Market LLC (“Nasdaq”)
with no outstanding objection; and (e) receipt of SOD’s required consents and closing deliverables, including certified resolutions
of SOD’s board of directors and a shareholder confirmation letter confirming the Company’s record ownership of the SOD Shares,
accompanied by an extract of SOD’s capitalization table. The Agreement may be terminated before the Closing by mutual written consent,
by either party if the Closing has not occurred on or before October 15, 2026 (provided that this right is not available to a party whose
breach was a principal cause of the failure to close by that date), by either party upon a final, non-appealable order prohibiting the
Closing, or by either party upon a material breach by the other party that would cause a closing condition to fail. The Company will
report the completion of the transaction, the filing of the Certificate of Designations, and the related unregistered issuance of the
Series C Preferred in a subsequent Current Report on Form 8-K upon the Closing.
Assignment
and Co-Ownership Agreement
At
the Closing, the Company and SOD will enter into the Assignment Agreement, pursuant to which SOD will assign to the Company an undivided
50% interest in the Test and related intellectual property, including patent rights, patent applications, know-how, trade secrets, protocols,
and data, free and clear of liens. The Company and SOD will hold the Test intellectual property as tenants in common. The Assignment
Agreement provides for, among other things: a 50/50 sharing of all revenue and consideration from exploitation of the Test (including
contribution margin on sales and all license and other exploitation revenue), reconciled quarterly; mutual consent rights over licenses
and exclusive licenses; equal sharing of patent prosecution, maintenance, and defense costs, with step-in rights if a party elects not
to participate or proposes to abandon a filing; covenants requiring each party to join enforcement actions as a party plaintiff upon
request and mutual consent to settlements; recordation of the Company’s co-ownership interest with the U.S. Patent and Trademark
Office; delivery by SOD of the know-how, protocols, validation data, and regulatory files comprising the Test intellectual property within
30 days after the Closing; mutual confidentiality and publication controls; a right of first refusal in favor of the Company on any transfer
of SOD’s retained interest; and a buy-sell exit mechanism based on independently appraised fair market value. Improvements to the
Test developed by SOD, or jointly, will be co-owned as part of the Test intellectual property; improvements developed solely by the Company,
and the Company’s background intellectual property (including its at-home oxygen desaturation and recovery testing technology and
oral appliance devices), remain solely the Company’s.
Streeterville
Consent
Each
party’s obligation to close is conditioned on the Company’s receipt of the Streeterville Consent, under which Streeterville
Capital, LLC, in its capacities as holder of the Company’s Series B Convertible Preferred Stock and as lender under its outstanding
note documents with the Company, will consent to the creation and issuance of the Series C Preferred and the issuance of the shares of
common stock issuable upon conversion thereof, and will waive any default or other right that would otherwise arise solely by reason
of the transaction.
The
foregoing descriptions of the Agreement, the form of Assignment Agreement, and the form of Certificate of Designations are summaries,
do not purport to be complete, and are qualified in their entirety by reference to the full text of the Agreement (including the exhibits
thereto), a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference. The Agreement
has been included to provide investors with information regarding its terms; it is not intended to provide any other factual information
about the Company or SOD. The representations, warranties, and covenants contained in the Agreement were made only for purposes of that
agreement and as of specific dates, were solely for the benefit of the parties thereto, may be subject to limitations agreed upon by
the parties, including being qualified by confidential disclosure schedules, and may be subject to standards of materiality that differ
from those applicable to investors. Investors should not rely on the representations, warranties, and covenants, or any descriptions
thereof, as characterizations of the actual state of facts or condition of the Company, SOD, or any of their respective affiliates.
Item
7.01 Regulation FD Disclosure.
On
October 15, 2026, the Company issued a press release announcing its entry into the Agreement, a copy of which is attached as Exhibit
99.1 to this Current Report on Form 8-K and is incorporated herein by reference.
The
information furnished pursuant to Item 7.01 of this Current Report on Form 8-K, including Exhibit 99.1, shall not be deemed “filed”
for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section,
and shall not be deemed incorporated by reference into any filing under the Securities Act, or the Exchange Act, as amended, except as
expressly set forth by specific reference in such filing.
Item
8.01 Other Events.
Nasdaq
Listing Rule 5550(b)(1) — Stockholders’ Equity
As
previously disclosed, on April 22, 2026, the Company received a notice from the Listing Qualifications staff of Nasdaq indicating that
the Company did not satisfy the minimum stockholders’ equity requirement of $2,500,000 for continued listing on The Nasdaq Capital
Market under Nasdaq Listing Rule 5550(b)(1), and the Company thereafter submitted a plan to regain compliance.
The
following unaudited pro forma condensed balance sheet information of the Company as of June 30, 2026, giving effect to the transaction
described in Item 1.01 of this Current Report (including the issuance of the Series C Preferred, which the Company will classify in permanent
stockholders’ equity, and the recording of the acquired assets), as if the transaction had been consummated on that date. The pro
forma balance sheet evidences pro forma stockholders’ equity of approximately $8 million, reflecting the $12 million stated value
all to investment in subsidiary and none to other assets pending completion of the purchase price allocation. The pro forma equity amount
exceeds the $2,500,000 minimum stockholders’ equity requirement of Nasdaq Listing Rule 5550(b)(1) by $5.5 million.
The
Company believes that, upon the Closing, it will have stockholders’ equity above the minimum requirement. No assurance can be given
that the Closing will occur on October 15, 2026, that Nasdaq will concur that the Company has regained compliance, or that the Company
will be able to maintain compliance with this or any other Nasdaq listing requirement.
Forward-Looking
Statements
This
Current Report on Form 8-K contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of
1995, including statements regarding the satisfaction of the closing conditions and the timing and occurrence of the Closing, the expected
benefits of the transaction with SOD, the negotiation and execution of the Joint Marketing Agreement, the Sleep Center Agreement and
the definitive channel agreements, the anticipated accounting treatment of the transaction, the Company’s compliance with Nasdaq
continued listing requirements, the proposed reverse stock split, and the stockholder approval to be sought under Nasdaq Listing Rule
5635(a). Forward-looking statements are subject to risks and uncertainties that could cause actual results to differ materially, including
the risk that the closing conditions are not satisfied and the transaction does not close, that the anticipated benefits of the transaction
are not realized, that the definitive post-closing agreements are not executed on the anticipated terms or at all, that the Company’s
independent registered public accounting firm or Nasdaq reaches conclusions different from those anticipated, that stockholder approval
is not obtained, and the other risks described in the Company’s filings with the Securities and Exchange Commission, including
its most recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q. The Company undertakes no obligation to update forward-looking
statements except as required by law.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
Exhibit
No.
Description
10.1
Mutual Stock Purchase and Asset Exchange Agreement, dated as of October 14, 2026, by and between Vivos Therapeutics, Inc. and SOD Sciences, Inc. (including the forms of Assignment and Co-Ownership Agreement and Certificate of Designations of Series C Convertible Preferred Stock attached as exhibits thereto)*
99.1
Press Release dated October 15, 2026 (furnished, not filed)
104
Cover
Page Interactive Data File (embedded within the Inline XBRL document)
*
Certain exhibits and schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company agrees to furnish supplementally
a copy of any omitted exhibit or schedule to the Securities and Exchange Commission upon request.
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.
VIVOS THERAPEUTICS, INC.
Dated:
October 15, 2026
By:
/s/
Roman Franklin
Name:
Roman Franklin
Title:
Chief Financial Officer

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EX-10.1
2
ex10-1.htm
EX-10.1
Exhibit
10.1
Certain
exhibits and schedules to this Agreement have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Registrant agrees to furnish
supplementally a copy of any omitted exhibit or schedule to the U.S. Securities and Exchange Commission upon request.
MUTUAL
STOCK PURCHASE AND ASSET EXCHANGE AGREEMENT
This
Mutual Stock Purchase and Asset Exchange Agreement (this “Agreement”) is entered into as of October 14, 2026 (the “Effective
Date”), by and between VIVOS THERAPEUTICS, INC., a Delaware corporation (“Vivos” or the “Purchaser”) and
SOD SCIENCES, INC., a Florida corporation (“SOD” or the “Seller” and, together with Vivos, the “Parties”).
RECITALS
A.
SOD owns the ReBalU Protocol, the test/treat/retest platform, the pseudohypoxia early-warning test architecture and related patent filings,
a marketing agreement with American Health Associates (“AHA”), and a Memorandum of Understanding with Cleveland Clinic Weston.
B.
SOD desires to sell and transfer to Vivos, and Vivos desires to purchase and acquire from SOD, (i) shares of capital stock of SOD representing
eleven percent (11%) of the post-closing fully diluted equity of SOD and (ii) a fifty percent (50%) undivided interest in the pseudohypoxia
early-warning test and related intellectual property, in each case on the terms set forth herein and in the Assignment and Co-Ownership
Agreement attached as Exhibit A hereto.
C.
As the sole consideration for such purchase, Vivos will issue to SOD a new series of convertible preferred stock of Vivos with an aggregate
stated value of $12,000,000, having the terms set forth in the Certificate of Designations attached as Exhibit B hereto.
D.
Following the Closing, the Parties will negotiate and enter into (i) a joint marketing or distribution agreement (the “Joint Marketing
Agreement”) governing SOD’s marketing of Vivos products through the AHA and Cleveland Clinic channels and the sharing of
contribution margin on the pseudohypoxia test, containing at a minimum the terms set forth in Exhibit C hereto, and (ii) a separate agreement
addressing marketing of the ReBalU Protocol to U.S. sleep-testing centers (the “Sleep Center Agreement”), to be negotiated
in good faith after the Closing.
NOW,
THEREFORE, in consideration of the mutual covenants herein and other good and valuable consideration, the receipt and sufficiency of
which are acknowledged, the Parties agree as follows:
ARTICLE
I
PURCHASE
AND SALE; CONSIDERATION
1.1
Purchase and Sale of the SOD Shares.
Upon
the terms and subject to the conditions of this Agreement, at the Closing, SOD shall issue, sell, transfer and deliver to Vivos, and
Vivos shall purchase and acquire from SOD, such number of shares of common stock of SOD as equals at least eleven percent (11%) of the
fully diluted equity of SOD (and of both voting and economic equity interests in SOD) immediately after the Closing, after giving effect
to the issuance of such shares (calculated on a fully diluted, as-converted basis, including all outstanding options, warrants and convertible
securities) (the “SOD Shares”), free and clear of all liens, claims and encumbrances (“Liens”). Based on fully
diluted capital stock outstanding immediately before Closing of 23,523,000 shares of common stock, Vivos will receive 2,907,338 shares
of SOD common stock at Closing.
1.2
Purchase and Sale of the Test Interest.
Upon
the terms and subject to the conditions of this Agreement, at the Closing, SOD shall sell, assign, transfer and convey to Vivos, and
Vivos shall purchase and acquire from SOD, a fifty percent (50%) undivided co-ownership interest in the pseudohypoxia early-warning test
and related intellectual property (the “Test Interest”), free and clear of all Liens, on the terms and conditions set forth
in the Assignment and Co-Ownership Agreement in the form attached as Exhibit A (the “Assignment Agreement”). The Test Interest,
together with the SOD Shares, are referred to as the “Purchased Interests.” The transfer of the Test Interest shall be effected
at the Closing by the execution and delivery of the Assignment Agreement.
1.3
Consideration; Issuance of the Preferred Shares.
As
the sole consideration for the Purchased Interests, at the Closing, Vivos shall issue and deliver to SOD shares of a newly created series
of convertible preferred stock of Vivos, designated “Series C Convertible Preferred Stock” (the “Preferred Shares”),
with an aggregate stated value of $12,000,000, having the rights, preferences and limitations set forth in the Certificate of Designations
in the form attached as Exhibit B hereto (the “Certificate of Designations”).
1.4
Contribution Margin on the Test.
From
and after the Closing, the Parties shall share equally (50/50) the contribution margin on every sale of the Test through any channel,
whichever Party makes the sale, as to be further documented in the Joint Marketing Agreement contemplated by Section 6.2.
ARTICLE
II
CLOSING
2.1
Closing.
The
closing of the purchase and sale of the Purchased Interests and the issuance of the Preferred Shares (the “Closing”) shall
take place remotely by exchange of electronic signatures and documents immediately upon the satisfaction or waiver of the conditions
set forth in Article III (other than those conditions that by their nature are to be satisfied at the Closing), or on such other date
as the Parties mutually agree in writing (the “Closing Date”). The Parties intend that this Agreement be executed, and that
Vivos file a Current Report on Form 8-K with a pro forma condensed balance sheet, on or before October 15, 2026.
2.2
Seller Closing Deliverables.
At
the Closing, SOD shall deliver to Vivos:
A.
a counterpart of this Agreement, duly executed by SOD;
B.
certificates or book-entry evidence representing the SOD Shares, registered in the name of Vivos;
C.
a shareholder confirmation letter, duly executed by SOD, substantially in the form of Exhibit D, confirming that Vivos is the record
holder of the SOD Shares as of the Closing Date and that the SOD Shares are fully paid and non-assessable, together with an extract of
SOD’s updated capitalization table as of the Closing Date reflecting that record ownership;
D.
certified copies of the resolutions of SOD’s board of directors approving this Agreement, the issuance and sale of the SOD Shares
and the transfer of the Test Interest;
E.
the Assignment Agreement, duly executed by SOD;
F.
a certificate of an officer of SOD certifying SOD’s organizational documents, authorizing resolutions and incumbency; and
G.
a certificate of an officer of SOD certifying the satisfaction of the conditions set forth in Sections 3.1(F) and 3.1(G).
2.3
Purchaser Closing Deliverables.
At
the Closing, Vivos shall deliver to SOD:
A.
evidence of the filing of the Certificate of Designations with the Secretary of State of the State of Delaware;
B.
book-entry evidence representing the Preferred Shares, registered in the name of SOD; and
C.
a certificate of an officer of Vivos certifying Vivos’s authorizing resolutions and the satisfaction of the conditions set forth
in Section 3.2.
ARTICLE
III
CONDITIONS
TO CLOSING
3.1
Conditions to the Obligations of Vivos.
The
obligation of Vivos to consummate the Closing is subject to the satisfaction (or waiver by Vivos in writing) of each of the following
conditions:
A.
Valuation opinion. Vivos shall have received an independent valuation opinion, from a firm selected by the Vivos board of directors or
a committee thereof, addressed to the Vivos board, covering the SOD Shares and supporting the recording of at least $12,000,000 stated
value of the Preferred Shares in stockholders’ equity, in form and substance reasonably satisfactory to the Vivos board.
B.
Auditor concurrence. Vivos shall have received concurrence from its independent registered public accounting firm that (i) the Preferred
Shares will be classified in permanent stockholders’ equity and (ii) the Purchased Interests will be recorded at the fair value
thereof as determined by Vivos board of directors or $12,000,000, whichever is higher.
C.
Series B consent. Vivos shall have received the written consent of the holder of the Series B Convertible Preferred Stock held by Streeterville
Capital, LLC to the creation and issuance of the Preferred Shares, and such consent shall remain in full force and effect.
D.
Nasdaq. Vivos shall have submitted a Listing of Additional Shares notification to Nasdaq with respect to the common stock issuable on
conversion of the Preferred Shares, and no objection from Nasdaq shall be outstanding.
E.
Delivery of the Purchased Interests. SOD shall have delivered, or shall stand ready to deliver at the Closing, the SOD Shares and the
Test Interest, free and clear of all Liens, together with each item described in Section 2.2, including SOD’s executed counterpart
of this Agreement, certified resolutions of SOD’s board of directors approving the transactions contemplated hereby, and the shareholder
confirmation letter substantially in the form of Exhibit D, with an updated capitalization table extract.
F.
Representations; covenants; no injunction. The representations and warranties of SOD in Article IV shall be true and correct in all material
respects as of the Closing Date; SOD shall have performed in all material respects its obligations hereunder required to be performed
at or before the Closing; and no law, order or injunction shall prohibit the Closing.
G.
SOD Consents. All consents and approvals required to be obtained by SOD for the consummation of the transactions contemplated hereby,
including those set forth on Schedule 4.5, shall have been obtained and shall be in full force and effect.
3.2
Conditions to the Obligations of SOD.
The
obligation of SOD to consummate the Closing is subject to the satisfaction (or waiver by SOD in writing) of each of the following conditions:
A.
the Certificate of Designations shall have been duly approved by Vivos board of directors and filed with the Secretary of State of the
State of Delaware;
B.
Vivos shall stand ready to issue and deliver the Preferred Shares and each item described in Section 2.3;
C.
Vivos shall have received the written consent of the holder of the Series B Convertible Preferred Stock held by Streeterville Capital,
LLC to the creation and issuance of the Preferred Shares, and such consent shall remain in full force and effect;
D.
the representations and warranties of Vivos in Article V shall be true and correct in all material respects as of the Closing Date, and
Vivos shall have performed in all material respects its obligations hereunder required to be performed at or before the Closing; and
E.
no law, order or injunction shall prohibit the Closing.
3.3
Closing Efforts.
Each
Party shall use its commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things
reasonably necessary, proper or advisable to cause the conditions set forth in this Article III to be satisfied as promptly as practicable
and in any event prior to the Outside Date, including, in the case of Vivos, using commercially reasonable efforts to (a) engage the
independent valuation firm and obtain the fairness and valuation opinion described in Section 3.1(A), (b) obtain the Series B holder
consent described in Section 3.1(C), (c) obtain the auditor concurrence described in Section 3.1(B), (d) make the Nasdaq notification
described in Section 3.1(D); and, in the case of SOD, using commercially reasonable efforts to deliver the Purchased Interests and all
instruments and consents required for their transfer and to cooperate with the valuation firm, the auditors and Nasdaq, including by
furnishing financial, patent and channel information reasonably requested.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF SOD
SOD
represents and warrants to Vivos, as of the Effective Date and as of the Closing Date, as follows:
4.1
Organization; Authority.
SOD
is duly organized, validly existing, and in good standing under the laws of the State of Florida. SOD has full corporate power and authority
to own its assets, conduct its business as currently conducted, and to execute, deliver, and perform this Agreement and the other transaction
documents. SOD has duly authorized the execution, delivery, and performance of this Agreement by all necessary corporate action. This
Agreement constitutes SOD’s valid and binding obligation, enforceable against SOD in accordance with its terms, subject to bankruptcy
and other customary equitable limitations. The execution, delivery, and performance of this Agreement do not conflict with SOD’s
organizational documents, any material agreement to which SOD is a party, or applicable law, except as would not reasonably be expected
to be material.
4.2
Capitalization; the SOD Shares.
Schedule
4.2 sets forth the fully diluted capitalization of SOD prior to Closing, including all outstanding shares (by class and series), options,
warrants, convertible securities, SAFEs, promises to issue equity, and any other rights to acquire equity interests. All outstanding
equity interests of SOD are validly issued, fully paid, and nonassessable. There are no preemptive rights, anti-dilution rights, voting
agreements, or other arrangements that would dilute, prefer, or otherwise adversely affect the percentage or economic rights represented
by the SOD Shares, except as set forth on Schedule 4.2. The SOD Shares, when issued and delivered at the Closing, will represent at least
eleven percent (11%) of the fully diluted equity of SOD immediately after Closing, will be duly authorized, validly issued, fully paid
and nonassessable, and will be delivered free and clear of all Liens, preemptive rights, and transfer restrictions other than those arising
under applicable securities laws or as set forth on Schedule 4.2.
4.3
Title to the Test Interest; Intellectual Property.
SOD
is the sole and exclusive owner of the Test and of all patent applications and other intellectual property rights included in the Test
Interest, free and clear of all Liens and licenses. The patent filings and related intellectual property comprising the Test IP are as
described in Exhibit A and Schedule A thereto. SOD has not received notice of any claim challenging its ownership of, or the validity
of, such rights. Except as set forth on Schedule 4.3, the Test Interest is free and clear of Liens and of any licenses that would materially
impair the co-ownership interest being transferred. Upon the Closing, Vivos will hold a 50% undivided co-ownership interest in the Test
Interest, free and clear of all Liens.
4.4
Channel Agreements.
SOD
has delivered to Vivos true, correct, and complete copies of the American Health Associates (“AHA”) marketing term sheet
and the Memorandum of Understanding with Cleveland Clinic Weston (including all amendments and related writings) (the “Cleveland
MOU”).
The
AHA marketing term sheet and the Cleveland MOU are a term sheet and a memorandum of understanding, respectively, and not definitive agreements.
SOD has no information that would lead it to believe that the rights and economic arrangements described in the AHA marketing term sheet
and the Cleveland MOU will not be reflected in the definitive agreements contemplated thereby, and SOD expects that such definitive agreements,
when executed, will contain terms consistent in all material respects with the rights and arrangements set forth in the AHA marketing
term sheet (such definitive agreement with AHA, the “AHA Agreement”) and the Cleveland MOU (such definitive agreement with
Cleveland Clinic Weston, the “CCW Agreement”).
The
AHA Agreement will provide SOD with the right to market testing and device products (including Vivos products) to clinics and patient
populations identified through the AHA network, on terms consistent with those described in the proposal dated October 13, 2026 (Vivos
retaining 80% of contribution margin on sales of Vivos products, SOD receiving 20%), subject only to the express terms of the AHA Agreement
and any ordinary-course operational requirements. The residual qualified patient access described in the materials provided to Vivos
and its valuation advisors is consistent in all material respects with the rights that will actually be conferred by the AHA Agreement.
SOD has not received notice of any restructuring, termination, or material limitation that would reduce that access below the levels
reflected in those materials.
The
Cleveland MOU covers, and the CCW Agreement will cover, an IRB-approved study comparing Vivos’s FDA-cleared appliances with CPAP
for intermittent hypoxia and a commercial program to transition more than 2,000 existing CPAP patients to Vivos devices, including the
commitment of the Clinic’s chief medical officer (as reflected in the MOU or related writings) to direct physicians to begin that
transition without waiting for study results. The Cleveland MOU provides, and the CCW Agreement will provide, SOD with the right to market
Vivos testing and device products into the Cleveland Clinic Weston and related South Florida cardiac channel on terms consistent with
those described in the proposal dated October 13, 2026 (Vivos retaining 80% of contribution margin on sales of Vivos products, SOD receiving
20%), subject only to the express terms of the Cleveland MOU and any ordinary-course operational requirements. SOD has not received notice
of any termination, material limitation, or failure of the commercial program or study arrangements that would materially impair the
access or economics described in the materials provided to Vivos and its valuation advisors.
SOD
has the legal right and authority to perform the marketing and channel commitments contemplated by this Agreement and the related joint
arrangements, and to deliver the patient access and economic rights relied upon in the valuation materials.
4.5
No Conflicts; Consents.
The
execution, delivery and performance of this Agreement do not conflict with SOD’s organizational documents, any material agreement
to which SOD is a party, or any applicable law. The only consents and approvals required to be obtained by SOD in connection with the
transactions contemplated hereby are those set forth on Schedule 4.5.
4.6
Financial Condition
SOD
has delivered to Vivos a certificate signed by its chief executive officer presenting its most recent balance sheet information as of
October 14, 2026. Such balance sheet information fairly presents, in all material respects, the financial position of SOD as of such
date, prepared on a consistent basis. SOD has no material liabilities (absolute, contingent, or otherwise) that are not reflected or
reserved against and presented in that certificate or incurred in the ordinary course since the balance-sheet date, except as set forth
on Schedule 4.6. SOD has no material indebtedness, preferred claims, or other senior obligations except as disclosed in the certificate
attached to Schedule 4.6. Net debt (calculated consistently with ordinary valuation practice) is as set forth in the certificate attached
to Schedule 4.6; there are no material undisclosed senior claims or other equity adjustments that would reduce the enterprise value attributable
to SOD.
4.7
Accuracy of Information Supplied.
All
information, materials, forecasts, patient counts, conversion assumptions, pricing data, and other materials that SOD has provided to
Vivos or to the valuation firm (including investor summaries, patient guides, protocol materials, and channel analyses) are true, accurate,
and complete in all material respects and do not omit any material fact necessary to make the information not misleading. Key operational
facts relied upon in those materials (including residual qualified patient pools, conversion gates, and recheck assumptions) are accurate
in all material respects to SOD’s knowledge
4.8
Litigation.
There
is no action, suit or proceeding pending or, to SOD’s knowledge, threatened against SOD that would reasonably be expected to prevent
or materially delay the Closing or materially impair the value of the Purchased Interests.
4.9
No Material Adverse Change.
SOD
has delivered to Vivos a certificate of its chief executive officer which fairly presents, as of October 14, 2026, the financial condition
of SOD. Since the date of the certificate delivered to Vivos, there has been no material adverse change in the business, assets, liabilities,
channels, or prospects of SOD, and SOD has conducted its business in the ordinary course.
4.10
Investment Representations.
SOD
is acquiring the Preferred Shares for its own account, for investment and not with a view to distribution; SOD is an “accredited
investor” within the meaning of Regulation D under the Securities Act of 1933; and SOD understands that the Preferred Shares and
the underlying common stock are restricted securities that may not be transferred absent registration or an available exemption, and
acknowledges the 4.99% blocker, the 19.99% exchange cap, and the absence of any redemption or cash-settlement right.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF VIVOS
Vivos
represents and warrants to SOD, as of the Effective Date and as of the Closing Date, as follows:
5.1
Organization; Authority.
Vivos
is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, has full corporate power
and authority to execute, deliver and perform this Agreement and the Certificate of Designations, and has duly authorized the same by
all necessary corporate action. This Agreement constitutes Vivos’ valid and binding obligation, enforceable in accordance with
its terms.
5.2
The Preferred Shares.
The
Preferred Shares, when issued at the Closing against delivery of the Purchased Interests and following the filing of the Certificate
of Designations, will be duly authorized, validly issued, fully paid and nonassessable, free of preemptive rights, and will have the
rights, preferences and limitations set forth in the Certificate of Designations, including ranking pari passu with the Series A Convertible
Preferred Stock as to dividends and liquidation. The shares of common stock issuable on conversion, when issued in accordance with the
Certificate of Designations, will be duly authorized, validly issued, fully paid and nonassessable, and a sufficient number of shares
of common stock will be reserved for issuance on conversion, subject to the 19.99% exchange cap set forth in the Certificate of Designations.
5.3
No Conflicts; Consents.
Subject
to receipt of the Series B holder consent described in Section 3.1(C) and the filing of the Certificate of Designations, the execution,
delivery and performance of this Agreement do not conflict with Vivos’ certificate of incorporation or bylaws, the certificates
of designations of any outstanding series of preferred stock, any material agreement to which Vivos is a party, or any applicable law
or Nasdaq rule.
5.4
SEC Reports; Nasdaq.
Vivos’
reports filed with the Securities and Exchange Commission, as of their respective dates, complied in all material respects with applicable
requirements and did not contain any untrue statement of a material fact or omit a material fact necessary to make the statements therein
not misleading. Vivos has disclosed to SOD the notice received from Nasdaq under Listing Rule 5550(b)(1) and the related compliance plan
period.
5.5
Investment Representations.
Vivos
is acquiring the SOD Shares for its own account, for investment purposes, and not with a view to distribution in violation of the Securities
Act of 1933. Vivos has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and
risks of the investment, and understands that the SOD Shares will be restricted securities that may not be transferred absent registration
or an available exemption.
ARTICLE
VI
COVENANTS
6.1
Efforts.
The
Parties’ obligations under Section 3.3 apply from the Effective Date through the Closing or earlier termination of this Agreement.
6.2
Post-Closing Agreements.
Following
the Closing, the Parties shall use reasonable best efforts to negotiate, agree and execute, as promptly as practicable after the Closing,
(a) the Joint Marketing Agreement, which shall contain, at a minimum, the terms set forth in Exhibit C hereto, and (b) the Sleep Center
Agreement addressing marketing of the ReBalU Protocol to U.S. sleep-testing centers.
The
Joint Marketing Agreement shall contain, at a minimum, the terms set forth in
Exhibit C
. The Parties shall negotiate in good faith
the remaining terms of the Joint Marketing Agreement. If the Parties have not executed the Joint Marketing Agreement within ninety (90)
days after the Closing Date, then either Party may submit the remaining unresolved terms to an independent expert mutually selected by
the Parties (or, if they cannot agree within ten (10) days, designated by the American Arbitration Association) for binding determination.
The expert shall be instructed to adopt terms that (a) include all of the minimum terms set forth in
Exhibit C
and (b) are consistent
with customary commercial practice for similar marketing and distribution arrangements. The expert’s determination shall be final
and binding, and the Parties shall execute an agreement reflecting such determination within ten (10) days after it is issued. Pending
execution of the Joint Marketing Agreement, the terms set forth in
Exhibit C
and in Section 1.4 shall govern the Parties’
conduct of the covered activities.
6.3
Nasdaq and SEC Matters.
Vivos
shall (a) file a Current Report on Form 8-K announcing this Agreement, including a pro forma condensed balance sheet evidencing stockholders’
equity above $2.5 million, on or as promptly as possible after the Closing Date (and in any event on or before October 15, 2026 if Closing
occurs on or before that date); and (b) submit a Listing of Additional Shares notification to Nasdaq. SOD shall furnish information reasonably
required for those filings.
6.4
Shareholder Approval.
Vivos
shall include in its proxy statement for the pending reverse stock split a proposal to approve, for purposes of Nasdaq Listing Rule 5635(a),
the issuance of common stock on conversion of the Preferred Shares in excess of the 19.99% exchange cap, and the Vivos board shall recommend
that stockholders approve the proposal. For the avoidance of doubt, any shares of common stock issued on conversion under the cap shall
not be voted on the proposal. The exchange cap remains in effect unless and until such approval is obtained. The Closing and the issuance
of the Preferred Shares are not conditioned on stockholder approval.
6.5
Conduct Before Closing.
Between
the Effective Date and the Closing, SOD shall not sell, license, encumber or abandon any of the Purchased Interests, amend the AHA agreement
or Cleveland Clinic MOU in a manner adverse to the transactions contemplated hereby, or take any action that would make the Closing conditions
incapable of satisfaction; and Vivos shall not amend its certificate of incorporation or the terms of any outstanding preferred stock
in a manner adverse to the Preferred Shares.
6.6
Further Assurances.
Each
Party shall execute such further instruments as reasonably requested to effect the transactions contemplated hereby.
6.7
Public Announcements.
Neither
Party shall issue any press release or public statement concerning this Agreement without the prior written consent of the other, except
as required by law, SEC rule or Nasdaq rule, in which case the disclosing Party shall give the other a reasonable opportunity to review.
6.8
Channel Definitive Agreements.
SOD
shall use reasonable best efforts to negotiate, finalize, and enter into, as promptly as practicable after the Closing:
(a)
the AHA Agreement containing terms consistent in all material respects with the rights and economic arrangements described in the AHA
marketing term sheet and in Section 4.4; and
(b)
a CCW Agreement that contains terms consistent in all material respects with the rights and economic arrangements described in the Cleveland
MOU and in Section 4.4.
SOD
shall keep Vivos reasonably informed of the status of such negotiations and shall provide Vivos with copies of the material drafts of
the AHA Agreement and CCW Agreement for review and comment prior to execution. SOD shall not enter into any definitive agreement with
AHA or Cleveland Clinic Weston that is materially less favorable to the rights and economics described in Section 4.4 without the prior
written consent of Vivos.
6.9
SOD Anti-Dilution Covenant.
From
the Closing Date through April 16, 2027 (the “Anti-Dilution Period”), SOD shall not, without the prior written consent of
Vivos:
(a)
issue, sell, grant, or otherwise dispose of any shares of its capital stock or any options, warrants, convertible securities, SAFEs,
rights to acquire equity, or other equity or equity-linked securities of any kind (collectively, “Additional Equity”);
(b)
amend, modify, or waive any terms of any outstanding Additional Equity in a manner that increases the number of shares issuable thereunder
or reduces the price or other consideration required for issuance; or
(c)
take any other action that would result in the SOD Shares representing less than eleven percent (11%) of the fully diluted equity of
SOD (calculated on a fully diluted, as-converted basis, including all outstanding options, warrants, and convertible securities).
Any
issuance of Additional Equity during the Anti-Dilution Period that is consented to by Vivos shall be structured so that Vivos is offered
the right to participate on a pro rata basis (or such other basis as Vivos may elect) sufficient to maintain its fully diluted ownership
percentage at not less than eleven percent (11%), unless Vivos elects in writing to waive such right with respect to that issuance.
Notwithstanding
the foregoing, SOD may, without the prior written consent of Vivos, grant incentive equity (including options, restricted stock, restricted
stock units, or other equity or equity-linked awards) solely to new employees hired after the Closing Date in an aggregate amount not
to exceed ten percent (10%) of the fully diluted equity of SOD outstanding immediately after the Closing as set forth in this Agreement.
SOD
shall promptly notify Vivos in writing of any proposed issuance or action that would otherwise be restricted by this Section 6.9, including
the material terms thereof, at least ten (10) business days prior to the proposed issuance or action.
This
Section 6.9 shall survive the Closing and remain in full force and effect through the end of the Anti-Dilution Period.
ARTICLE
VII
TERMINATION
7.1
Termination.
This
Agreement may be terminated at any time before the Closing: (a) by mutual written consent of the Parties; (b) by either Party, by written
notice, if the Closing has not occurred on or before October 15, 2026 (the “Outside Date”), provided that the right to terminate
under this clause is not available to a Party whose breach of this Agreement (including Section 3.3) has been a principal cause of the
failure of the Closing to occur by the Outside Date; (c) by either Party if a governmental authority of competent jurisdiction has issued
a final, non-appealable order permanently prohibiting the Closing; or (d) by either Party upon a material breach by the other Party of
any representation, warranty or covenant that would cause a condition in Article III to fail.
7.2
Effect of Termination.
Upon
termination, this Agreement shall become void and of no further effect, without liability of either Party, except that (a) this Section
7.2 and Article VIII survive, and (b) no termination relieves a Party of liability for fraud or willful breach occurring before termination.
ARTICLE
VIII
MISCELLANEOUS
8.1
Survival.
The
representations and warranties in Articles IV and V survive the Closing for twelve (12) months; covenants survive in accordance with
their terms.
8.2
Governing Law; Jurisdiction.
This
Agreement is governed by the laws of the State of Delaware, without regard to conflict-of-laws principles. Each Party submits to the
exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, if it lacks jurisdiction, the state and federal courts
located in Delaware) and waives trial by jury.
8.3
Specific Performance.
The
Parties agree that irreparable damage would occur if this Agreement were not performed in accordance with its terms, and each Party is
entitled to specific performance in addition to any other remedy.
8.4
Notices.
Notices
must be in writing and are effective on delivery by hand, e-mail (with confirmation) or nationally recognized overnight courier to the
addresses set forth on the signature pages.
8.5
Entire Agreement; Amendment; Waiver.
This
Agreement, the Certificate of Designations, the Exhibits and the Schedules constitute the entire agreement of the Parties concerning
the subject matter and supersede the October 3, 2026 proposal (as revised October 9 and October 13, 2026) and all other prior agreements
and understandings. Amendments and waivers must be in a writing signed by both Parties.
8.6
Assignment; No Third-Party Beneficiaries.
Neither
Party may assign this Agreement without the other’s prior written consent. This Agreement is for the sole benefit of the Parties.
8.7
Expenses.
Each
Party bears its own costs and expenses, including fees of counsel, accountants and the valuation firm engaged by it.
8.8
Severability; Counterparts.
If
any provision is held invalid, the remainder continues in effect, and the Parties shall negotiate a valid substitute that most closely
reflects their intent. This Agreement may be executed in counterparts, including by electronic signature, each of which is an original.
[
Signature
Page Follows
]
IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
VIVOS
THERAPEUTICS, INC.
By:
/s/
R. Kirk Huntsman
Name:
R.
Kirk Huntsman
Title:
Chairman
and Chief Executive Officer
SOD
SCIENCES, INC.
By:
/s/
Joseph M. Salvani
Name:
Joseph
M. Salvani
Title:
Chief
Executive Officer
EXHIBITS
AND SCHEDULES
The
following Exhibits and Schedules are attached to and form part of this Agreement:
Document
Contents
Exhibit
A
Assignment
and Co-Ownership Agreement (Test Interest)
Exhibit
B
Certificate
of Designations — Series C Convertible Preferred Stock
Exhibit
C
Joint
Marketing — Minimum Terms
Exhibit
D
Form
of Shareholder Confirmation Letter
Schedule
4.2
SOD
fully diluted capitalization
Schedule
4.3
SOD
encumbrances
Schedule
4.5
SOD
required consents
Schedule
4.6
SOD
Financial Condition
EXHIBIT
A
ASSIGNMENT
AND CO-OWNERSHIP AGREEMENT (TEST INTEREST)
Pseudohypoxia
Early-Warning Test
This
Assignment and Co-Ownership Agreement (this “Agreement”) is entered into as of the Closing Date under the Mutual Stock Purchase
and Asset Exchange Agreement dated as of October 14, 2026 (the “Purchase Agreement”), by and between SOD SCIENCES, INC.,
a Florida corporation (“SOD” or “Assignor”) and VIVOS THERAPEUTICS, INC., a Delaware corporation (“Vivos”
or “Assignee”). SOD and Vivos are sometimes referred to individually as a “Party” and collectively as the “Parties.”
Recitals
A.
SOD owns or controls certain intellectual property, know-how, protocols, data rights, and related assets comprising the pseudohypoxia
early-warning test (as more particularly described on Schedule A, the “Test IP”).
B.
Concurrently herewith, the Parties are entering into a transaction pursuant to which Vivos will issue shares of a new series of convertible
preferred stock to SOD in exchange for, among other consideration, a 11% equity interest in SOD and a 50% undivided interest in the Test
IP.
C.
The Parties desire to effect the assignment of a 50% undivided interest in the Test IP to Vivos and to set forth the terms of co-ownership
and joint exploitation of the Test IP.
Agreement
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth herein and in the related transaction documents, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.
Assignment of Interest
Effective
as of the Closing Date under the Purchase Agreement, SOD hereby assigns, transfers, and conveys to Vivos, and Vivos hereby accepts, an
undivided fifty percent (50%) interest in and to the Test IP (the “Assigned Interest”), free and clear of all liens, claims,
and encumbrances except as disclosed on Schedule A. The Assigned Interest includes all right, title, and interest of SOD in and to the
Test IP to the extent of such 50% undivided interest, including without limitation all patent rights, patent applications, know-how,
trade secrets, protocols, data, improvements, and the right to claim priority therefrom.
SOD
retains the remaining undivided fifty percent (50%) interest in the Test IP. From and after the Closing Date, SOD and Vivos shall be
co-owners of the Test IP as tenants in common, each holding an undivided 50% interest.
For
purposes of this Agreement, “Test” and “Test IP” include all modified, rebranded, successor, and derivative versions
of the pseudohypoxia early-warning test and related intellectual property developed by SOD, or jointly by SOD and Vivos, to the extent
based on or derived from the Test IP described on Schedule A, all of which shall be jointly owned by the Parties as part of the Test
IP; provided, however, that Vivos shall solely own all right, title, and interest in and to all improvements, modifications, and derivative
works of the Test IP developed solely by or for Vivos (“Vivos Derivatives”), subject only to the license set forth in Section
2.E, and neither the Vivos Derivatives nor any Vivos Background IP shall constitute Test IP. “Vivos Background IP” means
all intellectual property, know-how, data, products, devices, and technology owned or controlled by Vivos as of the Closing Date or developed
by or for Vivos independently of the Test IP, including Vivos’s at-home oxygen desaturation and recovery testing technology, oral
appliances, and related devices and services, and all improvements thereto, whether or not used in connection with the Test.
2.
Co-Ownership and Exploitation Rights
Each
Party shall have the following rights with respect to the Test IP:
A.
Equal
right to exploit and commercialize the Test IP and to grant non-exclusive licenses and sublicenses
under the Test IP, subject to the economic arrangements set forth in Section 3 and the restrictions
below; provided that neither Party shall grant any license or sublicense under the Test IP
to a third party (other than end-user rights incident to sales of the Test in the ordinary
course) without the prior written consent of the other Party, which consent shall not be
unreasonably withheld, conditioned, or delayed, and each Party shall provide the other with
a copy of any such license or sublicense promptly after execution.
B.
Equal
right to enforce the Test IP against third parties, provided that the enforcing Party shall
notify the other Party in advance and the Parties shall reasonably cooperate in any enforcement
action. The enforcing Party shall bear all costs and expenses of any enforcement action it
brings. If, and only if, such enforcement action results in a monetary recovery (whether
by judgment, award, or settlement), such recovery shall first be applied to reimburse the
enforcing Party for one hundred percent (100%) of its enforcement costs and expenses (including
reasonable attorneys’ and expert fees), and any remainder shall be shared 50/50 by
the Parties. Each Party covenants that, upon the written request of the other Party (and
at the requesting Party’s expense), it shall join as a party plaintiff in any infringement
action and shall not refuse to join. Neither Party may settle any enforcement action in a
manner that impairs the other Party’s rights in the Test IP without the prior written
consent of the other Party. Without limiting the foregoing, the terms of any settlement,
consent judgment, or other compromise of any enforcement action or proceeding shall require
the mutual written agreement of both Parties, and neither Party shall, in connection with
any such settlement or compromise, admit any fact, liability, invalidity, or unenforceability,
or make any statement against interest, that is binding upon or attributable to the other
Party without the other Party’s prior written consent. The foregoing applies equally
to defense of validity challenges, including inter partes reviews and other post-grant proceedings.
C.
Neither
Party may grant an exclusive license under the Test IP without the prior written consent
of the other Party.
D.
Neither
Party may assign, transfer, or encumber its interest in the Test IP without the prior written
consent of the other Party, except (a) to an affiliate or (b) in connection with a sale of
all or substantially all of its assets or equity, provided in each case that the transferee
agrees in writing to be bound by all terms of this Agreement. Vivos shall have a right of
first refusal on any proposed transfer of SOD’s retained interest in the Test IP, exercisable
within thirty (30) days after written notice of the terms of the proposed transfer.
E.
Improvements
and derivative works to the Test IP developed solely by SOD or jointly by the Parties shall
be co-owned by the Parties as part of the Test IP (subject to the 50/50 economic arrangements
in Section 3). Improvements developed solely by Vivos shall be owned by Vivos, subject to
a non-exclusive, royalty-free, non-sublicensable license to SOD, transferable only together
with a permitted transfer of SOD’s interest under Section 2.D, solely for use in connection
with the Test and subject to the economic arrangements in Section 3. Each Party shall promptly
disclose to the other in writing any improvement to the Test IP that is co-owned under this
Section 2.E.
3.
Economic Arrangements
The
Parties shall split fifty-fifty (50/50) all revenue and consideration from exploitation of the Test IP, including contribution margin
on every sale of the Test (and any modified, rebranded, or successor version) through any channel and all royalty, license, sublicense,
and other exploitation revenue, regardless of which Party makes the sale or grants the license. “Contribution margin” means
net revenue less direct costs of goods sold and direct channel costs attributable to the sale. For clarity, revenue from products or
services other than the Test (including Vivos’s oral appliances, devices, treatment services, and other products embodying Vivos
Background IP, even if sold together with or following the Test) is not subject to sharing, and only the portion of any bundled price
reasonably allocable to the Test shall be shared. The Parties shall reconcile all such amounts on a quarterly basis and settle any amounts
due within thirty (30) days after each quarter-end.
Costs
of patent prosecution, maintenance, and defense shall be shared equally by the Parties unless otherwise agreed in writing. Either Party
may, upon thirty (30) days’ prior written notice, elect to assume sole control and cost of prosecution or maintenance of any particular
application or patent in any jurisdiction if the other Party elects not to participate in the costs for that matter; in such case the
non-participating Party’s interest in that application or patent shall be assigned to the participating Party in that jurisdiction
only.
Neither
Party shall abandon, allow to lapse, or materially narrow the claims of any patent application or patent covering the Test IP without
at least thirty (30) days’ prior written notice to the other Party. The other Party shall have a step-in right to assume control
and cost of such application or patent (with corresponding ownership consequences in that jurisdiction as set forth above) if it so elects
within the notice period.
4.
Representations and Warranties of SOD
SOD
represents and warrants to Vivos that:
A.
SOD
is the sole and exclusive owner of the Test IP and has the full right and authority to assign
the Assigned Interest.
B.
The
Test IP is free and clear of all liens, security interests, and encumbrances except as disclosed
on Schedule A.
C.
SOD
has not granted any exclusive license or other right that would conflict with the Assigned
Interest.
D.
The
execution and performance of this Agreement have been duly authorized by all necessary corporate
action of SOD.
E.
Schedule
A sets forth a complete and accurate list of all patents and patent applications included
in the Test IP, and each inventor and other person who contributed to the conception or development
of the Test IP has executed a valid and enforceable written assignment of all such person’s
rights therein to SOD.
F.
No
government, university, hospital, or other third party has any ownership interest in, license
to, or other right in the Test IP, and none of the Test IP was developed using funding, facilities,
or personnel of any such party.
G.
To
SOD’s knowledge, the practice of the Test IP does not infringe, misappropriate, or
otherwise violate the intellectual property rights of any third party; SOD has taken reasonable
measures to protect the confidentiality of the trade secrets included in the Test IP; and
SOD has not made any public disclosure of the Test IP that would reasonably be expected to
bar or impair patentability.
H.
The
representations and warranties in Sections 4.A, 4.B, and 4.E shall survive until sixty (60)
days after expiration of the applicable statute of limitations, and the remaining representations
and warranties in this Section 4 shall survive for the period set forth in Section 8.1 of
the Purchase Agreement.
5.
Further Assurances; Technology Transfer; Confidentiality
Each
Party shall, from time to time after the Closing Date, upon the reasonable request of the other Party and at the requesting Party’s
expense (except as otherwise provided herein), promptly execute, acknowledge, and deliver all such further instruments, documents, and
assurances, and take all such further actions, as may be reasonably necessary or desirable to (a) perfect, evidence, or protect the Assigned
Interest, (b) carry out the intent and purposes of this Agreement, and (c) enable the requesting Party to fully exercise and enjoy the
rights and benefits of its interest in the Test IP. Without limiting the generality of the foregoing, SOD shall, promptly upon Vivos’s
request (and, with respect to clauses A, C, and E below and the Covenant to Record, at SOD’s sole expense):
A.
Execute
and deliver any confirmatory assignments, short-form assignments suitable for recordation,
or other instruments necessary to evidence or perfect Vivos’s undivided 50% interest
in the Test IP;
B.
Cooperate
in the preparation, filing, and prosecution of any patent applications covering the Test
IP, and execute all documents reasonably required to maintain, defend, or enforce such applications
and any resulting patents;
C.
Cause
the Assigned Interest to be recorded with the United States Patent and Trademark Office and
any applicable foreign patent offices promptly after the filing of any patent application
covering the Test IP (or, if any such application has already been filed, within thirty (30)
days after the Closing Date), and provide Vivos with evidence of such recordation;
D.
Provide
reasonable access to inventors, technical personnel, and relevant records as needed to support
patent prosecution, enforcement, or commercialization of the Test IP; and
E.
Execute
any documents and take any actions reasonably necessary to correct any defect in title or
to remove any undisclosed encumbrance on the Test IP.
Covenant
to Record: Promptly following the filing of any patent application (provisional or non-provisional) in the United States or any foreign
jurisdiction that covers or claims any portion of the Test IP, SOD shall prepare, execute, and cause to be recorded with the United States
Patent and Trademark Office (or the applicable foreign patent office) an assignment or confirmatory assignment reflecting Vivos’s
undivided 50% co-ownership interest in such patent application and any resulting patent, and shall provide Vivos with evidence of such
recordation within fifteen (15) business days after the recording is effected. If any patent application covering the Test IP has already
been filed as of the Closing Date, SOD shall effect such recordation within thirty (30) days after the Closing Date. SOD shall reasonably
cooperate with Vivos in the preparation and filing of all documents necessary to effect such recordation.
Technology
Transfer: Within thirty (30) days after the Closing Date, SOD shall deliver to Vivos complete copies of all protocols, validation data,
clinical protocols, regulatory files, laboratory records, and other know-how and data comprising the Test IP in SOD’s possession
or control. Thereafter, SOD shall provide Vivos with ongoing reasonable access to clinical and regulatory data relating to the Test IP
upon request.
Confidentiality
and Publication Controls: Each Party shall maintain in strict confidence all trade secrets, know-how, protocols, data, and other confidential
information comprising the Test IP, and shall not disclose such information to any third party except under written confidentiality obligations
no less restrictive than those herein or as required by law. Neither Party shall publish, present, or otherwise publicly disclose any
aspect of the Test IP (including unpublished data or know-how) without providing the other Party at least thirty (30) days’ prior
written notice and an opportunity to review and comment, and without obtaining the other Party’s prior written consent if such
disclosure would reasonably be expected to impair patentability or trade-secret status. Nothing in this Section 5 shall restrict either
Party from disclosing the existence and general terms of this Agreement, or a general description of the Test, in filings or public statements
required by law or the rules of the Securities and Exchange Commission or any securities exchange.
If
either Party fails to execute any such document or take any such action within ten (10) business days after written request, the other
Party is hereby irrevocably appointed as attorney-in-fact for the non-performing Party (coupled with an interest) to execute and deliver
such documents and take such actions in the non-performing Party’s name, solely to the extent necessary to perfect or evidence
the Assigned Interest or otherwise carry out the purposes of this Section 5. This power of attorney is coupled with an interest and shall
be irrevocable.
The
obligations under this Section 5 shall survive the Closing Date indefinitely.
6.
Term and Termination; Exit Mechanism
This
Agreement shall continue for so long as the Test IP remains in force. If either Party wishes to terminate co-ownership or exit, it may
deliver written notice of its desire to sell its interest. The other Party shall have thirty (30) days to elect to purchase the interest
at a price equal to the fair market value of the interest as determined by an independent appraiser mutually selected by the Parties
(or, if they cannot agree within ten (10) days, by an appraiser designated by the American Arbitration Association), the cost of which
shall be shared equally by the Parties. If the other Party does not elect to purchase, the initiating Party may, within one hundred eighty
(180) days thereafter, sell its interest to a third party at a price not less than such appraised fair market value and on other terms
no more favorable to the third party than those offered to the other Party, subject to the transfer restrictions in Section 2 (including
the requirement that the transferee agree in writing to be bound by all terms of this Agreement); provided that the other Party may withhold
consent to any such sale to a direct competitor of the other Party.
7.
Miscellaneous
This
Agreement shall be governed by the laws of the State of Delaware, without regard to conflicts of law principles. This Agreement, together
with the related transaction documents, constitutes the entire agreement of the Parties with respect to the subject matter hereof and
supersedes all prior negotiations and agreements. This Agreement may be executed in counterparts, including by electronic signature.
Any amendment must be in writing and signed by both Parties.
IN
WITNESS WHEREOF, the Parties have executed this Assignment and Co-Ownership Agreement as of the Closing Date.
SOD
SCIENCES, INC.
By:
/s/
Joseph M. Salvani
Name:
Joseph
M. Salvani
Title:
Chief
Executive Officer
VIVOS
THERAPEUTICS, INC.
By:
/s/
R. Kirk Huntsman
Name:
R.
Kirk Huntsman
Title:
Chairman
and Chief Executive Officer
Schedule
A
Description
of Test IP
The
“Test IP” means all intellectual property, know-how, protocols, data rights, and related assets owned or controlled by SOD
(including through any affiliate, founder, officer, employee, or contractor) comprising or relating to the pseudohypoxia early-warning
test, including without limitation:
1.
All patent applications (provisional or non-provisional) and patents, whether filed or to be filed, covering identification of individuals
whose cells are primed for further chronic disease (including cancer) through the pseudohypoxia signature, and related methods, compositions,
and systems, including the patent filings listed below and SOD’s test/treat/retest protocol filings to the extent covering the
Test, together with all continuations, continuations-in-part, divisionals, reissues, reexaminations, extensions, and foreign counterparts
thereof and all patents issuing therefrom, and all rights to sue for past, present, and future infringement thereof.
2.
The ReBalU genotype and biomarker panel, protocols for pairing such panel with measures of nocturnal oxygen desaturation and recovery,
and related know-how and data.
3.
All trade secrets, confidential information, clinical protocols, validation data, and improvements relating to the foregoing.
4.
Any other intellectual property rights expressly identified in writing by the Parties as comprising the Test IP.
Patent
and Trademark Filings: The following patent and trademark filings and applications are part of the Test IP and are owned by SOD on the
terms set forth in the Agreement:
Docket
No.
Title
Status
7346-0101PUS1
A
Method for Treating Patients with Superoxide Dismutase (SOD2) and a Kit For Performing Such a Method
Provisional
filed 4/28/2025
Appln.
No. 63/795,986
Converted
with PCT Appln.
7346-0101PWO1
7346-0101PWO1
Compositions
and Methods for the Treatment of Oxidative Stress, and Methods for Identifying Subjects in Need of Such Treatment
Int.
Appln. PCT/US2026/025425
Filed
4/27/2026
7346-0101PUS2
Compositions
and Methods for the Treatment of Oxidative Stress, and Methods for Identifying Subjects in Need of Such Treatment
(CIP
of -0101PUS1 and -101PWO1)
To
be filed by 10/27/2026
Draft
with Client for Comments (See email of 09/21/2026)
7346-0102US1
Trademark
Application for
REBALU
Filed
7/25/2025
Allowed
3/10/2026
7346-0103PUS1
Compositions
comprising tagatose for the treatment of oxidative stress, and methods for the treatment thereof
Prov.
Filed 9/15/2025
Appln.
No. 63/882,104
Converted
with PCT Appln.
7346-0101PWO1
7346-0104PUS1
Compositions
comprising tagatose and pectin for the treatment of oxidative stress, and methods for the treatment thereof
Changed
Docket No. to
7346-0101PWO1
7346-0105PUS1
Compositions
comprising tagatose for the treatment of oxidative stress in
plants
, and methods for the treatment thereof
Prov.
Appln. No. 64/150,224
Filed
9/8/2026
Convert
by 9/08/2027
7346-0106US1
Trademark
Application for REBALU Rebalancing the Anti-Oxidative System (&Design)
Filed
6/11/2026
7346-0107PUS1
System,
Apparatus and Method for Coupon Token & Super Coupon Token
In
Preparation
7346-0108X
Opinions
Regarding Patent Coverage
7346-0109PUS1
Methods
for Diagnosing the Risk of and Presence of Neurodegenerative Diseases, Such as
Alzheimer’s
Disease, and Methods
To
be filed by 10/27/2026
Draft
with Client for Comments
(See
email of 09/28/2026)
7346-0110PUS1
Methods
for assessing risk and treating oxidative-stress-related associated
Pseudohypoxia
and related medical conditions and compositions
and kits for use therein.
To
be filed by 10/27/2026
Draft
With Client for Comments
(See
email of 10/06/2026)
7346-0111PUS1
Multi-Modal
Longitudinal Systems and Methods for Cancer-Precondition Surveillance Using Antioxidant-Genotype Priors, Redox and Pseudohypoxia
Biomarkers and Multi-site Ultrasound Imaging, and Closed Loop Intervention
To
be filed by 10/27/2026
Draft
with Client for Comments
(See
email of 10/08/2026)
Excluded
Assets: The Test IP does not include any Vivos Background IP (as defined in Section 1 of the Agreement).
Disclosed
Encumbrances: None.
EXHIBIT
B
CERTIFICATE
OF DESIGNATIONS OF SERIES C CONVERTIBLE PREFERRED STOCK
CERTIFICATE
OF DESIGNATIONS
OF
SERIES
C CONVERTIBLE PREFERRED STOCK
OF
VIVOS
THERAPEUTICS, INC.
Pursuant
to Section 151 of the General Corporation Law of the State of Delaware
Vivos
Therapeutics, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), in
accordance with the provisions of Section 151 of the General Corporation Law of the State of Delaware, does hereby certify that, pursuant
to the authority conferred upon the Board of Directors of the Corporation by the Certificate of Incorporation of the Corporation, as
amended, the Board of Directors of the Corporation has duly adopted the following resolution:
RESOLVED,
that pursuant to the authority expressly granted to and vested in the Board of Directors of the Corporation by the provisions of the
Certificate of Incorporation of the Corporation, as amended, a series of preferred stock of the Corporation be, and it hereby is, created,
and that the designation and number of shares thereof and the voting powers, preferences and relative, participating, optional and other
special rights of the shares of such series, and the qualifications, limitations or restrictions thereof, are as follows:
Section
1. Designation and Amount.
The
series of preferred stock shall be designated as “Series C Convertible Preferred Stock” (the “Preferred Stock”)
and the number of shares so designated shall be 12,000 shares, which number may be increased or decreased by resolution of the Board
of Directors; provided, however, that no decrease shall reduce the number of shares of Preferred Stock to a number less than the number
of shares then outstanding plus the number of shares reserved for issuance upon the exercise of outstanding options, warrants or other
rights.
Section
2. Stated Value.
Each
share of Preferred Stock shall have a stated value of $1,000 per share (the “Stated Value”), such that the aggregate Stated
Value of all shares of Preferred Stock issued pursuant to the Mutual Stock Purchase and Asset Exchange Agreement dated as of October
14, 2026 (the “Purchase Agreement”) equals Twelve Million Dollars ($12,000,000).
Section
3. Rank.
The
Preferred Stock shall, with respect to dividend rights and rights upon liquidation, dissolution or winding up of the Corporation, rank
(a) pari passu with the Series A Convertible Preferred Stock of the Corporation and (b) senior to the Common Stock of the Corporation
and to any other class or series of capital stock of the Corporation the terms of which do not expressly provide that it ranks senior
to or pari passu with the Preferred Stock.
Section
4. Dividends.
(a)
The Preferred Stock shall not be entitled to any mandatory or cumulative dividends.
(b)
The Preferred Stock shall participate with the Common Stock on an as-converted basis in any dividends declared or paid on the Common
Stock. Any such participating dividend may be paid, at the election of the Corporation, in cash or in shares of Common Stock valued at
the Conversion Price then in effect.
Section
5. Liquidation.
Upon
any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the Preferred Stock shall rank pari passu with
the Series A Convertible Preferred Stock and senior to the Common Stock. The holders of Preferred Stock shall not be entitled to any
further participation in the remaining assets of the Corporation beyond such ranking, except as provided in Section 4 with respect to
participating dividends.
Section
6. Conversion.
(a)
Optional Conversion. Each share of Preferred Stock shall be convertible, at the option of the holder thereof, at any time and from time
to time, into that number of shares of Common Stock determined by dividing the Stated Value by the Conversion Price then in effect.
(b)
Conversion Price. The initial Conversion Price shall be $0.15 per share of Common Stock; provided that, if Nasdaq’s Minimum Price
(as defined in Nasdaq Listing Rule 5635(d)) on the date of signing of the Purchase Agreement is $0.15 or higher, the Conversion Price
shall be $0.01 above such Minimum Price. The Conversion Price is fixed as of the date of signing of the Purchase Agreement and shall
not be subject to any price reset or other adjustment except as provided in Section 6(c).
(c)
Adjustments. The Conversion Price and the number of shares of Common Stock issuable upon conversion shall be adjusted proportionally
for any stock split, reverse stock split, stock combination, stock dividend or similar event so that the percentage of the outstanding
Common Stock represented by the shares issuable upon conversion (subject to the Exchange Cap) is not increased as a result of such event.
(d)
Mechanics. Conversion shall be effected by surrender of the certificate or book-entry evidence representing the shares to be converted,
together with a written notice of conversion, at the principal office of the Corporation or its transfer agent. The Corporation shall
issue the Common Stock issuable upon conversion within the time periods customarily required under applicable law and the rules of Nasdaq.
Section
7. Exchange Cap.
Notwithstanding
anything to the contrary herein, the aggregate number of shares of Common Stock issuable upon conversion of the Preferred Stock shall
not exceed 19.99% of the number of shares of Common Stock outstanding immediately prior to the signing of the Purchase Agreement (the
“Exchange Cap”), unless and until the stockholders of the Corporation have approved the issuance of Common Stock upon conversion
of the Preferred Stock in excess of the Exchange Cap for purposes of Nasdaq Listing Rule 5635(a). The Exchange Cap shall not be waivable
by the Corporation or any holder and shall not lift except upon such prior stockholder approval. Any shares of Common Stock issued upon
conversion of the Preferred Stock under the Exchange Cap shall not be entitled to vote on any proposal to approve the issuance of shares
in excess of the Exchange Cap.
Section
8. Beneficial Ownership Limitation.
Notwithstanding
anything to the contrary herein, the Corporation shall not effect any conversion of Preferred Stock, and a holder shall not have the
right to convert any portion of Preferred Stock, to the extent that, after giving effect to such conversion, the holder (together with
the holder’s affiliates and any other persons acting as a group together with the holder or any of the holder’s affiliates)
would beneficially own in excess of 4.99% of the number of shares of Common Stock outstanding immediately after giving effect to the
issuance of shares of Common Stock issuable upon conversion of Preferred Stock (the “Beneficial Ownership Limitation”). The
Beneficial Ownership Limitation may be waived by a holder, upon not less than 61 days’ prior written notice to the Corporation,
to up to 9.99%. The provisions of this Section 8 shall be construed and implemented in a manner otherwise than in strict conformity with
the terms of this Section 8 to correct this Section 8 (or any portion hereof) which may be defective or inconsistent with the intended
beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to
such limitation.
Section
9. Voting Rights.
Except
as otherwise required by law, the holders of Preferred Stock shall be entitled to vote on an as-converted basis with the holders of Common
Stock on all matters submitted to a vote of the holders of Common Stock, subject to the lesser of the Beneficial Ownership Limitation
(as adjusted if waived) and the Exchange Cap. The Preferred Stock shall not entitle the holders thereof to any right to elect directors
or to any board observer rights.
Section
10. No Redemption or Cash Settlement.
The
Preferred Stock shall not be redeemable at the option of the Corporation or any holder. There shall be no holder put right, no mandatory
conversion into any cash-settleable instrument, and no cash-settlement feature of any kind with respect to the Preferred Stock or the
shares of Common Stock issuable upon conversion thereof.
Section
11. Reservation of Shares.
The
Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock a sufficient number
of shares to permit the conversion of all outstanding shares of Preferred Stock, subject to the Exchange Cap.
Section
12. Transferability.
The
Preferred Stock and the shares of Common Stock issuable upon conversion thereof shall be subject to restrictions on transfer under the
Securities Act of 1933, as amended, and applicable state securities laws.
Section
13. Miscellaneous.
The
Corporation may issue shares of Preferred Stock in fractional amounts. Any notice required or permitted hereunder shall be given in writing
in the manner provided in the Purchase Agreement.
IN
WITNESS WHEREOF, the Corporation has caused this Certificate of Designations to be signed by its duly authorized officer this ___ day
of October, 2026.
VIVOS
THERAPEUTICS, INC.
By:
/s/
R. Kirk Huntsman
Name:
R.
Kirk Huntsman
Title:
Chairman
and Chief Executive Officer
EXHIBIT
C
JOINT
MARKETING — MINIMUM TERMS
[Omitted
pursuant to Item 601(a)(5) of Regulation S-K.]
EXHIBIT
D
FORM
OF SHAREHOLDER CONFIRMATION LETTER
[Omitted
pursuant to Item 601(a)(5) of Regulation S-K.]
SCHEDULE
4.2
SOD
FULLY DILUTED CAPITALIZATION
[Omitted
pursuant to Item 601(a)(5) of Regulation S-K.]
SCHEDULE
4.3
SOD
ENCUMBRANCES
[Omitted
pursuant to Item 601(a)(5) of Regulation S-K.]
Schedule
4.5
SOD
REQUIRED CONSENTS AND APPROVALS
[Omitted
pursuant to Item 601(a)(5) of Regulation S-K.]
Schedule
4.6
SOD
FINANCIAL CONDITION
[Omitted
pursuant to Item 601(a)(5) of Regulation S-K.]

----- ex99-1.htm -----
EX-99.1
3
ex99-1.htm
EX-99.1
Exhibit
99.1
Vivos
Therapeutics Agrees to Acquire Minority Stake in SOD Sciences and 50% Interest in Proprietary Pseudohypoxia Test
Transaction
Expected to Increase Stockholders’ Equity; Opens Potential Collaboration Opportunities From New Strategic Alliances
LITTLETON,
Colo., October 15, 2026
— Vivos Therapeutics, Inc. (“Vivos” or the “Company”) (Nasdaq: VVOS), a medical
device and healthcare services company focused on developing and commercializing diagnostic and treatment methods for patients with obstructive
sleep apnea (“OSA”) and other health conditions related to breathing and sleep disorders, today announced that it has entered
into a definitive Mutual Stock Purchase and Asset Exchange Agreement to acquire an 11% fully diluted equity interest in SOD Sciences,
Inc. and a 50% undivided co-ownership interest in SOD’s proprietary pseudohypoxia early-warning test, in exchange for 12,000 shares
of newly created Series C Convertible Preferred Stock with an aggregate stated value of $12 million. Closing is subject to customary
conditions, including auditor concurrence, consent of the holder of the Company’s Series B Non-Convertible Preferred Stock, and
Nasdaq notification, and is expected to occur on or about October 15, 2026. The agreement opens the door for potentially important collaboration
and research opportunities with the Cleveland Clinic in Weston, Florida, and a marketing relationship with American Health Associates
(AHA), a national medical services provider to patients housed in approximately 3,000 assisted living and nursing home facilities across
25 states.
No
cash consideration is payable under the agreement. The Company believes the transaction, if closed and if the preferred stock is classified
in permanent stockholders’ equity as anticipated, would increase reported stockholders’ equity and support the Company’s
efforts to regain compliance with Nasdaq rules. In the event the Company clears that milestone, management intends to seek to raise sufficient
capital to continue expanding operations in its efforts to achieve its near-term objectives of positive cash flow and profitability in
early 2027. Any determination of compliance remains subject to Nasdaq’s assessment.
Vivos
Chairman and CEO R. Kirk Huntsman stated, “We have been working on this transaction for months and believe the total value accretion
to Vivos has the potential to far exceed the immediate dilution from the issuance of the preferred shares. Upon closing, we expect to
pursue collaboration efforts contemplated by SOD’s existing relationship with Cleveland Clinic Weston and with American Health
Associates, subject to negotiation and execution of definitive agreements and satisfaction of applicable regulatory and clinical requirements.
It is contemplated that Vivos will retain 80% of the contribution margin on sales of Vivos products through those channels, and that
the parties will share contribution margin 50/50 on sales of the jointly owned test. That relationship is expected to be solidified in
the coming weeks and underway in early 2027, potentially leading to significant new and recurring revenue and high margins opportunities.”
“Sleep
apnea is not just a breathing problem. It is a cellular oxygen problem, and the cell remembers,” said Joseph M. Salvani, Chief
Executive Officer of SOD Sciences. “The pseudohypoxia signature tells a patient that their cells have been primed for chronic disease,
and ReBalU potentially gives them a way to measure it, treat it, and assess change. Vivos has the patients, the FDA-cleared devices,
and the home oxygen test. We have the protocol, the channels, and the science. Together we believe we can turn sleep medicine into an
early warning system for chronic disease in America.”
Channel
Relationships
SOD
holds a Memorandum of Understanding with Cleveland Clinic Weston that contemplates an IRB-approved study comparing Vivos’ FDA-cleared
CARE oral appliances with CPAP for intermittent hypoxia and a potential commercial program relating to existing CPAP patients. This agreement
potentially brings that channel, and the AHA national network directly to Vivos. No assurance can be given that definitive agreements
will be executed or that any commercial activity will result.
Economics
of the Test
The
test pairs SOD’s ReBalU genotype and biomarker panel with a measurement of nocturnal oxygen desaturation and recovery. Vivos’
at-home oxygen desaturation and re-emergence test is a potentially synergistic instrument for that measurement. The result identifies
individuals whose cells carry the pseudohypoxia signature of priming for further chronic disease, including cancer, while there is still
time to act.
The
agreement gives Vivos a 50% undivided co-ownership interest in the test and related intellectual property and a contractual right to
50% of the contribution margin on sales of the jointly owned test through any channel. Separately, Vivos will hold at least an 11% fully
diluted equity interest in SOD Sciences. These interests are distinct: the test participation is governed by the commercial arrangements,
while the minority stake represents ownership in SOD.
Following
closing, the parties will negotiate a joint marketing or distribution agreement and a separate agreement addressing marketing of the
ReBalU Protocol to U.S. sleep-testing centers. Sleep testing services are expected to remain outside the joint marketing arrangements,
and Vivos would retain the associated revenue. Contribution margin should not be equated with consolidated revenue, net income or cash
flow.
Any
revenue or margin from the test or related products will depend on clinical validation, regulatory status, channel execution, testing
volume, realized pricing, and the costs allocated under the agreements. Establishing the clinical utility of the test is a central requirement
for the opportunity. The announcement does not establish that the test predicts cancer or future chronic disease, or that ReBalU prevents
those conditions. Vivos’ oral-appliance FDA clearances do not extend to this test.
“Our
aim is to build a commercial program whose clinical usefulness and operating performance can be measured,” said Joseph M. Salvani,
Chief Executive Officer of SOD Sciences. “Combining our platform with Vivos’ capabilities creates a potential opportunity;
validation and disciplined implementation will determine the results.”
Transaction
Terms and Closing
Vivos
will issue 12,000 shares of Series C Convertible Preferred Stock with an aggregate stated value of $12 million. The preferred stock is
convertible into shares of common stock at a fixed conversion price of $0.15 per share, representing up to 80 million shares in the aggregate,
subject to a 19.99% exchange cap pending stockholder approval and a 4.99% beneficial ownership limitation (waivable to 9.99%). Conversion
above the exchange cap requires stockholder approval, which the Company intends to seek in connection with its next annual general meeting.
The preferred stock has no redemption right, cash-settlement requirement or price-reset provision. No warrants are being issued, and
no cash consideration is payable at closing.
The
Company expects the preferred stock to be classified in permanent stockholders’ equity and the acquired interests to be recorded
at fair value, subject to completion of a final valuation and concurrence of the Company’s independent registered public accounting
firm. The Company expects an increase in reported stockholders’ equity that could support its efforts to regain compliance with
Nasdaq’s minimum stockholders’ equity requirement. The amount of that increase and any determination of compliance remain
subject to the applicable accounting review and Nasdaq’s assessment.
About
Vivos Therapeutics
Vivos
Therapeutics, Inc. (Nasdaq: VVOS) is a medical technology and healthcare services company focused on developing and commercializing innovative
diagnostic and treatment methods for patients suffering from breathing and sleep issues arising from certain dentofacial abnormalities
such as obstructive sleep apnea (OSA) and snoring in adults. Vivos’ devices have been cleared by the U.S. Food and Drug Administration
(FDA) for adult patients diagnosed with all severity levels of OSA and moderate-to-severe OSA in children ages 6 to 17. For more information,
visit www.vivos.com.
About
SOD Sciences
SOD
Sciences, Inc. is a precision-health company and the developer of the ReBalU Protocol, which combines genetic and biomarker testing with
a nutrition-based program and follow-up testing. SOD is also developing applications of its platform related to pseudohypoxia.
Cautionary
Note Regarding Forward-Looking Statements
This
release contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These include
statements regarding the satisfaction of the closing conditions and the timing and occurrence of the Closing; the expected benefits of
the transaction with SOD; the negotiation and execution of the Joint Marketing Agreement, the Sleep Center Agreement and the definitive
channel agreements with American Health Associates and Cleveland Clinic Weston; the anticipated accounting treatment of the transaction;
the Company’s compliance with Nasdaq continued listing requirements; the proposed reverse stock split; and the stockholder approval
to be sought under Nasdaq Listing Rule 5635(a). Words such as “expects,” “intends,” “believes,” “potential,”
“contemplates” and similar expressions identify these statements.
These
statements are subject to risks and uncertainties that could cause actual results to differ materially, including the risk that the closing
conditions are not satisfied and the transaction does not close; that the anticipated benefits of the transaction are not realized; that
the definitive post-closing agreements are not executed on the anticipated terms or at all; that the Company’s independent registered
public accounting firm or Nasdaq reaches conclusions different from those anticipated; that stockholder approval is not obtained; that
clinical or regulatory requirements are not met; that dilution from conversion exceeds expectations; that the Company does not regain
or maintain Nasdaq compliance; and the other risks described in the Company’s SEC filings, including its most recent Annual Report
on Form 10-K and Quarterly Reports on Form 10-Q and its other SEC filings. No assurance can be given that any anticipated commercial
or financial benefits will be realized. Vivos undertakes no obligation to update forward-looking statements except as required by law.
Investor
and Media Contacts
Vivos
Therapeutics, Inc.
Investor
Relations: investors@vivoslife.com