Vivos Therapeutics, Inc 8-K, filed Oct 15, 2026
Vivos Therapeutics, Inc. (VVOS)
About this 8-K
Vivos Therapeutics, Inc filed this 8-K on October 15, 2026, reporting on events of October 14, 2026.
Vivos Therapeutics agreed to issue $12,000,000 of Series C Convertible Preferred Stock to SOD Sciences for at least 11% of SOD and a 50% co-ownership interest in pseudohypoxia test. The October 15, 2026 closing would yield equity of approximately $8 million. AI summary
Items reported
- Item 1.01: Entered into a material agreement
- Item 7.01: Regulation FD disclosure
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
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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 | |
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.]
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