Exhibit 10.1

JOINT VENTURE AGREEMENT

THIS JOINT VENTURE AGREEMENT (this “Agreement”) is made as of June 28, 2021, by and between INVO Centers, LLC (“INVO”), a Delaware limited liability company, and Bloom Fertility, LLC, a Georgia limited liability company (“Provider”). INVO and Provider may be referred to individually as a “Party” and together as the “Parties.”

RECITALS

1. Provider is a medical practice in the State of Georgia that employs physicians who, by education, training and experience, are qualified to provide fertility and reproductive medical services;

2. INVO is an Affiliate of INVO Bioscience, Inc., a Nevada corporation (“INVO Bioscience”), a medical device company focused on creating simplified, lower cost treatments for patients diagnosed with infertility using a patented medical device (the “INVOcell”) and an in vivo method of vaginal incubation (the “INVO Procedure”), and, through its relationship with INVO Bioscience, INVO has certain rights to use the INVOcell, INVO Procedure, and related treatments using artificial reproductive technologies pioneered or created by INVO Bioscience (collectively, the “INVO Technologies”);

3. In connection with the definitive transaction agreements to be executed pursuant to this Agreement, INVO and Provider have determined that it is in their mutual best interest to organize and own in a joint venture, Bloom INVO LLC, a Delaware limited liability company (the “Company”), pursuant to which:

a) The Company will, subject to the equity and debt arrangements described herein, assist Provider in establishing a fertility center that will offer the INVO Technologies, along with related procedures and such other technologies or procedures that may be agreed to by the Parties from time to time (the “INVO Clinic”);

b) INVO will make available to the Company the INVO Technologies, and, subject to INVO’s existing third-party distribution arrangements, be the exclusive provider to Company of the INVOcell and other medical devices and supplies for use at the INVO Clinic;

c) The Company shall provide comprehensive management services to the INVO Clinic, including full administrative, billing and collection, business, consulting, financial, marketing, staffing, and other support services necessary for its operations, including but not limited to clinical laboratory services, pursuant to an exclusive, long-term management services agreement (the “Management Services Agreement”); and

d) The Provider will provide all professional services required for the operation of the INVO Clinic; and

4. In furtherance of the foregoing, the Parties desire to enter into this Agreement to establish the rights and obligations of each Party with respect to the INVO Clinic.

AGREEMENT

NOW THEREFORE, in consideration of the mutual promises herein and other good and valuable consideration, and incorporating the foregoing recitals, the Parties agree as follows:

ARTICLE 1.
CONTRIBUTIONS TO THE COMPANY; NO ASSUMPTION OF LIABILITIES

Contributions to the Company will be made by the Parties at Closing or thereafter in accordance with the LLC Agreement of the Company, substantially in the form attached hereto as Exhibit A. The Company shall not assume or be responsible to perform, pay or discharge, and shall have no liability for, and each Party shall remain liable for any obligations, liabilities and commitments of each such Party, as applicable, of any kind or nature, known or unknown, fixed or contingent, including all costs and expenses of the Parties incident to this Agreement, including but not limited to any Taxes applicable to the transactions contemplated hereby (collectively, the “Excluded Liabilities”).

ARTICLE 2.
COMPANY OWNERSHIP AND MANAGEMENT

2.1 Initial Unit Issuance; Vesting. The Company shall initially have Two Thousand (2,000) Units authorized for issuance to the Parties. Effective as of the Closing, (a) in exchange for INVO’s initial Capital Contribution (the “INVO Contribution”), the Company shall issue Eight Hundred (800) of its Units to INVO, subject to the terms and conditions of Section 4.3(a)(i) of the LLC Agreement; and (b) in exchange for Provider’s satisfaction of the Provider Requirements, the Company shall issue One Thousand Two Hundred (1,200) of its Units to Provider, subject to the terms and conditions of Section 4.3(a)(ii) of the LLC Agreement.

2.2 Management of Company. The Company will be managed pursuant to the terms set forth in the LLC Agreement. The Parties shall take such actions as may be required to ensure that (i) the number of Managers constituting the Board of Managers of the Company (the “Board”) is at all times equal to five (5) Managers, and (ii) the presence of at least three (3) Managers (one of whom is appointed by INVO) is required to constitute a quorum of the Board. The Board may act by majority vote in accordance with the terms of the LLC Agreement. Provider shall have the right to appoint three (3) Managers and INVO shall have the right to appoint two (2) Managers to serve on the Company’s Board, and the initial Managers will be set forth in the LLC Agreement.

2.3 Distributions of Distributable Cash. As further described in the LLC Agreement, each year, any excess positive operating cash flow of the Company, net of reasonable reserves for operating expenses, Taxes, and such other purposes as determined by the Board (“Net Available Distributions”), will be distributed to Parties on an annual basis in an amount equal to sixty percent (60%) to Provider, and forty percent (40%) to INVO (the “Equity Distributions”); provided, however, until the Loans have been repaid in full, fifty percent (50%) of any such Net Available Distributions will be used by Company to repay the Build-Out Loan (including both interest and principal, when payable under the terms of the Build-Out Loan) and before distributing the remainder of Net Available Distributions to the Parties based on their respective Equity Distributions; provided, further, in the event the Build-Out Loan has not been repaid in full when due pursuant to its terms, then one-hundred percent (100%) of any such Net Available Distributions will be used by Company to repay the Build-Out Loan (including both interest and principal, when payable under the terms of the Build-Out Loan) and before distributing the remainder of Net Available Distributions to the Parties based on their respective Equity Distributions.

ARTICLE 3.
CLOSING

The consummation of the transactions contemplated by this Agreement (the “Closing”) shall occur at the offices of Sheppard, Mullin, Richter and Hampton, LLP, 30 Rockefeller Plaza, New York, NY 10112-0015 on the first (1st) business day after the conditions set forth in ARTICLE 6 have been satisfied or waived, or at such other place and time as shall be agreed upon by the Parties. The date on which the Closing is actually held is referred to herein as the “Closing Date”. Unless otherwise agreed in writing by the Parties at Closing, the Closing shall be deemed to have occurred and the transactions contemplated by this Agreement shall be deemed effective for financial and accounting purposes as of 12:01 a.m., Eastern Time on the Closing Date. At the Closing, each Party shall deliver to the other Party those items and documents described in ARTICLE 6.

ARTICLE 4.
COVENANTS OF THE PARTIES

4.1 Management Services Agreement. At Closing, the Company and Provider shall enter into the Management Services Agreement, substantially in the form attached hereto as Exhibit B, pursuant to which the Company shall provide day-to-day management of operations of Provider in accordance with the terms and conditions set forth therein.

4.2 Loan to Company INVO will, at the Closing, commit to issue debt to the Company in an amount up to Six Hundred Thousand Dollars ($600,000) for construction or improvements related to the INVO Clinic (the “Build-Out Loan”) upon terms and conditions mutually agreeable to INVO and Company. Any amount payable to INVO by the Company in connection with the Build-Out Loan will accrue interest at three and one-quarter percent (3.25%) per annum and will be payable with interest no later than five (5) years from the date of the Build-Out Loan. INVO may, in its discretion, secure third party debt in connection with funding the Build-Out Loan.

4.3 Physician Employment Agreements. At the Closing, the Provider shall enter into an employment agreement (the “Physician Employment Agreements”) with Sue Ellen Carpenter, M.D. and, at the election of Provider, David Keenan, M.D. (each, a “Physician”), in substantially in the form attached as Exhibit C. Each Physician who is an owner of Provider is herein referred to as a “Physician Owner”.

4.4 INVOcell Supply Agreement. At Closing, INVO Bioscience and Company shall enter into a long-term supply agreement, substantially in the form attached as Exhibit D (the “INVOcell Supply Agreement”), whereby INVO Bioscience will agree to be the exclusive supplier of the INVOcell and related devices and supplies (the “Products”) to be used at the INVO Clinic; provided that the INVOcell Supply Agreement will be subject to all applicable terms and conditions set forth in that certain Distribution Agreement, dated November 12, 2018, by and among Ferring International Center S.A., INVO Bioscience and Bio X Cell, Inc. The term of the INVOcell Supply Agreement shall be co-terminus with this Agreement.

4.5 Intellectual Property Arrangements.

(a) At Closing, the Company and INVO will enter into a long-term intellectual property sublicense agreement (the “INVO IP Sublicense Agreement”) whereby INVO will sublicense, on a non-exclusive basis, to the Company, the rights to use certain of INVO Bioscience’s trademarks, copyrights, the INVO Technologies and other INVO intellectual property, including at the INVO Clinic, pursuant to the INVO IP Sublicense Agreement, a copy of which is attached as Exhibit E. The term of the INVO IP Sublicense Agreement shall be co-terminus with this Agreement.

(b) At Closing, the Company and the Provider will enter into a long-term intellectual property license agreement (the “Provider IP License Agreement”) whereby the Provider will license, on a non-exclusive basis to the Company, the rights to use certain trademarks, copyrights and other Provider intellectual property to be utilized by the Company in connection with its management of the INVO Clinic, pursuant to the Provider IP License Agreement, a copy of which is attached as Exhibit F. The term of the Provider IP License Agreement shall be co-terminus with this Agreement.

(c) At Closing, the Company, Provider and INVO Bioscience will enter into a long-term intellectual property license agreement (the “JV IP License Agreement”) whereby the Company and Provider will license, on a non-exclusive basis, to INVO Bioscience, the rights to use Company’s and/or Provider’s information and technology related to all therapeutic, prophylactic and diagnostic uses of medical devices or pharmaceutical products involving assisted reproductive technology (including infertility treatment) in humans and any intellectual property arising therefrom, that Company or Provider creates, generates, derives, develops or conceives, or otherwise obtains rights in, after the Effective Date, pursuant to the JV IP License Agreement, a copy of which is attached as Exhibit G. The term of the JV IP License Agreement shall be co-terminus with this Agreement.

4.6 Regulatory Authorizations; Consents.

(a) The Parties shall use commercially reasonable best efforts to obtain the authorizations, consents, orders and approvals necessary for their execution and delivery of, and the performance of their obligations pursuant to, this Agreement. As promptly as practicable after the date of this Agreement, the Parties shall make, or cause to be made, all filings required by any Laws to be made to consummate the transactions contemplated under this Agreement.

(b) The Parties each shall keep the other apprised of the status of matters relating to completion of the transactions contemplated hereby. The Parties shall furnish to each other all information required for any application or other filing under the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement unless (1) such information includes data which is proprietary or confidential or (2) the furnishing of such information would (A) violate the provisions of any Laws or any confidentiality agreement that is binding on such Party, or (B) cause the loss of the attorney-client privilege with respect thereto; provided that each such Party shall use its commercially reasonable efforts to promptly communicate to the other Parties the substance of any such communication, whether by redacting parts of such material communication or otherwise, so that such communication would not violate any Laws, any such confidentiality agreement, or cause the loss of the attorney-client privilege.

4.7 No Conflicting Agreements. No Party shall enter into any agreements or arrangements of any kind with any Person with respect to any Units or other equity securities of the Company or the transactions contemplated hereunder that would prohibit such Party from complying with the applicable provisions of this Agreement (whether or not such agreements or arrangements are with other Parties or with Persons that are not a party to this Agreement).

ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF THE PARTIES

5.1 Representations and Warranties of Provider. Provider represents and warrants to INVO that the following representations and warranties (in addition to any representations and warranties made by it elsewhere in this Agreement) are accurate and complete as of the date hereof and as of the Closing:

(a) Organization and Good Standing. Provider is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Georgia. Provider is duly qualified and licensed to do its business and is in good standing in each jurisdiction in which the business transacted by it or the nature or location of its assets makes such qualification or licensing necessary, except where the failure to be so qualified or licensed or in good standing would not have a Material Adverse Effect.

(b) Organizational Powers. Provider has and holds the right and power, and all licenses, permits, authorizations, and approvals (governmental or otherwise), necessary to entitle Provider to own and operate its properties and assets, and to carry on its business.

(c) Authority. Provider has the full right, power, and authority to execute and deliver this Agreement and the other agreements contemplated hereby to which it is signatory, and to consummate the transactions contemplated hereby and thereby. All acts and other proceedings required to be taken by Provider in order to enable Provider to carry out this Agreement and the transactions contemplated hereby have been taken.

(d) Binding Effect. This Agreement has been duly executed and delivered by Provider and (together with any agreements or instruments to be executed and delivered at the Closing by Provider) constitutes a legal, valid and binding obligation of Provider, enforceable in accordance with its terms.

(e) Consents. Except for those obtained or made at or prior to the Closing and except where the failure to so obtain would not have a Material Adverse Effect, neither the execution and delivery of this Agreement nor the consummation of any transaction contemplated hereby requires Provider to obtain any consent, permit, or approval, or to make any filing or registration, under any Laws or Order applicable to Provider or under any corporate charter, bylaw, limited liability operating agreement, Contract, lease, license, loan agreement, promissory note, deed of trust, mortgage, or other instrument, undertaking, commitment, or agreement to which Provider is a party or is otherwise subject.

(f) Litigation. There is no material litigation, arbitration, investigation, tax audit, or other claim or proceeding pending or, to the Knowledge of Provider, threatened against Provider arising out of the Provider Business. Provider is not in default under any Order to which it is bound or otherwise subject related to the Provider Business. To the Knowledge of Provider, there are no audits, investigations, reviews, or other inquiries (or proposed audits, investigations, reviews, or inquiries) by any Governmental Authority regarding the Provider Business, or any disputes or potential disputes with any Governmental Authority regarding any aspect of the Provider Business.

(g) Compliance with Laws. Provider is in compliance in all material respects with all applicable Laws pertaining to the Provider Business. No claim has been made to Provider by any Governmental Authority (and to the Knowledge of Provider, no such claim is anticipated) to the effect that the Provider Business fails to comply with any Law or that a license, permit, certificate, or authorization (which has not promptly thereafter been obtained) is required with respect to the operation of its business.

(h) Finders and Brokers. No Person has acted as a finder, broker, or other intermediary on behalf of Provider in connection with this Agreement or the transactions contemplated hereby, and no Person is entitled to any broker’s or finder’s fee or similar fee with respect to this Agreement or such transactions as a result of actions taken by Provider.

(i) Actions by Provider. Prior to the Closing, neither Provider nor its Affiliates have caused the Company to take any material actions or incur any material Liabilities, other than as expressly contemplated by this Agreement or as necessary to effectuate the purposes of this Agreement and the transactions contemplated by this Agreement.

5.2 Representations and Warranties of INVO. INVO represents and warrants to Provider that the following representations and warranties (in addition to any representations and warranties made by it elsewhere in this Agreement) are accurate and complete as of the date hereof and as of the Closing:

(a) Organization and Good Standing of INVO. INVO is a Delaware limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware. INVO is duly qualified and licensed to do its business and is in good standing in each jurisdiction in which the business transacted by it or the nature or location of its assets makes such qualification or licensing necessary, except where the failure to be so qualified or licensed or in good standing would not have a Material Adverse Effect.

(b) Corporate Powers. INVO has and holds the right and power, and all licenses, permits, authorizations, and approvals (governmental or otherwise), necessary to entitle INVO to own and operate its properties and assets, and to carry on its business.

(c) Authority. INVO has the full right, power, and authority to execute and deliver this Agreement and the other agreements contemplated hereby to which it is signatory, and to consummate the transactions contemplated hereby and thereby. All acts and other proceedings required to be taken by INVO in order to enable INVO to carry out this Agreement and the transactions contemplated hereby have been taken.

(d) Binding Effect. This Agreement has been duly executed and delivered by INVO and (together with any agreements or instruments to be executed and delivered at the Closing by INVO) constitutes a legal, valid and binding obligation of INVO, enforceable in accordance with its terms.

(e) Consents. Except for those obtained or made at or prior to the Closing and except where the failure to so obtain would not have a Material Adverse Effect, neither the execution and delivery of this Agreement nor the consummation of any transaction contemplated hereby requires INVO to obtain any consent, permit, or approval, or to make any filing or registration, under any Laws or Order applicable to INVO or under any corporate charter, bylaw, limited liability operating agreement, Contract, lease, license, loan agreement, promissory note, deed of trust, mortgage, or other instrument, undertaking, commitment, or agreement to which INVO is a party or is otherwise subject.

(f) Litigation. There is no material litigation, arbitration, investigation, tax audit, or other claim or proceeding pending or threatened against INVO arising out of the INVO Business. INVO is not in default under any Order to which it is bound or otherwise subject related to the INVO Business. There are no audits, investigations, reviews, or other inquiries (or proposed audits, investigations, reviews, or inquiries) by any Governmental Authority regarding the INVO Business, or any disputes or potential disputes with any Governmental Authority regarding any aspect of the INVO Business.

(g) Compliance with Laws. INVO is in compliance in all material respects with all applicable Laws pertaining to the INVO Business. No claim has been made to INVO by any Governmental Authority and no such claim is anticipated to the effect that the INVO Business fails to comply with any Law or that a license, permit, certificate, or authorization (which has not promptly thereafter been obtained) is required with respect to the operation of such INVO Business.

(h) Finders and Brokers. No Person has acted as a finder, broker, or other intermediary on behalf of INVO in connection with this Agreement or the transactions contemplated hereby, and no Person is entitled to any broker’s or finder’s fee or similar fee with respect to this Agreement or such transactions as a result of actions taken by INVO.

(i) Actions by INVO. Prior to the Closing, neither INVO nor its Affiliates have caused the Company to take any material actions or incur any material Liabilities, other than as expressly contemplated by this Agreement or as necessary to effectuate the purposes of this Agreement and the transactions contemplated by this Agreement.

5.3 Securities Representations. Each Party severally, and not jointly, represents that:

(a) The Units that are allocable to such Party are being acquired for the Party’s own account and not with a view to the public distribution of any of the Units. The Party will not sell, hypothecate or otherwise transfer any of the Units except in accordance with applicable federal and state securities Laws.

(b) Each Party understands that the offering and the sale of Units pursuant to this Agreement are intended to be exempt from registration under the Securities Act by virtue of Section 4(2) of the Securities Act and Regulation D under the Securities Act.

(c) Each Party understands that: (i) the Units have not been registered or qualified under the Securities Act or the securities Laws of the State of Delaware or any other state, and neither the Securities and Exchange Commission nor any state or other regulatory authority has made any recommendation or finding concerning the value of the Units; (ii) there is no assurance that the Party will be able to sell the Units at a purchase price that Party deems reasonable; (iii) the Units may be offered, sold or otherwise transferred by the Party only if (a) the transaction is registered and qualified under the applicable provisions of federal and state securities laws or if exemptions from such registration and qualification are available; and (b) all conditions applicable to such offer, sale or transfer set forth in LLC Agreement are satisfied; (iv) the satisfaction of these securities registration exemptions is the Party’s responsibility; and (v) neither the Company nor the other Party is under any obligation to assist the Party in satisfying these exemptions, and the Company does not intend to register any subsequent transaction by the Party under applicable federal and state securities Laws.

(d) No oral or written representations or recommendations have been made, and no oral or written information has been furnished, to the Party regarding the advisability of acquiring the Units. The Party (including its professional advisors, if any) has had sufficient opportunity to ask questions and receive answers concerning the terms and conditions of the issuance of the Units.

(e) Each Party has such knowledge and experience in financial and business matters that the Party is capable of evaluating the merits and risks of an investment in the Company and of making an informed investment decision. Each Party is an “accredited investor” as defined in Rule 501 of the Securities Act.

ARTICLE 6.
CONDITIONS TO CLOSING

6.1 Mutual Conditions to Closing. The obligation of the Parties to consummate the Closing is subject to the fulfillment, at or prior to the Closing, of the following conditions, any one or more of which may be waived in writing by such Party:

(a) Core Transaction Documents. At or before the Closing, each Party shall have executed and delivered to the other Party the following, in form and substance reasonably acceptable to the other Party (the “Core Transaction Documents”), and, where applicable, such Core Transaction Documents shall be deemed effective at the Closing:

(i) Execution and delivery of the Certificate of Formation of the Company, duly issued by the Delaware Secretary of State;

(ii) Execution and delivery of the LLC Agreement, executed by each Party;

(iii) Execution and delivery of the Management Services Agreement, and all attachments thereto, executed by Company and Provider;

(iv) Execution and delivery by the Company of the Build-Out Loan;

(v) Execution and delivery by the Company of the INVOcell Supply Agreement;

(vi) Execution and delivery by the Company of the INVO IP Sublicense Agreement;

(vii) Execution and delivery by the Company of the Provider IP License Agreement; and

(viii) Execution and delivery by the Company and Provider of the JV IP License Agreement.

(b) No Violation of Law. No Law or Order that prohibits, enjoins or otherwise materially restrains the consummation of the transactions contemplated by this Agreement shall have been enacted, entered, issued, promulgated or enforced; provided, however, that in such instance, the Parties agree to cooperate with each other in good faith and use commercially reasonable efforts to cause any such Law or Order to be vacated or lifted.

(c) Licenses and Governmental Approvals. All licenses, permits, governmental and regulatory approvals and certifications required to be obtained for the consummation of the transactions contemplated hereby and the operation of the Company Business.

(d) Determination of Initial Provider Loan Terms. The Parties will work in good faith to determine the amount and terms for a loan, to be made after Closing, in one or more tranches to the Provider to support the start-up operations of the Provider, including amounts for Physician Employee salaries and any related benefits (the “Provider Loan” and together with the Build-Out Loan, the “Loans”). The Company shall use a portion of the INVO Contribution to fund the Provider Loan. Following the Closing Date, the Parties acknowledge and agree that any increase in the amount of or changes to the timing for the Provider Loan shall be determined by the Board of Managers pursuant to the LLC Agreement; provided that unless changed by the Board of Managers, the amount payable to the Company by the Provider in connection with the Provider Loan will accrue interest at the applicable federal rate for the month in which a portion of the Provider Loan is made by the Company, and will be payable, with interest, no later than five (5) years from the date the Provider Loan is issued by Company.

6.2 Condition to the Obligations of Provider. The obligation of Provider to consummate the Closing is subject to the fulfillment, at or prior to the Closing, of the following conditions, any one or more of which may be waived in writing by Provider:

(a) Representations and Warranties; Covenants of INVO. INVO’s representations and warranties in ARTICLE 5 shall be true and correct in all respects on the date hereof and as of the date of the Closing. On or before the Closing Date, INVO shall have performed and complied with all covenants and agreements required to be performed or complied with by INVO prior to the Closing under this Agreement.

(b) Closing Deliveries of INVO. At or before the Closing, INVO shall have executed and delivered to Provider the following, in form and substance reasonably acceptable to Provider (the “INVO Closing Documents”), and, where applicable, such INVO Closing Documents shall be deemed effective at the Closing:

(i) The INVO IP Sublicense Agreement, executed by INVO;

(ii) The INVOcell Supply Agreement, executed by INVO Bioscience;

(iii) All documents required for effectuation of the Build-Out Loan, executed by INVO;

(iv) A certificate of the Secretary or an Assistant Secretary (or equivalent officer) of INVO certifying that attached thereto are true and complete copies of all resolutions adopted by the governing board and member of INVO, authorizing the execution, delivery and performance of this Agreement and the other transaction documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby;

(v) A good standing certificate from the Delaware Secretary of State, dated within ten (10) days of the date of the Closing.

(vi) All other customary instruments of transfer or assumption, and other filings or documents, in form reasonably satisfactory to Provider, as may be required to effect the INVO Contribution;

(vii) Execution and delivery by INVO Bioscience of the JV IP License Agreement; and

(viii) Such other agreements, documents and instruments as may be reasonably requested by Provider.

(c) Documents Satisfactory. All proceedings to be taken and all documents to be executed and delivered in connection with the consummation of the transactions contemplated hereby shall be reasonably satisfactory as to form and substance to Provider including, but not limited to, all schedules and exhibits to this Agreement.

6.3 Conditions to the Obligations of INVO. The obligation of INVO to consummate the Closing is subject to the fulfillment, at or prior to the Closing, of the following conditions, any one or more of which may be waived in writing by INVO:

(a) Representations and Warranties; Covenants of Provider. Provider’s representations and warranties in ARTICLE 5 shall be true and correct in all respects on the date hereof and as of the date of the Closing. On or before the Closing Date, Provider shall have performed and complied with all covenants and agreements required to be performed or complied with by Provider prior to the Closing under this Agreement.

(b) Closing Deliveries of Provider. At or before the Closing, Provider shall have delivered to INVO the following, in form and substance reasonably acceptable to INVO (the “Provider Closing Documents”), and, where applicable, such Provider Closing Documents shall be deemed effective at the Closing:

(i) The Provider IP License Agreement, executed by Provider;

(ii) The Physician Employment Agreements, duly executed by Provider and each Physician, as applicable;

(iii) A certificate of the Secretary of Provider certifying that attached thereto are true and complete copies of all resolutions adopted by the governing board and members of Provider, authorizing the execution, delivery and performance of this Agreement and the other transaction documents and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby;

(iv) A good standing certificate from the Georgia Secretary of State dated within ten (10) days of the date of the Closing; and

(v) all other customary instruments of transfer or assumption, and other filings or documents, in form reasonably satisfactory to INVO, as may be required to effect the Provider Requirements.

(c) Documents Satisfactory. All proceedings to be taken and all documents to be executed and delivered in connection with the consummation of the transactions contemplated hereby shall be reasonably satisfactory as to form and substance to Provider and its counsel, including, but not limited to, all schedules and exhibits to this Agreement.

ARTICLE 7.
CONFIDENTIALITY AND NON-COMPETITION

7.1 Confidential Information. The Parties’ existing Non-Disclosure Agreement, dated January 26, 2021 (the “NDA”) will remain in full force and effect, subject to the following amendments: (a) included in the “information related to the transaction” that is to be kept confidential under the NDA shall be this Agreement, the other agreements contemplated hereby and the substance of the Parties’ negotiations concerning the same; and (b) the arbitration provisions of this Agreement shall supersede and control those of the NDA.

7.2 Non-Competition.

(a) Except as set forth on Schedule 1, and as set forth in the LLC Agreement, each of the Parties acknowledges and agrees (and will cause each of its appointed Managers to agree) that for so long as such Person holds any interest (directly or indirectly) in the Company (the “Restricted Period”), such Person shall not, and shall cause its direct and indirect equity holders (excluding any of INVO Bioscience’s public shareholders), partners, managers, employees, consultants, agents and Affiliates to not, without the express written consent of the Company, directly engage in any activity which is competitive, in whole or in part, with the Company Business, or participate or invest in, or provide or facilitate the provision of financing to, or assist (whether as owner, part-owner, shareholder, member, partner, director, officer, trustee, executive, agent or consultant, or in any other capacity), any Person in Atlanta, Georgia (the “Restricted Area”) other than the Company, including any such Person involving, or which is, a family member of such Member or Manager, whose business, activities, products or services are competitive with some or all of the Company Business, during the Restricted Period and in the Restricted Area (any such Person or business, a “Competitor”). Notwithstanding the foregoing, no Member or Manager of the Company shall be prohibited by this Section 7.2 from making a passive investment in any enterprise the shares of which are publicly traded if such investment constitutes less than one percent (1%) of the equity of such enterprise.

(b) Each of the Parties acknowledges and agrees (and will cause each of its appointed Managers to agree) that during the applicable Restricted Period, such Person shall not, and shall cause its direct and indirect equity holders, partners, managers, employees, consultants, agents and Affiliates to not, without the express written consent of the Company, directly or indirectly, solicit, contact, or attempt to solicit or contact, the Company’s current or prospective customers and suppliers with whom such Member or Manager interacted, or from or about whom such Member or Manager received confidential information (the “Customers and Suppliers”), for the purpose of offering or accepting goods or services in the Restricted Area that are competitive with those offered by the Company, on behalf of any Person other than the Company or any of its Subsidiaries, or otherwise adversely and intentionally interfere with the relationship between the Company or any of its Subsidiaries and any of their Customers and Suppliers.

(c) Each of the Parties acknowledges and agrees (and will cause each of its appointed Managers to agree) that the purpose of the restrictions contained in this Section 7.2 is to protect the Company’s legitimate business interests, relationships between the Company and its or their respective clients and customers, confidential information, workforce stability, and business goodwill; in view of the nature of the Company’s business, these restrictions are reasonable and necessary to protect these Company interests and in light of the confidential information provided or to be provided to such Member and the Managers and the additional consideration provided under this Agreement; and any violation of this Agreement would result in irreparable injury to the Company. In the event of a breach by any Member or any Manager of any provision of this Section 7.2, the Company shall, in addition to any other legal remedies available, be entitled to a temporary restraining order and injunctive relief restraining such applicable Member or Manager from the commission of any breach of this Section 7.2, and, if successful, to recover the Company’s reasonable attorneys’ fees, costs, and expenses related to the breach. The existence of any claim or cause of action by any Member, any Manager or any of their respective Affiliates against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of the restrictive covenants contained in this Section 7.2 or to injunctive relief.

ARTICLE 8.
INDEMNIFICATION

8.1 Survival. Except as described in this ARTICLE 8, (i) all representations and warranties of the Parties contained in this Agreement or in any document delivered pursuant to this Agreement shall survive the Closing until the expiration of any applicable statute of limitations relating thereto; and (ii) representations and warranties that are made on a fraudulent basis by a Party shall survive forever. All covenants of the Parties contained in this Agreement and in the documents delivered pursuant to this Agreement shall survive the Closing in accordance with their respective terms. A written claim for indemnification may be brought at any time after the Closing and prior to the end of the applicable survival period (the “Claims Period”). No Party shall be entitled to assert any indemnification pursuant to this ARTICLE 8 after the expiration of the Claims Period; provided that, if on or prior to such expiration of the applicable Claims Period a notice of claim shall have been given to the respective Indemnifying Party for such indemnification, the Indemnified Person shall continue to have the right to be indemnified with respect to the matter or matters to which such claim relates until such claim for indemnification has been satisfied or otherwise resolved.

8.2 Agreement to Indemnify. Subject to the terms of this Agreement, each Party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other Party and each of its respective officers, directors, managers, agents, representatives, stockholders, members and employees, and each Person, if any, who controls or may control the Party within the meaning of the Securities Act (each an “Indemnified Person” and collectively, “Indemnified Persons”) from and against any and all actual losses, costs, damages, Liabilities and expenses (including reasonable attorneys’ fees, other professionals’ fees, costs of investigation and court costs) (collectively, “Damages”), incurred directly by the Indemnified Person or indirectly through the Indemnified Person’s interests in the Company, that arise from or result from (i) any failure of any representation or warranty made by the Indemnifying Party in this Agreement to be true and correct as of the Closing; (ii) any breach of, or failure to perform, any agreement of the Indemnifying Party that is contained in this Agreement; or (iii) any fact, circumstance, event, omission or failure to act occurring on or prior to the Closing that relates solely to the conduct of the Indemnifying Party on or prior to the Closing, including, without limitation, (i) Damages that arise as a result of negligence or willful misconduct by the Indemnifying Party in connection with the operation of the Provider Business or INVO Business, as applicable, on or prior to the Closing and (ii) Damages that arise as a result of breaches of any Contract or other agreement by the Indemnifying Party that occur on or prior to the Closing.

8.3 Claim Limits. Notwithstanding anything contained herein to the contrary, Damages shall not include any punitive damages that are not paid or payable to a third party by an Indemnified Person and shall not include consequential Damages (including, without limitation, lost profits). The amount of any recovery by an Indemnified Person shall be net of any insurance proceeds recoverable by the Indemnified Person (but not to the extent that such proceeds are repaid by the Indemnified Person through increased insurance premiums) and net of any Tax benefits actually received by the Indemnified Person as part of determining Damages.

8.4 Mitigation; Exclusive Remedy. Any Indemnified Person shall use its commercially reasonable efforts to mitigate any Damages subject to indemnification obligations under this Agreement and to timely pursue reasonable remedies against applicable insurers in respect of any indemnifiable Damages. The indemnification provisions of this ARTICLE 8 shall be the sole and exclusive remedy of the Parties for monetary damages after the Closing arising out of a breach of this Agreement by the other Party. Nothing herein restricts or prevents the right of any Party to pursue causes of action for which equitable relief is sought.

ARTICLE 9.
TERMINATION

9.1 Termination. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated at any time prior to the Closing Date:

(a) by Provider by giving written notice to INVO on or after the date that is sixty (60) days after the date hereof, if any of the conditions set forth in Section 6.3 is not satisfied or waived by such date or has become incapable of fulfillment, unless such satisfaction has been frustrated or made impossible by any act or failure to act by Provider;

(b) by INVO, by giving written notice to Provider on or on or after the date that is sixty (60) days after the date hereof, if any of the conditions set forth in Section 6.3 is not satisfied or waived by such date or has become incapable of fulfillment, unless such satisfaction has been frustrated or made impossible by any act or failure to act by INVO;

(c) by Provider, by giving written notice to INVO at any time, if INVO has materially breached any representation, warranty, covenant or agreement contained in this Agreement and such breach has not been cured within thirty (30) days after Provider’s notice to INVO of such breach or, if cure is not possible within thirty (30) days, if cure has not been commenced and is not being diligently pursued within thirty (30) days after such notice;

(d) by INVO, by giving notice to Provider at any time, if Provider has materially breached any representation, warranty, covenant or agreement contained in this Agreement and such breach has not been cured within thirty (30) calendar days after INVO’s notice to Provider of such breach or, if cure is not possible within thirty (30) calendar days, if cure has not been commenced and is not being diligently pursued within thirty (30) calendar days after such notice;

(e) by either Party if any injunction or other judgment, order or decree issued by any court of competent jurisdiction or other statute, law, rule, legal restraint or prohibition having the effect of permanently restraining, enjoining or otherwise prohibiting the transactions contemplated under this Agreement shall be issued, in effect and shall have become final and nonappealable; or

(f) by mutual written agreement of Provider and INVO.

9.2 Effect. In the event of termination of this Agreement pursuant to Section 9.1, no Party shall have any liability or further obligation to any other Party, and no Party shall be entitled to any monetary damages or injunctive relief (including specific performance) as a result of such termination, or any indemnification under ARTICLE 8; provided, however, that in no event shall any termination of this Agreement limit or restrict the rights and remedies of any Party against any other Party which has intentionally and willfully breached any of the agreements or other provisions of this Agreement prior to the termination hereof; and provided further, that Company’s and Provider’s respective repayment obligations with respect to the Loans shall remain in full force and effect; and provided, finally, that the provisions of ARTICLE 10 shall remain in full force and effect.

ARTICLE 10.
MISCELLANEOUS

10.1 Definitions. Capitalized terms used in this Agreement will have the meanings assigned to such terms as set forth on Schedule 2 hereto.

10.2 Information Disclosure. No information or knowledge obtained by a Party pursuant to this Agreement shall be deemed to qualify, modify, or limit any representation or warranty of the other Party contained in this Agreement or elsewhere.

10.3 Legal Privileges. The Parties acknowledge and agree that all attorney-client, work product and other legal privileges that may exist with respect to a Party’s involvement in the Company Business shall, from and after the Closing Date, be deemed joint privileges of the Parties. Each Party shall use, and cause the Company to use, all commercially reasonable efforts after the Closing Date to preserve all privileges, and no Party shall knowingly waive, or cause the Company to knowingly waive, any such privilege without the prior written consent of the other Party (which consent shall not be unreasonably withheld or delayed).

10.4 Dispute Resolution

(a) Each dispute between the Parties as to the appropriate construction, enforcement and interpretation of the provisions of the Agreement will be resolved pursuant to this Section 10.4.

(b) Prior to invoking the arbitration process, a Party seeking to invoke the dispute resolution process hereunder will provide prior written notice of such dispute to the other Party. Within seven (7) days after receipt of notice from the Party invoking the dispute resolution process, the Parties shall, through their duly appointed representatives, meet informally to discuss the areas of disagreement and to negotiate in good faith regarding possible solutions (the “Informal Meeting”).

(c) If the Parties do not resolve the dispute at the Informal Meeting, then, within seven (7) days after such meeting, the parties will name a neutral mediator to conduct mediation proceedings; provided, however, that if the Parties are unable to agree on a single mediator within fourteen (14) days following the Informal Meeting, then the Parties agree that a mediator will be selected in accordance with the alternative dispute resolution process established by the American Health Lawyers Association (“AHLA”). The mediator will have no authority to impose a resolution, but will work with the Parties to reach a mutually acceptable solution. All parties involved in the dispute will give the mediator their full cooperation and will participate in good faith in all sessions convened by the mediator. The costs of engaging such mediator shall be borne by the Company.

(d) If the Parties do not resolve the dispute via the AHLA mediation process, then within thirty (30) days of the conclusion of same, either Party may submit the dispute to binding arbitration, which arbitration will be conducted consistent with the applicable procedures outlined in the LLC Agreement.

10.5 Governing Law. This Agreement and any action instituted by any party with respect to matters arising hereunder shall be governed by and construed in accordance with the laws of the State of Delaware applicable to Contracts made and performed in such State and without regard to conflicts of law doctrines.

10.6 Consistency with Governing Documents of the Company. In the event of an inconsistency or ambiguity between any provision in this Agreement and a provision in the Certificate of Formation or LLC Agreement of the Company, the Parties agree to amend such documents as necessary to make provisions thereof consistent with this Agreement.

10.7 Counterparts; Headings; Execution. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but both of which together shall constitute one and the same instrument. Any counterpart or other signature delivered by PDF or facsimile shall be deemed for all purposes as a valid execution and delivery of this Agreement by that Party. The descriptive headings of the Articles, Sections and subsections of this Agreement are for convenience only and do not constitute a part of this Agreement.

10.8 No Third-Party Beneficiaries. Except for Indemnified Persons as set forth in ARTICLE 8, this Agreement shall be binding upon and inure solely to the benefit of the Parties and the Company and their permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any Person, other than the Parties and the Company, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement; provided, however, that Provider shall be a third party beneficiary with respect to the obligations of INVO under this Agreement and INVO shall be a third party beneficiary with respect to the obligations of Provider under this Agreement.

10.9 Notices. Any notice or other communication hereunder must be given in writing and (a) delivered in person; (b) transmitted by facsimile or electronic mail, provided that any notice so given is also mailed as provided in clause (c); or (c) mailed by certified or registered mail, postage prepaid, receipt requested, or by reputable overnight delivery service, in each case to the address set forth below each Party’s name on the signature pages hereto, or to such other address or to such other Person as a Party shall have last designated by such notice to the other Party. Each such notice or other communication shall be effective if (i) given by facsimile or electronic mail, when transmitted to the applicable number so specified in (or pursuant to) this Section 10.9 and an appropriate answerback is received, or if transmitted after 4:00 p.m. local time on the day following the date on which such notice is sent; (ii) by overnight delivery, one business day following the day on which such notice is sent; (iii) given by mail, three days after such communication is deposited in the mail with first class postage prepaid, addressed as aforesaid; or (iv) given by any other means, on the day when actually received at such address.

10.10 Waiver; Amendment. Any provision of this Agreement may be amended only by a written instrument signed by both Parties. The waiver of any right under this Agreement requires only the written consent of the Party waiving such right. A Party’s failure to insist upon strict compliance with any of the terms or conditions of this Agreement will not be deemed a waiver of such term or condition, nor will any waiver or relinquishment of, or failure to insist upon strict compliance with, any right hereunder at any one or more times be deemed a waiver or relinquishment of such right at any other time or times.

10.11 Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties named herein and their respective successors and assigns. No Party may assign this Agreement or any of their rights or obligations hereunder without the prior written consent of the other Party; which consent may be withheld in such Party’s sole and absolute discretion; provided, that no voluntary or involuntary assignment or transfer by a Party to this Agreement of any of such Party’s rights or obligations under this Agreement shall in any manner release such Party of any of its obligations under this Agreement; and provided, further, that notwithstanding the foregoing, INVO may, at its option, assign any of its rights and obligations hereunder to an Affiliate or Subsidiary upon written notice to Provider. Furthermore, (a) if a Party is merged or consolidated with or into another entity, the surviving entity shall be bound by all of the merging or consolidating party’s obligations under this Agreement; and (b) if a Party sells all or substantially all of its assets to another Person, the purchaser shall be bound by all of the selling Party’s obligations under this Agreement. The preceding provisions of this Section 10.11 are not intended to amend, terminate or otherwise affect any provisions in the LLC Agreement.

10.12 Entire Agreement. This Agreement, and the documents referenced herein, constitute the entire agreement between the Parties relative to the subject matter hereof. This Agreement replaces and supersedes all prior written or oral agreements, statements, correspondence, negotiations and understandings between the Parties with respect to the matters covered by this Agreement.

10.13 Severability. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement, to the extent permitted by Law, shall remain in full force and effect provided that the essential terms and conditions of this Agreement for all Parties remain valid, binding and enforceable.

10.14 Further Assurances. Each Party agrees to cooperate fully with the other Party and the Company, to take such actions, to execute such further instruments, documents and agreements, and to give such further written assurances, as may be reasonably requested by the other Party to evidence and reflect the transactions described herein and contemplated hereby, and to carry into effect the intents and purposes of this Agreement.

10.15 Rights Cumulative. Subject to the indemnification limits set forth in ARTICLE 8, (a) each and all of the various rights, powers and remedies of a Party described in this Agreement will be considered to be cumulative in the event of the breach of any of the terms of this Agreement; and (b) the exercise or partial exercise of any right, power or remedy will neither constitute the exclusive election thereof nor the waiver of any other right, power or remedy available to such Party under this Agreement. Furthermore, the obligations of the Parties under this Agreement are unique. The Parties acknowledge that it may be extremely impracticable to measure damages resulting from certain defaults under this Agreement. Accordingly, a Party not in default under this Agreement may sue in equity for specific performance or injunctive relief in the event of a breach of the terms hereof by the other Party.

10.16 Liability Limits. Notwithstanding anything to the contrary expressed or implied herein, except for any agreements that he, she or it may execute in his, her or its individual capacity (and not on behalf of a Party), such as the Physician Employment Agreements, the owners, members, employees, directors, managers, officers of a Party shall not have personal liability with respect to this Agreement or the transactions contemplated hereby, except in the case of fraud or willful misconduct.

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IN WITNESS WHEREOF, the Parties have executed this Joint Venture Agreement as of the date first above written.

With a copy (which shall not constitute notice) to:

Sheppard, Mullin, Richter and Hampton LLP
30 Rockefeller Plaza
New York, NY 10112-0015
Attention: Amanda L. Zablocki, Esq.

Schedule 1

NON-COMPETITION EXCEPTIONS

None.

Schedule 2

DEFINITIONS

“Affiliates” means with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with the first Person. For the purposes of this definition, “control,” when used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by Contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing. With respect to any natural Person, “Affiliate” will include such Person’s grandparents, any descendants of such Person’s grandparents, such Person’s spouse, the grandparents of such Person’s spouse and any descendants of the grandparents of such Person’s spouse (in each case, whether by blood, adoption or marriage).

“Agreement” has the meaning set forth in the Preamble.

“Board” has the meaning set forth in the LLC Agreement.

“Capital Contribution” has the meaning set forth in the LLC Agreement.

“Claims Period” has the meaning set forth in Section 8.1.

“Closing” has the meaning set forth in ARTICLE 3.

“Closing Date” has the meaning set forth in ARTICLE 3.

“Company” has the meaning set forth in the Recitals.

“Company Business” means (i) the business of managing a medical practice offering assisted reproductive technology, fertility/infertility treatments, and/or other similar women’s healthcare services and (ii) owning and/or operating an embryology laboratory or providing any similar clinical laboratory services.

“Company Change of Control” means (a) any merger, consolidation or other form of corporate reorganization of the Company with a non-Affiliate of the Company in which the direct existing equity holders of the Company immediately prior to such transaction collectively own less than fifty percent (50%) of the Company’s (or the surviving entity, if not the Company) voting power or economic value immediately after such transaction, (b) a sale of securities of the Company to a non-Affiliate of the Company representing at least fifty percent (50%) of the voting power or economic value of the Company, or (c) sale or license of all or substantially all of the Company’s assets to one or more non-Affiliates of the Company. For the avoidance of doubt, a Company Change of Control does not include any transaction involving the sale or transfer of securities or assets of any shareholder or parent entity of the Company including, but not limited to, Provider or INVO.

“Competitor” has the meaning set forth in Section 7.2(a).

“Contracts” means any written contract, agreement, license, lease, guaranty, indenture, sales or purchase order or other legally binding commitment in the nature of a contract.

“Damages” has the meaning set forth in Section 8.2.

“Governmental Authority” means any court, tribunal, arbitrator, authority, agency, commission, official or other instrumentality of the United States, any other country or any state, county, city or other political subdivision of the United States or any other country.

“Healthcare Information Laws” means the (a) Health Insurance Portability and Accountability Act of 1996 (Pub. L. No. 104-191) and any regulations promulgated thereunder; (b) the Health Information Technology for Economic and Clinical Health Act (Title XIII of the American Recovery and Reinvestment Act of 2009) and any regulations promulgated thereunder; and (c) any state and local laws regulating the privacy and/or security of individually identifiable information, including state Laws providing for notification of breach of privacy or security of individually identifiable information, in each case with respect to the Laws described in clauses (a), (b) and (c) of this definition, as the same may be amended, modified or supplemented from time to time, any successor statutes thereto, any and all rules or regulations promulgated from time to time thereunder.

“Healthcare Laws” means all federal and state Laws, rules or regulations relating to the regulation, provision or administration of, or payment for, healthcare products or services, including, but not limited to (a) the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), Sections 1320a-7 and 1320a-7a of Title 42 of the United States Code, the Physician Self-Referral Law, commonly known as the “Stark Law” (42 U.S.C. §§ 1395nn and 1396b), the civil False Claims Act (31 U.S.C. §3729 et seq.), the Federal Criminal False Claims Act (18 U.S.C. § 287), the False Statements Relating to Health Care Matters Law (18 U.S.C. § 1035), Health Care Fraud (18 U.S.C. § 1347), or any regulations promulgated pursuant to such statutes, or similar state or local statutes or regulations; (b) Medicare (Title XVIII of the Social Security Act) and the regulations promulgated thereunder; (c) Medicaid (Title XIX of the Social Security Act) and the regulations promulgated thereunder as well as comparable state Medicaid statutes and regulations; (d) TRICARE (10 U.S.C. § 1071 et seq.) and the regulations promulgated thereunder; (e) the Emergency Medical Treatment and Labor Act (42 U.S.C. § 1395dd) and the regulations promulgated thereunder; (f) the Clinical Laboratory Improvement Act (42 U.S.C. § 263a, et seq.); (g) any accreditation standards of applicable healthcare accreditation bodies; (h) Laws regarding the professional standards of health care professionals; (i) Laws regulating the ownership or operation of a health care facility or business, or assets used in connection therewith, the provision of management or administrative services in connection with the operation of a health care facility or business, the employment of professionals by non-professionals, fee splitting and certificates of operations and authority; (j) any Laws insofar as they purport to regulate medical waste or impose requirements relating to medical waste; (k) quality and safety Laws relating to the regulation, storage, provision or administration of, or payment for, healthcare products or services and (l) Laws governing patient confidentiality and privacy, including the Healthcare Information Laws, each of (a) through (l) as amended from time to time.

“Indemnifying Party” has the meaning set forth in Section 8.2.

“Indemnified Persons” has the meaning set forth in Section 8.2.

“INVO” has the meaning set forth in the Preamble.

“INVO Business” means the business as operated by INVO immediately prior to the Closing.

“INVO Closing Documents” has the meaning set forth in Section 6.2(b).

“INVO Contribution” has the meaning set forth in Section 2.1.

“INVO IP Sublicense Agreement” has the meaning set forth in Section 4.6(a).

“Knowledge” means (a) in the case of an individual, as to a particular fact or matter, that (i) such individual is actually aware of such fact or matter, or (ii) a prudent individual would reasonably be expected to discover or otherwise become aware of such fact or matter in the course of conducting a reasonable investigation concerning the existence of such fact or matter; and (b) in the case of a Party, as to a particular fact or matter, the Knowledge (as defined in clause (a) above) as to such fact or matter of any individual who is serving as a director, manager, officer, or similar position of such Person or any employee of such Person who is charged with primary responsibility for the area of the operations related to such fact or matter, which for purpose of this Agreement shall mean Sue Ellen Carpenter, M.D. with respect to Provider.

“Laws” means any statute, law, ordinance, regulation, rule, code requirements of common law, or other requirement of any Governmental Authority, including, without limitation, the Healthcare Laws and all binding regulations, standards, policies or guidelines promulgated or issued pursuant to such acts and any similar applicable and binding laws, regulations, policies or guidelines.

“Liabilities” means debts, liabilities and obligations, whether accrued or fixed, absolute or contingent, matured or unmatured, determined or determinable, known or unknown, including those arising under any Law, action or governmental order and those arising under any Contract, agreement, instrument, commitment or undertaking.

“LLC Agreement” has the meaning set forth in the Recitals.

“Manager” has the meaning set forth in the LLC Agreement.

“Material Adverse Effect” means any fact, change, event, result, occurrence, effect or circumstance, individually or together with other facts, changes, events, results, occurrences, effects or circumstances, the effect of which is, or is reasonably likely to be in the future, materially adverse to (a) the Company Business, earnings, operations, properties, results of operations or condition (financial or otherwise) of the Company, taken as a whole; provided, however, that Material Adverse Effect shall not include any change, event or circumstance to the extent resulting from, relating to or arising out of: (i) general economic conditions, except to the extent such changes or conditions have a disproportionate adverse impact on either of the Parties or the Provider Business or the INVO Business, as applicable, as compared to other Persons or participants in the industries in which the Parties conduct the Company Business; (ii) national or international political or social actions or conditions, including the engagement by any country in hostilities, whether commenced before or after the date hereof, and whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack; (iii) any actions taken, or failures to take action, in each case, to which the Parties have mutually consented to in writing; (iv) the compliance of the Parties with the terms of this Agreement and the other agreements contemplated hereby; or (b) the ability of the Parties to consummate the transactions contemplated by this Agreement.

“NDA” has the meaning set forth in Section 7.1.

“Order” means any award, decision, injunction, judgment, order, ruling, subpoena, or verdict entered, issued, made, or rendered by any Governmental Authority or by any arbitrator.

“Ordinary Course of Business” means (a) actions taken in the Ordinary Course of Business of a Person consistent with past custom and practice (including with respect to quantity, quality and frequency) of such Person; (b) actions taken that are similar in nature to actions customarily taken in the ordinary course of the normal day-to-day operations of other Persons that are in the industry in which the relevant Person and its Subsidiaries do business; or (c) actions taken that are consistent with such Person’s and/or operating plan which are approved by the Board.

“Party” and “Parties” have the meanings set forth in the Preamble.

“Person” shall be construed broadly and shall include an individual, a partnership, a corporation, an association, a joint stock company, a limited liability company, a trust, a joint venture, an unincorporated organization, a Governmental Authority or any department, agency or political subdivision thereof, and any other entity or organization.

“Physician Employee” means a physician employed by the Provider pursuant to a Physician Employment Agreement.

“Physician Owner” means each Physician Employee who is a member of Provider.

“Physician Employment Agreement” has the meaning set forth in Section 4.4.

“Provider” has the meaning set forth in the Preamble.

“Provider Business” means the business operated by Provider immediately prior to the Closing.

“Provider Closing Documents” has the meaning set forth in Section 6.3.

“Provider IP License Agreement” has the meaning set forth in Section 4.6(b).

“Provider Requirements” has the meaning set forth in the LLC Agreement.

“Restricted Period” has the meaning set forth in Section 7.2(a).

“Securities Act” means the Securities Act of 1933, as amended.

“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association or business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any Provider contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity (other than a corporation), a majority of partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity (other than a corporation) if such Person or Persons shall be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or control any managing director or general partner of such limited liability company, partnership, association or other business entity. For purposes hereof, references to a “Subsidiary” of any Person shall be given effect only at such times that such Person has one or more Subsidiaries, and, unless otherwise indicated, the term “Subsidiary” refers to a Subsidiary of the Company.

“Taxes” means all federal, state, local and foreign taxes and installments of estimated taxes, property taxes, assessments, deficiencies, levies, imports, duties, license fees, registration fees, withholdings, or other similar charges of every kind, character or description imposed by any Governmental or quasi-Governmental Authorities, and any interest, penalties or additions to tax imposed thereon or in connection therewith.

“Unit” means a membership interest of the Company, as defined in the LLC Agreement.

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Exhibit 10.2

THE UNITS REPRESENTED BY THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES ACT (COLLECTIVELY, “SECURITIES LAWS”). THE UNITS MAY NOT BE SOLD, OFFERED FOR SALE OR OTHERWISE TRANSFERRED, AND THE HOLDER OF UNITS MAY NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THE UNITS, EXCEPT IN COMPLIANCE WITH THIS AGREEMENT AND UNLESS THE UNITS (i) ARE REGISTERED UNDER THE SECURITIES LAWS OR (ii) ARE EXEMPT FROM REGISTRATION UNDER THE SECURITIES LAWS AND, IN THE SOLE DISCRETION OF THE COMPANY, THE COMPANY IS PROVIDED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED. THE TRANSFER OF THE UNITS REPRESENTED BY THIS AGREEMENT IS FURTHER SUBJECT TO THE CONDITIONS SPECIFIED IN THIS AGREEMENT AMONG THE MEMBERS AND THE COMPANY.

Bloom INVO LLC

LIMITED LIABILITY COMPANY AGREEMENT

This Limited Liability Company Agreement (this “Agreement”) of Bloom INVO LLC (the “Company”), a Delaware limited liability company, is made as of June 28, 2021, by and among the Company and the Members listed on the signature page hereto. Company and Members may be referred to individually as a “Party” and together as the “Parties.”

RECITALS

WHEREAS, INVO Centers, LLC (“INVO”), a Delaware limited liability company, is an Affiliate of INVO Bioscience, Inc., a Nevada corporation (“INVO Bioscience”), a medical device company focused on creating simplified, lower cost treatments for patients diagnosed with infertility, using a patented medical device (the “INVOcell”) and a revolutionary in vivo method of vaginal incubation (the “INVO Procedure”) that offer patients a more natural and intimate experience. The INVOcell, the INVO Procedure and related treatments using artificial reproductive technologies pioneered or created by INVO are collectively referred to as the “INVO Technologies”; and

WHEREAS, Bloom Fertility, LLC, a Georgia limited liability company (“Provider”), whose sole member is Dr. Sue Ellen Carpenter, a Georgia-licensed physician (“Dr. Carpenter”), is a medical practice in the State of Georgia that employs and/or contracts with physicians who, by education, training and experience, are qualified to provide fertility and reproductive medical services; and

WHEREAS, Provider and INVO desire to establish a joint venture, the Company, for purposes of commercializing the INVO Technologies by establishing a fertility center that will offer the INVO Technologies, along with related procedures (the “INVO Clinic”);

AGREEMENT

NOW THEREFORE, in consideration of the mutual representations, warranties and covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

Article 1

DEFINED TERMS

1.1 Definitions. Capitalized terms used but not otherwise defined herein shall the meanings set forth in Exhibit A attached hereto.

Article 2

FORMATION AND ORGANIZATION

2.1 Formation and Name. The Company was formed on March 10, 2021 when the Certificate of Formation was filed with the Delaware Secretary of State. The name of the Company is Bloom INVO LLC. All Company business shall be conducted in the name of Bloom INVO LLC or such other names that comply with Applicable Law as the Board of Managers (as defined in Section 7.2 hereof) of the Company (the “Board”) may select from time to time.

2.2 Principal Place of Business. The principal office of the Company shall be such place as determined by the Board.

2.3 Term. The term of the Company commenced with the filing of the Certificate of Formation with the Delaware Secretary of State and shall continue until the Company is dissolved and all of its assets are liquidated in accordance with the provisions of this Agreement.

2.4 No State Law Partnership. The Members intend that the Company (a) shall be taxed as a partnership for all applicable federal and, to the extent applicable, state and local income tax purposes, and (b) shall not be a partnership or joint venture for any other purpose, and that no Member shall, by virtue of this Agreement, be a partner or joint venturer of any other Member.

2.5 Ownership of Company Property. All property acquired by the Company, real or personal, tangible or intangible, shall be owned by the Company as an entity, and no Member, individually, shall have any ownership interest therein solely due to her, his or its capacity as a Member.

Article 3

PURPOSE AND POWERS OF THE COMPANY

3.1 Purpose. The Company is formed for the purpose of engaging in any lawful activity for which a limited liability company may be organized in Delaware.

3.2 Powers of the Company. Subject to the provisions of this Agreement and unless otherwise directed by the Board, the Company shall have the power and authority to take any and all actions necessary, appropriate, proper, advisable, incidental or convenient to or for the furtherance of the purposes set forth in Section 3.1.

Article 4

UNITS, MEMBER CONTRIBUTIONS, NATURE OF UnITS AND ESTABLISHMENT OF CAPITAL ACCOUNTS

4.1 Units. The equity in the Company shall be represented by the “Units.” The Units shall have the rights, preferences and privileges, including voting rights, if any, set forth in this Agreement. None of the Units will be represented by certificates until such time (if any) as the Board determines to issue certificates representing the Units. Unless otherwise set forth in this Agreement, all Units shall have the same rights and privileges.

4.2 Authorized Units; Issuance. There are hereby established and authorized for issuance such number of Units as the Board may from time to time determine. Subject to the terms of Section 4.3(b) below, upon the effectiveness of this Agreement, the Company hereby agrees to issue to Provider, and Provider hereby agrees to receive from the Company the number of Units set forth opposite Provider’s name on Exhibit B attached hereto in exchange for Provider’s services, as outlined herein (the “Provider Requirements”) as consideration; and Company hereby agrees to issue to INVO, and INVO hereby agrees to receive from the Company the number of Units set forth opposite INVO’s name on Exhibit B attached hereto in exchange for INVO’s initial Capital Contribution (the “INVO Contribution”) as consideration.

4.3 Member Contributions; Provider Vesting.

(a) In connection with the execution of this Agreement and in exchange for receipt of their respective Units, the Members shall act as follows:

(i) INVO Contribution. In consideration for 800 Units, INVO commits to contribute up to Eight Hundred Thousand Dollars ($800,000) within the twenty-four (24) month period following execution of this Agreement to support the start-up operations of the Company. INVO will fund the INVO Contribution pursuant to the Company’s reasonable business needs, as mutually agreed to by the Parties in the Business Plan (as defined in Section 7.9 hereof), and, in exchange for such commitment and funding, INVO received 800 Units. The INVO Contribution shall be provided by INVO to the Company in increments of Fifty Thousand Dollars ($50,000).

(ii) Provider Requirements. In consideration for 1,200 Units, Provider commits to contribute physician services to the INVO Clinic, through the efforts of its Physicians, having an anticipated value of up to One Million Two Hundred Thousand Dollars ($1,200,000) over the course of an anticipated twenty-four (24) month vesting period (“Provider Vesting Period”). During the Provider Vesting Period, Provider is anticipated to provide the physician services through its Physicians on a 2.0 full-time equivalent, or “FTE” basis (the “Provider Requirements”). “FTE” means a Physician employed by or under contract with Provider, working a minimum of thirty (30) hours per week. In exchange for its satisfaction of Provider Requirements, Provider received 1,200 Units, subject to the vesting schedule described in Section 4.3(b).

(b) Vesting; Forfeiture. During the Provider Vesting Period, up to 11.538 of Provider’s 1,200 Units (the “Available Weekly Unit Vesting Amount”) shall vest each week in which Provider’s Physicians render least 1.0 FTE of services (or take Permitted Time Off as provided for in the Physician Employment Agreements). The Provider’s vesting of Units in a given week will be measured by multiplying the (x) Available Weekly Unit Vesting Amount by (y) a fractional basis, where the numerator is the actual hours worked by Provider’s Physicians (including Dr. Carpenter) during such week, and the denominator is equal to sixty (60) hours per week (2.0 FTE); provided, however, that as long as Provider’s Physicians (including Dr. Carpenter) render, in the aggregate, at least 4,100 total Physician services hours by the end of the Provider Vesting Period (the “Minimum Provider Commitment”), then any unvested Units at such time will be immediately, fully vested in Provider. Notwithstanding anything to the contrary in this Agreement, in the event that Provider fails to satisfy fully the Minimum Provider Commitment by the end of the Provider Vesting Period necessary to fully vest in all 1,200 Units, then the number of unvested Units as of the final date of the Provider Vesting Period shall immediately be forfeited by Provider. Further, if at any time during the Provider Vesting Period Dr. Carpenter ceases to render at least 1.0 FTE of services (or take Permitted Time Off as provided for in her Physician Employment Agreement), then notwithstanding anything to the contrary in this Agreement, the number of unvested Units as of such date shall immediately be forfeited by Provider.

(c) Additional Contributions. No Member shall be required to make any Capital Contribution to the Company, other than as provided in this Section 4.3. The Members may voluntarily make additional Capital Contributions to the Company upon the request of the Board of Managers. In the event that any Member is unable or unwilling to contribute its share of additional capital requested by the Board of Managers pursuant to this Section 4.3(c), the Members may mutually agree that the Member(s) willing to contribute the additional capital be allowed to contribute the entire required additional capital on any such basis as agreed to by the Members, and in such event, the ratio of ownership between the Members shall stand modified to the extent of the additional Capital Contribution made by the contributing Member and the ownership of the non-contributing Member shall stand diluted accordingly. No disproportionate Capital Contributions or corresponding dilution shall occur absent the mutual written consent of the Members.

4.4 Nature of Units. The Units shall for all purposes be personal property. Except as may otherwise be set forth herein, no Member has any interest in specific Company property, and each Member hereby waives any and all rights such Person may have to initiate or maintain any suit or action for partition of the Company’s assets.

4.5 Capital Accounts. An individual Capital Account shall be established and maintained for each Member in accordance with the rules of Treasury Regulation Section 1.704-1(b)(2)(iv). Each Member’s Capital Account shall be increased by (a) the amount of money contributed by such Member to the Company, (b) the Gross Asset Value of property contributed by such Member to the Company (net of liabilities secured by the contributed property that the Company is considered to assume or take subject to under Section 752 of the Code), and (c) allocations to such Member of Profits (and any items in the nature of income or gain separately allocated to such Member). Each Member’s Capital Account shall be decreased by (x) the amount of money distributed to such Member by the Company, (y) the Gross Asset Value of property distributed to such Member by the Company (net of liabilities secured by the distributed property that the Member is considered to assume or take subject to under Section 752 of the Code), and (z) allocations to such Member of Losses (and any items in the nature of losses or deductions separately allocated to such Member). The Capital Accounts also shall be maintained and adjusted as permitted by the provisions of Treasury Regulation Section 1.704-1(b)(2)(iv)(f) and as required by the other provisions of Treasury Regulation Sections 1.704-1(b)(2)(iv) and 1.704-1(b)(4). On the transfer of all or a portion of a Member’s Units, the Capital Account of the transferor that is attributable to the transferred Units shall carry over to the transferee Member in accordance with the provisions of Treasury Regulation Section 1.704-1(b)(2)(iv)(l).

4.6 Negative Capital Accounts. No Member shall be required to pay to any other Member or the Company any deficit or negative balance that may exist from time to time in such Member’s Capital Account (including upon and after dissolution of the Company).

4.7 No Withdrawal. No Member shall be entitled to resign from the Company or withdraw all or any portion of such Member’s Contributions or the balance of such Member’s Capital Account, or to receive any distribution from the Company, except as expressly provided herein.

4.8 Loans from Members.

(a) Loan to Company. INVO commits to issuing debt to the Company in an amount up to Six Hundred Thousand Dollars ($600,000) for construction or improvements related to the INVO Clinic (the “Build-Out Loan”) upon terms and conditions mutually agreeable to INVO and Company. Any amount payable to INVO by the Company in connection with the Build-Out Loan will accrue interest at three and one-quarter percent (3.25%) per annum and will be payable with interest no later than five (5) years from the date of the Build-Out Loan. INVO may, in its discretion, secure third party debt in connection with funding the Build-Out Loan; provided, however, in no event shall INVO pledge any part of its Units or assets of the Company as collateral for any third party debt.

(b) Loan to Provider. The Company will provide a loan in one or more tranches to the Provider to support the start-up operations of the Provider, including the salaries of the Physician Employees and any related benefits (the “Provider Loan” and together with the Build-Out Loan, the “Loans”). The amount and timing of the Provider Loan shall be decided upon by the Board and reflected in the Business Plan. The Company shall use a portion of the INVO Contribution to fund the Provider Loan. Any amount payable to the Company by the Provider in connection with the Provider Loan will accrue interest at the applicable federal rate for the month in which a portion of the Provider Loan is made by the Company, and will be payable, with interest, no later than five (5) years from the date the Provider Loan is issued by Company.

(c) Loans by Members. Any loans by Members to the Company shall not be considered Capital Contributions. If any Member advances funds to the Company in excess of the amounts required hereunder to be contributed by such Member to the capital of the Company, the making of such advances shall not result in any increase in the amount of the Capital Account of such Member unless otherwise agreed by the Company and such Member. The amount of any such advances that are not agreed to be additional Capital Contributions shall be a debt of the Company to such Member and shall be payable or collectible in accordance with the terms and conditions upon which such advances are made.

4.9 No Right to Redemption. Except as otherwise provided in this Agreement, the Company shall not be obligated to redeem any Units absent the written direction of each Member.

Article 5

ALLOCATIONS AND DISTRIBUTIONS

5.1 Allocations of Profits and Losses. Except as otherwise provided in this Article 5, Profits and Losses for each Fiscal Year shall be allocated to the Members as set forth below in this Section 5.1:

(a) Subject to Section 5.1(b) and Section 5.3, and after all Contributions and distributions for each Fiscal Year have been reflected in the Members’ Capital Accounts, Profits or Losses for each Fiscal Year shall be allocated to the Members in amounts that would result, to the greatest extent possible, in Capital Account balances for each Member being equal to the amount required to be distributed pursuant to Section 5.4 to such Member in accordance with the priority and manner provided therein on a hypothetical liquidation of the Company. In determining the amounts distributable to the Members under Section 5.4 upon a hypothetical liquidation, it shall be presumed that (i) all of the Company’s remaining assets are sold at their respective Gross Asset Values, without further adjustment and (ii) the proceeds of such hypothetical sale are applied and distributed in accordance with Section 5.4 hereof.

(b) Special Allocations.

(i) Qualified Income Offset. In the event any Member unexpectedly receives any adjustments, allocations or distributions described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (d)(5) or (d)(6), items of Company income and gain shall be specially allocated to each such Member in an amount and manner sufficient to eliminate, to the extent required by the Treasury Regulations, the Adjusted Capital Account Deficit of such Member as quickly as possible; provided that an allocation pursuant to this Section 5.1(b)(i) shall be made if and only to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this Article 5 have been tentatively made as if this Section 5.1(b)(i) were not a term of this Agreement. This Section 5.1(b)(i) is intended to constitute a “qualified income offset” provision as described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.

(ii) Gross Income Allocation. In the event any Member has a deficit Capital Account at the end of any Fiscal Year that is in excess of the amount such Member is deemed to be obligated to restore pursuant to the penultimate sentences of Treasury Regulation Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible; provided that an allocation pursuant to this Section 5.1(b)(ii) shall be made if and only to the extent that such Member would have a deficit Capital Account in excess of such sum after all other allocations provided for in this Section 5.1(b) have been tentatively made as if this Section 5.1(b)(ii) and Section 5.1(b)(i) hereof were not in this Agreement.

(iii) Curative Allocations. The allocations set forth in Sections 5.1(a) and 5.1(b)(i) and 5.1(b)(ii) (collectively, the “Regulatory Allocations”) are intended to comply with requirements of the Treasury Regulations. It is the intent of the parties hereto that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss or deduction pursuant to this Section 5.1(b)(iii). Therefore, notwithstanding any other provision of this Article 5 (other than the Regulatory Allocations), the Board shall make such offsetting special allocations of Company income, gain, loss or deduction in whatever manner it determines appropriate so that, after such offsetting allocations are made, each Member’s Capital Account balance is, to the extent possible, equal to the Capital Account such Member would have had if the Regulatory Allocations were not terms of this Agreement and all Company items were allocated pursuant to this Section 5.1.

(iv) Allocations of Withholding. To the extent the Company receives (or is deemed to receive) an amount of income that is net of any withholding tax, (i) such income shall be allocated among the Members as if the Company received the gross amount of such income before giving effect to the payment of the withholding tax and (ii) any resulting tax credit shall be allocated among the Members in proportion to such Member’s allocated share of income or withholding amount (including income allocated pursuant to Section 704(c) of the Code) to which the credit or withholding amount relates.

5.2 Tax Allocations.

(a) Generally. Except as otherwise provided in this Section 5.2, taxable income and loss and all items thereof shall be allocated to the Members to the greatest extent practicable in a manner consistent with the manner set forth in Section 5.1 and Sections 704(b) and (c) of the Code. Allocations pursuant to this Section 5.2 are solely for federal income tax purposes and shall not affect, or in any way be taken into account in computing, any Member’s Capital Account or share of Profits and Losses, other items or distributions pursuant to any provision of this Agreement.

(b) Section 704(c) of the Code. In accordance with Section 704(c) of the Code, income, gain, loss and deduction with respect to any property contributed to the capital of the Company shall, solely for income tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of such property to the Company for federal income tax purposes and its initial Gross Asset Value.

(c) Adjustments under Section 704(c) of the Code. In the event the Gross Asset Value of any Company asset is adjusted pursuant to paragraph (b) of the definition of “Gross Asset Value,” subsequent allocations of income, gain, loss and deduction with respect to such asset shall take account of any variation between the adjusted tax basis of such asset and its Gross Asset Value in the same manner as, but not necessarily under the same convention(s) or method(s) specifically used by the Company for its allocations made or to be made, under Section 704(c) of the Code and Treasury Regulations thereunder.

(d) Decisions Relating to Section 704(c) of the Code. Any elections or other decisions relating to allocations under this Section 5.2, including the selection of any allocation method permitted under Treasury Regulation Section 1.704-3, shall be made by the Board. The Board is hereby authorized to amend this Agreement as necessary to implement the method selected under Treasury Regulation Section 1.704-3.

(e) Changes in Members’ Interests. If during any Fiscal Year or other accounting period of the Company there is a change in any Member’s interest in the Company, the Board shall allocate Profits or Losses to the Members in the Company in a manner that complies with the provisions of Section 706 of the Code.

(f) Deductible Payments Treated as Distributions. If any amount claimed by the Company to constitute a guaranteed payment as defined in Section 707(c) of the Code or a payment to a Member not acting in its capacity as a member under Section 707(a) of the Code is treated for Federal income tax purposes as a distribution made to a Member in its capacity as a member of the Company, then the following provisions shall apply:

(i) The Capital Account of the Member who is deemed to have received such distribution shall be reduced to reflect the distribution.

(ii) The Member who is deemed to have received such distribution shall be allocated an amount of Company gross income equal to such payment.

(g) For purposes of Section 5.1, Profits and Losses shall be determined after making the allocation required by this Section 5.2.

5.3 Allocations of Cash for Funding of Company Operating Expenses and Reserves, and Payment of Build-Out Loan. Prior to the making of any distributions pursuant to Section 5.4, the cash of the Company shall be (including collections and cash reserves in excess of amounts determined as necessary by the Board) shall be allocated to, in the following priority:

(a) first, to fund the operating expenses of the Company, including the satisfaction of any repayment obligations due and owing under any loans to the Company (including the Build-Out Loan, subject to the limitations set forth herein) and/or any expenses relating to the financing of the Company;

(b) then, to fund the operating and capital reserves of the Company, as determined by the Board; and then, fifty percent (50%) of any remaining amount to any unpaid amount of the Build-Out Loan (including both interest and principal, when payable under the terms of the Build-Out Loan).

5.4 Operating Distributions. Subject to the provisions of Section 5.7 and Applicable Law, if there is any cash of the Company remaining following the allocations of available cash outlined in Section 5.3, then the Company may distribute such remaining available cash to Provider and INVO in the following order of priority:

(a) first, to INVO until the Hurdle Amount has been reduced to $0;

(b) second, to Provider until the amounts distributed to Provider under this subsection (b) equal 150% of the amounts distributed to INVO under Section 5.4(a); and

(c) thereafter to the Members on a Per Unit Pro Rata Basis.

5.5 Fees and Expenses. For the avoidance of doubt, if any fees are paid, or expenses are paid or reimbursed, to a Member or its Affiliates, such amounts shall not be considered distributions for any purpose under Section 5.4 or otherwise hereunder except as required by Applicable Law.

5.6 Dissolution Expenses and Liquidating Distributions. In the event of the dissolution and liquidation of the Company, the assets of the Company shall be disbursed in the following order of priority:

(a) first, to make payment of all debts and liabilities owing to creditors and the expenses of dissolution or liquidation;

(b) second, to establish such reserves as reasonably deemed by the Board as necessary for any contingent or unforeseen liabilities or obligations of the Company;

(c) third, to make payment of the Build-Out Loan, until the Build-Out Loan (including both interest and principal, when payable under the terms of the Build-Out Loan) have been repaid in full;

(d) fourth, to repay any Capital Contributions of INVO not previously repaid to INVO under Section 5.4(a);

(e) fifth, to Provider until the amount distributed to Provider under this subsection (e) equals 150% of the amount distributed to INVO under Section 5.6(d); and

(f) thereafter, to the Members on a Per Unit Pro Rata Basis.

5.7 Tax Distributions. On or before April 15th of each Fiscal Year, the Company shall distribute to each Person who was a Member during the immediately preceding Fiscal Year of the Company an amount of cash (the “Tax Distribution Limitation Amount”) equal to forty-seven percent (47%) (such rate to be subject to one or more equitable adjustments by the Board to reflect the highest combined marginal federal and state income tax rates, taking into account deductibility of state taxes against federal income, then applicable to an individual residing or a corporation conducting all of its activities in Georgia, whichever is higher, but taking into account any reduced rates of taxation for particular items of Company income and gain that are generally applicable to Members) of (a) the total amount of cumulative taxable income and gain allocated to such Member for federal income tax purposes in the Company income tax return filed or to be filed with respect to such Fiscal Year and prior Fiscal Years, over (b) the total cumulative amount of losses and deductions allocated to such Member for federal income tax purposes in the Company’s income tax return filed or to be filed with respect to such Fiscal Year and prior Fiscal Years, reduced by any prior distributions pursuant to this Section 5.7 with respect to such Fiscal Year and prior Fiscal Years; provided that income attributable to a distribution under Section 5.4 that is treated as a payment under Sections 707(a) or 707(c) of the Code shall be treated as an allocation of taxable income of the Company to the recipient of such distribution. Notwithstanding the foregoing, no distribution shall be made or required under this Section 5.7 with respect to any Fiscal Year to any Member in excess of the Tax Distribution Limitation Amount. In the discretion of the Board, distributions under this Section 5.7 may be made on an estimated basis each quarter; if such estimated distributions exceed the actual amount required on April 15th, such Member receiving excess distributions shall be given a credit balance, and such excess shall be deducted from such Member’s next distribution(s) under this Section 5.7 (until fully repaid). No distribution under this Section 5.7 shall be made if the making of such distribution would constitute a violation of the Act or any other Applicable Law or order of any court of competent jurisdiction or any contract or agreement by which the Company is bound. Furthermore, no distributions shall be made under this Section 5.7 after the dissolution of the Company or in connection with its winding up and liquidation. Distributions made under this Section 5.7 shall be credited to each Member as if such Member had received such distribution in accordance with Section 4, and so shall be treated as advances against, and reduce by a corresponding amount, future distributions to such Member under such section. For the avoidance of doubt, and notwithstanding any provisions in this Agreement to the contrary, the Members acknowledge and agree that Provider shall be entitled to receive distributions under this Section 5.7 without regard to the Hurdle Amount.

5.8 Withholding. Notwithstanding any other provision of this Agreement, each Member hereby authorizes the Company to withhold and to pay over, or otherwise pay, any withholding or other taxes payable by the Company (pursuant to the Code or any provision of Federal, state or local or non-U.S. tax law) with respect to such Member or as a result of such Member’s status as a Member hereunder. All amounts withheld pursuant to the Code or any provision of tax laws with respect to any payment or distribution to the Members from the Company shall be treated as amounts distributed to the Member or Members subject to such withholding obligation in accordance with this Agreement and, accordingly, shall be credited to each Member as if such Member had received such distribution in accordance with Section 5.3. To the extent that such payment exceeds the cash distribution that such Member would have received but for such withholding, the Board shall notify such Member as to the amount of such excess and such Member shall make a prompt payment to the Company of such amount by wire transfer.

Article 6

Obligations of the MEmbers

6.1 Obligations of the Members. Each Member covenants and agrees to perform the obligations set forth under each such Member’s name on Exhibit C attached hereto.

6.2 Force Majeure. No party shall be deemed to be in default under this Agreement or be held liable or responsible for any delay or failure to fulfill any obligation hereunder, so long as and to the extent to which any delay or failure in the fulfillment of such obligation is prevented, frustrated, hindered or delayed as a consequence of the occurrence of a Force Majeure; provided, however, that the occurrence of a Force Majeure shall not excuse such party from its obligations but merely suspend the performance of the obligations under this Agreement; and provided, further, that a party claiming the benefit of a Force Majeure, shall, as soon as reasonably practicable after the occurrence of any such event, provide written notice to the other parties of the nature and extent of any such Force Majeure; and use commercially reasonable efforts to resume performance under this Agreement as soon as reasonably practicable.

Article 7

MANAGEMENT OF COMPANY

7.1 Management by the Board. Except for situations in which the approval of one or more Members is expressly required by this Agreement or by non-waivable provisions of Applicable Law, the powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of the Board. Except as expressly set forth in Sections 7.3 and 7.4, the Board may make all decisions and take all actions for the Company by majority vote.

7.2 Initial Board . The initial Board shall consist of five (5) managers (each, a “Manager”), of which two (2) Managers shall be appointed by INVO (the “INVO Managers”) and three (3) Managers shall be appointed by Provider (the “Provider Managers”). Any future increase in the number of Managers on the Board shall be subject to the above ratio. The following persons shall serve as the first Board of the Company:

(a) Andrea Goren, as an INVO Manager;

(b) Chris Myer, as an INVO Manager;

(c) Sue Ellen Carpenter, M.D., as a Provider Manager;

(d) Daniel Carpenter, as a Provider Manager; and

(e) Richard Carpenter, as a Provider Manager.

7.3 Actions Requiring Unanimous Member Approval. Notwithstanding anything to the contrary herein or in that certain Joint Venture Agreement of the Company (the “JV Agreement”), for so long as the Members own any Units in the Company, neither the Board nor the Company, directly or indirectly, shall take any of the following actions without the affirmative vote of all of the Members to:

(a) effect any merger, consolidation, recapitalization or reorganization involving the Company;

(b) make any disposition of all or substantially all of the assets of the Company;

(c) effect any Company Change of Control, except as otherwise permitted in Article 8 hereof;

(d) effect a Liquidation;

(e) effect any amendment or modification to or change in this Agreement, the Certificate of Formation of the Company, the JV Agreement or other similar governing documents of the Company, or the authorization or creation of any Units (except those issued hereunder);

(f) issue any new Units or any other equity securities of the Company, or enter into or issue any instrument, agreement or item convertible into Units or any other equity securities of the Company, to any other Person;

(g) issue or authorize any options to purchase equity securities of the Company containing acceleration of vesting provisions (other than upon a Company Change of Control);

(h) issue additional Units or any other equity securities of the Company, or enter into or issue any instrument, agreement or item convertible into Units or any other equity securities of the Company, to a Party, except as otherwise authorized by this Agreement;

(i) require, request or receive additional Capital Contributions for the benefit of the Company;

(j) take any action the result of which is the redemption or repurchase of any Units or any other class or series of equity of the Company;

(k) change the authorized size of, or powers of, the Board;

(l) effect any acquisition by the Company of any interest in another Person (whether by purchase of stock, assets or otherwise) in an amount greater than One Hundred Thousand Dollars ($100,000) dollars;

(m) other than in the Ordinary Course of Business, except as related cause the Company to incur any indebtedness;

(n) cause the Company to incur any aggregate indebtedness in excess of One Hundred Thousand Dollars ($100,000) dollars whether or not in the Ordinary Course of Business;

(o) change the tax status of the Company or make any tax election;

(p) create any new Subsidiary;

(q) enter into, approve or consent to any settlement of litigation or consent decree that could or would impose any financial liability or obligation on a Party, or could or would impose on the Company and/or any Party any operational restriction or limitation of any nature (including, but not limited to, reporting, monitoring, changes in operations or imposition of any compliance or corrective action plan); and

(r) enter into any binding agreement to take any of the foregoing actions.

7.4 Actions Requiring Super-Majority Approval. Notwithstanding anything to the contrary herein or in the JV Agreement, for so long as the Members own any Units in the Company, the Company, directly or indirectly, shall not take any of the following actions without the affirmative vote of at least eighty percent (80%) of the Managers, including at least one (1) INVO Manager (“Super-Majority Approval”):

(a) make any amendments to, or any other changes to, the Business Plan (as defined in Section 7.9);

(b) borrowing other than normal credit in the Ordinary Course of Business;

(c) grant any liens, on any property of the Company, outside the Ordinary Course of Business;

(d) make any loans, guarantees or indemnification to Managers or third parties, other than as authorized by this Agreement;

(e) enter into or amend any related party agreement with a Member or Manager or their family or Affiliates, other than on customary commercial terms negotiated at arms’ length;

(f) expand the business of the Company beyond the State of Georgia or effect any change in, addition to, supplementation or modification of the business of the Company;

(g) make any capital expenditure or distribution of assets which exceed $100,000 individually or in the aggregate in a fiscal year, unless approved in the Business Plan;

(h) enter into any agreements outside of Company’s normal course of business which provide for payments or assumption of liabilities in excess of $100,000 unless specifically approved in the Business Plan

(i) hire or terminate any key executive of the Company;

(j) sell, assign, license, pledge or encumber the Company’s material technology or material, other than set forth in the Intellectual Property Agreements;

(k) enter into contracts or agreements for employment with any Person that include a liquidated damages provision or other severance arrangement; or

(l) make any material amendments to the Company’s internal policies.

7.5 Vacancies. In the event of any vacancies in the Board due to resignation, incapacity, disqualification or death of a director, the Member who had originally appointed such Manager shall have the sole authority to appoint a replacement Manager.

7.6 No Fixed Term. Subject to Applicable Law, the Managers shall not be subject to any fixed term, rotation or retirement, unless the Members desire to remove and replace their appointed Managers.

7.7 No Remuneration. The Managers shall not be remunerated for their appointment as Managers or for attending meetings of the Board. The Company may, however, reimburse Managers the reasonable costs incurred for attending Board meetings, subject to any limitations prescribed under Applicable Law.

7.8 No Liability for Appointment of Recommended Manager. No Member, nor any Affiliate of any Member, shall have any liability as a result of appointing an individual as a Manager or any act or omission by such individual in her or his capacity as a Manager.

7.9 Business Plan. Within sixty (60) days from the date hereof, the Members shall use best efforts to work with the Board in preparing a detailed business plan for the Company (the “Business Plan”). The Business Plan shall set out the objectives and projections for the Company for the next five (5) years. The Business Plan shall include, but not be limited to cash flow projections, operating budgets, sales forecast, business development, marketing and strategy plans, and start-up funding needs of the Company.

7.10 Meetings; Voting. The Board shall meet at least once every calendar quarter. Quorum for all Board meetings shall be three (3) Managers; provided, however, that no quorum shall be present, and no meeting of the Board shall be considered to be validly held until and unless at least one (1) INVO Manager and one (1) Provider Manager are present. Meetings of the Board may be held at such place or places as shall be determined from time to time by resolution of the Board. At all meetings of the Board, business shall be transacted in such order as shall from time to time be determined by resolution of the Board. All Board meetings shall be chaired by a Manager appointed by the Board. All decisions of the Board shall be taken by majority vote, subject to the following. The Managers present at the meeting, in the aggregate, will have a vote equal to the ownership percentage of the Member (and such Members’ permitted transferees) who appointed such Manager as of the date of the vote (divided equally among such Managers present at the meeting). Subject to the relevant provisions of the Act, any action permitted or required to be taken at a meeting of the Board may be taken without a meeting, without prior notice and without a vote if a consent or consents in writing setting forth the action so taken are signed by the Managers having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting.

7.11 Officers. In addition to the Board, the Members shall mutually agree and appoint the following officers (who may or may not be Managers) for the day-to-day administration and operations of the Company on such terms and conditions as may be mutually agreed; provided however that such officers shall always be subordinate to the Board and shall function under the overall supervision of the Board:

(a) a Chief Executive Officer;

(b) a Chief Financial Officer; and

(c) such other officers as may be required or considered necessary by the Members.

7.12 Books and Records; Retaining Auditors and Accountants. The Board and the Members shall ensure that the Company (i) maintains proper and transparent books of accounts as required by Applicable Law that accurately reflect the true financial position of the Company and (ii) works with INVO to ensure that Company financial statements properly meet INVO’s public company reporting requirements and timelines. The Company shall provide the Members with quarterly financial statements prepared in accordance with U.S. generally accepted accounting principles. Upon written request and provided that the Ordinary Course of Business of the company would not be unreasonably disrupted, the Board and the Members shall have access to inspect the books of account of the Company from time to time and receive periodic business and financial reports of the Company.

7.13 Compliance with Law. The Members shall ensure that the Company (i) remains in full compliance with all Applicable Laws at all times (including all data protection, data privacy and data storage laws), (ii) carries on its business to the highest medical and ethical standards as per Applicable Law and (iii) for these purposes obtains all necessary and required registrations, licenses or permits to conduct its business.

7.14 Duties of the Managers and the Members; Limitation of Liability; Certain Restrictive Covenants.

(a) Notwithstanding any other provision of this Agreement, except as expressly provided pursuant to Section 7.14(b) through Section 7.14(d), this Agreement is not intended to, and does not, create or impose on the Managers or the Members any fiduciary duty, to the Company or any other Member, in each case, other than the duty to act in good faith and exercise commercially reasonable judgment, in complying with contractual obligations applicable in this Agreement in accordance with Section 18-1101(e) of the Act. Each Member hereby covenants not to assert, to the maximum extent permitted by law, any and all rights and claims (or to collect against any such claims asserted by others) that it, she or he may otherwise have against any Manager or any other Member, as applicable, as a result of any claims of breach of fiduciary duties. The provisions of this Agreement, to the extent that they expressly restrict or modify the duties (fiduciary or otherwise) and liabilities of a Manager or a Member otherwise existing at law or in equity, are agreed by the Company and the Members to modify such other duties (fiduciary or otherwise) and liabilities of such Members and the Managers.

(b) Each Member and each Manager agrees that, for so long as such Person holds any interest (directly or indirectly) in the Company (the “Restricted Period”), such Person shall not, and shall cause its direct and indirect equity holders (excluding any of INVO Bioscience’s public shareholders), partners, managers, employees, consultants, agents and Affiliates to not, without the express written consent of the Company, directly or indirectly, engage in any activity which is competitive with the business, or participate or invest in, or provide or facilitate the provision of financing to, or assist (whether as owner, part-owner, shareholder, member, partner, director, officer, trustee, executive, agent or consultant, or in any other capacity), any Person in Georgia (the “Restricted Area”) other than the Company, including any such Person involving, or which is, a family member of such Member or Manager, whose business, activities, products or services are competitive with the Company’s business, during the Restricted Period (any such Person or business, a “Competitor”). Notwithstanding the foregoing, no Member or Manager shall be prohibited by this Section 7.14(b) from making a passive investment in any enterprise the shares of which are publicly traded if such investment constitutes less than one percent (1%) of the equity of such enterprise. Nothing in this Section 7.14(b) is intended to, nor will it restrict, Provider’s ability to exercise its rights under Article 8.

(c) Each Member (on behalf of itself and its Affiliates) and each Manager agrees that, during the applicable Restricted Period, such Person shall not, and shall cause its direct and indirect equity holders, partners, managers, employees, consultants, agents and Affiliates to not, without the express written consent of the Company, directly or indirectly, solicit, contact, or attempt to solicit or contact, the Company’s current or prospective customers and suppliers with whom such Member or Manager interacted, or from or about whom such Member or Manager received Confidential Information (the “Customers and Suppliers”), for the purpose of offering or accepting goods or services in the Restricted Area that are competitive with those offered by the Company, on behalf of any Person other than the Company or any of its Subsidiaries, or otherwise adversely and intentionally interfere with the relationship between the LLC or any of its Subsidiaries and any of their Customers and Suppliers.

(d) Each Member and each Manager acknowledges that the purpose of the restrictions contained in this Section 7.14 are to protect the Company’s legitimate business interests, relationships between the Company and its or their respective clients and customers, Confidential Information, workforce stability, and business goodwill; in view of the nature of the Company’s business, these restrictions are reasonable and necessary to protect these Company interests and in light of the Confidential Information provided or to be provided to such Member and the Managers and the additional consideration provided under this Agreement; and any violation of this Agreement would result in irreparable injury to the Company. In the event of a breach by any Member or any Manager of any provision of this 7.14, the Company shall, in addition to any other legal remedies available, be entitled to a temporary restraining order and injunctive relief restraining such applicable Member or Manager from the commission of any such breach, and, if successful, to recover the Company’s reasonable attorneys’ fees, costs, and expenses related to the breach. The existence of any claim or cause of action by any Member, any Manager or any of their respective Affiliates against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of the restrictive covenants contained in this Section 7.14 or to injunctive relief.

7.15 Tax Matters. The Company shall cause to be prepared and filed all necessary federal, state and local income tax returns for the Company and shall use all commercially reasonably efforts to furnish to each Member a Schedule K-1 within ninety (90) days of, or, if later, as soon as reasonably practicable following, the close of the Company’s taxable year. The Company shall make any elections the Board may deem appropriate and in the best interests of the Members. Each Member shall furnish to the Company all pertinent information in the Member’s possession relating to Company operations that is necessary to enable the Company’s income tax returns to be prepared and filed.

Article 8

Transfer Restrictions; RIGHT OF FIRST REFUSAL; Put Option; Drag-Along AND TAG-ALONG RightS

8.1 Restriction on Transfer. Except as otherwise specifically provided herein, no Member holding Units shall sell, exchange, transfer (by gift or otherwise), assign, distribute, pledge, create a security interest, lien or trust with respect to, or otherwise dispose of such Units owned by such Member or any interest in or option on or based on the value of such Units (any of the foregoing being referred to as a “Transfer”) without the prior written consent of each other Member. Any attempted Transfer not permitted by and in compliance with this Article 8 shall be null and void, and the Company shall not recognize the attempted purchaser, assignee, or transferee for any purpose whatsoever, nor record any such event on its books or treat any such transferee as the owner of such Units for any purpose, and the Member attempting such Transfer shall have breached this Agreement for which the Company and shall have all remedies available for breach of contract. The admission of a substitute Member shall not result in the release of the Member who assigned the Unit from any liability that such Member may have to the Company. Any Transfer permitted by this Agreement shall be termed a “Permitted Transfer” and the transferee of any Permitted Transfer shall be termed a “Permitted Transferee.”

8.2 Effective Date and Requirements of Transfer.

(i) Any valid Transfer of a Member’s Units, or part thereof, pursuant to the provisions of this Agreement, shall be effective as of the close of business on the day in which such Transfer occurs (including fulfillment of all conditions and requirements with respect thereto). The Company shall, from the effective date of such Transfer, thereafter make all further distributions, on account of the Units (or part thereof) so assigned to the Permitted Transferee of such interest, or part thereof.

(ii) Every Transfer permitted hereunder shall be subject to the following requirements (in addition to any other requirements contained in this Agreement):

A. If not already a Member, the transferee shall execute a counterpart to this Agreement thereby agreeing to be bound by all the terms and conditions of this Agreement;

B. The transferee shall establish that the proposed Transfer will not cause or result in a breach of any agreement binding upon the Company or any violation of Applicable Law, including without limitation, federal or state securities laws, and that the proposed Transfer would not cause or require (A) the Company to be an investment company as defined in the Investment Company Act of 1940, as amended or (B) the registration of the Company’s securities under federal securities laws; and

C. The transferee shall establish to the satisfaction of the Board that the proposed Transfer would not adversely affect the classification of the Company as a partnership for federal or state tax purposes or otherwise have a substantial adverse effect with respect to federal income taxes payable by the Company.

(iii) If any Member who proposes to Transfer any Units (or if such Member is a disregarded entity for U.S. federal income tax purposes, the Member’s owner) is not a “United States person” as defined in Section 7701(a)(30) of the Code, then such transferor and transferee shall jointly provide to the Company written proof reasonably satisfactory to the Board that any applicable withholding tax that may be imposed on such transfer (including pursuant to Sections 864 and 1446 of the Code) and any related tax returns or forms that are required to be filed, have been, or will be, timely paid and filed, as applicable.

8.3 Duty of Provider. For any transaction contemplated by this Article 8, for at least one hundred eighty days (180) days following the Members’ consent to a Permitted Transfer, delivery of a Transfer Notice, the date the Put Notice is received by INVO, or the election of commencement of a Sale of the Company pursuant to the terms hereof, Provider shall ensure that Dr. Carpenter uses commercially reasonable efforts to perform any services reasonably requested by INVO that are necessary or appropriate to transition the provision of clinical management and operations for the INVO Clinic, and to provide and/or assist with the provision of any training reasonably required to any other licensed providers designated by INVO. Any failure to comply with the terms of this Section 8.3 will constitute a material breach of this Agreement.

8.4 Put Rights.

(i) Provider Put Option

A. If (1) at any time during the period commencing on the second (2^nd) anniversary of the Effective Date and ending on the sixth (6^th) anniversary of the Effective Date (the “Initial Exercise Period”), the Company’s revenues deviate from those projected in the Business Plan for a given calendar year by more than fifty percent (50%), or (2) at any time following the sixth (6^th) anniversary of the Effective Date (the “Extended Exercise Period” and, together with the Initial Exercise Period, the “Exercise Period”), Provider shall have an irrevocable option (the “Put Option”), exercisable in whole but not in part, to sell all but not less than all, of the Provider Units to INVO for the Purchase Price (as defined in Section 8.4(iii)) and on the terms set forth in this Section 8.4 (the “Put Transaction”). Provider shall only be permitted to exercise its Put Option one time during the Initial Exercise Period, and shall be permitted to exercise the Put Option only once in any subsequent three (3) year period during the Extended Exercise Period.

B. During the Exercise Period, Provider may exercise the Put Option by delivering an irrevocable written notice to INVO (the “Put Notice”), stating that (A) Provider is exercising the Put Option and (B) when the purchase and sale of the Provider Units is anticipated to occur in accordance herewith, such date being subject to adjustment as agreed to in writing by Provider and INVO.

C. In the event Provider exercises the Put Option, and in consideration of the sale by Provider to INVO of the Provider Units to INVO, INVO shall pay to Provider an aggregate cash purchase price for the Provider Units equal to the Purchase Price.

D. Notwithstanding anything to the contrary contained herein, so long as in compliance with Applicable Law, INVO shall have the right during the Exercise Period, in its sole discretion, to assign all or any portion of its rights and obligations with respect to the Put Option to any third-party designee or designees. Notwithstanding the foregoing, INVO shall remain liable for the failure by a third-party designee to consummate the Put Transaction and to pay its portion of the Purchase Price. Any reference to INVO pertaining to a Put Transaction in this Section 8.4 (other than any reference to INVO’s guarantee of its assignees’ performances with respect thereto) shall be deemed to refer to INVO (if it holds an unassigned interest in the Call Option) and its assignees of any portion of its rights and obligations with respect to the Put Option under this Section 8.4, acting jointly.

(ii) Put Option Procedures.

A. The closing of a Put Transaction (the “Closing”) shall take place on a mutually agreed date upon the electronic exchange of PDF signature pages promptly after the Purchase Price is finally determined in accordance with this Section 8.4, but in any event not later than the later of (i) thirty (30) days following such final determination and (ii) one hundred and twenty (120) days from delivery of the Put Notice or Call Notice, as the case may be (which period may be extended upon the written consent of INVO and Provider.)

B. At the Closing, (A) Provider, INVO and any assignees of INVO shall execute and deliver a customary secondary purchase agreement for the sale and purchase of the Provider Units (the “Purchase Agreement”), together with all other agreements and documents required to be delivered at such Closing pursuant to the Purchase Agreement, (B) Provider shall sell and transfer to INVO and/or any assignees all of its respective right, title and interest in and to all of the Provider Units, and INVO and/or any assignees shall purchase all of such Provider Units, free and clear of any liens or encumbrances (other than those provided for or permitted in this Agreement or arising under Applicable Law or under any indebtedness agreement of the Company), at an aggregate cash purchase price equal to the Purchase Price, (C) Provider shall deliver to INVO and/or any assignees the certificates (if any) representing all of the Provider Units accompanied by duly executed transfer powers, and (D) INVO and/or any assignees shall deliver all amounts owed to Provider at the Closing by wire transfer of immediately available funds to an account designated in writing by Provider, as determined pursuant to this Section 8.4 and the Purchase Agreement.

C. Notwithstanding anything to the contrary set forth in this Agreement, unless otherwise waived in writing, the obligations of INVO and Provider to consummate the Put Transaction shall be subject to and conditioned upon (A) the receipt of all material, required approvals from, and the delivery of all material, required notices to, any Governmental Authority, and (B) the receipt of all material, required approvals from, and the delivery of all material, required notices to, any Person with respect to whom the Company has a contractual obligation receive approval or deliver notice in connection with the consummation of such transaction. INVO and Provider shall use commercially reasonable efforts (and shall cause the Company to use its commercially reasonable efforts) to promptly obtain and provide any such approvals and provide any required notices, as promptly as reasonably practicable after exercise of the Put Option.

(iii) Determination of Purchase Price.

A. Upon receipt of the Put Notice, INVO and Provider jointly will engage an independent third party experienced in the provision of fair market valuations (the “Independent Valuator”) to determine the fair market value of the Provider Units to be sold subject to the Put Transaction (the “Purchase Agreement”), or, if they cannot so mutually agree, they shall each promptly (and in any event within five (5) days) select an Independent Valuator, and the two Independent Valuators so selected shall select the Independent Valuator to perform the valuations; provided, however, that if one party fails to so select such firm, then the firm selected by the other party shall be the Independent Valuator). INVO and Provider shall jointly retain and instruct the Independent Valuator to prepare and deliver a written report to INVO and Provider promptly, but in any event within twenty (20) days, setting forth the Independent Valuator’s calculation of the fair market value of the Provider Units as of the date the Put Notice is given, and the resulting amount of the Purchase Price. INVO and Provider shall, and shall cause their respective representatives to, cooperate with the Independent Valuator. The Independent Valuator’s determinations shall be based solely on the submissions by INVO and Provider (and not by independent review of the financial information and operations of the Company), this Agreement, and the applicable defined terms set forth in this Agreement. The Independent Valuator’s determination of such amount will be final, conclusive and binding upon all parties hereto and not subject to review by a court or other tribunal but upon which a judgment may be entered into by a court of competent jurisdiction.

B. The costs, expenses and fees of the Independent Valuator shall be allocated to and borne by the Company.

C. The foregoing procedures in this Section 8.4(iii) shall be used for all purposes relating to the determination and payment of the Purchase Price pursuant to this Agreement and the Purchase Agreement.

(iv) Failure to Consummate a Put Transaction.

In the event that the Put Option is exercised by Provider and, other than as a result of Provider’s actions or inactions, the Put Transaction is not consummated within the time period for the applicable Closing in accordance with Section 8.4(ii)A (a “Put Non-Sale Event”), then Provider shall have the right, but not the obligation, to (1) sell its Units to a third party transferee in exchange for a purchase price no less than the fair market value of its Units, as determined by an Independent Valuator pursuant to the procedure set forth in Section 8.4(iii) but without further approval or consent of INVO, or (2) commence a Sale of the Company pursuant to Section 8.5. If Provider elects to transfer its units to a third party transferee, then Provider must deliver a notice of the proposed transfer (“Transfer Notice”) to Company and INVO not later than forty-five (45) days prior to the consummation of such proposed transaction, which will include a description of its material terms and conditions (including price and form of consideration) and the identity of the Proposed Transferee. Such transfer must be completed within ninety (90) days of delivery of the Transfer Notice.

(v) Termination; Surviving Obligations. The rights and obligations of INVO and Provider under this Section 8.4 shall automatically terminate upon the consummation of the Closing or a Change of Control.

8.5 Sale of the Company; Drag-Along and Tag-Along Rights.

(i) Definitions. A “Sale of the Company” means a transaction or series of related transactions in which a Person, or a group of related Persons, that is or are not Affiliates of the Company, acquires from the Members an amount of Units representing more than fifty percent (50%) of the outstanding voting power of the Company (a “Unit Sale”).

(ii) Actions to be Taken. In the event that Provider is permitted to engage in a Sale of the Company pursuant to Section 8.4(iii) hereof, each Member hereby agrees:

A. if such transaction requires Member approval, with respect to all Units that such Member owns or over which such Member otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Units in favor of, and adopt, such Sale of the Company (together with any related amendment to this Agreement required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;

B. if such transaction is a Unit Sale, to sell the same proportion of Units beneficially held by INVO as are being sold by Provider to the Person to whom it proposes to sell its Units, and, except as permitted in Section 8.5(iii) on the same terms and conditions as Provider;

C. to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Provider in order to carry out the terms and provisions of this Section 8.5(ii), including, without limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, Governmental Authority filing, and any other similar or related documents necessary to consummate such Sale of the Company;

D. not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Units owned by such party or Affiliate in a voting trust or subject any Units to any arrangement or agreement with respect to the voting of such Units, unless specifically requested to do so by the acquirer in connection with the Sale of the Company;

E. to refrain from exercising any dissenters’ rights or rights of appraisal under Applicable Law at any time with respect to such Sale of the Company; and

F. if the consideration to be paid in exchange for the Units pursuant to this Section 8.5 includes any securities and due receipt thereof by any Member would require under Applicable Law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Member of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Member in lieu thereof, against surrender of the Units which would have otherwise been sold by such Member, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Member would otherwise receive as of the date of the issuance of such securities in exchange for the Units.

(iii) Exceptions. Notwithstanding the foregoing, a Member will not be required to comply with the terms of Section 8.5(ii) above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless:

A. any representations and warranties to be made by such Member in connection with the Proposed Sale are limited to reasonable and customary representations and warranties for a company of similar size and type of business, including those related to (x) the Member’s related to authority, ownership and the ability to convey title to such Units, including but not limited to representations and warranties that (A) the Member holds all right, title and interest in and to the Units such Member purports to hold, free and clear of all liens and encumbrances, (B) the obligations of the Member in connection with the Proposed Sale have been duly authorized, if applicable, (C) the documents to be entered into by the Member have been duly executed by the Member and delivered to the acquirer and are enforceable against the Member in accordance with their respective terms and (D) neither the execution and delivery of documents to be entered into in connection with the Proposed Sale, nor the performance of the Member’s obligations thereunder, will cause a breach or violation of the terms of any agreement or Applicable Law, and (y) the Company’s provision of management services to Provider;

B. the Member shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than for the inaccuracy of any representation or warranty made by the Company in connection with the Proposed Sale (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Member of any of identical representations, warranties and covenants provided by all Members);

C. the liability for indemnification, if any, of such Member in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company), and is pro rata in proportion to the amount of consideration paid to such Member in connection with such Proposed Sale (in accordance with the provisions of this Agreement related to the allocation of the escrow);

D. the liability for indemnification shall be limited to such Member’s pro rata share (determined based on the respective proceeds payable to each Member in connection with such Proposed Sale in accordance with the provisions of this Agreement) of a negotiated aggregate indemnification amount that applies equally to all Members but that in no event exceeds the amount of consideration actually paid to such Member in connection with such Proposed Sale, except with respect to claims of fraud by such Member, the liability for which need not be limited as to such Member;

E. upon the consummation of the Proposed Sale: (A) except as provided in Section 8.5(ii)F, each holder of each class or series of Units will receive the same form of consideration for their Units of such class or series as is received by other holders in respect of their Units of such same class or series of Units; and (B) the aggregate consideration receivable by all holders of Units shall be allocated among the Members in accordance with this Agreement as if such consideration were distributed to the Members pursuant thereto; and

F. except as provided in Section 8.5(ii)F, subject to clause (v) above, requiring the same form of consideration to be available to the holders of any single class or series of Units, if any holders of any Units are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such Units will be given the same option.

Article 9

LIABILITY; Tax Matters Partner

9.1 Liability. Except as otherwise provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Covered Person shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Covered Person.

9.2 Tax Matters Partner. The Board shall designate a Member to act as “Partnership Representative” of the Company for purposes of the Partnership Audit Rules shall have the power and authority, subject to the review and control of the Board, to manage and control, on behalf of the Company, any administrative proceeding involving the Company with the Internal Revenue Service or other taxing authority relating to the determination of any item of Company income, gain, loss, deduction or credit for federal income tax purposes. Each Member expressly agrees to consents to such designation and agrees that, upon the reasonable request of the Partnership Representative, it will execute, acknowledge, deliver, file and record at the appropriate public offices such documents as may be necessary or appropriate to effect such consent. Notwithstanding anything in this Agreement to the contrary, each Member shall be liable for and, promptly upon demand by the Partnership Representative, pay to the Company such Member’s share of any imputed underpayment, as determined by the Partnership Representative, and any interest and penalties relating thereto imposed on the Company as a result of any partnership adjustment or other proceeding with substantially similar effect under Partnership Audit Rules. The liability and obligation of a Member under this Section 9.2 shall survive any sale, exchange, liquidation, retirement or other disposition of such Member’s interest in the Company.

Article 10

DISSOLUTION, LIQUIDATION AND TERMINATION

10.1 No Dissolution. Only the written agreement of each Member or the events set forth in Section 10.2 shall cause the termination of this Agreement or dissolution of the Company. The Company shall not be dissolved by the admission of additional or substitute Members in accordance with the terms of this Agreement.

10.2 Events Causing Dissolution. This Agreement may be terminated and the Company shall be dissolved at the option of any Member upon occurrence of any of the following (each, an “Event of Default”):

(a) the determination by all of the Members that the Company should be dissolved.

(b) the sale or distribution by the Company of all or substantially all of its assets;

(c) any Member materially defaults in the performance of any of the covenants, terms or conditions of this Agreement or any Ancillary Agreement, and fails to cure such default to the reasonable satisfaction of the other Members (in the case of this Agreement) or any Members or Affiliates of Members that are party to any Ancillary Agreement (in the case of any Ancillary Agreement) within thirty (30) days after receipt of notice in writing from the Company or any other Member of such default;

(d) any Member suffers or permits the appointment of a receiver for its business or assets, or avails itself of or become subject to any bankruptcy or insolvency proceeding under any statute of any governing authority relating to insolvency or the protection of rights of creditors;

(e) the occurrence and continuation of any Force Majeure for a period of six (6) months; or

(f) the entry of a decree of judicial dissolution or the administrative dissolution of the Company as provided in the Act.

Any other provision of this Agreement to the contrary notwithstanding, no withdrawal, assignment, removal, bankruptcy except as required by Applicable Law, insolvency except as required by Applicable Law, death, incompetency, termination, dissolution or distribution with respect to any Member or any Unit will effect a dissolution of the Company.

10.3 Effect of Termination. Upon the termination of this Agreement for any reason:

(a) any Ancillary Agreement or other agreement, license, approval or consent granted to the Company by INVO and/or entered into by the Parties shall automatically be terminated (except for such terms which shall survive the termination of this Agreement or dissolution of the Company pursuant to such agreement);

(b) each Member and the Company shall promptly return to the owner and (if also applicable) erase or destroy all Confidential Information, including all copies, notes, drawings, photocopies, written, audio or photographic records or other records in any form, relating to the Confidential Information in their possession or control; provided that a party may retain Confidential Information solely to the extent required under Applicable Law; and

(c) the Company shall be dissolved in accordance with the Act after all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company, have been distributed as provided in Section 5.6.

10.4 Claims of the Members. The Members and former Members shall look solely to the Company’s assets for the return of their Contributions, and if the assets of the Company remaining after payment of or due provision for all debts, liabilities and obligations of the Company are insufficient to return such Contributions, the Members and former Members shall have no recourse against the Company or any other Member with respect to such Contributions.

Article 11

CONFIDENTIALITY

11.1 Company Confidential Information. The Members covenant, warrant and undertake to keep and to cause the Company to keep all Confidential Information confidential and not use, disclose, divulge, make known, publish, communicate, reproduce or transmit in any manner, any Confidential Information, in whole or in part; directly or indirectly, during the term of or at any time forever after termination of this Agreement, either for their own benefit or for the benefit of others. The Members shall cause their Affiliates and each of their Affiliates’ and the Company’s officers, managers, employees, agents, contractors, sub-contractors, consultants, or any persons acting of any of their behalf, to keep all Confidential Information confidential and not use, disclose, divulge, make known, publish, communicate, reproduce or transmit in any manner any Confidential Information, in whole or in part, directly or indirectly, during the term of or at any time forever after termination of this Agreement, either for their own benefit or for the benefit of others.

11.2 Member Confidential Information. Each of the Members undertakes to keep confidential all information (written or oral) concerning the business and affairs of any other Member that it shall have obtained or received as a result of the discussions leading up to or the entering into of this Agreement or in the course of giving effect to this Agreement.

11.3 Exceptions. The obligations for confidentiality set forth above shall not apply if the Confidential Information:

(a) is publicly known or present in the public domain through no fault, failure, wrongful act or negligence of the receiving party, its Affiliates or any of their respective officers, managers, employees, agents, contractors, sub-contractors, consultants, partners, or any persons acting on any of their behalf;

(b) is required to be disclosed pursuant to a valid order or direction of a proper court of competent jurisdiction or a government authority; provided, however, that the receiving party will use its best efforts to minimize the disclosure of such information and prior to disclosing the Confidential Information will notify the owner of the Confidential Information and will consult with and assist the owner of such Confidential Information in obtaining a protective order prior to such disclosure; or

(c) is required to be disclosed to a Member’s professional advisors (including a Member’s lawyers, auditors, accountants and consultants); provided such advisor is bound in writing by confidentiality obligations no less restrictive than those applicable to a Member, as set forth herein.

11.4 Irreparable Harm; Equitable Relief; Survival. The receiving party of any Confidential Information acknowledges and agrees that its failure to comply with any of the provisions of this Article 11 may cause irrevocable harm to the disclosing Member and that a remedy at law may not be an adequate remedy and that the disclosing Member may, in its sole discretion, obtain from a court having proper jurisdiction an injunction, restraining order, specific performance or other equitable relief to enforce such provision. The disclosing Member’s right to obtain such equitable relief will be in addition to any other remedy that it may have under Applicable Law including, but not limited to, monetary damages. The provisions of this Article 11 and obligations of any receiving party shall survive the termination of this Agreement and dissolution of the Company.

Article 12

Intellectual Property

12.1 Duties of the Company and the Members.

(a) The Company and Provider shall promptly and fully notify INVO of any actual, threatened or suspected infringement of Intellectual Property which comes to such party’s notice, and of any claim by any third party coming to such party’s notice that the use of the INVO Technologies contemplated hereunder infringes any rights of any other person, and INVO shall at the request of the Company, do all things as may be reasonably required to assist the Company in undertaking or resisting any proceedings in relation to any such infringement or claim.

(b) The Company and Provider shall take all such steps as INVO may reasonably request to assist INVO in maintaining the validity and enforceability of the Intellectual Property during the term of this Agreement.

12.2 No Rights in Intellectual Property. Nothing in this Agreement shall give Provider or the Company any rights in respect of any Intellectual Property (whether registered or not) used by the Company in relation to the INVO Technologies or of the goodwill associated therewith, and each of Provider and the Company hereby acknowledge that, except as expressly provided in this Agreement, Provider and the Company shall not acquire any rights in respect thereof and that all such rights and goodwill are and shall remain vested in INVO as the case may be.

12.3 Use of Intellectual Property by Provider.

(a) Provider shall not, and shall cause each of its Affiliates to not, register any Intellectual Property, including trademarks or trade names so resembling the trademarks or trade names of INVO or so as to be likely to cause confusion or deception during the duration of this Agreement and thereafter.

(b) Provider shall not, and shall cause each of its Affiliates to not, authorize any third party to do any act which would or might invalidate or be inconsistent with the Intellectual Property and shall not omit or authorize any third party to omit to do any act, which by its omission would have that effect or character.

(c) Provider shall not, and shall cause each of its Affiliates to not, during the term of this Agreement and for the five (5) year period thereafter (whether as shareholder or as reseller, dealer, marketing affiliate, distributor, partner, consultant of any entity or pursuant to any other similar relationship with any other entity), be engaged in the business of providing or reselling any goods using or resembling any of the Intellectual Property related to INVO Technologies or any part thereof; provided, however, that each Physician Employee shall be free to provide fertility treatment independently from the INVO Clinic and the Provider subject to and upon her or his Physician Employment Agreement either (i) expiring or (ii) being terminated without cause by the Company.

12.4 Use of Trademarks by the Company. All representations of INVO’s trademarks which the Company intends to use shall first be submitted to INVO for approval (which shall not be unreasonably withheld). In addition, the Company shall not alter or remove any of INVO’s trademarks affixed to any brochure or other material supplied by INVO and shall comply with all other guidelines communicated by INVO concerning the use of INVO’s trademarks.

Article 13

DISPUTE RESOLUTION

13.1 Dispute Resolution. Each of (i) disputes between the Members as to the appropriate construction, enforcement and interpretation of the provisions of the Agreement and (ii) any Board Deadlock shall be resolved in accordance with this Section 13.1. Notwithstanding the foregoing, a deadlock among the Members shall not, in and of itself, constitute a dispute subject to resolution under this Section 13.1, unless the deadlock stems from a dispute regarding the interpretation of the terms or conditions of this Agreement.

(a) If the dispute resolution process is invoked, representatives of each of INVO and Provider will meet informally within seven (7) days after receipt of notice from the Member invoking the dispute resolution process, or, in the case of a Board Deadlock, any Manager, to discuss the areas of disagreement and to negotiate in good faith regarding possible solutions.

(b) If the informal discussions do not result in a resolution of the dispute then, INVO and Provider will name a neutral mediator. If such parties are unable to agree on a single mediator within fourteen (14) days after receipt of notice invoking the dispute resolution process, the mediator will be selected in accordance with the alternative dispute resolution process established by the American Health Lawyers Association. The mediator will have no authority to impose a resolution, but will work with the disputants to reach a mutually acceptable solution. All parties involved in the dispute will give the mediator their full cooperation and will participate in good faith in all sessions convened by the mediator. The costs of engaging such mediator shall be borne by the Company, or, if the Company has insufficient assets, equally by the Members.

(c) Any dispute under that is not resolved by the informal meeting or mediation procedures set forth above shall be submitted to binding arbitration in accordance with the procedures outlined in Section 13.2 below.

13.2 Arbitration. In the event a dispute is to be submitted to binding arbitration pursuant to Section 13.1(c), the below procedures shall govern:

(a) INVO shall appoint one (1) arbitrator, Provider shall appoint one (1) arbitrator, and the selected arbitrators shall jointly appoint a third arbitrator (the “Independent Arbitrator”). The arbitrator appointed by a Member may be a Person who has provided services (other than as an employee) to such Member. To the extent the arbitrators have any procedural issues in conducting the arbitration, they shall defer to and rely upon the American Health Lawyers Dispute Resolution Process.

(b) The arbitrators shall meet and the Members shall use commercially reasonable efforts to cause the arbitrators to provide a written resolution of the disputed matter within thirty (30) days of their appointment in which at least two (2) of the arbitrators concur or to notify the parties that no such concurrence has been reached. Such thirty (30) day period may be extended by agreement of the disputing Members. The resolution of the arbitrators shall be binding upon the Members and the Board of Managers, absent manifest error, and if no such resolution can be reached, each such party shall be entitled to pursue all remedies available to it at law or in equity with respect to the dispute.

(c) The Members may agree in writing to conduct the arbitration exclusively by the Independent Arbitrator.

(d) At all times during the arbitration process, the Members agree to use reasonable efforts to continue to operate the Company in the Ordinary Course of Business.

(e) All costs and reasonable legal fees shall be awarded to the prevailing party in any arbitration or legal proceeding related to this Agreement.

(f) The Members shall keep the arbitration proceedings and terms of any arbitration award confidential, except as may be necessary to enforce the award.

Article 14

MISCELLANEOUS

14.1 Governing Law. This Agreement (including any claim or controversy arising out of or relating to this Agreement) shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflict of law principles that would result in the application of any law other than the laws of the State of Delaware.

14.2 Submission to Jurisdiction; Waiver. Each party irrevocably agrees that any legal action or proceeding arising out of or relating to this Agreement or for recognition and enforcement of any judgment in respect hereof brought by another party hereto or its successors or assigns shall be brought and determined in the state or federal courts of the State of Delaware, as well as to the jurisdiction of all courts to which an appeal may be taken from such courts, and each party hereby irrevocably submits with regard to any action or proceeding for itself and in respect to its property, generally and unconditionally, to the exclusive jurisdiction of the aforesaid courts. Each party hereto hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement, (a) any claim that it is not personally subject to the jurisdiction of the above-named courts for any reason other than the failure to lawfully serve process, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and (c) to the fullest extent permitted by Applicable Law, that (i) the suit, action or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper and (iii) this Agreement or the subject matter hereof, may not be enforced in or by such courts.

14.3 Exclusivity. The Company agrees that it will operate the INVO Clinic as a dedicated INVO Technologies fertility clinic, and that INVO shall be the exclusive supplier of such INVO Technologies (including any subsequent new product generations).

14.4 Fees and Expenses. Each party hereto shall bear its own legal and other fees and expenses in connection with the purchase of Units and the preparation and entering into of this Agreement and the Ancillary Agreements.

14.5 Binding Effect. This Agreement shall be binding upon and inure to the benefit of all of the parties and, to the extent permitted by this Agreement, their successors, legal representatives and assigns.

14.6 Notices. All demands, notices, requests, consents and other communications required or permitted under this Agreement shall be in writing and shall be personally delivered or sent by electronic mail or facsimile machine (with a confirmation copy sent by one of the other methods authorized in this Section 14.6), generally recognized receipted overnight courier (including FedEx) or U.S. Postal Service overnight delivery service, or, deposited with the U.S. Postal Service mailed first class, registered or certified mail, postage prepaid, to the addresses set forth on Exhibit B for any Member. Any change in such addresses shall be promptly communicated in writing by each party hereto to each other party hereto.

14.7 Severability. If any part, term or provision of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected, if such part, term or provision is severable from the rest of this Agreement, without altering the essence of this Agreement. If such part, term or provision is not so severable, then the parties hereto shall negotiate in good faith in order to agree to the terms of a mutually satisfactory replacement provision, achieving as nearly as possible the same commercial effect of the provision so found to be invalid, illegal or unenforceable.

14.8 Counterparts; Facsimile Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other Applicable Law) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

14.9 Entire Agreement. This Agreement constitutes the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, written or oral, relating to such subject matter.

14.10 Amendments. Except as otherwise specified herein, this Agreement may be amended or and the observance of any term hereof may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a written instrument executed by the holders of a majority of the outstanding Units

14.11 Acknowledgments and Representations. Each Member hereby acknowledges and makes such representations and warranties related to Company securities as are set forth on Exhibit D attached hereto.

[Signature page follows.]

IN WITNESS WHEREOF, this Limited Liability Company Agreement has been duly executed and delivered by the parties as of the date first written above.

Exhibit A

Definitions

“Act” means the Delaware Limited Liability Company Act, as amended.

“Adjusted Capital Account Deficit” means, with respect to the Capital Account of any Member as of the end of any Fiscal Period, the amount by which the balance in such Capital Account is less than $0.00, after giving effect to the following adjustments:

(a) Each Member’s Capital Account shall be increased by the amount, if any, such Member is obligated to contribute or is treated as being obligated to contribute to the Company pursuant to Treasury Regulation Section 1.704-1(b)(2)(ii)(c) or Treasury Regulation Sections 1.704-2(g)(1) and 1.704-2(i); and

(b) Each Member’s Capital Account shall be decreased by the amount of any of the items described in Treasury Regulation Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6).

“Affiliate” means with respect to any specified Person, any other Person that directly or indirectly controls, is under common control with, or is controlled by, such specified Person and shall include without limitation any current or former limited partner, general partner, managing member, manager, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management with, such Person. As used in this definition, “control,” including, its correlative meanings, “controlled by” and “under common control with,” shall mean possession of power to direct or cause the direction of management or policies (whether through ownership of voting securities or partnership or other ownership interests, by contract or otherwise).

“Ancillary Agreements” means the Joint Venture Agreement and each of the attached agreements and transactions contemplated thereby.

“Applicable Law” means and include all applicable statutes, enactments or acts of any legislative body or government authority of which the Company is subject to, including all laws, ordinances, rules, bye-laws, regulations, notifications, guidelines, policies, directions and orders of such legislative bodies of government authorities, and any amendments, modifications or enactments thereof.

“Available Weekly Unit Vesting Amount” shall have the meaning set forth in Section 4.3(b).

“Board Deadlock” means the Board is unable, after commercially reasonable efforts in good faith and at least two (2) duly held meetings of the Board, to approve or disapprove any proposed action requiring approval of the Board under this Agreement that, as a result of the deadlock with respect to such proposed action, has had or could reasonably be expected to have a material and adverse effect on the (i) the achievement of the purposes of the Company, (ii) financial performance of the Company, (iii) operations of the Company, or (iv) quality of services rendered by the Company.

“Capital Account” means, with respect to any Member, the account maintained for such Member in accordance with the provisions of Section 4.5.

“Capital Contribution” means, with respect to any Member, the aggregate amount of money and the initial Gross Asset Value of any property (other than money) contributed to the Company pursuant to Article 4.

“Capital Securities” means as to any Person that is a corporation, the authorized shares of such Person’s capital securities, including all classes of common, preferred, voting and nonvoting capital securities, and, as to any Person that is not a corporation or an individual, the ownership or membership interests in such Person, including, without limitation, the right to share in profits and losses, the right to receive distributions of cash and property, and the right to receive allocations of items of income, gain, loss, deduction and credit and similar items from such Person, whether or not such interests include voting or similar rights entitling the holder thereof to exercise control over such Person.

“Certificate of Formation” means the Certificate of Formation of the Company as originally filed with the Delaware Secretary of State on March 10, 2020, and as amended from time to time.

“Change of Control” shall mean (i) a merger or consolidation with a Person or Persons that are not directly or indirectly Affiliates of the Company and in which the Company is a constituent party, except any such merger or consolidation in which the equity ownership interests of the Company outstanding immediately prior to such merger or consolidation continue to represent, or are converted into or exchanged for shares of equity securities that represent, immediately following such merger or consolidation, at least a majority, by voting power, of the equity ownership of the surviving or resulting entity (or the ultimate parent entity of such surviving or resulting entity), or (ii) the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, by the Company of all or substantially all the assets of the Company to Persons that are not directly or indirectly Affiliates of the Company.

“Code” means the U.S. Internal Revenue Code of 1986, as amended.

“Confidential Information” means, without limitation, this Agreement, the Ancillary Agreements, Intellectual Property, any proprietary information, software programs, plans, processes, policies, drawings, specifications, system and user documentation, correspondences, prototypes, trade secrets, know how, design, invention, techniques, business methods, personal or sensitive data of employees, agents, consultants, officers, directors, managers, customers or prospective customers or any other person which might reasonably be presumed to be confidential in nature, financial information, technical information, sales and marketing plans or other business plans; whether recorded, written, stored or transmitted in any form or medium by one disclosing party to a receiving party.

“Covered Person” means (a) each Member and each officer, partner, director, stockholder, member, partner, representative or agent of such Member, (b) the Tax Matters Partner, (c) any officer or employee of the Company, (d) any agent of the Company that the Board has elected, in its discretion, to designate as a Covered Person, or (e) each Person who is or was serving at the request of the Company as a director, manager, officer, member, partner, trustee, employee or other agent of another Person, including of any Subsidiary of the Company.

“Fiscal Period” means a calendar year or any portion thereof for which the Company is required to make allocations or distributions pursuant to Article 5.

“Fiscal Year” means a calendar year.

“Force Majeure” means the occurrence of any event (a) not within the reasonable control of a party, (b) which could not have been reasonably avoided by the party and (c) which materially interferes with the ability of a party to perform its obligations under this Agreement, including without limitation, any natural calamities, acts of God, war, pandemic, civil unrest, labor shortages or disputes, terrorist events or changes in Applicable Law.

“FTE” shall have the meaning set forth in Section 4.3(a)(ii).

“Governmental Authority” means any foreign or domestic, federal, state or local governmental, regulatory or administrative entity, authority, commission, department, body, unit, tribunal, court or agency, including any political subdivision thereof.

“Gross Asset Value” means, with respect to any asset, such asset’s adjusted basis for federal income tax purposes, except as follows:

(a) the initial Gross Asset Value of any asset contributed by a Member to the Company shall be the gross fair market value of such asset, as agreed to by the contributing Member and the Board;

(b) the Gross Asset Value of all Company assets shall be adjusted to equal their respective gross fair market values, as determined by the Board, as of the following times: (i) the acquisition of an additional interest in the Company by any new or existing Member in exchange for more than a de minimis Capital Contribution; (ii) the distribution by the Company to a Member of more than a de minimis amount of Company assets as consideration for an interest in the Company; and (iii) the liquidation of the Company within the meaning of Treasury Regulation Section 1.704-l(b)(2)(ii)(g) other than a constructive termination of the Company pursuant to Section 708(b)(1)(B) of the Code; provided, however, that adjustments pursuant to clauses (i) and (ii) of this sentence shall be made only if the Board reasonably determines such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company.

(c) the Gross Asset Value of any Company asset distributed to any Member shall be adjusted to equal the gross fair market value of such asset on the date of distribution, as determined by the Member receiving such distribution and the Board.

“Hurdle Amount” means, with respect to the Provider, initially the amount which is equal to the amount that would be received by all Members if, immediately after the Units are issued to the Provider Member, the Company sold all of its assets for cash equal to their fair market value, paid all of its liabilities (limited in the case of a nonrecourse liability to the fair market value of Company assets securing such liability) and liquidated, with the Company distributing any remaining cash to the Members in accordance with Section 5.6. The Hurdle Amount with respect to the Provider shall be reduced (but not below zero) by the amount of any distributions to INVO and increased by any additional Capital Contributions made by INVO, in each case, after the issuance of Units to the Provider. The Hurdle Amount is intended to cause the Provider’s Units to qualify as “profits interests” within the meaning of Revenue Procedures 93-27 and 2001-43, and shall be interpreted and applied consistently therewith. The Hurdle Amount with respect to each Provider Unit may be adjusted by the Board to the extent the Board determine in good faith such adjustment is necessary for such Provider Units to constitute a “profits interests” within the meaning of Revenue Procedures 93-27 and 2001-43 or to reflect or preserve the relative economic interests of the parties as intended hereunder.

“Intellectual Property” means, without limitation, registered and unregistered trademarks, registered and unregistered service marks, trade names, business names, trade dress, get-ups, logos, patents, registered and unregistered design rights, copyrights, database rights, domain names and URLs, and all other similar rights in any part of the world (including in know-how) including, where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations in and to the INVO Technologies, of INVO Bioscience and INVO.

“Intellectual Property Agreements” means those certain (i) Intellectual Property License Agreement, dated as of the Effective Date, between Bloom INVO LLC, a Delaware limited liability company and INVO Bioscience, Inc., (ii) Intellectual Property License Agreement, dated as of the Effective Date, between Bloom Fertility, LLC, a Georgia limited liability company and Bloom INVO LLC, a Delaware limited liability company, and (iii) Intellectual Property License Agreement, dated as of the Effective Date, between INVO Bioscience, Inc., a Nevada corporation, and Bio X Cell, Inc., a Massachusetts corporation and Bloom INVO LLC, a Delaware limited liability company.

“INVO Contribution” shall have the meaning set forth in Section 4.2.

“Liquidation” means any voluntary or involuntary liquidation, dissolution or winding up of the Company, other than any dissolution, liquidation or winding up in connection with a reincorporation of the Company in another jurisdiction.

“Member” means each of the Persons who executes a counterpart of this Agreement as a Member, and includes any Person admitted as an additional Member or a substitute Member pursuant to the provisions of this Agreement, in such Person’s capacity as a member of the Company.

“Membership Rights” means all legal and beneficial ownership interests in, and rights and duties as a Member of, the Company, including, without limitation, the right to share in Profits and Losses, the right to receive distributions of cash and other property from the Company, and the right to receive allocations of items of income, gain, loss, deduction and credit and similar items from the Company.

“Minimum Provider Commitment” shall have the meaning set forth in Section 4.3(b).

“Ordinary Course of Business” means (a) actions taken in the Ordinary Course of Business of a Person consistent with past custom and practice (including with respect to quantity, quality and frequency) of such Person; (b) actions taken that are similar in nature to actions customarily taken in the ordinary course of the normal day-to-day operations of other Persons that are in the industry in which the relevant Person and its Subsidiaries do business; or (c) actions taken that are consistent with such Person’s and/or operating plan which are approved by the Board.

“Partnership Audit Rules” means the provisions of Subchapter C of Chapter 63 of Subtitle A of the Code, as amended by the Bipartisan Budget Act of 2015, P.L. 114-74 (together with any subsequent amendments thereto, Treasury Regulations promulgated thereunder, published administrative interpretations thereof, and similar state and local laws).

“Per Unit Pro Rata Basis” means, in reference to Units, divided among the Units equally on a per Unit pro rata basis. For purposes of this definition, references to Units shall include both vested and unvested Units.

“Person” includes any individual, corporation, association, partnership (general or limited), joint venture, trust, estate, limited liability company, governmental body or agency or other legal entity or organization.

“Physician Employees” shall have the meaning set forth in the JV Agreement.

“Physician Owners” means those physicians who have an equity interest in Provider.

“Physician Employment Agreements” shall have the meaning set forth in the JV Agreement.

“Profits” and “Losses” means, for each Fiscal Period, an amount equal to the Company’s taxable income or loss for such Fiscal Period, determined in accordance with Section 703(a) of the Code (but including in taxable income or loss, for this purpose, all items of income, gain, loss, deduction or credit required to be stated separately pursuant to Section 703(a)(1) of the Code), with the following adjustments:

(a) any income of the Company exempt from federal income tax and not otherwise taken into account in computing Profits or Losses pursuant to this definition shall be added to such taxable income or loss;

(b) any expenditures of the Company described in Section 705(a)(2)(B) of the Code (or treated as expenditures described in Section 705(a)(2)(B) of the Code pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(i)) and not otherwise taken into account in computing Profits or Losses pursuant to this definition shall be subtracted from such taxable income or loss;

(c) in the event the Gross Asset Value of any Company asset is adjusted in accordance with paragraph (b) or paragraph (c) of the definition of “Gross Asset Value” above, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Profits or Losses;

(d) in lieu of the depreciation, amortization and other cost recovery deductions taken into account in computing the Company’s taxable income or loss, there shall be taken into account depreciation as computed on the Company’s books and records for accounting purposes;

(e) gain or loss resulting from any disposition of any asset of the Company with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of the asset disposed of, notwithstanding that the adjusted tax basis of such asset differs from its Gross Asset Value; and

(f) any items that are specially allocated pursuant to Section 5.1(b) shall not be taken into account in computing Profits and Losses.

“Provider Requirements” shall have the meaning set forth in Section 4.2.

“Provider Vesting Period” shall have the meaning set forth in Section 4.3(a)(ii).

“Securities Act” means the Securities Act of 1933, as amended, or any successor statute.

“Subsidiary(ies)” means any Person the majority of the Capital Securities of which, directly, or indirectly through or one or more Persons, (a) such Person has the right to acquire or (b) is owned or controlled by such Person. As used in this definition, “control,” including, its correlative meanings, “controlled by” and “under common control with,” shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of Capital Securities, by contract or otherwise).

“Treasury Regulation” means and refers to a provision of the temporary or final regulations promulgated by the United States Department of the Treasury pursuant to the Code.

“Units” means, collectively the class of Membership Rights created hereunder.

“Vested Units” shall have the meaning set forth in Section 4.3.

Exhibit C

Member Obligations

The obligations below shall take effect following the execution of, and pursuant to the terms and conditions of, the Joint Venture Agreement and any applicable Ancillary Agreement, and shall be subject to the terms and provisions of this Agreement and the direction of the Board and the Members (provided such direction is in accordance with Applicable Law).

Provider:

1. Provide clinical practice expertise and oversight to the INVO Clinic.

2. Perform all recruitment functions of the Provider and collaborate with INVO on Company recruitment functions.

3. Manage the INVO Clinic’s day-to-day medical practice and patient support operations.

4. Collaborate with INVO on the INVO Clinic’s buildout and launch, on establishing standard operating procedures, on managing marketing, compliance and accreditation tasks, and on providing and/or procuring all necessary training.

INVO:

1. Provide access to, and be the exclusive supplier to the Company of, the INVO Technologies, including subsequent new product generations, in accordance with that certain Distribution Agreement, dated November 12, 2018, by and among Ferring International Center S.A., INVO Bioscience and Bio X Cell, Inc., as amended.

2. Provide necessary product documentation for product registrations of the Company.

3. Collaborate with Provider on Company recruitment functions.

4. Manage the INVO Clinic’s day-to-day laboratory operations.

5. Collaborate with Provider on the INVO Clinic’s buildout and launch, on establishing standard operating procedures, on managing marketing, compliance and accreditation tasks, and on providing and/or procuring all necessary training.

Exhibit D

Member Acknowledgements, Representations and Warranties Related to Company Securities

1. Investment Intent. Such Member is (i) an “accredited investor” as defined in Regulation D of the Securities Act, and (ii) acquiring the Units to be purchased or otherwise acquired by such Member pursuant to Article 4 for investment only and not with a view to the distribution thereof. Such Member hereby agrees that it, she or he will not transfer the Units in a manner that will violate Securities Laws.

2. Investment Risk. Such Member represents that it, she or he is in a financial position to hold the Units for an indefinite period of time and able to bear the economic risk and withstand a complete loss of its, her or his investment in the Units.

3. Authorization. The execution, delivery and performance by such Member of this Agreement has been duly authorized by all necessary or appropriate action.

4. Enforceability. The execution and delivery by such Member of this Agreement will result in legally binding obligations of such Member enforceable against such Member in accordance with the respective terms and provisions hereof and thereof, except as may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights or general equity principles (regardless of whether considered at law or in equity).

5. Exemption. Such Member understands that the Units are not registered under any Securities Law on the grounds that the Company intends the sale and the issuance of securities hereunder to be exempt from registration under the Securities Act pursuant to Regulation D thereof or other exemptions available thereunder, and that the Company’s reliance on such exemption is predicated on the Members’ representations set forth herein.

6. Experience. Such Member is experienced in evaluating and investing in companies such as the Company, or is familiar with the risks associated with the business and operations of the Company, and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment.

7. Restrictions on Resale. Such Member understands that the Units may not be sold, transferred or otherwise disposed of without registration under applicable Securities Laws or an exemption therefrom, and that in the absence of an effective registration statement covering the Units or an available exemption from registration under the applicable Securities Laws, the Units must be held indefinitely. Such Member understands that any certificates representing the Units may bear a restrictive legend to this effect.

8. No Legal Actions. No legal action or suit against such Member, or to which such Member is a party, is pending or, to the knowledge of such Member, threatened, which seeks to delay or prevent the consummation of any of the transactions contemplated by this Agreement.

9. Separate Counsel. Each Member has had the opportunity to seek the advice of counsel and other personal advisors and acknowledges that neither the Company nor any of its Affiliates has provided such Member with any advice regarding the tax, economic or other impacts to such Member of the arrangements contemplated hereby.

10. No Conflicts. Such Member is not party to, subject to or bound by any agreement or any judgment, order, writ, prohibition, injunction, decree, award or other requirement of any governmental entity that would prevent the execution or delivery of this Agreement. The execution and delivery by such Member of this Agreement does not, and the performance of this Agreement will not, (A) conflict with, result in a breach of, constitute (with or without due notice or lapse of time or both) a default under, or require any notice, consent or waiver under, any material contract, instrument or other agreement to which such Member is a party (either with the Company or with another Person) or to which such Member may be bound or subject, (B) violate any fiduciary or confidential relationship or (C) conflict with or violate the provisions of any Applicable Laws or any order of any governmental entity. No Party shall enter into any agreements or arrangements of any kind with any Person with respect to any Units or other equity securities of the Company that would prohibit such Party from complying with the applicable provisions of this Agreement (whether or not such agreements or arrangements are with other Parties or with Persons that are not a party to this Agreement).

CERTAIN INFORMATION IDENTIFIED BY BRACKETED ASTERISKS ([***]) HAS BEEN OMITTED FROM THIS EXHIBIT BECAUSE IT IS BOTH (1) NOT MATERIAL AND (2) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED.

Exhibit 10.3

MANAGEMENT SERVICES AGREEMENT

This Management Services Agreement (this “Agreement”) is effective as of June ___, 2021 (the “Effective Date”), by and between Bloom INVO LLC, a Delaware limited liability company (“Manager”), Bloom Fertility, LLC, a Georgia limited liability company (“Provider”), and Sue Ellen Carpenter, M.D. (“Owner”). Manager, Provider and Owner are sometimes herein referred to as a “Party,” and collectively as the “Parties.”

RECITALS

WHEREAS, Manager is engaged in the business of providing and/or arranging for the provision of a comprehensive range of administrative, business, facilities, equipment, information technology, infrastructure, management, laboratory and other support services required for the operation of medical practices (collectively, “Management Services”); and

WHEREAS, Provider specializes in the provision of medical care, treatment, and goods and services relating to advanced fertility treatments delivered by or through the Owner and Practice’s other employed or contracted physicians (collectively, “Physicians”) who specialize in reproductive endocrinology, infertility, obstetrics and gynecology and/or other specialties related to the provision of advanced fertility treatments (collectively, “Professional Services”), and who are fully licensed and authorized to practice medicine in the State of Georgia; and

WHEREAS, pursuant to that certain Joint Venture Agreement, dated as of the Effective Date, by and between INVO Centers, LLC, a Delaware limited liability company and Provider, Manager will, subject to the terms set forth therein, assist Provider in establishing a fertility center that will offer the INVOcell, INVO Procedure, and related treatments using artificial reproductive technologies pioneered or created by INVO Bioscience, Inc., along with related procedures (the “Clinic”); and

WHEREAS, Provider desires to engage Manager to provide the management, consulting, administrative, business, billing, laboratory and other services described in this Agreement so that Provider may focus on the rendering of Professional Services at the Clinic, and Manager desires to provide such services to Provider, all upon the terms and subject to the conditions set forth in this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual promises and agreements set forth below, and/or other good, valuable and sufficient consideration, the receipt and sufficiency of which are hereby acknowledged, and incorporating the foregoing recitals, Provider, Manager and Owner agree as follows:

1. Appointment.

1.1 Exclusivity. During the Term (as defined in Section 10.1), Provider hereby appoints Manager as its sole and exclusive provider of Management Services, and Manager shall serve as Provider’s sole and exclusive manager. Provider shall not engage any other persons to perform any of the duties or functions that Manager is explicitly required to provide hereunder or that are reasonably expected to be able to be provided by a manager of a health care practice. In light of the scope of the Management Services provided and investment to be made by Manager hereunder, and the considerable impact such actions could have on Manager’s ability to perform its duties and functions hereunder, during the Term, Provider shall not, and shall cause the Physicians to not, engage in the Professional Services at or on behalf of any group practice, hospital, health clinic, not-for-profit, public, nonprofit or for-profit entity, or any other person or entity without obtaining the prior written approval of Manager, which approval may be withheld in the sole discretion of Manager. Manager shall provide such Management Services in a manner that meets the requirements of the business functions of Provider, including, without limitation, delegating any duties under this Agreement to Manager’s affiliates or to one or more subcontractors in compliance with all applicable federal and state laws and regulations.

1.2 Representations and Warranties.

(a) Provider represents and warrants to Manager that Provider is a limited liability company duly formed, validly existing, in good standing under the laws of the State of Georgia, properly qualified to do business in other states in which it operates, and has all necessary legal power and authority to own all of its properties and assets and to carry on its business as now being conducted.

(b) Manager represents and warrants to Provider that Manager is a Delaware limited liability company duly formed, validly existing, and in good standing under the laws of the State of Delaware, properly qualified to do business in other states in which it operates, and has all necessary legal power and authority to own all of its properties and assets and to carry on its business as now being conducted.

(c) Manager and Provider represent and warrant to each other as follows: (i) each such Party has the legal authority to execute, deliver and perform its obligations under this Agreement and all agreements executed and delivered by it pursuant to this Agreement, and has taken all action required by law, its articles of incorporation, its bylaws, its articles of organization, its certificate of formation, its operating agreement, its limited liability company agreement or otherwise, as applicable, to authorize the execution, delivery and performance of this Agreement and such related documents; (ii) the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite legal action of such Party and no other legal action on the part of such Party is necessary to authorize this Agreement or to carry out the transactions contemplated hereby; (iii) the execution and delivery of this Agreement does not, and will not, violate any provisions of the articles of incorporation, bylaws, articles of organization, certificate of formation, operating agreement or limited liability company agreement, as applicable, of such Party or any provisions of or result in the acceleration of, any obligation under any mortgage, lien, lease, agreement, instrument, order, arbitration award, judgment or decree, to which such Party is a party, or by which it is bound; (iv) this Agreement has been duly executed and delivered by such Party and constitutes the legal, valid, and binding obligation of such Party, enforceable in accordance with its terms, except as may be limited by bankruptcy or other operation of law; (v) neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby will: (A) violate any law, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency or court that such Party is subject to; or (B) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any third party the right to accelerate, terminate, modify or cancel, or require any notice or approval or consent under any agreement (including any non-compete or other restrictive covenant), contract, lease, license, instrument or other arrangement to which such Party is bound or to which such Party’s assets are subject (or result in the imposition of any encumbrance upon any of the assets of such Party); and (vi) such Party is not required to give any notice to, make any filing with or obtain any authorization, registration, qualification, consent, waiver or approval of any government or governmental agency or any third party in connection with the execution, delivery and performance of the transactions contemplated by this Agreement by such Party.

(d) Each of Owner and Provider represents and warrants to Manager that neither: (1) Provider; (2) Provider’s Owners, officers, members, managers and employees, (3) Provider’s contractors and agents involved in the delivery of Professional Services (excluding the Licensed Support Personnel and Provider Support Personnel); nor (4) the Physicians nor Non-Physician Practitioners (as defined below), as may be applicable of Provider: (i) are currently excluded, debarred, or otherwise ineligible to participate in the federal health care programs as defined in 42 USC § 1320a-7b(f) (the “Federal Healthcare Programs”) or any General Services Administration program; (ii) have, to Provider’s actual knowledge, been convicted of a criminal offense related to the provision of healthcare items or services; and (iii) are, to Provider’s knowledge, under investigation or otherwise aware of any circumstances which may result in Provider, its officers, members, managers, or employees, or, to the extent involved in the delivery of Professional Services, its contractors, agents, joint ventures, affiliates or subsidiaries, or its Physicians or Non-Physician Practitioners, being excluded from participation in the Federal Healthcare Programs or General Services Administration agreement, for offenses and based upon events beyond those which have been disclosed to Manager as of the Effective Date. This representation and warranty shall be an ongoing representation and warranty during the Term, and Provider shall immediately notify Manager of any change in the status of the representations and warranty set forth in this section and of any action Provider becomes aware of that could reasonably be foreseen to lead to such an event.

(e) Manager represents and warrants to Provider and Owner that neither: (1) Manager; (2) Manager’s officers, managers, members, and employees; (3) Manager’s contractors, vendors, or agents providing Management Services under this Agreement; nor (4) any Licensed Support Personnel or Provider Support Personnel (as defined below) provided to Provider hereunder: (i) are currently excluded, debarred, or otherwise ineligible to participate in the Federal Healthcare Programs or any General Services Administration program; (ii) have, to Manager’s actual knowledge, been convicted of a criminal offense related to the provision of healthcare items or services; or (iii) are, to Manager’s knowledge, under investigation or otherwise aware of any circumstances which may result in Manager, its officers, managers, or employees, or, to the extent involved in the delivery of Management Services under this Agreement, its contractors, vendors, or agents, being excluded from participation in the Federal Healthcare Programs or General Services Administration agreement. This representation and warranty shall be an ongoing representation and warranty during the Term, and Manager shall immediately notify Provider of any change in the status of the representations and warranty set forth in this section and of any action Manager becomes aware of that could reasonably be foreseen to lead to such an event.

(f) Owner represents and warrants to the other Parties that the execution and the delivery of this Agreement, or the consummation of the transactions contemplated hereby, will not conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any third party the right to accelerate, terminate, modify or cancel, or require any notice or approval or consent under any agreement (including any non-compete or other restrictive covenant), contract, lease, license, instrument or other arrangement to which Owner is bound or to which Owner’s assets are subject (or result in the imposition of any encumbrance upon any of the assets of Owner).

1.3 Exclusive Control over Professional Services. UNDER THIS AGREEMENT, PROVIDER SHALL HAVE THE EXCLUSIVE AUTHORITY AND CONTROL OVER THE PROVISION OF PROFESSIONAL SERVICES, CLINICAL DECISION-MAKING, AND ANY ACTIVITIES CONSTITUTING THE PRACTICE OF MEDICINE. MANAGER SHALL HAVE THE AUTHORITY TO MANAGE THE NON-CLINICAL ASPECTS OF THE CLINIC, IN ALL CASES SUBJECT TO THE TERMS OF THIS AGREEMENT AND APPLICABLE LAW.

1.4 Use of INVOcell and Related Products. Without limiting in any way Provider’s exclusive control over Professional Services under Section 1.3, if Provider decides to use INVOcell or the INVO Procedure for any patient, Provider will purchase INVOcell and any related medical devices or accessories that enable the INVO Procedure exclusively from Manager.

2. Duties and Responsibilities of Manager.

2.1 Performance of Duties. Manager shall provide the Management Services in a professional and efficient manner in accordance with generally accepted management, administrative and accounting practices consistent with the standard of care for a Manager specialized in the operation and management of a medical practice.

2.2 Attorney-in-Fact. For good and valuable consideration, and to secure Manager’s performance of certain obligations under this Agreement on behalf of Provider, Provider shall irrevocably appoint Manager as its lawful attorney-in-fact solely for the purposes set forth in Sections 2.3 through 2.29 during the Term, below, and shall execute a power of attorney agreement in the form attached as Exhibit A (the “Power of Attorney”), and such appointment shall be construed as being coupled with an interest.

2.3 Billing. On behalf of Provider and the Clinic, Manager shall submit, process and collect all billings and claims for payment from and to patients and, as applicable, third party payors and fiscal intermediaries, for all goods, items, and services provided by Provider to its patients at the Clinic (including any globally billed services or services involving a professional and/or technical component). Manager shall bill or cause to be billed all fees charged by Provider for Professional Services rendered by the Physicians and any nurse practitioners or physician assistants employed by or contracting with Provider (collectively, “Non-Physician Practitioners”) for Professional Services provided at the Clinic. Provider shall promptly notify Manager upon becoming aware of any actual or alleged billing or coding errors. To the extent permitted by law, Manager and Provider shall reasonably cooperate in the investigation of matters involving billing or coding errors arising under this Agreement, and in responding to any such investigations conducted by governmental authorities or third party payors.

2.4 Collections. Manager shall: (i) collect all revenue from whatever source, including accounts receivable, due to Provider in connection with Provider’s operations at the Clinic (“Gross Revenue”); (ii) receive all Gross Revenue on Provider’s behalf, except, if applicable at any time, for Federal Healthcare Program receivables (“Government Receivables”), which amounts will be treated consistent with Section 2.7 below; and (iii) sue for and give satisfaction for monies due on account and to withdraw any claims, suits or proceedings pertaining to or arising out of Manager’s or Provider’s right to collect such accounts; provided, however, that Manager shall not initiate a lawsuit to collect from a patient of Provider without Provider’s consent, which shall not be unreasonably withheld, conditioned or delayed. This Section 2.4 shall not be construed to permit Provider to assign its right to receive governmental receivables to Manager, which rights are hereby expressly reserved by Provider.

2.5 Endorsement. Manager shall take possession of and endorse in Provider’s name any notes, checks, drafts, bank notes, money orders, insurance payments and any other instruments received as Gross Revenue.

2.6 Banking Powers. Manager shall deposit or cause to be deposited all Gross Revenue of Provider into a Provider Account or Government Lockbox Account (as such terms are defined in Section 2.7). Provider shall not make any withdrawals from any bank account if to do so would impair Manager’s ability to fulfill Manager’s obligations under this Agreement. Manager (and any subcontractor designated by Manager) shall have the right to enter into deposit account control agreements and make withdrawals from any Provider Account to pay all costs and expenses incurred in the operation of Provider, including payment of the Management Fee as set forth in Section 9.1 and to fulfill all other tenets of this Agreement. Neither Provider, Owner, nor any other individual or entity shall make any withdrawals from any Provider Account if doing so would impair Manager’s ability to fulfill Manager’s obligations under this Agreement. Manager (and any subcontractor designated by Manager) shall have the right to make withdrawals from any Provider Account.

2.7 Provider Bank Accounts.

(a) Subject to Section 2.7(c) below, for the deposit of receivables, Provider shall open and/or maintain, with the assistance of Manager, at a bank designated by Manager, one or more Provider bank accounts (“Provider Accounts”), in the name of and under the taxpayer identification number of Provider. For each such Provider Account, Provider shall enter into a deposit account control agreement with Manager under which Manager will have the right to make withdrawals pursuant to this Agreement. Provider shall take such action as is necessary to maintain Manager’s authority to make withdrawals from and deposits into its respective Provider Accounts, in accordance with Section 2.2 and Section 2.6, Provider and Manager agree that no interest shall be payable from Manager to Provider on such funds.

(b) Provider shall not maintain any bank account for cash or Gross Revenue deposits that is not a Provider Account or a Government Lockbox Account for purposes of this Agreement in connection with Professional Services rendered through Provider at the Clinic.

(c) If, at any time during the term hereunder, Provider will receive any Government Receivables, then prior to Provider’s receipt of such Government Receivables, Provider will establish or maintain a bank account in the sole control of Provider at the depository bank (the “Government Lockbox Account”) in the name of and under the taxpayer identification number of Provider. All such Governmental Receivables will be first be deposited in a bank account controlled by Provider and then, at the direction of Provider, such deposits shall be swept daily to an account controlled by Manager in conformity with an agreement between Provider and Manager (a “Government Lockbox Agreement”), pursuant to which Provider will retain the right to revoke such instruction to sweep deposits into an account of Manager, and to make adjustments to Gross Revenue for any write-offs or discounts due to insurance, customer satisfaction or bad debt. With regard to any Governmental Receivables, Provider shall (i) instruct all applicable payors to remit all Government Receivables to the Government Lockbox Account; (ii) deposit payment of any Government Receivables received by Provider into the Government Lockbox Account; and (iii) direct the transfer or remittance of all cash proceeds in such Government Lockbox Account to an account of Manager on a daily basis in accordance with the Government Lockbox Agreement.

2.8 Clinical Laboratory Services. At Provider’s expense, Manager shall provide to Provider all andrology and embryology laboratory services necessary for Provider to furnish Professional Services at the Clinic (the “Clinical Laboratory Services”), as set forth in Schedule 1. Manager represents and warrants that all personnel involved in its provision of the Clinical Laboratory Services shall be appropriately licensed, shall perform all services within the scope of any applicable licenses and certifications, and shall perform all services in accordance with all laws and with prevailing and applicable standards of care.

2.9 Personnel.

(a) At Provider’s expense, Manager shall provide to Provider the support services of non-clinical, clerical and administrative personnel who may be employed by Manager as applicable law permits who are necessary for Provider to furnish its services (“Provider Support Personnel”), pursuant to an agreement between Provider and Manager (the “Employee Leasing Agreement”) in the form attached hereto as Exhibit B. The cost of providing such services to Provider shall be set forth in the Employee Leasing Agreement. Manager represents and warrants that all Provider Support Personnel shall be appropriately licensed, shall perform all services within the scope of any applicable licenses and certifications, shall perform all services in accordance with all laws and with prevailing and applicable standards of care and in accordance with the Policies.

(b) At Provider’s expense, Manager shall provide to Provider the support services of licensed healthcare personnel, other than Physicians and Non-Physician Practitioners, each of whom will be directly employed by Provider, as applicable. Such personnel shall include, but not be limited to, medical assistants and registered nurses who may be employed by Manager as applicable law permits who are necessary for Provider to furnish its services (“Licensed Support Personnel”), pursuant to the Employee Leasing Agreement. The cost of providing such services to Provider shall be set forth in the Employee Leasing Agreement. Manager represents and warrants that all Licensed Support Personnel shall be appropriately licensed, shall perform all services within the scope of their licenses and certifications, shall perform all services in accordance with all laws and with prevailing and applicable standards of care and in accordance with the Policies. Provider may request in writing to Manager that Licensed Support Personnel be replaced or be removed from the provision of services to Provider patients for good cause shown. Upon receipt of such request, Manager may investigate the issue and, at its sole discretion, issue a warning, performance improvement plan, or other disciplinary measure to the Licensed Support Personnel. If such Licensed Support Personnel fails to remedy the issue within thirty (30) days to Manager’s and Provider’s satisfaction, Manager shall replace such Licensed Support Personnel and take other action as Manager deems necessary.

2.10 Contract Assistance. Manager shall advise Provider with respect to, and may, as appropriate and permitted by applicable law, negotiate in the name of and at the expense of Provider, such contractual arrangements with commercial payors and such other third parties as are reasonably necessary and appropriate for Provider’s operation, including, without limitation, agreements with health care facilities, third-party payors, accountable care organizations, alternative payment models, or other purchasers of healthcare services (“Contracts”) in consultation with Provider. Manager is hereby expressly authorized, as Provider’s agent and at Provider’s expense, to execute and deliver any of such Contracts, in the name of and on behalf of Provider, each Physician, and each Non-Physician Practitioner by presentation of a copy of the Power of Attorney, which shall constitute conclusive evidence of such agency. Manager may, in the name and on behalf of Provider, each Physician, and each Non-Physician Practitioner modify, supplement, amend, or terminate, or grant waivers or releases of obligations under, any of such Contracts. In its performance of the services contemplated under this Section 2.10, Manager: (i) shall comply with all federal and state laws, including any antitrust laws; (ii) shall not disclose to Provider, use as a basis for its recommendations to Provider or use in negotiations on behalf of Provider, any fee or pricing information for any other medical practice, surgery center or hospital in a market area overlapping in whole or in part with Provider; (iii) shall not engage in any conduct or activity which might be construed to constitute price fixing or collusion; and (iv) shall not obligate Provider, its Physicians, or its Non-Physician Practitioners, in any manner, that impedes on their medical practice decisions. Manager shall not provide services contemplated by this Section 2.10 to the extent that the provision of services by Manager would violate any applicable law.

2.11 Insurance.

(a) Manager shall arrange for the purchase by Provider, at Provider’s cost and expense, of necessary insurance coverage for Provider, including but not limited to workers’ compensation insurance and professional liability insurance. Manager shall be responsible for ensuring that Provider maintains at all times during the Term, workers’ compensation insurance required by law, professional liability insurance, covering Provider, Physicians, Non-Physician Practitioners, and Licensed Support Personnel, as required by law and under the contracts of Provider, and general commercial liability insurance sufficient to cover any liabilities arising from Provider’s obligations under this Agreement. Upon request by Provider, Manager shall provide Provider with certificates of insurance or other satisfactory written evidence of insurance coverage. If Manager, through no fault of Provider, fails to procure the insurance coverage specified under this Section 2.11, Manager shall indemnify and hold harmless Provider for claims which such coverage would otherwise have insured against.

(b) Manager shall maintain comprehensive general liability insurance and directors’ and officers’ insurance in commercially reasonable amounts that are customary for companies that provide management services to physician practices.

(c) Provider shall use commercially reasonable efforts to assign all rights to any benefit proceeds under key man life insurance policies for which Provider serves as owner or beneficiary to Manager and any amount payable under such policies shall be transferred to Manager upon receipt.

2.12 Assets, Equipment and Supplies; Computer and Information Technology Systems.

(a) Assets, Equipment and Supplies. Manager shall, in consultation with Provider, select and purchase, lease, license or otherwise acquire or arrange for the use of all assets necessary for Provider to provide the Professional Services, including, without limitation, medical, computer and other equipment, software, supplies, inventory, and other materials and items, in such quantities and at such times as Manager reasonably shall determine to be adequate or appropriate to provide the Professional Services. Manager agrees to provide Provider with a royalty-free non-exclusive license to use such assets, equipment and supplies necessary to provide the Professional Services. Manager shall consult with Provider to ensure that such assets, equipment and supplies are necessary and appropriate with respect to the delivery of the Professional Services. Unless otherwise herein specifically provided, all right, title and interest in and to such assets, equipment and supplies shall at all times remain with Manager. Provider shall not remove such assets, equipment or supplies from any Provider location without Manager’s prior written consent. Provider shall reimburse Manager for all of the costs and expenses related or incident to Manager’s obligations under this Section 2.12(a), regardless of whether Manager provides such assets or procures such assets on Provider’s behalf. To the extent that there are pharmaceuticals that must under the law be directly procured by Provider, Manager shall assist Provider with such procurement.

(b) Computer Systems. Without limiting the generality of the provisions of Section 2.12(a) above, Manager shall provide Provider with computer hardware (including, without limitation, any and all necessary wiring) and software. Manager may determine from time to time that said hardware and software requires upgrading or replacement, the cost of which shall be the responsibility of Manager. All computer software, including, without limitation, such upgrades, shall remain the property of Manager during the Term of this Agreement and shall be returned to Manager upon termination hereof. Provider, and its Physicians and Non-Physician Practitioners during their employment or engagement with Provider, are hereby granted a non-exclusive right to use said software and hardware during the Term. The computer hardware, including, without limitation, any upgrades, provided to Provider may be retained by Provider following termination of this Agreement.

2.13 Physician Liaison. Owner shall provide certain liaison services on behalf of Manager pursuant to an agreement with Manager (the “Physician Liaison Agreement”) in the form attached hereto at Exhibit C. Each Physician Liaison shall perform, or arrange for Provider’s delegate to perform, certain administrative duties set forth in the Physician Liaison Agreement on behalf of Manager and facilitate communication and cooperation among the Physicians and Manager. In the event that a Physician Liaison Agreement expires or terminates for any reason, the Manager may enter into a Physician Liaison Agreement with a new individual of Manager’s choosing to serve as the liaison.

2.14 Accounting and Financial Administrative Services. Manager shall provide financial administrative services necessary and appropriate for Provider’s operations, including accounting, bookkeeping, capital and operating budgets, tax matters, payroll services, accounts receivable and accounts payable processing, and electronic data processing. If Provider has an affiliation or affiliations with an entity, other than Manager, for which financial administrative services are required (i.e., collection of accounts receivable), then Manager, at Manager’s sole discretion, shall provide financial administrative services necessary and appropriate to Provider’s other affiliation(s), and Manager shall have the right to assess Provider for these services in addition to any fees contemplated under this Agreement.

2.15 Tax Matters. Manager shall, on Provider’s behalf and at Provider’s expense, prepare and file, or cause to be prepared and filed by qualified professionals, the annual report, tax reports and tax returns required to be filed by Provider in compliance with all federal and state laws and regulations. All amounts payable with respect to any taxes shall be the responsibility of and shall be for the account of Provider.

2.16 Budgets. Manager shall prepare all capital and annual operating budgets for Provider in consultation with Provider.

2.17 Expenditures. Manager shall manage all cash receipts and disbursements of Provider, including, without limitation, the payment on behalf of Provider of all payroll and income taxes, assessments, licensing fees, insurance premiums, and other fees of any nature whatsoever in connection with its operation as the same become due and payable, unless payment thereof is being contested in good faith by Provider.

2.18 Provider Offices. Manager will, at Provider’s cost and expense, provide or otherwise arrange for the provision to Provider of office space (the “Offices”) for such days and times as mutually agreed upon by Manager and Provider for Provider’s use in order to perform the Professional Services, and these Offices may be provided to Provider pursuant to a separate written sublease agreement as mutually agreed to by the Parties. The cost of providing the Offices to Provider will be reimbursed to Manager in accordance with the terms and conditions set forth in Section 9.2 and as may be set forth in any respective written sublease agreement. The Offices and leasehold improvements, whether currently existing or added during the Term, provided by Manager and utilized by Provider under this Agreement, at all times will be and remain the sole and exclusive property of the Manager. Provider shall use and occupy such Offices, and shall cause Physicians, Non-Physician Practitioners, and other Licensed Support Personnel to use and occupy the Offices, solely in connection with the business of Provider and the provision of Professional Services during Provider’s normal business hours as may be determined to be appropriate by Manager from time to time. Provider acknowledges that Manager may lease one or more Offices from a third party pursuant to the terms of an office lease or similar agreement or document (each, a “Master Lease”). Provider shall: (i) not do anything which would constitute a breach of the terms and conditions of any Master Lease; (ii) be bound by all provisions of each Master Lease, including without limitation, any terms relating to the termination of such Master Lease(s); (iii) not sublet or assign any Office or any part of such Office, or permit its use by others for any purpose unless Manager gives Provider its prior written consent, which consent may be withheld by Manager in Manager’s sole discretion; (iv) not pledge, loan, create a security interest in, or abandon possession of, an Office: (v) not attempt to dispose of any Office or any part of it; or (vi) not permit any liens, attachments, charge, or other judicial process to be incurred or levied on any Office or any part thereof. Manager shall ensure that such Offices and Master Leases comply with all applicable laws and regulations, including applicable zoning regulations. Provider covenants and agrees that Manager and its agents and affiliates shall have reasonable access to each Office during regular business hours for purposes of inspection. Provider shall immediately notify Manager of any damage or loss to person or property at or in an Office to which Provider becomes aware.

2.19 Licenses. Manager shall apply for, obtain and maintain in the name and at the expense of Provider, all reasonable and necessary licenses, permits, registrations, certificates and Medicare, Medicaid and third party payor provider agreements required or appropriate in connection with the business and operation of the Clinic and Provider’s provision of Professional Services. Upon the request of Provider, Manager shall provide evidence to Provider of any licenses, permits, certificates, registrations and provider numbers.

2.20 Agency. Except as otherwise provided herein, Manager shall have access to Provider Accounts solely for the purposes stated herein and shall use all funds on deposit therein in accordance with the terms of this Agreement.

2.21 Litigation Management. Manager shall, at the expense of Provider, (a) manage and direct the defense of all claims, actions, proceedings or investigations against Provider or any of its officers, members, managers, employees or agents in their capacity as such, (b) manage and direct the initiation and prosecution of all claims, actions, proceedings or investigations brought by Provider against any person other than Manager, and (c) cancel, modify, or terminate any Contract for the breach of or default by any other party thereto. Manager shall: (i) promptly notify Provider of all legal actions filed on behalf of or (as Manager becomes aware thereof) against Provider; and (ii) provide all information or documentation requested by Provider regarding such legal actions.

2.22 Training. Manager shall furnish training services to Provider with respect to all aspects of the operations of Provider (other than matters related to clinical decision-making), including, without limitation, administrative, financial, billing, compliance and equipment maintenance matters.

2.23 Quality Assurance and Utilization Management. Manager agrees to develop for Provider’s approval, and to implement for Provider, a quality assurance and improvement and utilization management program in accordance with recommendations made to Provider by Manager or as required by law or any third-party payor. Provider shall cause Physicians, Non-Physician Practitioners, and Licensed Support Personnel to participate in the development of such programs and to comply with the standards, protocols or practice guidelines established thereby.

2.24 Compliance; Policies and Procedures. Manager shall assist Provider in operating in compliance with all laws, and shall develop and implement a comprehensive corporate compliance plan for Provider that complies with all laws and other guidance published by the Office of Inspector General of the Department of Health and Human Services. Manager shall assist Provider in establishing a culture that fosters the prevention, detection and resolution of instances of misconduct. Manager shall be responsible for providing compliance training to Physicians, Non-Physician Practitioners, Licensed Support Personnel, Provider Support Personnel and all of Manager’s employees, contractors, or agents providing services under this Agreement. Manager shall ensure that Manager, all Licensed Support Personnel, all Provider Support Personnel, and all of Manager’s employees, contractors, or agents providing services under this Agreement comply with the corporate compliance plan. In addition to the corporate compliance plan, Manager shall develop, provide and revise all necessary policies and operating procedures pertaining to Provider’s business operations (the “Policies”). Upon request of Provider, Manager shall assist Provider in its development and implementation of clinical practice guidelines, which shall be subject to the ultimate approval of Provider. Nothing in this Section 2.24 shall be construed to give Manager any control or influence over the practice of medicine by Providers or any of the Physicians, Non-Physician Practitioners, or Licensed Support Personnel.

2.25 Patient Medical Records. Manager shall assist Provider in the completion, maintenance and storage of patient medical records, including by periodically reviewing medical records to confirm completeness. With regard to the privacy of medical records, Manager shall establish plans, policies and/or procedures designed to comply in all material respects with the Health Insurance Portability and Accountability Act of 1996 and regulations promulgated thereunder, as the same may be from time to time amended (“HIPAA”), including the Standards for Privacy of Individually Identifiable Health Information, the Security Standards for the Protection of Electronic Protected Health Information and the Standards for Electronic Transactions and Code Sets promulgated pursuant to HIPAA and any laws of any state where Provider conducts business relating to patient privacy and/or the security, use or disclosure of health care records.

2.26 Disclaimer. To the extent Manager provides Provider with equipment or Offices, Provider acknowledges that Manager is not the manufacturer of the equipment or the manufacturer’s agent or the developer, architect or owner of the Offices. ACCORDINGLY, CLINIC HEREBY AGREES TO TAKE THE OFFICES, IF ANY, AND EQUIPMENT, IF ANY, IN AN “AS IS” CONDITION. MANAGER HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE EQUIPMENT OR THE OFFICES, INCLUDING WITHOUT LIMITATION. THE DESIGN OR CONDITION OF THE OFFICES AND THE EQUIPMENT AND THE OFFICES AND THE EQUIPMENT’S MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN, CONDITION, QUALITY, CAPACITY, MATERIAL OR WORKMANSHIP, OR AS TO PATENT INFRINGEMENT OR THE LIKE. The Parties shall have the benefit of any existing manufacturers’ warranties.

2.27 Day-to-Day Services. Manager shall furnish or obtain all telephones, paging devices, office services (including secretarial, reception, scheduling, duplication, facsimile services and document disposal services), janitorial services, maintenance services, security services, and any other services of a similar nature reasonably necessary in connection with the day-to-day operations of Provider.

2.28 Waste Management. Manager shall arrange for the proper disposal of all medical and non-medical waste generated by Provider, provided that such waste is generated in the ordinary course of Professional Services. Provider and its Physicians, Non-Physician Practitioners, Licensed Support Personnel, and Provider Support Personnel shall comply with all guidelines established by Manager with respect to the disposal of Provider’s waste.

2.29 Manager’s Right to Subcontract. Manager may subcontract with other persons or entities for any of the Management Services that Manager is required to perform under this Agreement.

3. Marketing, Advertising, or Business Development. Manager may, at its sole discretion but in consultation with Provider, engage in advertising, marketing or other activities on behalf of Provider.

4. Professional Control Retained by Provider. Provider shall be responsible for and shall have complete authority, responsibility, supervision and control over its provision of Professional Services. Any purported delegation of authority by Provider to Manager that would require or permit Manager to engage in the practice of medicine or provide the Professional Services shall be prohibited and deemed ineffective, and Provider shall have the sole authority with respect to such matters. Manager shall not be required or permitted to engage in, and Provider shall not request Manager to engage in activities that constitute the practice of a licensed profession in any state in which Provider operates. Manager shall not direct, control, influence, restrict or interfere with the exercise of independent clinical, medical or professional judgment by Provider or any Physician, Non-Physician Practitioners, or other Licensed Support Personnel in providing Professional Services. In furtherance thereof, Manager shall not engage in any of the following: (i) assumption of responsibility for the care of patients; and (ii) any activity that involves the unlicensed practice of medicine.

5. No Inducement; No Income Guarantee. Manager and Provider agree that they have reached agreement regarding the terms and conditions of this Agreement in accordance with a good faith determination of the fair market value thereof. Manager shall neither have nor exercise any control or direction over the number, type, or recipient of patient referrals and nothing in this Agreement shall be construed as directing or influencing such referrals. Nothing in this Agreement is to be construed to restrict the professional judgment of Provider or any Physician or Non-Physician Practitioner to use any facility where necessary or desirable in order to provide proper and appropriate treatment or care to a patient or to comply with a patient’s wishes. No part of this Agreement shall be construed to induce, encourage, solicit or reimburse the referral of any patients or business. The Parties acknowledge that neither this Agreement nor any other agreement between the Parties requires or encourages the referral of patients to one another or any of their respective affiliates. Each Party represents and warrants to the other that no payment made under this Agreement shall be in return for the referral of patients or business. Furthermore, Manager has not guaranteed to Provider that the arrangements contemplated hereunder will guarantee any amount of income to Provider.

6. Relationship of the Parties. The Parties expressly understand and agree that nothing contained in this Agreement shall be construed to create a joint venture, partnership, association, or other affiliation or like relationship between the Parties, it being specifically agreed that their relationship is and shall remain that of independent parties to a contractual relationship as set forth in this Agreement. The Parties agree that their respective employees shall not have any claim under this Agreement or otherwise against the other Party or any of the other Party’s affiliates for vacation pay, paid sick leave, retirement benefits, social security, worker’s compensation, health, disability, professional malpractice or unemployment insurance benefits or other employment benefits of any kind.

7. Responsibilities of Provider.

7.1 Physicians; Non-Physician Practitioners. Provider shall have the authority to engage (whether as employees or as independent contractors), promote, discipline, suspend and terminate the services of Physicians and Non-Physician Practitioners only to the extent required by applicable law; provided, however, that Provider shall retain that number of Physicians and Non-Physician Practitioners as are reasonably necessary and appropriate for the provision of the Professional Services as determined by Manager after consultation with Provider. Manager, after consultation with Provider, shall determine the salaries and provision of fringe benefits for Physicians and Non-Physician Practitioners. Nothing contained herein shall limit Provider’s duty and obligation to control all aspects of the practice of medicine, including, without limitation, clinical training and clinical supervision of the Physicians, and the care and safety of patients. Manager shall neither control nor direct any Physician or Non-Physician Practitioner in the performance of Professional Services. Notwithstanding the foregoing, Manager shall have the ability, as part of the Management Services, to establish guidelines for the hiring or retention of Physicians, Non-Physician Practitioners, and registered nurses, and Provider covenants to hire or retain as well as terminate Physicians and Non-Physician Practitioners in accordance with Manager’s guidelines. With the assistance of Manager, Provider shall establish work schedules for all Physicians and Non-Physician Practitioners necessary to ensure adequate coverage; provided that Manager shall control all non-clinical decisions relating to Licensed Support Personnel and Provider Support Personnel. Provider and its supervising Physician(s) shall have full responsibility for and shall supervise and control all medical or health related services provided by the registered nurses and Licensed Support Personnel.

7.2 Licenses, Certifications, Standards of Care. Provider shall require each Physician and Non-Physician Practitioner to: (a) maintain without restriction all licenses, certifications, registrations and professional liability insurance necessary to provide the Professional Services; (b) perform all Professional Services in accordance with all laws and with prevailing and applicable standards of care and in accordance with the Policies (subject to the exercise of independent professional judgment in accordance with Section 4 herein); and (c) maintain his or her skills through continuing education and training.

7.3 Cooperation with Manager on Billing. Provider shall, and Provider shall require all Physicians and Non-Physician Practitioners to, provide Manager with complete and accurate charge slips, claims or encounter reports and other similar documentation under a system administered and managed by Manager, whether as part of a hard copy or electronic record, specifically identifying items or services furnished and, to the extent applicable, service and diagnosis codes, drug codes, or supply codes, in a form and substance as indicated by Manager in advance from time to time. Provider shall be responsible for all coding and billing decisions with respect to the provision of Professional Services to Provider’s patients, which shall include the selection of codes and services submitted for payment. Manager shall engage in the preparation and submission of such claims for payment subject to the billing and coding decisions made by Provider. Nothing in this Agreement shall be construed to limit Manager’s duties under Section 2.3 of this Agreement.

7.4 Peer Review. Provider shall implement appropriate peer review and corrective action procedures for the Physicians. Provider shall provide Manager with prompt notice of any complaints relating to any Physicians or arising out of the Professional Services rendered.

7.5 Actions Requiring Manager’s Approval. Notwithstanding anything herein to the contrary, Provider agrees that the following actions shall require prior written approval of Manager:

(a) The issuance of membership interests of Provider or of any security convertible into Provider membership interests;

(b) Commencing any new Professional Service or terminating or materially modifying the types of Professional Services or other services furnished by Provider, except where Provider reasonably determines that such change is required by law in which case Provider shall give such written notice promptly;

(c) The payment of any dividends, profits, or capital gains on Provider’s membership interests or other distribution to the Owner. Notwithstanding this Section 7.5(c), Provider shall pay Owner cash distributions in respect of his or her respective membership interests in an amount necessary for payment of any applicable federal, state, and local income tax liabilities attributable to taxable income of Provider that is properly allocated to Owner;

(d) Any consolidation of Provider;

(e) Any sale, assignment, pledge, lease, exchange, transfer or other disposition, including, without limitation, a mortgage or other security device, of assets, leases or equity of the Provider, including Provider’s accounts receivable;

(f) Any purchase or other acquisition of assets at any aggregate cost to Provider exceeding One Thousand Dollars ($1,000.00);

(g) Any incurrence of loans or other indebtedness by Provider, or any grant of a lien, security interest or other encumbrance on the assets of Provider;

(h) Any reclassification or recapitalization of the membership interests of Provider;

(i) Any redemption, sale or purchase of the membership interests of Provider;

(j) The dissolution or liquidation of Provider;

(k) Subject to the terms and conditions set forth under Section 7.1, the authorization for the employment or discharge of any individual, the engagement or termination of any independent contractor, or the execution and delivery of any employment agreements or contracts with employees, independent contractors or consultants, or any amendments, modifications or terminations thereof;

(l) The entering into of any contract by Provider committing Provider to incur more than One Thousand Dollars ($1,000.00) in expenses on an annual basis;

(m) Any amendment to a contract between Provider and a Physician or Non-Physician Practitioner; and

(n) The creation of any indebtedness or any other obligation of Provider to Owner.

7.6 Provider Governing Documents. Provider shall consistently and uniformly utilize its governance and operational documents (including but not limited to its articles of organization, operating agreement, employment agreements and independent contractor agreements with Physicians and Non-Physician Practitioners) in the conduct of its business and shall comply with and require performance of all of the provisions contained therein. Provider hereby agrees that, after Manager’s approval of these governance and operational documents, no revision or modification or termination shall be made to these governance and operational documents, and no new agreement or arrangement affecting the ownership or voting of the equity of Provider shall be made, without Manager’s reasonable prior written approval thereof.

7.7 Scope. Provider shall provide all of its office-based services at the Offices and shall not provide such services at other locations unless the provision of such services at such other locations is contemplated by an approved budget or if necessary for immediate treatment of an applicable emergency clinical condition. If Provider provides services at locations not contemplated under an approved budget or otherwise within the scope of this Agreement, it shall be a breach of this Agreement, and, among other things, Provider, and not Manager, shall be responsible for all costs associated with such out of scope activities.

7.8 Security Agreement. Except to the extent the granting of a security interest is limited by application of law with respect to the Government Lockbox Account, Provider and Manager shall execute a Security Agreement in the form attached as Exhibit D, which shall be executed and attached, that grants and assigns to Manager a continuing security interest in all of Provider’s right, title and interest in: (i) all furniture, fixtures, equipment and supplies, (ii) all leases, whether for personal or real property, (iii) all accounts, all payments and rights to payment from all sources, including, without limitation, those that are not evidenced by instruments or chattel paper, and whether or not they have been earned by performance, (iv) deposit accounts, (v) proceeds of letters of credit of which Provider is named beneficiary, (vi) general intangibles, (vii) contract rights, (viii) chattel paper, (ix) instruments, (x) documents, (xi) insurance proceeds, and (xii) all other indebtedness and obligations whatsoever owing to or owned or acquired by Provider, together with all instruments and all documents of title representing any of the foregoing, all rights in any property that the same may represent, and all right, title, security and guarantees with respect to each of the foregoing, whether now owned or hereafter acquired (the “Collateral”). Provider shall execute and deliver, in a form acceptable to Manager, all documents that are reasonably necessary to perfect and maintain the security interest in its Collateral, including, without limitation, financing statements, or any other security agreement, statements or notices that Manager may, from time to time, present to Provider, and which Manager may file, record, or disclose as Manager may determine.

8. Compliance. The Parties agree to cooperate with one another in the fulfillment of their respective obligations under this Agreement, and to comply with all applicable laws, ordinances, statutes, regulations, directives, orders, or other lawful enactments or pronouncements of any federal, state, municipal, local or other lawful authority and all third party payor requirements. Manager further agrees to comply with all applicable federal and state laws, regulations and guidance in the performance of its duties to provide Management Services under this Agreement.

9. Payments and Fees.

9.1 Management Fee. As compensation for the Management Services provided by Manager under this Agreement, Provider shall pay fees to Manager as set forth in Schedule 2 (the “Management Fee”). In any state in which Provider operates that restricts Manager from engaging in or being compensated for advertising, marketing, business development or similar activities, such activities will be addressed in a separate agreement and will not be considered “Management Services” for purposes of determining the Management Fee in this Section 9.1. Manager shall withdraw the Management Fee for each full or partial calendar month of Management Services provided during the Term from any Provider Account on the 15th day of the month following each calendar month. Manager shall, upon request from Provider, furnish Provider with a statement detailing the Management Fee and all expenses and compensation due to Manager for the immediately preceding month.

9.2 Reimbursement of Costs and Expenses. In addition to the Management Fee, Manager shall be entitled to full reimbursement (without mark-up) for all costs, expenses and liabilities paid or satisfied by Manager in connection with its provision of Management Services under this Agreement or otherwise arising out of the operation, ownership or maintenance of the business of Provider. Manager shall, upon request from Provider, submit an invoice to Provider, dated no earlier than the thirtieth (30^th) day of the month following the month in which the costs and expenses being invoiced were incurred. Each such invoice shall state with reasonable detail the costs and expenses that were incurred.

9.3 Application of Payments.

(a) Provider hereby directs Manager to apply Provider’s Gross Revenues monthly for the following purposes, in the order of priority set forth below:

(1) to pay any refunds or other amounts owed to patients or third party payors;

(2) to pay all cumulative direct costs and expenses of operating Provider’s business, including, without limitation, insurance premiums, payroll and benefits for Provider’s employees, marketing expenses, supply expenses, equipment purchase and lease expenses, auditing and tax preparation fees and fees of professional advisors, such as attorneys, taxes of Provider, including federal, state and local income, sales, use and other taxes and tax distributions payable to Owner to pay any federal, state and local income tax liabilities attributable to taxable income of Provider that is allocated to Owner;

(3) to pay all cumulative direct or indirect expenses incurred by Manager (including, without limitation, an allocable percentage of Manager’s corporate overhead) in providing the Management Services, and in carrying out its duties hereunder on behalf of Provider; and

(4) subject to Section 9.3(b), to pay Manager the Management Fee.

(b) If, at any time, Provider’s Gross Revenues are insufficient to cover all, or a portion of, the Management Fee that may be due to Manager pursuant to this Agreement, such amount of the Management Fee that is at any time owed to Manager (including any amounts not paid in any prior periods), but which is not paid when due, shall be paid by Provider to Manager in the immediately-succeeding month (together with the Management Fee due in such succeeding month) with interest at the prime rate per annum, as published in the Wall Street Journal on the date such shortfall originates, from the due date to the date payment is actually made to Manager; provided that such payment must be made only to the extent Provider has sufficient resources to pay it in such month after payment of the obligations outlined in the foregoing Sections 9.3(a)(1) to 9.3(a)(3) that are due and payable at such time, or, in the event previously not paid pursuant hereto, at such time Provider has sufficient resources to pay it after payment of the obligations outlined in the foregoing Sections 9.3(a)(1) to 9.3(a)(3) that are due and payable at such time.

9.4 Evaluation of Reasonableness. The Parties agree that the Management Fee reflects the fair market value of the Management Services. Payment of the Management Fee is not intended to be and shall not be interpreted or applied as permitting Manager to share in or split Provider’s fees for the Professional Services, but is acknowledged as the Parties’ negotiated agreement as to the reasonable fair market value of the Management Services furnished by Manager pursuant to this Agreement and related agreements, considering the nature and extent of the Management Services required and the investment made by Manager.

10. Term and Termination.

10.1 Term. This Agreement shall have an initial term commencing as of the Effective Date and continuing in full force and effect for ten (10) years (the “Initial Term”) and shall renew automatically for additional five (5) year terms thereafter, unless terminated as provided herein (the Initial Term and any subsequent terms shall be referred to as the, “Term”).

10.2 Termination by Manager Without Cause. Manager may terminate this Agreement at any time without cause upon ninety (90) days advance written notice.

10.3 Immediate Termination By Manager. Manager shall have the right, but not the obligation, to terminate this Agreement immediately upon notice to Provider of any of the following events:

(a) the cancellation or non-renewal of the professional or malpractice insurance of Provider, any member of Provider or any Physician or Non-Physician Practitioner employed or engaged by Provider (other than due to the failure to pay premiums);

(b) the dissolution of Provider;

(c) if Provider participates in any Federal Healthcare Program(s), the suspension or exclusion of Provider from same;

(d) the suspension or exclusion of any member of Provider, Physician, or any Non-Physician Practitioner (as may be applicable) who is employed or engaged by Provider from any Federal Healthcare Program provided that Provider did not terminate the employment or engagement of such employee or contractor within thirty (30) days of becoming aware of such fact;

(e) the date upon which any of the membership interests of Provider are transferred or attempted to be transferred voluntarily, by operation of law or otherwise, to any person without the prior written approval of Manager;

(f) the merger, consolidation, reorganization, sale, liquidation, dissolution, or other disposition of all or substantially all of the membership interests or assets of Provider without the prior written approval of Manager;

(g) failure of Provider to pay the Management Fee in the time frames set forth in Section 9;

(h) Provider materially altering or changing the scope of the Professional Services furnished by Provider; or

(i) Provider’s breach of any provision of Section 12 herein.

10.4 Immediate Termination by Provider. Provider shall have the right, but not the obligation, to terminate this Agreement immediately upon notice to Manager of the suspension, exclusion or debarment of Manager, any employee, contractor, or agent of Manager, or any Provider Support Personnel or Licensed Support Personnel provided by Manager, from any Federal Healthcare Program; provided that Manager did not terminate the employment or engagement of such employee, contractor, or agent of Manager, including any Provider Support Personnel or Licensed Support Personnel, within sixty (60) days of becoming aware of such fact.

10.5 Termination By Either Party. This Agreement may be terminated as follows:

(a) by mutual written agreement of the Parties;

(b) by either Party immediately upon the filing of a petition in bankruptcy or the insolvency of the other Party; or

(c) by either Party, upon thirty (30) days advance written notice of a breach of any material provision of this Agreement by the other Party which is not cured within thirty (30) days after written notice is given, provided that such breach continues for a period of thirty (30) days after written notice is given by the non-breaching Party to the other Party.

10.6 Termination Obligations. In the event of termination or expiration of this Agreement, Provider shall pay all Management Fee and costs and expenses owing to Manager hereof up through and including the date of termination or expiration. In the event of termination or expiration of this Agreement, Manager will, upon request by Provider, immediately provide Provider a hardcopy or computer disk of all Provider-related billing, collection, accounts receivable, financial, personnel, and practice management data and information maintained by Manager in electronic form. Furthermore, after termination or expiration of this Agreement, the Parties shall reasonably cooperate with one another, and provide each other access to such books, records and information as either party may reasonably request, for purposes of defending against any subpoena, government or third-party payor investigation, audit, or any lawsuit or proceeding instituted by any third party and relating to any alleged or actual acts or omissions of either Party during the Term of this Agreement, or for any other legitimate purpose. Finally, any Loans owed by Provider to Manager at the time of termination will remain due and payable in accordance with their respective terms.

10.7 Effect of Termination. In the event of termination or expiration of this Agreement, Provider shall no longer have any right to the equipment, supplies, personnel and Management Services provided by Manager hereunder. Neither Party shall have the right to use or receive Confidential Information (as such term is defined in Section 12.2 herein) in any form or fashion. Subject to Section 10.6 and Section 11.5, Provider shall immediately return to Manager any equipment, records and other items provided hereunder (including all copies thereof) and both Parties shall cease using any Confidential Information of the other Party. For avoidance of doubt, Provider shall maintain, retain, and store patient medical records in accordance with applicable law upon termination or expiration of this Agreement. In the event of termination under this Article 10, the Parties will not enter into another agreement for the Management Services with each other on materially different financial terms prior to the one (1) year anniversary of the Effective Date.

11. Records and Record Keeping.

11.1 Access to Information. Provider hereby authorizes and grants to Manager full and complete access during the Term to all information, instruments and documents relating to Provider that may be reasonably requested by Manager to perform its obligations hereunder and shall disclose and make available to representatives of Manager for review and photocopying all relevant books, agreements, papers and records of Provider.

11.2 Manager’s Records and Systems. At all times during and after the Term, all business records and information, including, without limitation, all books of account and general administrative records and all information generated under or contained in the management information system pertaining to Provider, relating to the business and activities of Manager, shall be and remain the sole property of Manager. No provision in this Agreement shall be interpreted to limit in any way Provider’s access to, and Manager shall provide Provider with full access to, Provider’s financial and business information, including but not limited to bank statements, cash disbursements, cash receipts, accounts payable and receivable, and contractual obligations of any kind.

11.3 Manager’s Electronic Systems. Provider acknowledges that Manager is the sole owner of any proprietary electronic records systems/software and that Provider shall have no license or other right to copy, use, or transfer any rights to such systems/software, except for the right of access to the patient medical records as set forth herein as required by law and as necessary to provide the Professional Services.

11.4 Confidentiality of Records. Manager and Provider will adopt procedures to assure the confidentiality of the records relating to the operations of Manager and Provider, including, without limitation, all statistical, financial and personnel data related to the operations of Manager and Provider that is not otherwise available to third parties publicly or by law.

11.5 Maintenance, Retention and Storage of Records. The Management Services shall include oversight of the maintenance and storage of all patient medical records of Provider in its possession in accordance with applicable law, which patient medical records are, for the avoidance of doubt, owned by Provider. Manager shall maintain patient medical records for a minimum of seven (7) years from the last date of service to the patient, and longer if required by law. Provider shall have access to all patient medical records as necessary to defend against any subpoena, government or third-party payor investigation, audit, or any lawsuit or proceeding instituted by any third party and relating to any alleged or actual acts or omissions of Provider.

11.6 Privacy and Security of Medical Records. The Parties agree to discharge their respective duties hereunder in accordance with the applicable provisions of HIPAA and the regulations promulgated thereunder and all applicable state and federal laws governing the privacy and security of medical records. In furtherance of the foregoing, the Parties shall execute the HIPAA Business Associate Addendum attached as Exhibit E.

12. Protective Covenants.

12.1 Confidential Information. The Parties expressly acknowledge that, pursuant to this Agreement, each Party and its respective officers, members, managers, shareholders, directors, employees, agents and contractors will be given access to, and be provided with, business methods, trade secrets and other proprietary information of the other Party in connection with their respective duties and activities. Each Party expressly acknowledges and agrees that Confidential Information, as defined below in Section 12.2, is proprietary and confidential and if any of the Confidential Information was imparted to or became known by any persons engaging in a business in any way competitive with that of the other Party, including, without limitation, the Party receiving Confidential Information and its members, shareholders, officers, directors, managers, employees, agents and contractors, such disclosure would result in hardship, loss, irreparable injury and damage to the non-disclosing Party, the measurement of which would be difficult, if not impossible, to determine. Accordingly, each Party expressly agrees that the other Party has a legitimate interest in protecting the Confidential Information and its business goodwill, that it is necessary for each Party to protect its business from such hardship, loss, irreparable injury and damage, that the following covenants are a reasonable means by which to accomplish those purposes, and that violation of any of the protective covenants contained herein shall constitute a breach of trust and is grounds for immediate termination of the Agreement and for appropriate legal action for damages, enforcement and/or injunction.

12.2 Trade Secrets, Proprietary and Confidential Information. For purposes of this Agreement, “Confidential Information” is information obtained by a Party (“Receiving Party”) from or regarding the other Party (“Disclosing Party”) and includes, without limitation: (a) lists containing the names of past, present and prospective clients, patients, vendors, or suppliers; (b) the past, present and prospective methods, procedures and techniques utilized in identifying prospective clients or patients and in soliciting the business thereof; (c) the past, present and prospective methods, procedures and techniques used in the operation of the Party’s business, including, without limitation, the methods, procedures and techniques utilized in marketing, provision of services and pricing; (d) compilations of information, records and processes which are owned by a Party and/or which are used in the operation of the Party’s business; (e) statistical, personal, client information, private information concerning a Party; (f) historical and financial information, business strategies, operating data, organizational and cost structures, product descriptions, pricing information, technology, know-how, processes, software, databases, trade secrets, contracts; and (g) any information directly or indirectly obtained pursuant to this Agreement (including the terms and conditions of this Agreement). Notwithstanding the foregoing, Confidential Information shall not include information: (i) which is or becomes part of the public knowledge or literature, not as a result of any breach of the provisions of this Agreement or (ii) which is lawfully disclosed, without any restriction on additional disclosure, to the receiving Person by a third party who is free lawfully to disclose the same. All Confidential Information is the property of the Disclosing Party and shall include proprietary information protected under the Uniform Trade Secrets Act. Receiving Party shall not, and shall require that its personnel not, disclose to any Person or entity, directly or indirectly, either during the Term or at any time thereafter, any Confidential Information, or use any Confidential Information other than in the course of meeting such entity’s obligations under this Agreement unless such Confidential Information is reasonably necessary in order for Provider to litigate any claim against Manager. In the event the disclosure of Confidential Information is required by applicable law, an order of a court having competent jurisdiction or under subpoena from an appropriate government agency, Receiving Party shall use its reasonable best efforts to consult with Disclosing Party prior to making such required disclosure. Receiving Party agrees to return all Confidential Information to Disclosing Party, at Receiving Party’s expense, upon the termination of this Agreement. This provision shall survive the termination of this Agreement.

12.3 Trade Names and Service Marks. Provider shall not, absent Manager’s prior written consent, use the trade names or service marks of Manager other than in a manner approved by Manager.

12.4 Intellectual Property Ownership. Provider acknowledges and agrees that all copyrights, trademarks, inventions, and other intellectual property and proprietary rights conceived, developed or created by Provider during or in connection with the provision of Professional Services or Provider’s receipt of the Management Services or otherwise owned by Provider through its employment of the Physicians whether complete or works in progress, whether prepared or acquired by Provider, the Physicians or by any third party (collectively “Provider Work Product”) shall be solely owned by Manager. Provider agrees to assign and does hereby assign to Manager any and all right, title and interest in and to such Provider Work Product. Provider Work Product shall include, but not be limited to, all information, data, reports, studies, writings, programs, methods, forms, systems, services, designs, marketing and other ideas and concepts, products or processes, tests, techniques, developments, inventions, discoveries, innovations or materials (and any improvements or know-how related to any of the foregoing) developed, conceived, created, invented, contributed to, reduced to practice, or authored by Provider (either solely or jointly with another or others) in the course of providing the Professional Services or receiving the Management Services or otherwise owned by Provider through its employment of the Physicians provided, however, that Provider Work Product shall not include patient health information protected by applicable law, including PHI (as defined in Exhibit E) Use and disclosure of PHI shall be governed by the Parties’ HIPAA Business Associate Addendum. Provider agrees to at all times promptly disclose to the Manager in such form and manner as the Manager may reasonably require, any Provider Work Product, particularly including, but not limited to, Provider Work Product subject to protection as Confidential Information (as described in Section 12.2), or which may be patentable or copyrightable. Provider shall deliver the originals and all copies of any Provider Work Product to the Manager promptly upon the Manager’s request or the termination, for cause or otherwise, or expiration of this Agreement.

12.5 Further Assurances. If by operation of law or otherwise Provider or the Physicians acquire any ownership rights in any of the intellectual property rights held by Manager (“Manager IP Rights”) or Provider Work Product, by virtue of their respective activities pursuant to this Agreement or otherwise, such rights shall automatically vest in, or if not legally possible, be assigned promptly without restriction upon request to, Manager. To the extent any such rights cannot be assigned under applicable law, and to the extent allowed by applicable law, Provider and the Physicians hereby waive such rights and hereby consent to any action of the Manager that otherwise would violate such rights in the absence of such waiver or consent. Provider agrees to perform such acts as Manager may request, at Provider’s expense, in order to protect or confirm Manager’s interest in any of the Manager IP Rights, Provider Work Product or in any other intellectual property owned by Manager, including executing and delivering, without additional compensation, any and all documents that Manager reasonably determines may be necessary or desirable to perfect Manager’s ownership of the Manager IP Rights, Provider Work Product or other intellectual property owned by Manager from time to time. Provider will not, and will not permit anyone else to, use, adopt, register or attempt to register any Manager IP Rights or Provider Work Product. This Section 12.5 shall survive expiration or termination of this Agreement.

12.6 Non-Solicitation; Non-Disparagement; Goodwill. Provider and Owner (during the time period that the Owner holds an equity interest in Provider) agree that he, she or it shall not, during the Term, for any cause whatsoever, directly or indirectly, take any action that constitutes, results or may reasonably be expected to result in: (i) soliciting, diverting or interfering with any relationship that Manager or any of its affiliates has with any patients, health care providers or suppliers; (ii) soliciting the termination of, or diverting or interfering with any relationship that Manager has with any person or entity affiliated with it or any of its affiliates as an independent contractor, supplier or provider; (iii) entering into any agreement, the purpose of which would violate this Section 12.6; and (iv) soliciting, inducing or encouraging any individual employed or engaged by or affiliated with Manager or any of its affiliates (presently or in the then most recent twelve (12) month period) to curtail or terminate such affiliation or employment, or take any action that results in, or might reasonably be expected to result in any employee or contractor ceasing to perform services for Manager or its affiliates. Nothing in this Section 12.6 is intended to prohibit ordinary course employment decisions or the placement of general advertisements for employment, or to prohibit either Party or any of its affiliates who is a practicing physician from engaging in the professional practice of medicine or exercising such person’s independent medical judgment, without consideration for any pecuniary interests of the applicable physician, nor to restrict patient choice or require the referral of any patients for any service provided by either Party or its affiliates. Additionally, nothing in this Section 12.6 is intended to prohibit the Owner from providing emergency medical services to any patient or providing charity care as a medical professional. Each of Manager, Provider and Owner agrees that it shall not, during the Term and for a period of twelve (12) months following the termination of this Agreement, make any derogatory or disparaging statement or communication regarding the other Parties or their respective affiliates or employees. Each Party acknowledges and agrees that this Section 12.6 is intended to protect each Party’s legitimate business interests, including Manager’s substantial investment in managing Provider’s non-clinical operations.

12.7 Survival of Covenants. Each covenant in this Article 12 shall be construed as an agreement independent of any other provision of this Agreement, unless otherwise indicated herein, and shall survive the termination of this Agreement, and the existence of any claim or cause of action of either Party against the other Party, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of such covenant.

12.8 Extension of Restrictive Periods. If a Party violates the protective covenants set forth in this Article 12 and the aggrieved Party brings legal action for injunctive or other relief hereunder, the aggrieved Party shall not, as a result of the time involved in obtaining the relief, be deprived of the benefit of the full restrictive periods of the protective covenants contained in this Article 12. Accordingly, such restrictive periods for the purposes of this Article 12 shall be deemed to have a duration of the respective time periods stated in this Article 12 computed from the date relief is granted, but reduced by the time between the period when the restriction began to run and the date of the first violation of the covenant by such Party.

12.9 Specific Performance and Other Remedies. The Parties understand and acknowledge that violation of this Article 12 will cause irreparable harm to the non-violating Party, the exact amount of which will be impossible to ascertain, and for that reason the Parties agree that a Party shall be entitled to seek, without the necessity of showing any actual damage (unless required by law), from any court of competent jurisdiction temporary or permanent injunctive relief and/ or specific performance of this Agreement restraining a Party or any person from any act prohibited by this Article 12. Nothing in this Section 12.9 shall limit a Party’s right to recover any other damages or remedies to which it is entitled as a result of the other Party’s breach. If any one or more of the provisions of this Article 12 or any word, phrase, clause, sentence or other portion of this Article 12 shall be held to be unenforceable or invalid for any reason, such provision or portion of provision shall be modified or deleted in such a manner so as to make this Article 12, as modified, legal and enforceable to the fullest extent permitted under applicable law.

12.10 Severability of Restrictive Covenants; No Right of Set Off. The Parties each expressly agree and stipulate that the covenants and agreements contained in this Article 12 are separate, severable and divisible, and in the event any portion or portions of the covenants and agreements contained herein are declared invalid or unenforceable by any court of competent jurisdiction, the validity of the remaining covenants and agreements shall not be affected thereby. In addition, the enforceability of the covenants and agreements contained in this Article 12 shall not in any way be affected by any claim, action, cause of action, defense or right which Provider or an Owner may have against Manager, it being the intention of the Parties that Manager have the right to enforce the covenants and agreements contained in this Article 12, regardless of the existence of any such claim, action, cause of action, defense or right.

13. Indemnification.

13.1 Provider Indemnification. Provider hereby agrees to defend, indemnify and hold Manager and its affiliates and their respective officers, members, managers, employees, successors and assigns (“Manager Indemnified Parties”) harmless from and against any and all liabilities, causes of action, damages, losses, demands, claims, penalties, judgments, costs and expenses (including, without limitation, reasonable attorneys’ fees and related costs) of any kind or nature whatsoever (“Losses”) that may be sustained or suffered by any Manager Indemnified Party in any way caused by or arising from: (i) Provider’s provision of Professional Services, or (ii) any breach by Provider of any of its representations, warranties, covenants, obligations or duties under this Agreement and any other agreement entered into hereunder, in each case if, and only to the extent to which, such Losses are not (i) covered by Provider’s insurance, or (ii) caused by the gross negligence or willful misconduct of Manager or a Manager Indemnified Party.

13.2 Manager Indemnification. Manager hereby agrees to defend, indemnify and hold Provider and Owner and its affiliates and their respective members, managers, officers, employees, successors and assigns (“Provider Indemnified Parties”) harmless from and against any and all Losses that may be sustained or suffered by any Provider Indemnified Party in any way caused by or arising from: (i) the performance of, or failure to perform, of the Manager or any subcontractor of Manager’s duties under this Agreement, or (ii) any breach by Manager of any of its representations, warranties, covenants, obligations, or duties under this Agreement and any other agreement entered into hereunder, in each case if, and only to the extent to which, such Losses are not (i) covered by Manager’s insurance, or (ii) caused by the gross negligence or willful misconduct of Provider, Owner or a Provider Indemnified Party.

13.3 Survival. The provisions of this Article 13 shall survive the termination of this Agreement for the duration of the applicable statute of limitation.

14. Notices. All notices, requests, consents, and other communications provided for by this Agreement shall be in writing, shall be addressed to the receiving Party’s address set forth below or to such other address as a Party may designate by notice hereunder, and shall be either: (i) delivered by hand, (ii) sent by recognized overnight courier, or (iii) sent by certified mail, return receipt requested, postage prepaid to such address as each Party shall provide the other Party from time to time, or (iv) delivered via electronic mail, return receipt requested, provided that any notice sent via electronic mail must also be accompanied by another form of notice set forth in the foregoing sub-sections (i)-(iii). Notice shall be deemed given (A) upon delivery, if hand delivered, (B) on the next business day, if sent next day delivery by a recognized overnight courier, (C) if sent by certified mail, five (5) business days following the day such mailing is made; and (D) if sent via electronic mail, followed by notice consistent with the foregoing sub-sections (i)-(iii), upon delivery (regardless of whether the recipient confirms such receipt as requested).

15. Entire Agreement: Amendment. This Agreement, together with the exhibits attached hereto, contains the entire agreement between the Parties. No amendment, alteration or modification of this Agreement shall be valid unless in each instance such amendment, alteration or modification is expressed in a written instrument duly executed in the name of the Party or Parties making such amendment, alteration or modification.

16. General.

16.1 Duty to Cooperate. The Parties acknowledge that the Parties’ mutual cooperation is critical to the ability of Manager to perform successfully and efficiently its duties hereunder. Accordingly, each Party agrees to cooperate fully with the other in formulating and implementing goals and objectives that are in Provider’s best interest.

16.2 Limited Renegotiation.

(a) This Agreement shall be construed to be in accordance with any and all federal and state laws, including, without limitation, laws governing the state and federal health care programs and private third party payors. In the event there is a change in such laws, whether by statute, regulation, agency or judicial decision or guidance that has any material effect on any term of this Agreement, then the applicable term(s) of this Agreement shall be subject to renegotiation, and either Party may request renegotiation of the affected term or terms of this Agreement, upon written notice to the other Party, to remedy such condition.

(b) The Parties expressly recognize that upon request for renegotiation, each Party has a duty and obligation to the other only to renegotiate the affected term(s) in good faith and, further, each Party expressly agrees that its consent to proposals submitted by the other Party during renegotiation efforts shall not be unreasonably withheld provided such proposals would not materially alter the economic outcome of the Agreement.

16.3 Choice of Law. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Delaware, without regard to the conflict of laws provisions thereof. Both Provider and Manager expressly waive any right that either Party has or may have to a jury trial of any dispute arising out of or in any way related to this Agreement or any breach thereof.

16.4 Waiver of Breach. The waiver by either of the Parties of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach of the same or other provision hereof.

16.5 Force Majeure. Neither Party shall be liable or be deemed in default of this Agreement for any delay or failure to perform cause by Acts of God, war, disasters, strikes, or any similar cause beyond the control of either Party, including any federal, state and/or local directives limiting or prohibiting the provision of any Professional Services performed by Provider at the Clinic in response to SARS-CoV-2 (also known as COVID-19).

16.6 Severability. If any provision of this Agreement is held to be unenforceable for any reason, the unenforceability thereof shall not affect the remainder of this Agreement, which shall remain in full force and effect and enforceable in accordance with its terms.

16.7 Successors and Assigns. This Agreement shall bind each of the Parties and their respective successors and permitted assignees. Assignment by Provider or any Owner of any rights or obligations under this Agreement without the prior written consent of Manager is expressly prohibited. Manager is permitted to assign this Agreement or any rights or obligations hereunder to any third party (including any lender, purchaser, or affiliate of Manager) without the prior written consent of Provider and any such assignee is an intended third party beneficiary of this Agreement.

16.8 Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

16.9 Waiver. No term or condition of this Agreement shall be deemed to have been waived except by written instrument of the Party charged with such waiver.

16.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall be one and the same document.

16.11 Survival. The provisions of Article 12, Article 13 and such other articles and sections of this Agreement which either expressly or by their natures survive expiration or other termination of this Agreement shall survive such expiration or other termination of this Agreement until each such provision expires in accordance with its respective terms.

16.12 Construction. This Agreement has been drafted and negotiated jointly by the Parties, and this Agreement will be construed neither against nor in favor of either Party.

16.13 Exhibits. Any exhibits attached are an integral part of this Agreement and are incorporated herein by this reference.

16.14 Condition Precedent. The effectiveness of this Agreement is contingent on the closing of the transactions contemplated in the Joint Venture Agreement.

16.15 Remedies; Limitation of Liability. The remedies provided to the Parties by this Agreement are not exclusive or exhaustive, but cumulative and in addition to any other remedies the Parties may have, law or in equity. Notwithstanding the foregoing, the total limit of liability for Manager in connection with the Management Services or any other matter relating to this Agreement (whatever the basis for the cause of action) shall not exceed the cumulative value of the Management Fee paid to Manager during the twelve (12) months immediately prior to the termination or expiration of this Agreement.

16.16 Attorneys’ Fees. If legal action is commenced by either Party to enforce or defend its rights under this Agreement, the Prevailing Party in such action shall be entitled to recover its costs and reasonable attorney’s fees in addition to any other relief granted. The term “Prevailing Party” shall mean the Party in whose favor final judgment after appeal (if any) is rendered with respect to the claims asserted in the complaint, and the term “reasonable attorney’s fees” are those attorney’s fees reasonably incurred in obtaining a judgment in favor of the Prevailing Party.

16.17 Dispute Resolution.

(a) Subject to this Section 16.17(a), if at any time during the Term or upon its termination, any dispute or disagreement arises as to the validity, construction, enforceability or performance of this Agreement, which cannot be resolved by the mutual agreement of the Parties, and mindful of the high cost of litigation, not only in dollars but time and energy as well, the Parties intend to and do hereby establish a quick, final and binding out-of-court dispute resolution procedure to be followed in the unlikely event any controversy should arise out of or concerning the performance of this Agreement. Any controversy, dispute, or claim of whatever nature arising out of, in connection with, or in relation to the interpretation, performance or breach of this Agreement, including any claim based on contract, tort, or statute, shall be settled, at the request of any Party to this Agreement through arbitration to be conducted by the American Health Law Association.

(b) Notwithstanding Section 16.17(a), in the event that either Party has breached a provision of this Agreement that entitles the other Party to injunctive or other equitable relief, the non-breaching Party may commence an action for such relief in any federal or state court with jurisdiction.

16.18 No Third Party Beneficiaries. The Parties do not intend this Agreement to create any third party beneficiaries, including without limitation, individuals who are the subject of PHI.

16.19 Advice of Counsel. The Parties acknowledges that they have been advised to seek independent legal counsel for advice regarding the effect of the terms and provisions hereof, and have either obtained such advice of independent legal counsel, or have voluntarily and without compulsion elected to enter into and be bound by the terms of this Agreement without such advice of independent legal counsel.

16.20 Further Assurance: At any time, and from time to time, after the Effective Date, each Party will execute such additional instruments and take such action as may be reasonably requested by the other Parties to carry out the intent and purpose of this Agreement.

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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement, as of the Effective Date.

[Signature Page to Management Services Agreement] 

IN WITNESS WHEREOF, the undersigned Owner has caused this Agreement to be executed as of the Effective Date, for the limited purpose of acknowledging and agreeing to those certain terms and covenants set forth in Sections 1.2(f), 1.3, 2.13, 7.5, and 12.6 herein that by their express terms apply to Owner.

SCHEDULE 1

CLINICAL LABORATORY SERVICES

1. Services. Upon receipt of a valid order from Provider, Manager will perform or facilitate the delivery of the Clinical Laboratory Services described below.

1.1 INVO Embryology. Upon receipt from Provider of sperm and eggs collected by Provider from patients, such patient materials are fertilized in a petri dish and then placed into an INVOcell. The INVOcell is then given to Provider for placement into the patient for incubation. After the incubation period, the Provider removes the INVOcell from the patient and returns it to the laboratory staff. Embryos are removed from the INVOcell and evaluated. As instructed by Provider, a number of viable embryos are placed into a transfer catheter, which is given to Provider for placement into the patient. Any remaining viable embryos are frozen and placed into cryogenic storage for up to three (3) weeks until pregnancy confirmation. If pregnancy is confirmed, such remaining embryos can be delivered to third-party long term storage facilities as specified by Provider and patient. If pregnancy is not confirmed, such remaining embryos may be thawed and transferred at Provider’s direction.

1.2 INVO Embryology with ICSI. This service is performed using the same steps described in Section 1.1 immediately above, except that in lieu of fertilizing the sperm and eggs in a petri dish, fertilization occurs via intracytoplasmic sperm injection (“ICSI”).

1.3 Andrology Services. Andrology services will include semen analysis, as well as sperm processing, preparation and cryopreservation. Cryogenically preserved sperm samples will be held for a period of up to three (3) weeks.

2. Fees. Provider shall pay Manager the fees described below for Clinical Laboratory Services. Such fees may be changed by Manager from time to time by thirty (30) days written notice to Provider.

3. Payment Terms. Manager shall invoice Provider on a monthly basis for any Clinical Laboratory Services provided. Provider shall remit payment in full to the address listed on the invoice within fifteen (15) days of the date of the invoice. Any amounts payable by Provider hereunder and that remain unpaid more than fifteen (15) days after the invoice date shall be subject to a late charge equal to one and one-half percent (1.5%) per month, or the maximum amount permitted by law, whichever is less, calculated from the due date of the invoice until the date such amount is paid in full.

4. Accreditation. Manager shall employ or secure the services of accredited personnel, including but not limited to a lab director, embryologist and andrologist, to perform the Clinical Laboratory Services and to handle gametes, embryos and storage tanks. As soon as practicable after the Effective Date, Manager shall seek and secure accreditation with the College of American Pathologists or the Joint Commission on Accreditation of Healthcare Organizations to cover the provision Clinical Laboratory Services. Before the provision of any Clinical Laboratory Services, Manager shall apply for and receive a Clinical Laboratory Improvement Amendments license.

SCHEDULE 2

MANAGEMENT FEE

1. Management Fee. As compensation for the Management Services, Provider shall pay to Manager the Management Fee on a monthly basis as set forth in this Schedule 2. The Management Fee shall equal the Net Pre-Tax Income of Provider attributable to Provider’s operations in the State of Georgia. In the event one of the Parties in good faith believes, based on advice of competent legal counsel, that the Management Fee may potentially violate applicable state or federal law, the Parties may adjust the Management Fee in such manner as to comply with applicable state or federal laws while preserving, as closely as possible, the financial substance of the Management Fee.

2. As used in this Schedule 2, the following terms shall have the following meanings:

(a) “Cost of Provider’s Services” means Provider’s expenses, and other reasonable and necessary operating expenses incurred by Provider in conducting its business.

(b) “Net Pre-Tax Income” means Net Revenues less the total of the Cost of Provider’s Services, but without regard for the provision of income taxes.

(c) “Net Revenues” means all Revenues net of refunds, repayments or recoupments.

(d) “Revenues” means all reimbursement and cash collections which Provider receives or becomes entitled to receive for any services or sales of products or otherwise, including, without limitation, for the performance of the Professional Services.

3. The Parties recognize that, during the Term of this Agreement, the Management Services provided hereunder may change in size, scope and/or cost. In the event of any such change, the Parties agree to adjust the Management Fee to reflect the fair market value of the Management Services. In addition, at least sixty (60) days prior to the one (1) year anniversary of the Effective Date and at least sixty (60) days prior to each one (1) year anniversary thereafter, the Parties will review the Management Fee and make appropriate adjustments as the Parties may mutually agree to ensure that the Management Fee on a go-forward basis comports with the fair market value of the increased or decreased demand or cost for Management Services. In the event that the Parties are unable to agree to any such adjustment in the Management Fee, the existing Management Fee will remain in effect until such time as the Parties agree to an adjusted fee.

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CERTAIN INFORMATION IDENTIFIED BY BRACKETED ASTERISKS ([***]) HAS BEEN OMITTED FROM THIS EXHIBIT BECAUSE IT IS BOTH (1) NOT MATERIAL AND (2) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED.

Exhibit 10.4

INVOCELL SUPPLY AGREEMENT

This INVOCELL SUPPLY AGREEMENT (this “Agreement”) is made and entered into effective as of June 28, 2021 (the “Effective Date”) by and between INVO Bioscience Inc., a Nevada corporation (“INVO Bioscience”) and Bloom INVO LLC, a Delaware limited liability company (“Manager”). INVO Bioscience and Manager may be referred to individually as a “Party” and together as the “Parties.” Capitalized terms not defined herein shall have the meaning set forth in that certain JV Agreement (defined below).

RECITALS

WHEREAS, INVO Bioscience is a medical device manufacturer focused on creating simplified, lower cost treatments for patients diagnosed with infertility, using a patented medical device (the “INVOcell”) and a revolutionary in vivo method of vaginal incubation (the “INVO Procedure”) that offer patients a more natural and intimate experience. The INVOcell, the INVO Procedure and related devices and supplies created by INVO Bioscience are collectively referred to as the “Products”. The Products and the INVO Procedure are collectively referred to as the “INVO Technologies”; and

WHEREAS, INVO Bioscience is an Affiliate of INVO Centers, LLC (“INVO”), a Delaware limited liability company; and

WHEREAS, pursuant to that certain Joint Venture Agreement (the “JV Agreement”), dated as of the Effective Date, by and between INVO and Bloom Fertility, LLC (“Provider”), INVO and Provider will establish Manager as a joint venture for purposes of (i) assisting Provider in establishing a fertility center that will offer the INVO Technologies, along with related procedures (the “INVO Clinic”), and (ii) providing comprehensive management services to the INVO Clinic pursuant to that certain Management Services Agreement, dated as of the Effective Date, by and between Manager and Provider (the “MSA”); and

WHEREAS, subject to the terms set forth in this Agreement, the JV Agreement, the MSA, and that certain Distribution Agreement, dated November 12, 2018, by and among Ferring International Center S.A., INVO Bioscience and Bio X Cell, Inc., as amended, INVO Bioscience and Manager desire that INVO Bioscience serve as Manager’s exclusive supplier of the Products to be used at the INVO Clinic;

AGREEMENT

NOW, THEREFORE, for and in consideration of the premises and the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and on the terms and subject to the conditions herein set forth, the parties, intending to be legally bound, hereby agree as follows:

Prices do not include handling, shipping and insurance charges, nor any taxes, such as property, sales, use, or similar taxes. The payment of the full amount of all such fees, charges and/or taxes will be the responsibility of the Manager. If INVO Bioscience is required to collect or pay any such fees, charges or taxes, the amounts so paid or collected will be billed to and reimbursed by the Manager. The Manager will provide INVO Bioscience with appropriate sales tax exemption certificate numbers and forms along with other documentation satisfactory to the applicable taxing authorities to substantiate any claim of exemption from any such fees, charges or taxes.

INVO Bioscience warrants to the Manager (purchaser of the product) for ninety (90) days from receipt of the Products, if used as authorized in accordance with INVO Bioscience specifications, that the Products will not have significant defects in materials or workmanship that make the Product unusable. If the Product is deemed unusable or defective it will be replaced by INVO Bioscience. INVO Bioscience makes no warranty or representation that the Products will meet any customer-specific requirements. INVO Bioscience makes no warranty, implied or otherwise, regarding the performance or reliability of any third-party products such as culture medium. This limited warranty does not cover damage of any sort resulting from, but not limited to, accidents, improper storage, improper operation, alterations, tampering, abuse, neglect, fire, flood, war, or acts of God. Additionally, this limited warranty does not cover unintended use, failure to follow instructions for use (“IFU”), re-use, modification to the Products or INVO Procedure or unauthorized repair/modification of the Products. INVO BIOSCIENCE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

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IN WITNESS WHEREOF, the Parties have caused this INVOCELL Supply Agreement to be executed by their duly authorized respective officers as of the Effective Date.

Exhibit 10.5

Intellectual Property License Agreement

This Intellectual Property License Agreement (this “Agreement”) is entered into as of June 28, 2021 (“Effective Date”) between Bloom INVO LLC, a Delaware limited liability company (“Licensor” or “Company”), and INVO Bioscience, Inc., a Nevada corporation (together with its Affiliates, “Licensee”). All defined terms used herein appear in Article 9.

Whereas, Licensor is in the business of providing management services to medical providers, including Bloom Fertility, LLC (“Provider”), that offer treatments for patients seeking to overcome infertility, including by utilizing technologies originally developed by Licensee; and

Whereas, in connection with Licensor’s business, and the business of the medical providers that it manages, including Provider, it is anticipated that Licensor (and/or one or more of its/their employees, agents, subcontractors, partners, officers, directors, interns and staff) may create, generate, derive, develop or conceive, or otherwise obtain rights (including by assignment from the Provider) in improvements, information and technology related to infertility, including the Developed IP; and

Whereas, Licensor desires to grant to Licensee and its subsidiaries an exclusive, except as to Licensor, license to the Developed IP, effective as of the earliest date effective and allowable under applicable law, under the terms and conditions set forth in this Agreement;

Now, Therefore, in exchange for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and incorporating the foregoing recitals, the parties agree as follows:

1. License; Assignment and Ownership

1.1 License Grant. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee and its subsidiaries, as of the Effective Date, an exclusive, except as to Licensor and Provider, royalty-free, perpetual, irrevocable, sublicensable (through multiple tiers), right and license to make, use, import, sell, offer for sale, have sold, and otherwise Commercialize all Developments and Company IP in any field in the Territory (collectively, the “License”).

(a) Trademark Quality Control.

(i) Licensee shall not, and shall ensure that its sublicensee(s) shall not, reproduce or use any Trademarks licensed under Section 1.1 (“Licensed Trademarks”) in any manner whatsoever that does not materially comply with any reasonable trademark guidelines that Licensor may provide from time to time.

(ii) Licensee shall conduct its business, and shall ensure that its sublicensee(s) shall conduct their businesses, in a manner that will reflect positively on the Licensed Trademarks. Licensee shall use, and shall ensure that its sublicensee(s) shall use, the Licensed Trademarks in a manner that does not derogate Licensor’s rights in the Licensed Trademarks or the value of the Licensed Trademarks, and shall take no action that would interfere with, diminish or tarnish those rights or value.

(iii) Licensor will have the right to monitor Licensee’s and Licensee’s sublicensee(s)’ use of the Licensed Trademarks. Upon Licensor’s reasonable request, but no more frequently than once per year, Licensee shall, and shall ensure that its sublicensee(s) shall, submit to Licensor copies of any materials bearing the Licensed Trademarks. If Licensor discovers any improper use of the Licensed Trademarks on any such submission and delivers a writing describing in detail the improper use to Licensee within seven (7) days after receiving such submission, Licensee shall, and shall ensure that its sublicensee(s) shall, promptly remedy such improper use.

(b) Reservation of Rights. Except for those licenses and rights expressly granted in this Agreement, no license or right is granted by either party to the other party by implication, estoppel or otherwise. Without limiting the generality of the foregoing and for the avoidance of doubt, to the extent either party should wish to extend its rights beyond those rights as set forth in Article 1, such party shall first seek the express written consent of the other party for such extension, which consent such other party may grant or deny in its sole discretion.

1.2 Ownership of Company IP. Licensor shall retain exclusive ownership of the Company IP. Nothing in this Agreement transfers the underlying ownership rights of such Company IP to Licensee. All use of the Licensed Trademarks by Licensee and its sublicensee(s), and all goodwill associated with such use, shall inure to the sole benefit of Licensor. Licensor shall be required to file, maintain and otherwise prosecute or litigate the protection of any Company IP.

2. IP Protection

2.1 Enforcement. Licensor shall have the right (but not the obligation), in its sole discretion, to enforce the Company IP during the Term of this Agreement.

2.2 Prosecution and Maintenance. Licensor shall take commercially reasonable efforts to protect and maintain the Company IP. Licensor shall not abandon any Company IP that was registered as of the Effective Date, without first providing prior written notice to Licensee and offering to transfer and assign to Licensee all right, title and interest in and to such IP, subject to Licensee agreeing to any costs or fees associated with such IP.

3. Confidential Information

3.1 Confidential Information. Each party agrees to maintain all Confidential Information of the other party in confidence to the same extent that it protects its own similar Confidential Information, but not less than reasonable care, and to use such Confidential Information of the other party only as permitted under this Agreement. Each party agrees to take reasonable precautions to prevent any unauthorized disclosure or use of Confidential Information of the other party, including, without limitation, by disclosing such Confidential Information only to its employees, contractors, agents, or Licensee’s sublicensee(s): (a) with a need to know such information, (b) who are parties to appropriate agreements or confidentiality obligations sufficient to comply with this Section 3.1. In each case of a disclosure of Confidential Information from one Party to the other, the receiving Party will take appropriate steps to implement and enforce such non-disclosure/non-use obligations. The parties acknowledge and agree that Licensor may be required to file all or a portion of this Agreement and make filings with respect to it with the SEC, and such disclosure will not be deemed a violation of Licensor’s obligations hereunder.

3.2 Exclusions. The foregoing restrictions on disclosure and use will not apply with respect to any Confidential Information which: (a) was or becomes publicly known through no fault of the receiving party; (b) was rightfully known or becomes rightfully known to the receiving party without confidential or proprietary restriction from a source other than the disclosing party; (c) is documented by the receiving party as having been independently developed by the receiving party without the participation of individuals who have had access to the Confidential Information; (d) is approved by the disclosing party for disclosure without restriction in a written document signed by a duly authorized officer of such disclosing party; and (e) the receiving party is legally compelled to disclose, provided, however, prior to any such compelled disclosure, the receiving party will (i) assert the privileged and confidential nature of the Confidential Information against the third Person seeking disclosure and (ii) reasonably cooperate with the disclosing party in allowing the disclosing party to protect against any such disclosure and/or obtain a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event that such protection against disclosure is not obtained, the receiving party will be entitled to disclose the Confidential Information, but only as and to the extent reasonably necessary to legally comply with such compelled disclosure. Each party agrees that the terms and conditions of this Agreement will be treated as Confidential Information of the other party, provided that each party may disclose the terms and conditions of this Agreement: (1) as required by the applicable securities laws or (2) in confidence, to legal counsel, accountants, banks and financing sources and their advisors, and in connection with the enforcement of this Agreement or any rights hereunder.

4. Licensor’s Representations and Warranties; Disclaimer.

Licensor represents and warrants to Licensee that Licensor has full corporate power and authority to enter into this Agreement and to carry out its obligations hereunder. The execution and delivery by Licensor of this Agreement and the performance by Licensor of its obligations hereunder have been duly authorized by all requisite corporate or stockholder action on the part of Licensor. This Agreement has been duly executed and delivered by Licensor, and this Agreement constitutes a legal, valid and binding obligation of Licensor enforceable against Licensor in accordance with its terms, except to the extent that enforcement of the rights and remedies created thereby is subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws of general application affecting the rights and remedies of creditors and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH HEREIN, LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER TO THE OTHER PARTY OR ANY OTHER ENTITY.

5. Licensee’s Representations and Warranties; Disclaimers.

Licensee has full corporate power and authority to enter into this Agreement and to carry out its obligations hereunder. The execution and delivery by Licensee of this Agreement and the performance of its obligations hereunder have been duly authorized by all requisite corporate or stockholder action on the part of such party. This Agreement has been duly executed and delivered by Licensee, and constitutes a legal, valid and binding obligation of Licensee enforceable against it in accordance with its terms, except to the extent that enforcement of the rights and remedies created thereby is subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws of general application affecting the rights and remedies of creditors and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, LICENSEE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER TO THE OTHER PARTY OR ANY OTHER ENTITY.

6. Limitation of Liability

Each party acknowledges and agrees that this Agreement represents the complete allocation of risks between the parties, it has voluntarily accepted all risks assigned to it herein, and the disclaimer of warranties and limitation of remedies herein form an essential basis of the bargain. TO THE EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR INDIRECT DAMAGES ARISING UNDER OR RELATED TO THIS AGREEMENT (INCLUDING LOST PROFITS, LOSS OF BUSINESS OR DATA, BUSINESS INTERRUPTION) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

7. Term and Termination

7.1 Term; Termination. This Agreement will commence on the Effective Date and continue in perpetuity, unless terminated by the written agreement of all parties to this Agreement, or unless terminated earlier in accordance with the terms hereof (the “Term”). Either party shall have the right to terminate this Agreement if the other party is in material breach of any material term or condition of this Agreement and fails to cure such breach within one hundred eighty (180) days after receipt of written notice of such breach given by the non-breaching party.

7.2 Obligations Upon Termination. Upon termination of this Agreement, each party shall return to the other party any Confidential Information received hereunder for which the party’s rights do not survive, or destroy or purge its own system and files of any such Confidential Information (to the extent practicable) and deliver to the other party a written certificate signed by an officer of such party that such destruction and purging have been carried out; provided, however, that the receiving party may retain copies that are automatically retained as part of a computer back-up, recovery or similar archival or disaster recovery system, subject to the terms of this Agreement.

7.3 Survival. Articles 3-5, 6-8, and 9 shall survive termination or expiration of the Agreement.

8. General Provisions

8.1 Notices. Any notice, request, demand or other communication required or permitted hereunder will be in writing and deemed to be properly given upon the earlier of (a) the date of transmission when sent by electronic mail, return receipt requested during normal business hours; or (b) five (5) business days after deposit when mailed by certified mail, return receipt requested, or two (2) business days after being sent via private industry courier to the respective parties at the addresses set forth on the signature page hereto, which may be amended by a party upon five (5) days’ notice to the other party.

8.2 Assignment. Neither Party shall assign this Agreement, nor any of its rights or obligations hereunder, to any other Person without the prior written consent of the other Party, which shall not be unreasonably withheld.

8.3 Governing Law. This Agreement is to be construed in accordance with and governed by the internal laws of the State of Delaware (“State”) without giving effect to any choice or conflict of law provision or rule (whether of the State or any other jurisdiction). Any legal suit, action or proceeding arising out of or relating to this Agreement will be commenced in federal court in the State, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding.

8.4 Waiver. The waiver by any party of a breach of or a default under any provision of this Agreement will be in writing and will not be construed as a waiver of any subsequent breach of or default under the same or any other provision of the Agreement, nor will any delay or omission on the part of a party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.

8.5 Severability. If the application of any provision or provisions of this Agreement to any particular facts or circumstances is held to be invalid or unenforceable by any court of competent jurisdiction, then (a) the validity and enforceability of such provision or provisions as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement will not in any way be affected or impaired thereby, and (b) such provision or provisions will be reformed without further action by the parties hereto and only to the extent necessary to make such provision or provisions valid and enforceable when applied to such particular facts and circumstances.

8.6 Relationship of the Parties. This Agreement, in and of itself, will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties.

8.7 Construction. This Agreement shall be construed as if jointly drafted by the parties hereto and no rule of construction or strict interpretation shall be applied against either party. The titles to Articles and headings of Sections contained in this Agreement, in any Schedule and in the table of contents to this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of or to affect the meaning or interpretation of this Agreement.

8.8 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, and which together will constitute one Agreement.

8.9 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior negotiations, conditions, agreements, or communications between them relating to the subject matter hereof. No amendment or modification of any provision of this Agreement will be effective unless in writing and signed by the Parties.

9. Definitions

Capitalized terms used in this Agreement will have the following meanings:

9.1 “Affiliate” as to a party means (i) any entity controlled by, controlling or under common control with that party now or in the future (control shall be deemed to mean having a right to 50% of the entity’s profits or ownership of at least 50% of the voting rights in the entity), or (ii) any entity in which Licensee, now or in the future, holds an interest.

9.2 “Clinical Trial” means a human clinical study conducted on sufficient numbers of human subjects that is designed to (a) establish that a pharmaceutical product or medical device is reasonably safe for continued testing; (b) investigate the safety and efficacy of the pharmaceutical product or medical device for its intended use, and to define warnings, precautions and adverse reactions that may be associated with the pharmaceutical product in the dosage range to be prescribed or the medical device; or (c) support regulatory approval of such pharmaceutical product or medical device or Label expansion of such pharmaceutical product or medical device.

9.3 “Company IP” means all IP now or hereafter owned by Licensor, including but not limited to the Developed IP.

9.4 “Confidential Information” means any information and/or materials disclosed by one party to the other in written, oral, graphic, electronic or other form that (a) is marked or identified in writing as confidential, proprietary, or with other marks indicative of a confidential nature, (b) if disclosed orally or in other intangible form or in any form that is not so marked, is identified as confidential (or other terms indicative of a confidential nature) at the time of such disclosure, or (c) includes, comprises or contains financial information, proposals, prospects or customer lists, research, development, testing data, samples, parts, pricing, computer programs (including source code), models, designs, unpublished patent applications, trade secrets, know-how, formulas, processes, flow charts, techniques, ideas, inventions (whether patentable or not), schematics and other technical, business, financial and product development plans, forecasts, strategies, systems, works of authorship, projects, any other business, marketing, financial, technical, scientific, engineering, and other non-public information, or other information of the disclosing party that is disclosed in circumstances of confidence.

9.5 “Commercialization” means any and all activities of marketing, promoting, distributing, offering for sale or selling the Product in the Field in the Territory, including, for example, marketing, branding, pricing, distribution, sales, obtaining health insurance reimbursement coverage, market research, business analytics, pharmacovigilance and medical affairs activities (including conducting post-marketing clinical studies), pre-commercial launch market development activities conducted in anticipation of regulatory approval to sell or market the Product, seeking pricing and reimbursement approvals for the Product, preparing advertising and promotional materials, sales force training, and all interactions and correspondence with a regulatory authority regarding post-regulatory approval Clinical Trials. When used as a verb, “Commercialize” means to engage in Commercialization.

9.6 “Developments” means all information and technology related to Field, and any intellectual property arising therefrom, that Licensor creates, generates, derives, develops or conceives, or otherwise obtains rights in, after the Effective Date.

9.7 “Developed IP” means any and all IP that has or may in the future arise from any Developments.

9.8 “Documentation” means with respect to the Company IP and any Developments, all documentation, including, but not limited to, user manuals, data sheets, schematics, test and verification plans and reports, application notes, design documents, programming guides, and other documents related to the Field and useful for Commercializing the Company IP and/or the Developments.

9.9 “Field” means all therapeutic, prophylactic and diagnostic uses of medical devices or pharmaceutical products involving assisted reproductive technology (including infertility treatment) in humans.

9.10 “Governmental Authority” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (but only to the extent that the rules, regulations or orders of such organization or authority have the force of law), or any arbitrator, court or tribunal of competent jurisdiction.

9.11 “Intellectual Property” or “IP” means any and all of the following in any jurisdiction throughout the world: (a) patents and patent applications, (including all related continuations, continuations-in-part, divisionals, reissues, reexaminations, substitutions, renewals, extensions, nationalizations, validations, counterparts (domestic or foreign) or restorations of any of the foregoing (regardless of lapse, expiration or abandonment status), and other Governmental Authority-issued indicia of invention ownership (including certificates of invention, petty patents, and patent utility models) together with industrial designs, registrations, applications for registration, and renewals thereof (“Patents”); (b) copyrights and works of authorship, whether or not copyrightable, and all registrations, applications for registration, and renewals of, any of the foregoing, and mask works, and all registrations, applications for registrations, and renewals thereof, including: computer aided design files including electrical schematics, bill of materials, layout files, gerber files, mechanical CAD files, and artwork files (“Copyrights”); (c) trademarks, service marks, brands, certification marks, logos, trade dress, trade names, and other similar indicia of source or origin, together with the goodwill connected with the use of and symbolized by, and all registrations, applications for registration, and renewals of, any of the foregoing (“Trademarks”); (d) trade secrets, know-how, inventions (whether or not patentable), discoveries, improvements, technology, business and technical information, databases, data compilations and collections, tools, methods, processes, techniques, and other confidential and proprietary information (“Know-How”) Software; and any other proprietary, intellectual or industrial property, including but not limited to domain names (“Domain Names”).

9.12 “Label” means the approved display of written, printed or graphic matter either (a) on the immediate container, packaging or wrapper of an article or (b) inside a container, package or wrapper so long as it is easily legible through the outside container or wrapper.

9.13 “Person” means an individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization, trust, association or other entity.

9.14 “Product” means any medical device or product related to fertility and/or the treatment of infertility in humans.

9.15 “Software” means any and all of the following: (i) computer programs and other software, including software implementations of algorithms, models, and methodologies, whether in source code, object code, firmware or other form, including libraries, application programming interfaces, subroutines and other components thereof; (ii) computerized databases and other computerized compilations and collections of data or information, including all data and information included in such databases, compilations or collections; (iii) screens, user interfaces, command structures, report formats, templates, menus, buttons and icons; (iv) descriptions, flow-charts, architectures, development tools, specifications, protocols, and other materials used to design, plan, organize and develop any of the foregoing; (v) all Documentation, including development, diagnostic, support, user and training documentation related to any of the foregoing; and (vi) enhancements, updates, releases, upgrades, bug fixes, error corrections, patches, new versions, translations, conversions or other modifications or additions, as applicable, to any of the foregoing.

9.16 “Territory” means worldwide.

In Witness Whereof, the parties have caused this Agreement to be executed by duly authorized representatives of the parties as of the Effective Date.

Exhibit 10.6

Intellectual Property License Agreement

This Intellectual Property License Agreement (this “Agreement”) is entered into as of June 28, 2021 (“Effective Date”) between INVO Bioscience, Inc., a Nevada corporation, and Bio X Cell, Inc., a Massachusetts corporation (each a “Licensor” and together, “Licensors”), and Bloom INVO LLC, a Delaware limited liability company (“Licensee”). All defined terms used herein appear in Article 9.

Whereas, Licensors are medical device companies focused on developing and creating simplified, lower cost treatments for patients diagnosed with infertility; and

Whereas, Licensors have pioneered, tested, created and developed proprietary intravaginal culture medical devices (“INVOcell”), in vivo methods of vaginal incubation (“INVO Procedures”), and other related treatments and technologies to enhance reproductive success (together with the INVOcell and INVO Procedures, the “INVO Technologies”); and

Whereas, Licensors are, individually or collectively, the owners of certain IP related to the INVO Technologies, including the INVO IP, and desire to grant to Licensee a license to the INVO IP, under the terms and conditions set forth in this Agreement, in connection with the establishment of one or more INVO Clinics operating in the Field and in the Territory;

Now, Therefore, in exchange for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and incorporating the foregoing recitals, the parties agree as follows:

1. License

1.1 License Grant and Retention of Rights. Subject to the terms and conditions of this Agreement, Licensors (individually and collectively) hereby grant to Licensee, as of the Effective Date, a non-exclusive, royalty-free, perpetual, sublicensable (through multiple tiers), right and license to make, use, import, sell, offer for sale, have sold, and otherwise Commercialize the INVO IP in the Field in the Territory (collectively, the “License”).

1.2 Trademark Quality Control.

(a) Licensee shall not, and shall ensure that its sublicensee(s) shall not, reproduce or use any Trademarks licensed under Section 1.1 (“Licensed Trademarks”) in any manner whatsoever other than as expressly authorized by this Agreement, and all uses of the Licensed Trademarks will materially comply with any reasonable trademark guidelines that Licensors may provide from time to time.

(b) Licensee shall conduct its business, and shall ensure that its sublicensee(s) shall conduct their businesses, in a manner that will reflect positively on the Licensed Trademarks. Licensee shall use, and shall ensure that its sublicensee(s) shall use, the Licensed Trademarks in a manner that does not derogate Licensors’ respective rights in the Licensed Trademarks or the value of the Licensed Trademarks, and shall take no action that would interfere with, diminish or tarnish those rights or value. All Products that bear the Licensed Trademarks shall be of a quality at least as great as the quality of Licensors’ INVOcell prior to the Effective Date.

(c) Licensee will not use, and shall ensure that its sublicensee(s) shall not use, any Trademark confusingly similar to any of the Licensed Trademarks, without both Licensors’ consent. Licensee agrees, and shall ensure that its sublicensee(s) agree, not to register or attempt to register any Licensed Trademarks or any Trademark confusingly similar to any of the Licensed Trademarks, without both Licensors’ consent.

(d) Licensors will have the right to monitor Licensee’s and Licensee’s sublicensee(s)’ use of the Licensed Trademarks. Upon either Licensors’ reasonable request, but no more frequently than once per year collectively, Licensee shall, and shall ensure that its sublicensee(s) shall, submit to either or both Licensors copies of any materials bearing the Licensed Trademarks. If either or both Licensors discover any improper use of the Licensed Trademarks on any such submission and delivers a writing describing in detail the improper use to Licensee within seven (7) days after receiving such submission, Licensee shall, and shall ensure that its sublicensee(s) shall, promptly remedy such improper use.

1.3 Reservation of Rights. Except for those licenses and rights expressly granted in this Agreement, no license or right is granted by either party to the other party by implication, estoppel or otherwise. Without limiting the generality of the foregoing and for the avoidance of doubt, to the extent either party should wish to extend its rights beyond those rights as set forth in this Article 1, such party shall first seek the express written consent of the other party for such extension, which consent such other party may grant or deny in its sole discretion.

1.4 Ownership of INVO IP. Licensors shall retain their respective exclusive ownership of the INVO IP. Nothing in this Agreement transfers any ownership rights of such INVO IP. All use of any Licensed Trademarks by Licensee and its sublicensee(s), and all goodwill associated with such use, shall inure to the sole benefit of the Licensor that owns the respective Licensed Trademark. Except as expressly set forth in this agreement, Licensors shall not be required to file, maintain or otherwise prosecute or litigate the protection of any INVO IP other than in the sole and absolute discretion of Licensors. Licensee covenants and agrees, and shall ensure that its sublicensee(s) covenant and agree, not to challenge or assist any Person in challenging the validity, enforceability or other viability of any INVO IP.

2. IP Protection

2.1 Enforcement. Licensors shall have the right (but not the obligation), in its sole discretion, to enforce the INVO IP during the Term of this Agreement. In the event that any of the INVO IP are infringed by a third Person in the Field and one or more of Licensors institute an action or proceeding against such third Person to enforce the INVO IP, Licensee, at the sole cost and expense of Licensor, shall cooperate with and provide assistance reasonably requested by such Licensor(s) in furtherance of such action or proceeding.

2.2 Prosecution and Maintenance. Licensors shall take commercially reasonable efforts to protect and maintain the INVO IP. Each Licensor’s decision, which may be made in its sole discretion as to INVO IP for which it is the sole owner, to rely on unregistered forms of protection instead of registered forms of protection shall in all cases be deemed to be commercially reasonable under this Agreement; provided, however, that neither Licensor may abandon any INVO Registered IP for which such Licensor is the sole owner and which was registered as of the Effective Date, without first providing prior written notice to Licensee and offering to transfer and assign to Licensee all right, title and interest in and to such IP, subject to Licensee agreeing to any costs or fees associated with such IP, and subject to a perpetual, royalty-free, sublicensable, unlimited, non-exclusive license from Licensee back to the Licensors under such IP.

3. Confidential Information

3.1 Confidential Information. Each party agrees to maintain all Confidential Information of the other party in confidence to the same extent that it protects its own similar Confidential Information, but not less than reasonable care, and to use such Confidential Information of the other party only as permitted under this Agreement. Each party agrees to take reasonable precautions to prevent any unauthorized disclosure or use of Confidential Information of the other party, including, without limitation, by disclosing such Confidential Information only to its employees, contractors, agents, or Licensee’s sublicensee(s): (a) with a need to know such information, (b) who are parties to appropriate agreements or confidentiality obligations sufficient to comply with this Section 3.1. In each case of a disclosure of Confidential Information from one Party to the other, the receiving Party will take appropriate steps to implement and enforce such non-disclosure/non-use obligations. The parties acknowledge and agree that Licensor may be required to file all or a portion of this Agreement and make filings with respect to it with the SEC, and such disclosure will not be deemed a violation of Licensor’s obligations hereunder.

3.2 Exclusions. The foregoing restrictions on disclosure and use will not apply with respect to any Confidential Information which: (a) was or becomes publicly known through no fault of the receiving party; (b) was rightfully known or becomes rightfully known to the receiving party without confidential or proprietary restriction from a source other than the disclosing party; (c) is documented by the receiving party as having been independently developed by the receiving party without the participation of individuals who have had access to the Confidential Information; (d) is approved by the disclosing party for disclosure without restriction in a written document signed by a duly authorized officer of such disclosing party; and (e) the receiving party is legally compelled to disclose, provided, however, prior to any such compelled disclosure, the receiving party will (i) assert the privileged and confidential nature of the Confidential Information against the third Person seeking disclosure and (ii) reasonably cooperate with the disclosing party in allowing the disclosing party to protect against any such disclosure and/or obtain a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event that such protection against disclosure is not obtained, the receiving party will be entitled to disclose the Confidential Information, but only as and to the extent reasonably necessary to legally comply with such compelled disclosure. Each party agrees that the terms and conditions of this Agreement will be treated as Confidential Information of the other party, provided that each party may disclose the terms and conditions of this Agreement: (1) as required by the applicable securities laws or (2) in confidence, to legal counsel, accountants, banks and financing sources and their advisors, and in connection with the enforcement of this Agreement or any rights hereunder.

4. Licensors’ Representations and Warranties; Disclaimer.

Licensors represent and warrant to Licensee that Licensors have full corporate power and authority to enter into this Agreement and to carry out their respective obligations hereunder. The execution and delivery by Licensors of this Agreement and the performance by Licensors of their obligations hereunder have been duly authorized by all requisite corporate or stockholder action on the part of each Licensor. This Agreement has been duly executed and delivered by Licensors, and constitutes a legal, valid and binding obligation of Licensors enforceable against Licensors in accordance with its terms, except to the extent that enforcement of the rights and remedies created thereby is subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws of general application affecting the rights and remedies of creditors and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH HEREIN, LICENSORS MAKE NO FURTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER TO THE OTHER PARTY OR ANY OTHER ENTITY.

5. Licensee Representations and Warranties; Disclaimers.

Licensee has full corporate power and authority to enter into this Agreement and to carry out its obligations hereunder. The execution and delivery by Licensee of this Agreement and the performance of its obligations hereunder have been duly authorized by all requisite company and member action on the part of such party. This Agreement has been duly executed and delivered by Licensee, and constitutes a legal, valid and binding obligation of Licensee enforceable against it in accordance with its terms, except to the extent that enforcement of the rights and remedies created thereby is subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws of general application affecting the rights and remedies of creditors and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, LICENSEE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER TO THE OTHER PARTY OR ANY OTHER ENTITY.

6. Limitation of Liability

Each party acknowledges and agrees that this Agreement represents the complete allocation of risks between the parties, it has voluntarily accepted all risks assigned to it herein, and the disclaimer of warranties and limitation of remedies herein form an essential basis of the bargain. TO THE EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR INDIRECT DAMAGES ARISING UNDER OR RELATED TO THIS AGREEMENT (INCLUDING LOST PROFITS, LOSS OF BUSINESS OR DATA, BUSINESS INTERRUPTION) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

7. Term and Termination

7.1 Term; Termination. This Agreement will commence on the Effective Date and continue in perpetuity, unless terminated by the written agreement of all parties to this Agreement, or unless terminated earlier in accordance with the terms hereof (the “Term”). Either party shall have the right to terminate this Agreement if the other party is in material breach of any material term or condition of this Agreement and fails to cure such breach within one hundred eighty (180) days after receipt of written notice of such breach given by the non-breaching party.

7.2 Obligations Upon Termination. Upon termination of this Agreement, each party shall return to the other party any Confidential Information received hereunder for which the party’s rights do not survive, or destroy or purge its own system and files of any such Confidential Information (to the extent practicable) and deliver to the other party a written certificate signed by an officer of such party that such destruction and purging have been carried out; provided, however, that the receiving party may retain copies that are automatically retained as part of a computer back-up, recovery or similar archival or disaster recovery system, subject to the terms of this Agreement.

7.3 Survival. Articles 3-5, 6-8, and 9 shall survive termination or expiration of the Agreement.

8. General Provisions

8.1 Notices. Any notice, request, demand or other communication required or permitted hereunder will be in writing and deemed to be properly given upon the earlier of (a) the date of transmission when sent by electronic mail, return receipt requested during normal business hours; or (b) five (5) business days after deposit when mailed by certified mail, return receipt requested, or two (2) business days after being sent via private industry courier to the respective parties at the addresses set forth on the signature page hereto, which may be amended by a party upon five (5) days’ notice to the other party.

8.2 Assignment. Except as otherwise set forth herein with respect to sublicensees, Licensee shall not assign this Agreement, nor any of its rights or obligations hereunder, to any other Person without the prior written consent of both Licensors, which may be withheld for any reason in each Licensor’s sole discretion.

8.3 Governing Law. This Agreement is to be construed in accordance with and governed by the internal laws of the State of Delaware (“State”) without giving effect to any choice or conflict of law provision or rule (whether of the State or any other jurisdiction). Any legal suit, action or proceeding arising out of or relating to this Agreement will be commenced in federal court in the State, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding.

8.4 Waiver. The waiver by any party of a breach of or a default under any provision of this Agreement will be in writing and will not be construed as a waiver of any subsequent breach of or default under the same or any other provision of the Agreement, nor will any delay or omission on the part of a party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.

8.5 Severability. If the application of any provision or provisions of this Agreement to any particular facts or circumstances is held to be invalid or unenforceable by any court of competent jurisdiction, then (a) the validity and enforceability of such provision or provisions as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement will not in any way be affected or impaired thereby, and (b) such provision or provisions will be reformed without further action by the parties hereto and only to the extent necessary to make such provision or provisions valid and enforceable when applied to such particular facts and circumstances.

8.6 Relationship of the Parties. This Agreement, in and of itself, will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties.

8.7 Construction. This Agreement shall be construed as if jointly drafted by the parties hereto and no rule of construction or strict interpretation shall be applied against either party. The titles to Articles and headings of Sections contained in this Agreement, in any Schedule and in the table of contents to this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of or to affect the meaning or interpretation of this Agreement.

8.8 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, and which together will constitute one Agreement.

8.9 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior negotiations, conditions, agreements, or communications between them relating to the subject matter hereof. No amendment or modification of any provision of this Agreement will be effective unless in writing and signed by the Parties.

9. Definitions

Capitalized terms used in this Agreement will have the following meanings:

9.1 “Affiliate” as to a party means any entity controlled by, controlling or under common control with that party now or in the future (control shall be deemed to mean having a right to 50% of the entity’s profits or ownership of at least 50% of the voting rights in the entity).

9.2 “Clinical Trial” means a human clinical study conducted on sufficient numbers of human subjects that is designed to (a) establish that a pharmaceutical product or medical device is reasonably safe for continued testing; (b) investigate the safety and efficacy of the pharmaceutical product or medical device for its intended use, and to define warnings, precautions and adverse reactions that may be associated with the pharmaceutical product in the dosage range to be prescribed or the medical device; or (c) support regulatory approval of such pharmaceutical product or medical device or Label expansion of such pharmaceutical product or medical device.

9.3 “Confidential Information” means any information and/or materials disclosed by one party to the other in written, oral, graphic, electronic or other form that (a) is marked or identified in writing as confidential, proprietary, or with other marks indicative of a confidential nature, (b) if disclosed orally or in other intangible form or in any form that is not so marked, is identified as confidential (or other terms indicative of a confidential nature) at the time of such disclosure, or (c) includes, comprises or contains financial information, proposals, prospects or customer lists, research, development, testing data, samples, parts, pricing, computer programs (including source code), models, designs, unpublished patent applications, trade secrets, Know-how, formulas, processes, flow charts, techniques, ideas, inventions (whether patentable or not), schematics and other technical, business, financial and product development plans, forecasts, strategies, systems, works of authorship, projects, any other business, marketing, financial, technical, scientific, engineering, and other non-public information, or other information of the disclosing party that is disclosed in circumstances of confidence.

9.4 “Commercialization” means any and all activities of marketing, promoting, distributing, offering for sale or selling the Product in the Field in the Territory, including, for example, marketing, branding, pricing, distribution, sales, obtaining health insurance reimbursement coverage, market research, business analytics, pharmacovigilance and medical affairs activities (including conducting post-marketing clinical studies), pre-commercial launch market development activities conducted in anticipation of regulatory approval to sell or market the Product, seeking pricing and reimbursement approvals for the Product, preparing advertising and promotional materials, sales force training, and all interactions and correspondence with a regulatory authority regarding post-regulatory approval Clinical Trials. When used as a verb, “Commercialize” means to engage in Commercialization.

9.5 “Documentation” means with respect to the INVO Technologies, all documentation, including, but not limited to, user manuals, data sheets, schematics, test and verification plans and reports, application notes, design documents, programming guides, and other documents of either or both Licensors related to the technology useful to Commercialize the same.

9.6 “Ferring Agreement” means that certain Distribution Agreement by and among Ferring International Center S.A. and INVO Bioscience, Inc., and BIO X Cell, Inc., dated November 12, 2018 (together with any current and future amendments thereto).

9.7 “Field” means the Commercialization of the INVO Technologies and the Product through an INVO Clinic in the Territory.

9.8 “Governmental Authority” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (but only to the extent that the rules, regulations or orders of such organization or authority have the force of law), or any arbitrator, court or tribunal of competent jurisdiction.

9.9 “Intellectual Property” or “IP” means any and all of the following in any jurisdiction throughout the world: (a) patents and patent applications, (including all related continuations, continuations-in-part, divisionals, reissues, reexaminations, substitutions, renewals, extensions, nationalizations, validations, counterparts (domestic or foreign) or restorations of any of the foregoing (regardless of lapse, expiration or abandonment status), and other Governmental Authority-issued indicia of invention ownership (including certificates of invention, petty patents, and patent utility models) together with industrial designs, registrations, applications for registration, and renewals thereof (“Patents”); (b) copyrights and works of authorship, whether or not copyrightable, and all registrations, applications for registration, and renewals of, any of the foregoing, and mask works, and all registrations, applications for registrations, and renewals thereof, including: computer aided design files including electrical schematics, bill of materials, layout files, gerber files, mechanical CAD files, and artwork files (“Copyrights”); (c) trademarks, service marks, brands, certification marks, logos, trade dress, trade names, and other similar indicia of source or origin, together with the goodwill connected with the use of and symbolized by, and all registrations, applications for registration, and renewals of, any of the foregoing (“Trademarks”); and (d) trade secrets, know-how, inventions (whether or not patentable), discoveries, improvements, technology, business and technical information, databases, data compilations and collections, tools, methods, processes, techniques, and other confidential and proprietary information (“Know-How”) Software.

9.10 “INVO Clinic” means any clinic, established in whole or in part by INVO Bioscience, Inc. (or an Affiliate thereof), that exclusively Commercializes the INVO Technologies in the Territory in order to Commercialize the Product.

9.11 “INVO IP” means all IP owned by Licensors, individually or collectively, as of the Effective Date and throughout the Term that relate to the INVO Technologies.

9.12 “INVO Registered IP” means all INVO IP that is subject to any issuance, registration, or application for registration by or with any Governmental Authority or authorized private registrar in any jurisdiction, including those specifically identified in Exhibit A.

9.13 “Label” means the approved display of written, printed or graphic matter either (a) on the immediate container, packaging or wrapper of an article or (b) inside a container, package or wrapper so long as it is easily legible through the outside container or wrapper.

9.14 “Person” means an individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization, trust, association or other entity.

9.15 “Product” means INVO’s proprietary intravaginal culture device known as INVOcell, together with any applicable accessories, including, without limitation, the retention device (each of which is more specifically described in Exhibit B), together with all current and future formulations, versions, improvements, modifications and presentations of such product by Licensors and their Affiliates from time to time.

9.16 “Software” means any and all of the following: (i) computer programs and other software, including software implementations of algorithms, models, and methodologies, whether in source code, object code, firmware or other form, including libraries, application programming interfaces, subroutines and other components thereof; (ii) computerized databases and other computerized compilations and collections of data or information, including all data and information included in such databases, compilations or collections; (iii) screens, user interfaces, command structures, report formats, templates, menus, buttons and icons; (iv) descriptions, flow-charts, architectures, development tools, specifications, protocols, and other materials used to design, plan, organize and develop any of the foregoing; (v) all Documentation, including development, diagnostic, support, user and training documentation related to any of the foregoing; and (vi) enhancements, updates, releases, upgrades, bug fixes, error corrections, patches, new versions, translations, conversions or other modifications or additions, as applicable, to any of the foregoing.

9.17 “Territory” means the State of Georgia.

[Signature Page Follows]

In Witness Whereof, the parties have caused this Agreement to be executed by duly authorized representatives of the parties as of the Effective Date.

Exhibit A

Schedule of INVO Registered IP

Patents and Patent Applications