CLRD Clearday Inc (CE)

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event Reported): August 29, 2023 (August 28, 2023)

 

Clearday, Inc.

(Exact Name of Registrant as Specified in its Charter)

 

Delaware		0-21074		77-0158076
(State or Other Jurisdiction of Incorporation)		(Commission File Number)		(I.R.S. Employer Identification Number)

 

8800 Village Drive, Suite 106, San Antonio, TX 78217

(Address of Principal Executive Offices) (Zip Code)

 

(210) 451-0839

(Registrant’s telephone number, including area code)

 

 

(Former name or former address, if changed since last report)

NA

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

☒	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Common Stock, par value $0.001		CLRD		OTCQX

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2). Emerging growth company ☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

 

Item 1.01

Entry into a Material Definitive Agreement.

 

As previously disclosed on April 11, 2023, Clearday, Inc., a Delaware corporation (“Clearday”), entered into a Merger Agreement, dated as of April 5, 2023 (the “Merger Agreement”), by and among Viveon Health Acquisition Corp., a Delaware corporation (“Viveon”), VHAC2 Merger Sub, Inc., a Delaware corporation (“Merger Sub”), Viveon Health LLC, a Delaware limited liability company (“SPAC Representative”), and Clearday SR LLC, a Delaware limited liability company (“Company Representative”). Pursuant to the terms of the Merger Agreement, a business combination between Viveon and Clearday will be effected through the merger of Merger Sub with and into Clearday, with Clearday surviving the merger as a wholly owned subsidiary of Viveon (the “Merger”), and Viveon will change its name to “Clearday Holdings, Inc.” Defined terms not otherwise defined herein shall the meanings ascribed to such terms in the Merger Agreement.

 

On August 28, 2023, Viveon, Clearday, Merger Sub, SPAC Representative and Company Representative entered into the First Amendment to Merger Agreement (the “First Amendment”) that amended and modified the Merger Agreement to, among other things, (i) increase the merger consideration from $250,000,000 to $500,000,000 (plus the aggregate exercise price for all Clearday options and warrants), payable in shares of common stock of Viveon, (ii) provide that holders of all Company Capital Stock (including Company Common Stock, Company Series A Preferred Stock and Company Series F Preferred Stock) as of the effective time of the Merger will be entitled to receive a pro rata portion of the Earnout Shares, and (iii) amend the mechanics for appointing a successor Company Representative.

 

The foregoing description of the First Amendment is not complete and is subject to and qualified in its entirety by reference to the First Amendment which is filed with this Current Report on Form 8-K as Exhibit 2.1, the terms of which are incorporated by reference herein.

 

Item 7.01

Regulation FD Disclosure.

 

On August 29, 2023, Viveon and Clearday issued a joint press release announcing the signing of the First Amendment. A copy of the press release is furnished hereto as Exhibit 99.1.

 

The information in this Item 7.01 and Exhibit 99.1 attached hereto shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific reference in such filing.

 

Important Information About the Proposed Business Combination and Where to Find It

 

In connection with the proposed business combination, Viveon and Clearday intend to file relevant materials with the SEC, including a registration statement on Form S-4 containing a joint preliminary proxy statement/prospectus (the “Form S-4”) with the SEC and after the registration statement is declared effective, each of Viveon and Clearday will mail a definitive proxy statement/final prospectus relating to the proposed business combination to their respective stockholders.

 

The Form S-4 will include a joint proxy statement to be distributed to (i) holders of Viveon’s common stock in connection with the solicitation of proxies for the vote by Viveon’s stockholders, and (ii) holders of Clearday’s common stock in connection with the solicitation of proxies for the vote by Clearday’s stockholders with respect to the proposed transaction and other matters as described in the Form S-4, as well as the prospectus relating to the offer of securities to be issued to Clearday’s stockholders in connection with the proposed business combination. After the Form S-4 has been filed and declared effective, each of Viveon and Clearday will mail a definitive proxy statement/prospectus, when available, to their respective stockholders. Investors, security holders and other interested parties are urged to read the Form S-4, any amendments thereto and any other documents filed with the SEC carefully and in their entirety when they become available because they will contain important information about Viveon, Clearday and the proposed business combination. Additionally, each of Viveon and Clearday will file other relevant materials with the SEC in connection with the proposed business combination. Copies may be obtained free of charge at the SEC’s web site at www.sec.gov. The documents filed by Viveon with the SEC also may be obtained free of charge upon written request to Viveon at: 3480 Peachtree Road NE 2nd Floor - Suite #112 Atlanta, Georgia 30326. The documents filed by Clearday with the SEC also may be obtained free of charge upon written request to Clearday at: 8800 Village Drive, Suite 106, San Antonio, Texas 78217.

 

Security holders of Viveon and security holders of Clearday are urged to read the Form S-4 and the other relevant materials when they become available before making any voting decision with respect to the proposed business combination because they will contain important information about the business combination and the parties to the business combination. The information contained on, or that may be accessed through, the websites referenced in this Current Report on Form 8-K (this “Current Report”) is not incorporated by reference into, and is not a part of, this Current Report.

 

 

Participants in the Solicitation

 

Viveon and its directors and executive officers may be deemed participants in the solicitation of proxies from Viveon’s and Clearday’s stockholders with respect to the business combination. A list of the names of those directors and executive officers and a description of their interests in Viveon will be included in the Form S-4 for the proposed business combination and be available at www.sec.gov. Additional information regarding the interests of such participants will be contained in the proxy statement/prospectus for the proposed business combination when available. Information about Viveon’s directors and executive officers and their ownership of Viveon’s common stock is set forth in Viveon’s Annual Report on Form 10-K for the year ended December 31, 2022 and filed with the SEC on August 24, 2023, as modified or supplemented by any Form 3 or Form 4 filed with the SEC since the date of such filing. Other information regarding the direct and indirect interests of the participants in the proxy solicitation will be included in the proxy statement/prospectus pertaining to the proposed business combination when it becomes available. These documents can be obtained free of charge from the SEC’s web site at www.sec.gov.

 

Clearday and its directors and executive officers may also be deemed to be participants in the solicitation of proxies from the stockholders of Viveon and Clearday in connection with the proposed business combination. A list of the names of such directors and executive officers and information regarding their interests in the proposed business combination will be included in the Form S-4 for the proposed business combination. Information about Clearday’s directors and executive officers and their ownership in Clearday is set forth in Clearday’s Annual Report on Form 10-K for the year ended December 31, 2022 and filed with the SEC on May 25, 2023, as modified or supplemented by any Form 3 or Form 4 filed with the SEC since the date of such filing.

 

Forward-Looking Statements

 

Certain statements made in this Current Report are “forward-looking statements” within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of words such as “target,” “believe,” “expect,” “will,” “shall,” “may,” “anticipate,” “assume,” “estimate,” “would,” “could,” “positioned,” “future,” “forecast,” “intend,” “plan,” “project,” “outlook” and other similar expressions that predict or indicate future events or trends or that are not statements of historical matters. Examples of forward-looking statements include, among others, statements made in this Current Report regarding: the proposed transactions contemplated by the Merger Agreement, including the benefits of the proposed business combination, integration plans, expected synergies and revenue opportunities; anticipated future financial and operating performance and results, including estimates for growth, the expected management and governance of the combined company, continued expansion of product portfolios and the availability or effectiveness of the technology for such products; the longevity health care sector’s continued growth; and the expected timing of the proposed business combination. Forward-looking statements are neither historical facts nor assurances of future performance. Instead, they are based only on Viveon’s and Clearday’s current beliefs, expectations and assumptions. Because forward-looking statements relate to the future, they are subject to inherent uncertainties, risks and changes in circumstances that are difficult to predict and many of which are outside of our control. Actual results and outcomes may differ materially from those indicated in the forward-looking statements. Therefore, you should not rely on any of these forward-looking statements. Important factors that could cause actual results and outcomes to differ materially from those indicated in the forward-looking statements include, among others, the following: (1) the occurrence of any event, change, or other circumstances that could give rise to the termination of the Merger Agreement; (2) the institution or outcome of any legal proceedings that may be instituted against Viveon and/or Clearday following the announcement of the Merger Agreement and the transactions contemplated therein; (3) the inability of the parties to complete the proposed business combination, including due to failure to obtain approval of the stockholders of Viveon or Clearday, certain regulatory approvals, or satisfy other conditions to closing in the Merger Agreement; (4) the occurrence of any event, change, or other circumstance that could give rise to the termination of the Merger Agreement or could otherwise cause the transaction to fail to close; (5) the impact of COVID-19 pandemic on Clearday’s business and/or the ability of the parties to complete the proposed business combination; (6) the inability to obtain or maintain the listing of Viveon’s shares of common stock on the NYSE American following the proposed business combination; (7) the risk that the proposed business combination disrupts current plans and operations as a result of the announcement and consummation of the proposed business combination; (8) the ability to recognize the anticipated benefits of the proposed business combination, which may be affected by, among other things, competition and the ability of Clearday to grow and manage growth profitably and retain its key employees; (9) costs related to the proposed business combination; (10) changes in applicable laws or regulations; (11) the possibility that Clearday may be adversely affected by other economic, business, and/or competitive factors; (12) the amount of redemption requests made by Viveon’s stockholders; and (13) other risks and uncertainties indicated from time to time in the final prospectus of Viveon for its initial public offering dated December 22, 2020 filed with the SEC, Viveon’s Annual Report on Form 10-K, Clearday’s Annual Report on Form 10-K and the Form S-4 relating to the proposed business combination, including those under “Risk Factors” therein, and in Viveon s and Clearday’s other filings with the SEC. The foregoing list of factors is not exclusive and Viveon and Clearday caution readers not to place undue reliance upon any forward-looking statements, which speak only as of the date made. Viveon and Clearday do not undertake or accept any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements to reflect any change in their expectations or any change in events, conditions, or circumstances on which any such statement is based, whether as a result of new information, future events, or otherwise, except as may be required by applicable law. Neither Viveon nor Clearday gives any assurance that the combined company will achieve its expectations.

 

 

No Offer or Solicitation

 

This Current Report shall not constitute a solicitation of a proxy, consent, or authorization with respect to any securities or in respect of the proposed business combination. This Current Report shall also not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any states or jurisdictions in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended, or an exemption therefrom.

 

Item 9.01. Financial Statements and Exhibits.

 

(d)

Exhibits

 

2.1	First Amendment to Merger Agreement, dated as of August 28, 2023, by and among Viveon Health Acquisition Corp., Clearday, Inc., VHAC2 Merger Sub, Inc., Viveon Health LLC and Clearday SR LLC.
99.1	Press Release dated August 29, 2023.
104	Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL Document

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

Dated: August 29, 2023

 

Clearday, Inc.
By:	/s/ James T. Wales
Name:	James T. Walesa
Title:	Chief Executive Officer

 

 

Exhibit 2.1

 

FIRST AMENDMENT TO MERGER AGREEMENT

 

This First Amendment to Merger Agreement (this “Amendment”), dated as of August 28, 2023 is entered into by and among Clearday, Inc., a Delaware corporation (the “Company”), Viveon Health Acquisition Corp., a Delaware corporation (“Parent”), VHAC2 Merger Sub, Inc., a Delaware corporation (“Merger Sub”), Viveon Health LLC, a Delaware limited liability Company, in the capacity as the representative from and after the Effective Time for the stockholders of Parent (other than the Company Stockholders) as of immediately prior to the Effective Time (and their successors and assigns) in accordance with the terms and conditions of the Original Merger Agreement (as defined below) (the “SPAC Representative”), and Clearday SR LLC, a Delaware limited liability company, in the capacity as the representative from and after the Effective Time for the holders of Company Preferred Stock as of immediately prior to the Effective Time (and their successors and assigns) in accordance with the terms and conditions of the Original Merger Agreement (the “Company Representative” and each of the SPAC Representative and the Company Representative, a “Representative Party”).

 

RECITALS

 

WHEREAS, the Company, Parent, Merger Sub and the Representative Parties entered into that certain Merger Agreement dated as of April 5, 2023 (the “Original Merger Agreement”);

 

WHEREAS, the Company, Parent, Merger Sub and the Representative Parties desire to amend certain definitions in the Original Merger Agreement: “Company Earnout Holders”, “Company Knowledge Persons”, “Earnout Pro Rata Share” and “Per Share Merger Consideration Amount”;

 

WHEREAS, the Company, Parent, Merger Sub and the Representative Parties desire to amend certain other terms of the Original Merger Agreement as more fully set forth in this Amendment; and

 

WHEREAS, capitalized and other defined terms used in this Amendment and not otherwise defined herein have the respective meanings given to them in the Original Merger Agreement.

 

NOW, THEREFORE, in consideration of the mutual covenants and promises set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

 

1. Amendments of the Original Merger Agreement.

 

(a) Section 1.1 of the Original Merger Agreement. Section 1.1 of the Original Merger Agreement is hereby amended to amend and restate and/or add the following definitions:

 

(i) “Company Earnout Holders” means the holders of shares of Company Capital Stock as of immediately prior to the Effective Time, determined on the basis assuming that all of the shares of the Company Series A Preferred Stock and all of the shares of the Company Series F Preferred Stock were converted into shares of Company Common Stock immediately prior to the Effective Time, in accordance with their respective terms, who hold for a period of at least six (6) months following the Closing Date: (1) shares of Parent Common Stock issued upon exchange of their Company Capital Stock or (2) shares of Parent New Series A Preferred Stock or Parent New Series F Preferred Stock (as the case may be) issued in exchange of the Company Preferred Stock or shares of Parent Common Stock issued upon conversion of any such Company Preferred Stock.

 

 

(ii) “Company Knowledge Persons” means each of the following individuals: Roberta Otto, Linda Carrasco, Richard Morris, BJ Parrish, Daniel Policy, Gary Sawina and James Walesa.

 

(iii) “Earnout Pro Rata Share” means, for each Company Earnout Holder, a percentage determined by the quotient of:

 

(1) The sum of (i) the total number of shares of Company Common Stock held by such Company Earnout Holder immediately prior to the Effective Time, plus (ii) the total number of shares of Company Common Stock issuable upon conversion of all shares of Company Series A Preferred Stock and Company Series F Preferred Stock that are held by such Company Earnout Holder immediately prior to the Effective Time;

 

divided by

 

(2) The sum of (i) the total number of shares of Company Common Stock and (ii) the total number of shares of the Company Common Stock issuable upon conversion of all shares of Company Series A Preferred Stock and Company Series F Preferred Stock, in each case, that are issued and outstanding immediately prior to the Effective Time.

 

(iv) “Per Share Merger Consideration Amount” means an amount equal to (a) the sum of (i) Five Hundred Million Dollars ($500,000,000), plus (ii) the Aggregate Exercise Price, divided by (b) the number of Fully Diluted Company Shares.”

 

(b) Amendment to Section 3.1(c). Section 3.1(c) of the Original Merger Agreement is hereby amended to read in its entirety as follows

 

(c) Conversion of Shares of Company Common Stock. Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than any such shares of Company Common Stock cancelled pursuant to Section 3.1(a) and any Dissenting Shares) shall, in accordance with the Company Certificate of Incorporation, be converted into the right to receive (i) a number of shares of Parent Common Stock equal to the Conversion Ratio; and (ii) a number of Earnout Shares in accordance with, and subject to the contingencies, set forth in Section 3.7.

 

(c) Amendment to Section 3.5. Section 3.5(a)(xiii)(E) of the Original Merger Agreement is hereby amended to read in its entirety as follows

 

 

(E) for each holder of Company Common Stock, Company Series A Preferred Stock and Company Series F Preferred Stock, its respective Earnout Pro Rata Share.

 

(d) Amendment to Section 11.21. Section 11.21(d) of the Original Merger Agreement is hereby amended to read in its entirety as follows

 

(d) If the Company Representative shall die, become disabled, dissolve, resign or otherwise be unable or unwilling to fulfill its responsibilities as representative and agent of the Company Earnout Holders, then the Company Earnout Holders shall, within ten (10) Business Days after notice of such death, disability, dissolution, resignation or other event is provided by Parent to the Company Earnout Holders (which notice may be provided by the filing of a press release and Form 8-K with the SEC by Parent), appoint a successor Company Representative (by vote or written consent of the holders of Company Capital Stock that was held by such Company Earnout Holders that hold a plurality of the votes or consents provided by such Company Earnout Holders provided in writing to Parent, attention Secretary of the Corporation that are received on or prior to such tenth (10^th) Business Day. Any such successor so appointed shall become the “Company Representative” for purposes of this Agreement.

 

2. Representations and Warranties of the Company and the Company Representative. The Company and the Company Representative (each, a “Company Party”) hereby represent and warrant to Parent that each of the following representations and warranties are true, correct and complete as of the date of this Amendment and as of the Closing Date:

 

(a) Each Company Party has all requisite corporate power and authority to execute and deliver this Amendment and to consummate the transactions contemplated hereby, in the case of the Merger, subject to receipt of the Company Stockholder Approval. The execution and delivery by each Company Party of this Amendment and the consummation by each Company Party of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company. No other corporate proceedings on the part of either Company Party are necessary to authorize this Amendment or to consummate the transactions contemplated by this Amendment (other than, in the case of the Merger, the receipt of the Company Stockholder Approval). This Amendment has been duly executed and delivered by each Company Party and, assuming the due authorization, execution and delivery by each of the other parties hereto, this Amendment constitutes a legal, valid and binding obligation of such Company Party, enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions.

 

(b) None of the execution, delivery or performance by either Company Party of this Amendment or the consummation by such Company Party of the transactions contemplated hereby does or will, in each case, subject to receipt of the Company Stockholder Approval, (a) contravene or conflict with the contravene or conflict with the organizational or constitutive documents of the Company Parties, (b) contravene or conflict with or constitute a violation of any provision of any Law or Order binding upon or applicable to the Company Parties or to any of its respective properties, rights or assets, (c) (i) require consent, approval or waiver under, (ii) constitute a default under or breach of (with or without the giving of notice or the passage of time or both), (iii) violate, (iv) give rise to any right of termination, cancellation, amendment or acceleration of any right or obligation of the Company Parties or to a loss of any material benefit to which the Company Parties are entitled, in the case of each of clauses (i) – (iv), under any provision of any Permit, Contract or other instrument or obligations binding upon the Company Parties or any of its respective properties, rights or assets, other than the obligation to pay indebtedness or other liabilities or convert such indebtedness or other liabilities into (A) Parent Common Stock or (B) Company Common Stock (which conversion into Company Common Stock would be on or prior to the Effective Time), (d) result in the creation or imposition of any Lien (except for Permitted Liens) on any of the Company Parties’ properties, rights or assets, or (e) require any consent, approval or waiver from any Person pursuant to any provision of the organizational or constitutive documents of the Company Parties.

 

 

3. Representations and Warranties of the Parent Parties. Parent , Merger Sub and the SPAC Representative (the “Parent Parties”) hereby represent and warrant to the Company that each of the following representations and warranties are true, correct and complete as of the date of this Amendment and as of the Closing Date:

 

(a) Each of the Parent Parties has all requisite corporate power and authority to execute and deliver this Amendment and to consummate the transactions contemplated hereby, in the case of the Merger, subject to receipt of the Parent Stockholder Approval. The execution and delivery by each of the Parent Parties of this Amendment and the consummation by each of the Parent Parties of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of such Parent Party. No other corporate proceedings on the part of such Parent Party are necessary to authorize this Amendment or to consummate the transactions contemplated by this Amendment (other than, in the case of the Merger, the receipt of the Parent Stockholder Approval). This Amendment has been duly executed and delivered by such Parent Party and, assuming the due authorization, execution and delivery by each of the other parties hereto and thereto (other than a Parent Party), this Amendment constitutes a legal, valid and binding obligation of such Parent Party, enforceable against such Parent Party in accordance with its terms, subject to the Enforceability Exceptions.

 

(b) The execution, delivery and performance by a Parent Party of this Amendment or the consummation by a Parent Party of the transactions contemplated hereby do not and will not (a) contravene or conflict with the organizational or constitutive documents of the Parent Parties, or (b) contravene or conflict with or constitute a violation of any provision of any Law or any Order binding upon the Parent Parties.

 

4. No Waiver. No waiver of any breach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or similar nature.

 

5. Miscellaneous.

 

(a) Entire Agreement. The Original Merger Agreement, as amended by this Amendment, together with the Additional Agreements, sets forth the entire agreement of the parties with respect to the subject matter hereof and thereof and supersedes all prior and contemporaneous understandings and agreements related thereto (whether written or oral), all of which are merged herein.

 

 

(b) Ratification. Except as amended hereby, the terms and provisions of the Original Merger Agreement shall remain unchanged and in full force and effect. In the event of any conflict between the terms of the Original Merger Agreement and the terms of this Amendment, the terms of this Amendment shall govern and control.

 

(c) Counterparts; Electronic Signatures. This Amendment may be executed in counterparts, each of which shall constitute an original, but all of which shall constitute one agreement. This Amendment shall become effective upon delivery to each party of an executed counterpart or the earlier delivery to each party of original, photocopied, or electronically transmitted signature pages that together (but need not individually) bear the signatures of all other parties.

 

(d) Governing Law. This Amendment and all disputes or controversies arising out of or relating to this Amendment or the transactions contemplated hereby, including the applicable statute of limitations, shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware.

 

(e) Incorporation by Reference. Sections 11.1 (Notices), 11.2 (Amendments; No Waivers; Remedies), 11.3 (Arm’s Length Bargaining; No Presumption Against Drafter), 11.5 (Expenses), 11.6 (No Assignment or Delegation), 11.10 (Severability), 11.11 (Further Assurances), 11.12 (Third Party Beneficiaries), 11.13 (Waiver), 11.14 (No Other Representations; No Reliance), 11.15 (Waiver of Jury Trial), 11.16 (Submission to Jurisdiction), 11.17(Attorneys’ Fees), 11.18 (Remedies) and 11.19 (Non-Recourse of the Merger Agreement) are hereby incorporated by reference herein mutatis mutandis.

 

[Signature Page Follows]

 

* * * * *

 

 

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have duly executed this Amendment as of the day and year first above written.

 

	Parent:
	VIVEON HEALTH ACQUISITION CORP.
	By:	/s/ Jagi Gill
	Name:	Jagi Gill
	Title:	Chief Executive Officer
	Merger Sub:
	VHAC2 MERGER SUB, INC.
	By:	/s/ Jagi Gill
	Name:	Jagi Gill
	Title:	Director
	SPAC Representative:
	VIVEON HEALTH, LLC, solely in the capacity as the SPAC Representative hereunder
	By:	/s/ Romilos Papadopoulos
	Name:	Romilos Papadopoulos
	Title:	Managing Member

 

 

	Company:
	CLEARDAY, INC.
	By:	/s/ James Walesa
	Name:	James Walesa
	Title:	Chief Executive Officer
	Company Representative:
	Clearday SR LLC, solely in the capacity as the Company Representative hereunder
	By:	/s/ James Walesa
	Name:	James Walesa, Manager
	Title:	Authorized Signatory

 

 

 

Exhibit 99.1

 

 

Viveon Health Acquisition Corp. and Clearday, Inc. Announce

Amendment to their Definitive Merger Agreement

 

Norcross GA and San Antonio, TX (Aug. 29, 2023) (GLOBE NEWSWIRE) —Viveon Health Acquisition Corp. (NYSE American: VHAQ) (“Viveon”), a special purpose acquisition company, and Clearday, Inc. (CLRD) (“Clearday”), an innovative longevity technology company using an integrated platform of robotic companion care and AI-driven technology to serve the senior adult care sector, announced today that they have amended the terms of their previously announced Merger Agreement, dated as of April 5, 2023 (the “Merger Agreement”). Pursuant to the terms of the Merger Agreement, a business combination between Viveon and Clearday will be effected through the merger of a wholly owned subsidiary of Viveon with and into Clearday, with Clearday surviving the merger as a wholly owned subsidiary of Viveon (the “Merger”).

 

The amendment to the Merger Agreement provides for, among other things, (i) an increase in the merger consideration from $250,000,000 to $500,000,000 (plus the aggregate exercise price for all Clearday options and warrants), payable in shares of Viveon’s common stock, (ii) that holders of all of Clearday’s capital stock (including Clearday’s common stock and preferred stock) at the effective time of the Merger will be entitled to receive a pro rata portion of the earnout shares, and (iii) amending the mechanics for appointing a successor Clearday representative.

 

“We continue to believe Clearday to be the right partner for Viveon and look forward to closing the transaction in the near future,” said Jagi Gill, CEO of Viveon. Mr Gill added, “We have been working closely with the Clearday team during the last few months to further develop their longevity-tech platform and believe Clearday has added considerably to the platform’s ability to meet the significant addressable longevity care market that is estimated to be more than $275 billion and provide meaningful benefits to residential care communities and their staff. We remain committed to working with the Clearday team to optimize their novel technology platform and executing on the sales channel expansion delivering companion care solutions for residents and operators in the burgeoning senior care market.”

 

Jim Walesa, CEO of Clearday, stated, “We appreciate working with Viveon to better transition Clearday into a high-growth technology business serving the pressing and expensive longevity care crisis facing our aging population. Clearday’s care solutions combine AI-enabled robotics and a software platform that enables autonomous companionship, care intelligence, and a patient data platform to address the challenges in the longevity care market with proven results in our communities.”

 

Additional information about the proposed transaction, including a copy of the amendment to the Merger Agreement, can be found in a Current Report on Form 8-K to be filed each of Viveon and Clearday with the U.S. Securities and Exchange Commission (the “SEC”) and will be available at www.sec.gov.

 

 

Advisors

 

Dykema Gossett PLLC is acting as legal counsel to Clearday.

 

Loeb and Loeb LLP is acting as legal counsel to Viveon.

 

ClearThink Capital LLC is acting as a transactional and strategic advisor to the parties.

 

About Clearday Inc.

 

Clearday^™ is an innovative longevity healthcare technology company with a modern, hopeful vision for making high-quality care solutions more accessible, affordable, and empowering for aging individuals and their families. Clearday has a decades-long experience in non-acute care through its subsidiary, which operates highly-rated residential memory care and adult daycare communities. Its Longevity Care Platform brings Clearday solutions to people wherever they are. Its platform is at the intersection of telehealth, remote monitoring, and patient engagement — all delivered across mobile, and robotic endpoints in a Software-as-a-Service (SaaS) and Robotics as a Service (RaaS) model. Learn more about Clearday and its pioneering legislative efforts to bring the “Innovative Cognitive Care Act for Veterans” to Congress at www.myclearday.com/viveon/. 

 

About Viveon Health Acquisition Corp.

 

Viveon Health Acquisition Corp. is a blank check company, also commonly referred to as a special purpose acquisition company, or SPAC, formed for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses. It is Viveon’s intention to pursue prospective targets that are focused on the healthcare sector in the United States and other developed countries.

 

Important Information About the Proposed Business Combination and Where to Find It

 

In connection with the proposed business combination, Viveon and Clearday intend to file relevant materials with the SEC, including a registration statement on Form S-4 containing a joint preliminary proxy statement/prospectus (the “Form S-4”) with the SEC and after the registration statement is declared effective, each of Viveon and Clearday will mail a definitive proxy statement/final prospectus relating to the proposed business combination to their respective stockholders.

 

 

The Form S-4 will include a joint proxy statement to be distributed to (i) holders of Viveon’s common stock in connection with the solicitation of proxies for the vote by Viveon’s stockholders, and (ii) holders of Clearday’s common stock in connection with the solicitation of proxies for the vote by Clearday’s stockholders with respect to the proposed transaction and other matters as described in the Form S-4, as well as the prospectus relating to the offer of securities to be issued to Clearday’s stockholders in connection with the proposed business combination. After the Form S-4 has been filed and declared effective, each of Viveon and Clearday will mail a definitive proxy statement/prospectus, when available, to their respective stockholders. Investors, security holders and other interested parties are urged to read the Form S-4, any amendments thereto and any other documents filed with the SEC carefully and in their entirety when they become available because they will contain important information about Viveon, Clearday and the proposed business combination. Additionally, each of Viveon and Clearday will file other relevant materials with the SEC in connection with the proposed business combination. Copies may be obtained free of charge at the SEC’s web site at www.sec.gov. The documents filed by Viveon with the SEC also may be obtained free of charge upon written request to Viveon at: 3480 Peachtree Road NE, 2nd Floor - Suite #112 Atlanta, Georgia 30326. The documents filed by Clearday with the SEC also may be obtained free of charge upon written request to Clearday at: 8800 Village Drive, Suite 106, San Antonio, Texas 78217.

 

Security holders of Viveon and security holders of Clearday are urged to read the Form S-4 and the other relevant materials when they become available before making any voting decision with respect to the proposed business combination because they will contain important information about the business combination and the parties to the business combination. The information contained on, or that may be accessed through, the websites referenced in this Press Release (this “Press Release”) is not incorporated by reference into, and is not a part of, this Press Release.

 

Participants in the Solicitation

 

Viveon and its directors and executive officers may be deemed participants in the solicitation of proxies from Viveon’s and Clearday’s stockholders with respect to the business combination. A list of the names of those directors and executive officers and a description of their interests in Viveon will be included in the Form S-4 for the proposed business combination and be available at www.sec.gov. Additional information regarding the interests of such participants will be contained in the proxy statement/prospectus for the proposed business combination when available. Information about Viveon’s directors and executive officers and their ownership of Viveon’s common stock is set forth in Viveon’s Annual Report on Form 10-K for the year ended December 31, 2022 and filed with the SEC on August 24, 2023, as modified or supplemented by any Form 3 or Form 4 filed with the SEC since the date of such filing. Other information regarding the direct and indirect interests of the participants in the proxy solicitation will be included in the proxy statement/prospectus pertaining to the proposed business combination when it becomes available. These documents can be obtained free of charge from the SEC’s web site at www.sec.gov.

 

Clearday and its directors and executive officers may also be deemed to be participants in the solicitation of proxies from the stockholders of Viveon and Clearday in connection with the proposed business combination. A list of the names of such directors and executive officers and information regarding their interests in the proposed business combination will be included in the Form S-4 for the proposed business combination. Information about Clearday’s directors and executive officers and their ownership in Clearday is set forth in Clearday’s Annual Report on Form 10-K for the year ended December 31, 2022 and filed with the SEC on May 25, 2023, as modified or supplemented by any Form 3 or Form 4 filed with the SEC since the date of such filing.

 

 

Forward-Looking Statements

 

Certain statements made in this Press Release are “forward-looking statements” within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of words such as “target,” “believe,” “expect,” “will,” “shall,” “may,” “anticipate,” “assume,” “estimate,” “would,” “could,” “positioned,” “future,” “forecast,” “intend,” “plan,” “project,” “outlook” and other similar expressions that predict or indicate future events or trends or that are not statements of historical matters. Examples of forward-looking statements include, among others, statements made in this Press Release regarding: the proposed transactions contemplated by the Merger Agreement, including the benefits of the proposed business combination, integration plans, expected synergies and revenue opportunities; anticipated future financial and operating performance and results, including estimates for growth, the expected management and governance of the combined company, continued expansion of product portfolios and the availability or effectiveness of the technology for such products; the longevity health care sector’s continued growth; and the expected timing of the proposed business combination. Forward-looking statements are neither historical facts nor assurances of future performance. Instead, they are based only on Viveon’s and Clearday’s current beliefs, expectations and assumptions. Because forward-looking statements relate to the future, they are subject to inherent uncertainties, risks and changes in circumstances that are difficult to predict and many of which are outside of our control. Actual results and outcomes may differ materially from those indicated in the forward-looking statements. Therefore, you should not rely on any of these forward-looking statements. Important factors that could cause actual results and outcomes to differ materially from those indicated in the forward-looking statements include, among others, the following: (1) the occurrence of any event, change, or other circumstances that could give rise to the termination of the Merger Agreement; (2) the institution or outcome of any legal proceedings that may be instituted against Viveon and/or Clearday following the announcement of the Merger Agreement and the transactions contemplated therein; (3) the inability of the parties to complete the proposed business combination, including due to failure to obtain approval of the stockholders of Viveon or Clearday, certain regulatory approvals, or satisfy other conditions to closing in the Merger Agreement; (4) the occurrence of any event, change, or other circumstance that could give rise to the termination of the Merger Agreement or could otherwise cause the transaction to fail to close; (5) the impact of COVID-19 pandemic on Clearday’s business and/or the ability of the parties to complete the proposed business combination; (6) the inability to obtain or maintain the listing of Viveon’s shares of common stock on the NYSE American following the proposed business combination; (7) the risk that the proposed business combination disrupts current plans and operations as a result of the announcement and consummation of the proposed business combination; (8) the ability to recognize the anticipated benefits of the proposed business combination, which may be affected by, among other things, competition and the ability of Clearday to grow and manage growth profitably and retain its key employees; (9) costs related to the proposed business combination; (10) changes in applicable laws or regulations; (11) the possibility that Clearday may be adversely affected by other economic, business, and/or competitive factors; (12) the amount of redemption requests made by Viveon’s stockholders; and (13) other risks and uncertainties indicated from time to time in the final prospectus of Viveon for its initial public offering dated December 22, 2020 filed with the SEC, Viveon’s Annual Report on Form 10-K, Clearday’s Annual Report on Form 10-K and the Form S-4 relating to the proposed business combination, including those under “Risk Factors” therein, and in Viveon s and Clearday’s other filings with the SEC. The foregoing list of factors is not exclusive and Viveon and Clearday caution readers not to place undue reliance upon any forward-looking statements, which speak only as of the date made. Viveon and Clearday do not undertake or accept any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements to reflect any change in their expectations or any change in events, conditions, or circumstances on which any such statement is based, whether as a result of new information, future events, or otherwise, except as may be required by applicable law. Neither Viveon nor Clearday gives any assurance that the combined company will achieve its expectations.

 

No Offer or Solicitation

 

This Press Release shall not constitute a solicitation of a proxy, consent, or authorization with respect to any securities or in respect of the proposed business combination. This Press Release shall also not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any states or jurisdictions in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended, or an exemption therefrom.

 

Contacts:

 

Viveon Health Acquisition Corporation

Chief Financial Officer

Rom Papadopoulos

rom@viveonhealth.com

(404) 861-5393

 

Clearday Inc.

Investor Relations

Ginny Connolly

info@myclearday.com

210-451-0839

 

 

v3.23.2

Cover	Aug. 29, 2023
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Aug. 29, 2023
Entity File Number	0-21074
Entity Registrant Name	Clearday, Inc.
Entity Central Index Key	0000895665
Entity Tax Identification Number	77-0158076
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	8800 Village Drive
Entity Address, Address Line Two	Suite 106
Entity Address, City or Town	San Antonio
Entity Address, State or Province	TX
Entity Address, Postal Zip Code	78217
City Area Code	(210)
Local Phone Number	451-0839
Written Communications	true
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock, par value $0.001
Trading Symbol	CLRD
Entity Emerging Growth Company	false

---