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
November 10, 2022
Date of Report (Date of earliest event reported)
Viveon Health Acquisition Corp.
(Exact Name of Registrant as Specified in its Charter)
| Delaware | 001-39827 | 85-2788202 | ||
| (State or other jurisdiction of incorporation) |
(Commission File Number) | (I.R.S. Employer Identification No.) |
|
c/o Gibson, Deal & Fletcher, PC Spalding Exchange 3953 Holcomb Bridge Road Suite 200 Norcross Georgia |
30092 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s telephone number, including area code: (404) 861-5393
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☒ | Written communications pursuant to Rule 425 under the Securities Act |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| Units | VHAQ.U | NYSE American, LLC | ||
| Common Stock | VHAQ | NYSE American, LLC | ||
| Warrants | VHAQ.WS | NYSE American, LLC | ||
| Rights | VHAQ.R | NYSE American, LLC |
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 January 12, 2022, Viveon Health Acquisition Corp., a Delaware corporation (“Viveon”), entered into a Merger Agreement (the “Merger Agreement”) by and among Viveon, VHAC Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Viveon (“Merger Sub”), and Suneva Medical, Inc., a Delaware corporation (“Suneva”). Pursuant to the terms of the Merger Agreement, a business combination between Viveon and Suneva will be effected through the merger of Merger Sub with and into Suneva, with Suneva surviving the merger as a wholly owned subsidiary of Viveon (the “Merger”).
On November 10, 2022, Viveon, Merger Sub, and Suneva entered into the Third Amendment to Merger Agreement (the “Third Amendment”) that amended and modified the Merger Agreement to (i) fix the aggregate exercise price for all of the In-The-Money Suneva Options and Warrants (each as defined in the Merger Agreement) at $2,582,075, representing the aggregate exercise price for all the In-The-Money Suneva Options and Warrants outstanding as of the date of the Third Amendment, and (ii) extend the outside closing date from December 31, 2022 to March 31, 2023, to the extent Viveon’s stockholders approve an amendment to its amended and restated certificate of incorporation to extend the date by which Viveon has to consummate a business combination to March 31, 2023 or later.
The foregoing descriptions of the Third Amendment are not complete and are subject to and qualified in their entirety by reference to the Third 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.
Important Information for Investors and Stockholders
This document relates to a proposed transaction between Viveon and Suneva. This document does not constitute an offer to sell or exchange, or the solicitation of an offer to buy or exchange, any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, sale or exchange would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. Viveon intends to file a registration statement on Form S-4 with the SEC, which will include a document that serves as a prospectus and proxy statement of Viveon, referred to as a “proxy statement/prospectus.” A proxy statement/prospectus will be sent to all Viveon stockholders. Viveon also will file other documents regarding the proposed transaction with the SEC. Before making any voting decision, investors and security holders of Viveon are urged to read the registration statement, the proxy statement/prospectus and all other relevant documents filed or that will be filed with the SEC in connection with the proposed transaction as they become available because they will contain important information about the proposed transaction.
Investors and security holders will be able to obtain free copies of the registration statement, the proxy statement/prospectus and all other relevant documents filed or that will be filed with the SEC by Viveon through the website maintained by the SEC at www.sec.gov.
Forward Looking Statements
Certain statements included in this Current Report on Form 8-K are not historical facts but are forward-looking statements. Forward-looking statements generally are accompanied by words such as “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” “should,” “would,” “plan,” “future,” “outlook,” and similar expressions that predict or indicate future events or trends or that are not statements of historical matters, but the absence of these words does not mean that a statement is not forward-looking. These forward-looking statements include, but are not limited to, statements regarding estimates and forecasts of the closing of the Merger, achievement of the conditions necessary for the closing of the Merger, achievement of the Earnout Consideration, other performance metrics and projections of market opportunity. These statements are based on various assumptions, whether or not identified in this Current Report on Form 8-K and on the current expectations of Viveon’s and Suneva’s respective management and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on by any investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of Viveon and Suneva. Some important factors that could cause actual results to differ materially from those in any forward-looking statements could include changes in domestic and foreign business, market, financial, political and legal conditions.
1
These forward-looking statements are subject to a number of risks and uncertainties, including, the inability of the parties to successfully or timely consummate the Merger, including the risk that any required regulatory approvals are not obtained, are delayed or are subject to unanticipated conditions that could adversely affect the Company or the expected benefits of the Merger, if not obtained; the failure to realize the anticipated benefits of the Merger; matters discovered by the parties as they complete their respective due diligence investigation of the other parties; the ability of Viveon prior to the Merger, and Suneva following the Merger, to maintain the listing of the Company’s shares on the NYSE American; costs related to the Merger; the failure to satisfy the conditions to the consummation of the Merger, including the approval of the Merger Agreement by the stockholders of Viveon, the satisfaction of the minimum cash requirements of the Merger Agreement following any redemptions by Viveon’s public stockholders; the risk that the Merger may not be completed by the stated deadline and the potential failure to obtain an extension of the stated deadline; the outcome of any legal proceedings that may be instituted against Viveon or Suneva related to the Merger, expiration of, or failure to extend, the period of time Viveon is afforded under its organizational documents to consummate the initial business combination with Suneva; the attraction and retention of qualified directors, officers, employees and key personnel of Viveon and Suneva prior to the Merger, and Suneva following the Merger; the ability of Suneva to compete effectively in a highly competitive market; the ability to protect and enhance Suneva’s corporate reputation and brand; the impact from future regulatory, judicial, and legislative changes in Suneva’s industry; and, the uncertain effects of the COVID-19 pandemic; future financial performance of Suneva following the Merger; the ability of Suneva to forecast and maintain an adequate rate of revenue growth and appropriately plan its expenses; the ability of Suneva to generate sufficient revenue from each of its revenue streams; the ability of Suneva to protect its intellectual property from competitors; Suneva’s ability to execute its business plans and strategy; and those factors set forth in documents of Viveon filed, or to be filed, with SEC. The foregoing list of risks is not exhaustive.
If any of these risks materialize or our assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements. There may be additional risks that neither Viveon nor Suneva presently know, or that Viveon and Suneva currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In addition, forward-looking statements reflect Viveon and Suneva’s current expectations, plans and forecasts of future events and views as of the date hereof. Nothing in this Current Report on Form 8-K and the attachments hereto should be regarded as a representation by any person that the forward-looking statements set forth herein will be achieved or that any of the contemplated results of such forward-looking statements will be achieved. You should not place undue reliance on forward-looking statements in this Current Report on Form 8-K and the attachments hereto, which speak only as of the date they are made and are qualified in their entirety by reference to the cautionary statements herein and the risk factors of Viveon and Suneva described above. Viveon and Suneva anticipate that subsequent events and developments will cause their assessments to change. However, while Viveon and Suneva may elect to update these forward-looking statements at some point in the future, they each specifically disclaim any obligation to do so, except as required by law. These forward-looking statements should not be relied upon as representing Viveon or Suneva’s assessments as of any date subsequent to the date of this Current Report on Form 8-K. Accordingly, undue reliance should not be placed upon the forward-looking statements.
2
Participants in the Solicitation
Viveon and Suneva and their respective directors and executive officers may be deemed to be participants in the solicitation of proxies from Viveon’s stockholders in connection with the proposed Merger. A list of the names of the directors and executive officers of Viveon and information regarding their interests in the Merger will be contained in the proxy statement/prospectus when available. You may obtain free copies of these documents as described in the second paragraph under the above section entitled “Important Information for Investors and Stockholders.”
This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval, nor shall there be any sale of any securities in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of such other jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act, or an exemption therefrom.
Item 9.01. Financial Statements and Exhibits.
| (d) | Exhibits |
| 2.1 | Third Amendment to Merger Agreement, dated as of November 10, 2022 entered into by and among Suneva Medical, Inc., Viveon Health Acquisition Corp. and VHAC Merger Sub, Inc. | |
| 104 | Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL Document |
3
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: November 10, 2022 | ||
| VIVEON HEALTH ACQUISITION CORP. | ||
| By: | /s/ Jagi Gill | |
| Name: | Jagi Gill | |
| Title: | Chief Executive Officer |
4
Exhibit 2.1
THIRD AMENDMENT TO MERGER AGREEMENT
This Third Amendment to Merger Agreement (this “Amendment”), dated as of November 10, 2022, is entered into by and among Suneva Medical, Inc., a Delaware corporation (the “Company”), Viveon Health Acquisition Corp., a Delaware corporation (“Parent”), and VHAC Merger Sub, Inc., a Delaware corporation (“Merger Sub”).
RECITALS
WHEREAS, the Company, Parent and Merger Sub entered into that certain Merger Agreement dated as of January 12, 2022, as amended by the First Amendment to Merger Agreement, dated as of February 9, 2022, and by the Second Amendment to Merger Agreement, dated as of July 13, 2022 (together, the “Original Merger Agreement”);
WHEREAS, the Company, Parent and Merger Sub Members desire to amend the Original Merger Agreement as more fully set forth herein;
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 to Original Merger Agreement:
(a) Section 1.1 of the Original Merger Agreement. The defined term “Aggregate Exercise Price” in Section 1.1 of the Original Merger Agreement is hereby amended in its entirety to read as follows:
“Aggregate Exercise Price” means $2,582,075.
(b) Section 10.1(a) of the Original Purchase Agreement. Section 10.1(a) of the Original Merger Agreement is hereby amended and restated to read in its entirety to read as follows:
“(a) In the event that (i) the Closing of the transactions contemplated hereunder has not occurred by the later of (x) December 31, 2022 and (y) March 31, 2023, to the extent the Parent’s stockholders approve an amendment to the Parent’s amended and restated certificate of incorporation to extend the date by which the Parent has to consummate a business combination to March 31, 2023 or later (the “Outside Closing Date”); and (ii) the material breach or violation of any representation, warranty, covenant or obligation under this Agreement by the party (i.e., Parent or the Merger Sub, on one hand, or the Company, on the other hand) seeking to terminate this Agreement was not the cause of, or resulted in, the failure of the Closing to occur on or before the Outside Closing Date, then Parent or the Company, as applicable, shall have the right, at its sole option, to terminate this Agreement without liability to the other party. Such right may be exercised by Parent or the Company, as the case may be, giving written notice to the other at any time after the Outside Closing Date.”
2. Representations and Warranties of the Company. The Company hereby represents and warrants 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) The Company 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 the Company of this Amendment and the consummation by the Company 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 the Company 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 the Company 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 the Company, enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions.
(b) None of the execution, delivery or performance by the Company of this Amendment or the consummation by the Company of the transactions contemplated hereby does or will (a) contravene or conflict with the Company Certificate of Incorporation or the Company’s Bylaws, (b) contravene or conflict with or constitute a violation of any provision of any Law or Order binding upon or applicable to the Company 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 or to a loss of any material benefit to which the Company is 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 or any of its respective properties, rights or assets, (d) result in the creation or imposition of any Lien (except for Permitted Liens) on any of the Company’s properties, rights or assets, or (e) require any consent, approval or waiver from any Person pursuant to any provision of the Company Certificate of Incorporation or Bylaws of the Company.
3. Representations and Warranties of the Parent Parties. 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.
2
(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 and thereby 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, 11.2, 11.3, 11.5, 11.6, 11.10, 11.11, 11.12, 11.13, 11.14, 11.15, 11.16, 11.17, 11.18 and 11.19 of the Original Merger Agreement are hereby incorporated by reference herein mutatis mutandis.
[Signature Page Follows]
* * * * *
3
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: | |||
| VHAC MERGER SUB, INC. | |||
| By: | /s/ Jagi Gill | ||
| Name: | Jagi Gill | ||
| Title: | Director | ||
| Company: | |||
| SUNEVA MEDICAL, INC. | |||
| By: | /s/ Patricia Altavilla | ||
| Name: | Patricia Altavilla | ||
| Title: | Chief Executive Officer | ||
[Signature Page to Third Amendment to Merger Agreement]