Item
1.01 Entry into a Material Definitive Agreement
Merger
Agreement
On
April 5, 2023, Clearday, Inc., a Delaware corporation (the “Company”), entered into a Merger Agreement (the “Merger
Agreement”), by and among Clearday, Viveon Health Acquisition Corp., a Delaware corporation (“Viveon” or “Viveon
Health”), 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 (as defined in the Merger Agreement) for the stockholders
of Viveon (other than the Company Stockholders (as defined in the Merger Agreement)) as of immediately prior to the Effective Time (and
their successors and assigns) in accordance with the terms and conditions of the Merger Agreement, 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 defined in the Merger Agreement) as of immediately prior to the Effective Time (and their successors and assigns) in accordance with
the terms and conditions of 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 Merger Sub with and into Clearday, with Clearday surviving the merger as a wholly
owned subsidiary of Viveon and Viveon will change its name to “Clearday Holdings, Inc.” (the “Merger”). The board
of directors of Clearday has (i) approved and declared advisable the Merger Agreement, the Merger and the other transactions contemplated
thereby and (ii) resolved to recommend approval of the Merger Agreement, the Merger and related transactions by the stockholders of Clearday.
Capitalized terms used herein but not defined shall have the meanings ascribed thereto in the Merger Agreement, which is attached hereto
as Exhibit 2.1.
Consideration
Merger
Consideration
The
total consideration to be paid at Closing (the “Merger Consideration”) by Viveon to Clearday security holders (and holders
who have the right to acquire Clearday capital stock) will be an amount equal to $250 Million (plus the aggregate exercise price for
all Clearday options and warrants). The Merger Consideration will be payable in shares of common stock, par value $0.0001 per share,
of Viveon (“Viveon Common Stock”) valued at $10 per share.
Earnout
Payments
In
addition, the holders of Company Preferred Stock will have the contingent right to earn up to 5,000,000 shares of Viveon Common Stock,
in the aggregate (the “Earnout Shares”), if at any time during the period beginning on the date of the Closing (the “Closing
Date”) and ending on the fifth anniversary of the Closing Date (the “Earnout Eligibility Period”), the Adjusted Net
Income for any Earnout Period is a positive number for the first time during the Earnout Eligibility Period (the “Earnout Milestone”).
If,
following the Closing Date and prior to end of the Earnout Eligibility Period, there is a Change of Control, then, immediately prior
to such Change of Control, all the Earnout Shares not yet earned shall be earned by the Company Earnout Holders and shall be released
from escrow and delivered to the Company Earnout Holders, and the Company Earnout Holders shall be eligible to participate in such Change
of Control transaction with respect to such Earnout Shares.
The
Earnout Shares will be placed in escrow and will not be released from escrow until they are earned as a result of the occurrence of the
Earnout Milestone or a Change of Control, if applicable. The Earnout Shares that are not earned on or before the expiration of the Earnout
Eligibility Period shall be automatically forfeited and cancelled.
Treatment
of Clearday Securities
Cancellation
of Securities. Each share of Clearday capital stock, if any, that is owned by Viveon, Merger Sub, Clearday, or any of their subsidiaries
(as treasury stock or otherwise) immediately prior to the effective time of the Merger (the “Effective Time”), will automatically
be cancelled and retired without any conversion or consideration.
Preferred
Stock. At the Effective Time, each issued and outstanding share of Clearday’s Series F Cumulative Convertible Preferred
Stock, par value $0.001 per share (“Clearday Series F Preferred Stock”) (other than any such shares of Clearday capital stock
cancelled as described above and any dissenting shares), will be converted into the right to receive: (A) one (1) share of Parent New
Series F Preferred Stock plus (B) a number of Earnout Shares in accordance with, and subject to the contingencies, set forth in the Merger
Agreement.
Each
issued and outstanding share of Clearday’s Series A Convertible Preferred Stock, par value $0.001 per share (“Clearday Series
A Preferred Stock”) (other than any such shares of Clearday capital stock cancelled as described above and any dissenting shares),
will be converted into the right to receive: (A) one (1) share of Parent New Series A Preferred Stock plus (B) a number of Earnout Shares
in accordance with, and subject to the contingencies, set forth in the Merger Agreement.
Common
Stock. At the Effective Time, each issued and outstanding share of Clearday’s common stock, par value $0.001 per share
(“Clearday Common Stock”) (other than any such shares of Clearday capital stock cancelled as described above and any dissenting
shares) will be converted into the right to receive a number of shares of Viveon Common Stock equal to the Conversion Ratio. The “Conversion
Ratio” as defined in the Merger Agreement means an amount equal to (a)(i) the sum of $250 Million, plus the aggregate exercise
or conversion price of outstanding Clearday’s stock options and warrants (excluding unvested options and options or warrants with
an exercise or conversion price of $5.00 or more), divided by (ii) the number of fully diluted Clearday capital stock (including Company
Preferred Stock, warrants, stock options, convertible notes, and any other convertible securities) (excluding unvested options and options
or warrants with an exercise or conversion price of $5.00 or more and assuming a conversion price of Clearday subsidiary securities as
provided in the Merger Agreement); divided by (b) $10.00.
Merger
Sub Securities. Each share of common stock, par value $0.0001 per share, of Merger Sub issued and outstanding immediately prior
to the Effective Time will be converted into and become one newly issued share of common stock of the surviving corporation.
Stock
Options. At the Effective Time, each outstanding option to purchase shares of Clearday Common Stock will be converted into an
option to purchase, subject to substantially the same terms and conditions as were applicable under such options prior to the Effective
Time, shares of Viveon Common Stock equal to the number of shares subject to such option prior to the Effective Time multiplied by the
Conversion Ratio, at an exercise price per share of Viveon Common Stock equal to the exercise price per share of Clearday Common Stock
subject to such option divided by the Conversion Ratio.
Warrants.
Contingent on and effective as of immediately prior to the Effective Time, each outstanding warrant to purchase shares of Clearday
Preferred Stock or Clearday Common Stock will be treated in accordance with the terms thereof.
Convertible
Notes. Contingent on and effective as of immediately prior to the Effective Time, Clearday’s convertible notes outstanding
as of immediately prior to the Effective Time, will be treated in accordance with the terms of the relevant agreements governing such
convertible notes.
Subsidiary
Capital Stock. At and as of the Effective Time, the Subsidiary Capital Stock will remain in full force and effect with the right
to acquire the Company Common Stock with such adjustments noted in the terms of such Subsidiary Capital Stock.
Representations
and Warranties
The
Merger Agreement contains customary representations and warranties of the parties thereto with respect to, among other things, (a) corporate
existence and power, (b) authorization to enter into the Merger Agreement and related transactions; subsidiaries, (c) governmental authorization,
(d) non-contravention, (e) capitalization, (f) corporate records, (g) consents, (h) financial statements, (i) internal accounting controls,
(j) absence of certain changes, (k) properties; title to assets, (l) litigation, (m) material contracts, (n) licenses and permits, (o)
compliance with laws, (p) intellectual property, (q) privacy and data security, (r) employee matters and benefits, (s) tax matters, (t)
real property, (u) environmental laws, (v) finders’ fees, (w) directors and officers, (x) anti-money laundering laws, (y) insurance,
(z) related party transactions, and (aa) certain representations related to securities law and activity. Viveon has additional representations
and warranties, including (a) issuance of shares, (b) trust fund, (c) listing, (d) board approval, (e) SEC documents and financial statements,
(f) certain business practices, (g) expenses, indebtedness and other liabilities and (h) brokers and other advisors.
Covenants
The
Merger Agreement includes customary covenants of the parties with respect to operation of their respective businesses prior to consummation
of the Merger and efforts to satisfy conditions to consummation of the Merger. The Merger Agreement also contains additional covenants
of the parties, including, among others, access to information, cooperation in the preparation of the Registration Statement and Proxy
Statement (as each such terms are defined in the Merger Agreement) required to be filed in connection with the Merger and to obtain all
requisite approvals of each party’s respective stockholders. Viveon and Clearday have each also agreed to include in the Proxy
Statement the recommendation of its respective board that its stockholders approve all of the proposals to be presented at its respective
special meeting. In addition, each of Viveon and Clearday have agreed to use commercially reasonable efforts to solicit and finalize
definitive documentation for a committed equity in an aggregate amount that, together with the funds in the Trust Account after giving
effect to potential redemptions from Viveon’s public stockholders, together with financing programs available to Clearday after
the Closing, will provide to Clearday working capital to meet its short term commercial development goals.
Viveon
has also agreed to prepare a proxy statement to seek the approval of its stockholders (the “Extension Proposal”) to amend
its organizational documents to extend the period of time Viveon is afforded under its organizational documents and IPO prospectus to
consummate an initial business combination for an additional three months, from June 30,2023 to September 30, 2023 (or such earlier date
as Viveon and Clearday may agree in writing).
Each
party’s representations, warranties and pre-Closing covenants will not survive Closing and no party has any post-Closing indemnification
obligations.
Viveon
Equity Incentive Plan
Viveon
has agreed to approve and adopt an equity incentive plan (the “Incentive Plan”) to be effective as of the Closing and in
a form mutually acceptable to Viveon and Clearday, subject to approval of the Incentive Plan by the Viveon stockholders. The Incentive
Plan will provide for an initial aggregate share reserve equal to 8% of the number of shares of Viveon Common Stock issued and outstanding
at the Closing and an “evergreen” provision that is mutually agreeable to Viveon and Clearday will provide for an automatic
increase on the first day of each fiscal year in the number of shares available for issuance under the Incentive Plan as mutually determined
by Viveon and Clearday.
Non-Solicitation
Restrictions
Each
of Viveon and Clearday has agreed that from the date of the Merger Agreement to the Effective Time or, if earlier, the valid termination
of the Merger Agreement in accordance with its terms, it will not initiate any negotiations with any party relating to an Alternative
Transaction (as such term is defined in the Merger Agreement) or enter into any agreement relating to such a proposal, other than as
expressly excluded from the definition of an Alternative Transaction. Each of Viveon and Clearday has also agreed to be responsible for
any acts or omissions of any of its respective representatives that, if they were the acts or omissions of Viveon and Clearday, as applicable,
would be deemed a breach of the party’s obligations with respect to these non-solicitation restrictions.
Conditions
to Closing
The
consummation of the Merger is conditioned upon, among other things, (i) the absence of any applicable law or order restraining, prohibiting
or imposing any condition on the consummation of the Merger and related transactions, (ii) the expiration or termination of the waiting
period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, (iii) receipt of any consent, approval or authorization
required by any Authority (as defined in the Merger Agreement), (iv) Viveon having net tangible assets of at least $5,000,001 (as determined
in accordance with Rule 3a51-1(g)(1) of the Exchange Act), unless Viveon’s amended and restated certificate of incorporation shall
have been amended to remove such requirement prior to or concurrently with the Closing, (v) approval by Clearday’s stockholders
of the Merger and related transactions, (vi) approval by Viveon’s stockholders of the Merger and related transactions, (vii) the
conditional approval for listing by NYSE American (or an alternate exchange) of the shares of Viveon Common Stock to be issued in connection
with the transactions contemplated by the Merger Agreement and satisfaction of initial and continued listing requirements, and (viii)
the Registration Statement becoming effective in accordance with the provisions of the Securities Act of 1933, as amended (“Securities
Act”).
Solely
with respect to Viveon and Merger Sub, the consummation of the Merger is conditioned upon, among other things, (i) Clearday having duly
performed or complied with all of its obligations under the Merger Agreement in all material respects, (ii) the representations and warranties
of Clearday, other than certain fundamental representations as defined in the Merger Agreement, being true and correct in all respects
unless failure would not have or reasonably be expected to have a Material Adverse Effect (as defined in the Merger Agreement) on Clearday
or any of its subsidiaries, (iii) certain fundamental representations, as defined in the Merger Agreement, being true and correct in
all respects, other than de minimis inaccuracies, (iv) no event having occurred that would result in a Material Adverse Effect on Clearday
or any of its subsidiaries, (v) Clearday and its securityholders having executed and delivered to Viveon each Additional Agreement (as
defined in the Merger Agreement) to which they each are a party and (vi) Clearday delivering certain certificates to Viveon.
Solely
with respect to Clearday, the consummation of the Merger is conditioned upon, among other things, (i) Viveon and Merger Sub having duly
performed or complied with all of their respective obligations under the Merger Agreement in all material respects, (ii) the representations
and warranties of Viveon and Merger Sub, other than certain fundamental representations as defined in the Merger Agreement, being true
and correct in all respects unless failure to be true and correct would not have or reasonably be expected to have a Material Adverse
Effect on Viveon or Merger Sub and their ability to consummate the Merger and related transactions, (iii) certain fundamental representations,
as defined in the Merger Agreement, being true and correct in all respects, other than de minimis inaccuracies, (iv) no event having
occurred that would result in a Material Adverse Effect on Viveon or Merger Sub, (v) the Amended Parent Charter (as defined in the Merger
Agreement) being filed with, and declared effective by, the Delaware Secretary of State, (vi) Viveon delivering certain certificates
to Clearday, (vii) the size and composition of the post-Closing board of directors of Viveon having been appointed as set forth in the
Merger Agreement and (viii) Viveon, Viveon Health LLC (“Sponsor”) and other stockholders, as applicable, having executed
and delivered to Clearday each Additional Agreement to which they each are a party.
Termination
The
Merger Agreement may be terminated at any time prior to the Effective Time as follows:
(i)
by either Viveon or Clearday, if (A) the Merger and related transactions are not consummated on or before the latest of (i) June 30,
2023, (ii) if the Extension Proposal is approved, September 30, 2023 and (iii) if one or more extensions to a date following September
30, 2023 are obtained at the election of Viveon, with Viveon stockholder vote, in accordance with the Viveon’s amended and restated
certificate of incorporation, the last date for Viveon to consummate a business combination pursuant to such extensions; and (B) the
material breach or violation of any representation, warranty, covenant or obligation under the Merger Agreement by the party seeking
to terminate the Merger Agreement was not the cause of, or resulted in, the failure of the Closing to occur on or before the Outside
Closing Date, without liability to the other party;
(ii)
by either Viveon or Clearday, if any Authority has issued any final decree, order, judgment, award, injunction, rule or consent or enacted
any law, having the effect of permanently enjoining or prohibiting the consummation of the Merger, provided that, the party seeking to
terminate cannot have breached its obligations under the Merger Agreement and such breach was a substantial cause of, or substantially
resulted in, such action by the Authority; and
(iii)
by mutual written consent of Viveon and Clearday duly authorized by each of their respective boards of directors.
The
Merger Agreement and other agreements described below have been included to provide investors with information regarding their respective
terms. They are not intended to provide any other factual information about Viveon, Clearday or the other parties thereto. In particular,
the assertions embodied in the representations and warranties in the Merger Agreement were made as of a specified date, are modified
or qualified by information in one or more disclosure letters prepared in connection with the execution and delivery of the Merger Agreement,
may be subject to a contractual standard of materiality different from what might be viewed as material to investors, or may have been
used for the purpose of allocating risk between the parties. Accordingly, the representations and warranties in the Merger Agreement
are not necessarily characterizations of the actual state of facts about Viveon, Clearday or the other parties thereto at the time they
were made or otherwise and should only be read in conjunction with the other information that Viveon or Clearday makes publicly available
in reports, statements and other documents filed with the SEC. Viveon and Clearday investors and securityholders are not third-party
beneficiaries under the Merger Agreement.
Certain
Related Agreements
Parent
Support Agreements. Concurrently with the execution of the Merger Agreement, Viveon, Clearday and the Sponsor and the officers
and directors of Viveon entered into a support agreement (the “Parent Support Agreement”) pursuant to which the Sponsor and
the officers and directors of Viveon have agreed to vote all shares of Viveon common stock beneficially owned by them, including any
additional shares of Viveon they acquire ownership of or the power to vote: (i) in favor of the Merger and related transactions, (ii)
against any action reasonably be expected to impede, delay, or materially and adversely affect the Merger and related transactions, and
(iii) in favor of an extension of the period of time Viveon is afforded to consummate an initial business combination.
Company
Support Agreements. Concurrently with the execution of the Merger Agreement, Viveon, Clearday and certain stockholders of Clearday
entered into a support agreement (the “Company Support Agreement”), pursuant to which such Clearday stockholders have agreed
to vote all common and preferred stock of Clearday beneficially owned by them, including any additional shares of Clearday they acquire
ownership of or the power to vote, in favor of the Merger and related transactions and against any action reasonably be expected to impede,
delay, or materially and adversely affect the Merger and related transactions.
Lock-Up
Agreements. In connection with the Closing, certain Clearday stockholders will each agree, subject to certain customary exceptions,
not to (i) offer, sell contract to sell, pledge or otherwise dispose of, directly or indirectly, any Lockup Shares, (ii) enter into a
transaction that would have the same effect, (iii) enter into any swap, hedge or other arrangement that transfers, in whole or in part,
any of the economic consequences of ownership of the Lock-Up Shares or otherwise, (iv) engage in any short sales or other arrangement
with respect to the Lock-Up Shares or (v) publicly announce any intention to effect any transaction specified in clause (i), (ii) or
(iii) until the date that is six months after the Closing Date (the “Lock-Up Period”). The term “Lockup Shares”
mean the Merger Consideration Shares and the Earnout Shares, if any, whether or not earned prior to the end of the Lock-up Period, together
with any other shares of Viveon Common Stock, and including any securities convertible into, or exchangeable for, or representing the
rights to receive Viveon Common Stock, if any, acquired during the Lock-up Period. If the closing price of Viveon Common Stock equals
or exceeds $12.50 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations) for any 20 trading
days within any 30-trading day period following the Closing Date, 50% of the Lock-up Shares will be released from the lock-up. The existing
escrow provisions of Viveon Common Stock held by certain stockholders will remain in effect.
Amended
and Restated Registration Rights Agreement. At the Closing, Viveon will enter into an amended and restated registration rights
agreement (the “Amended and Restated Registration Rights Agreement”) with certain existing stockholders of Viveon and Clearday
with respect to their shares of Viveon Common Stock acquired before or pursuant to the Merger, and including the shares issuable on conversion
of the warrants issued to the Sponsor in connection with Viveon’s initial public offering and any shares issuable on conversion
of loans or other convertible securities. The agreement amends and restates the registration rights agreement Viveon entered into on
December 22, 2020 in connection with its initial public offering. Subject to the Lock-Up Agreements described above, the holders of a
majority of the shares held by the existing Viveon stockholders, and the holders of a majority of the shares held by the Clearday stockholders
will each be entitled to make one demand that the Company register such securities for resale under the Securities Act, or two demands
each if Viveon is eligible to use Form S-3 or a similar short-form registration statement. In addition, the holders will have certain
“piggy-back” registration rights that require Viveon to include such securities in registration statements that Viveon otherwise
files. The registration rights agreement does not contain liquidating damages or other cash settlement provisions resulting from delays
in registering Viveon’s securities. Viveon will bear the expenses incurred in connection with the filing of any such registration
statements.
The
foregoing descriptions of agreements and the transactions and documents contemplated thereby are not complete and are subject to and
qualified in their entirety by reference to the Merger Agreement, form of Parent Support Agreement, form of Company Support Agreement,
form of Lock-Up Agreement, and form of Amended and Restated Registration Rights Agreement, copies of which are filed with this Current
Report on Form 8-K as Exhibits 2.1, 10.1, 10.2, 10.3, and 10.4, respectively, and the terms of which are incorporated by reference herein.
Important
Information About the Proposed Business Combination and Where to Find It
In
connection with the proposed business combination, Viveon Health will file a registration statement on Form S-4 containing a preliminary
proxy statement/prospectus (the “Form S-4”) with the SEC. The Form S-4 will include a proxy statement to be
distributed to holders of Viveon Health’s common stock in connection with the solicitation of proxies for the vote by Viveon Health’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. Clearday
will also distribute the proxy statement included in the Form S-4 to the holders of its securities entitled to vote at a stockholders
meeting in connection with the solicitation of proxies for the vote by Clearday stockholders with respect to the proposed transaction
and other matters as described in the Form S-4 that require approval of the Clearday stockholders. After the Form S-4 has been filed
and declared effective, Viveon Health will mail a definitive proxy statement/prospectus, when available, to its stockholders and Clearday
will mail a definitive proxy statement/prospectus, when available, to its 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 Health, Clearday and the proposed business combination.
Additionally, each of Viveon Health 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. Security holders of Viveon Health 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
Clearday
and its directors and executive officers may be deemed to be participants in the solicitation of proxies from the stockholders of Viveon
Health and of 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/A for the year ended December 31, 2021 and filed with the SEC on May 17, 2022, as modified or supplemented
by any Form 3 or Form 4 filed with the SEC since the date of such filing.
Viveon
Health and its directors and executive officers may also be deemed participants in the solicitation of proxies from Viveon Health’s
stockholders and of Clearday 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 Health 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 Health’s directors and executive officers and their
ownership of Viveon Health’s common stock is set forth in Viveon Health’s Annual Report on Form 10-K for the year ended December
31, 2021 and filed with the SEC on March 31, 2022, 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.
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
Health’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 Health 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 Health 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 Health’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
Health’s stockholders; and (13) other risks and uncertainties indicated from time to time in the final prospectus of Viveon Health
for its initial public offering dated December 22, 2020 filed with the SEC, Viveon Health’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 Health’s and Clearday’s other filings with the SEC. The foregoing list of factors is not exclusive
and Viveon Health and Clearday caution readers not to place undue reliance upon any forward-looking statements, which speak only as of
the date made. Viveon Health 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 Health 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.