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 July 13, 2022, Viveon, Merger Sub, and Suneva
entered into the Second Amendment to Merger Agreement (the “Amendment”) that amended and modified the Merger Agreement to
extend the Outside Closing Date (as defined in the Merger Agreement) to December 31, 2022 and to reduce the amount of Parent Closing Cash
(as defined in the Merger Agreement) required as a closing condition from $50 million to $30 million, net of Company Expenses and Parent
Expenses (each as defined in the Merger Agreement) and net of repayment of that certain $1.5 million Subordinate Convertible Promissory
Note issued by Suneva to Intuitus Suneva Debt LLC (an entity affiliated with our Chief Financial Officer), dated May 10, 2022 (unless
converted into Suneva capital stock at the consummation of the business combination, which conversion is mandatory except in the case
of a default by Suneva). Further, the defined term “Parent Expenses” was amended to include Viveon operating expenses, severance
payments and deferred compensation.
The foregoing descriptions of the Amendment are
not complete and are subject to and qualified in their entirety by reference to the 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.
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.
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.