Form 8-K - Current report

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): December 28, 2023 (December 21, 2023)

Clearday, Inc.

(Exact Name of Registrant as Specified in 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)

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.

Clearday, Inc. (the “Company” or “we”) modified two of its outstanding obligations.

Invesque. On December 21, 2023, Clearday and certain of its subsidiaries entered into the Second Amendment (the “LTA Second Amendment”) to the Lease Transition Agreement effective March 31, 2023 (“Lease Transition Agreement”. The second amendment is effective December 15. Among other matters, the LTA Second Amendment deferred the due date for the initial Down Payment to December 31, 2023 and increased the amount payable from $300,000 to $350,000. The LTA Second Amendment provided customary representations and warranties of the parties thereto, reaffirmed the obligations under the Lease Transition Agreement, as amended, and the related guarantees and provided a waiver of defenses by Clearday and the guarantors party thereto.

AGP. On December 26, 2023, Clearday entered into a Promissory Note and Second Amendment (“AGP Second Amended Note”), effective December 31, 2023 that amends Clearday’s obligations under the Promissory Note and Amendment (the “AGP First Amended Note”) dated July 6, 2022 of the initial principal amount of $550,000. Effective December 31, 2023, the AGP Second Amended Note confirms obligations to $578,795.89 which equals the principal amount of the AGP First Amended Note of $550,000 plus accrued and unpaid interest, extended the maturity date to the earlier of (i) September 30, 2024 or (ii) the closing date of the Viveon Merger under the Viveon Merger Agreement or the date of an event of default, and (iii) deleted the obligation of Clearday to prepay the obligations by amounts of capital raised by equity or equity linked securities.

The foregoing descriptions of each of the LTA Second Amendment the AGP Second Amended Note are not complete and are qualified in their entirety by reference to the full text of each such document, which is filed as Exhibits 10.1, and 10.2 to this Report and are incorporated herein by reference.

Forward Looking Statements

This communication contains forward-looking statements (including within the meaning of Section 21E of the Securities Exchange Act of 1934, as amended, and Section 27A of the Securities Act of 1933, as amended) concerning the Company. These statements may discuss goals, intentions and expectations as to future plans, trends, events, results of operations or financial condition, or otherwise, based on current beliefs of the management of the Company, as well as assumptions made by, and information currently available to, management. Forward-looking statements generally include statements that are predictive in nature and depend upon or refer to future events or conditions, and include words such as “may,” “will,” “should,” “would,” “expect,” “anticipate,” “plan,” “likely,” “believe,” “estimate,” “project,” “intend,” and other similar expressions. Statements that are not historical facts are forward-looking statements. Forward-looking statements are based on current beliefs and assumptions that are subject to risks and uncertainties and are not guarantees of future performance. Actual results could differ materially from those contained in any forward-looking statement as a result of various factors, including, without limitation: the risks regarding the Company and its business, generally; risks related to the Company’s ability to correctly estimate and manage its operating expenses and develop its innovate non-acute care businesses and the acceptance of its proposed products and services, including with respect to future financial and operating results; the ability of the Company to protect its intellectual property rights; competitive responses to the Company’s businesses including its innovative non-acute care business; unexpected costs, charges or expenses; regulatory requirements or developments; changes in capital resource requirements; and legislative, regulatory, political and economic developments. The foregoing review of important factors that could cause actual events to differ from expectations should not be construed as exhaustive and should be read in conjunction with statements that are included herein and elsewhere, including the risk factors included in the Company’s most recent Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K filed with the SEC and the registration statement regarding the Company’s previously announced merger, that was filed and declared effective. The Company can give no assurance that the actual results will not be materially different than those based on the forward looking statements. Except as required by applicable law, the Company undertakes no obligation to revise or update any forward-looking statement, or to make any other forward-looking statements, whether as a result of new information, future events or otherwise.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

No.		Description
10.1		Second Amendment To Lease Transition Agreement entered into on December 21, 2023, effective as of December 15, 2023, by and between (1) the following entities referred to as “Landlord”: (i) MHI-MC San Antonio, LP, a Delaware limited partnership, (ii) MC New Braunfels, LP, a Delaware limited partnership, and (iii) MHI Little Rock, LP, a Delaware limited partnership; and (2) the following entities referred to as “MCA”: (i) MCA Mainstreet Tenant, LLC, a Tennessee limited liability company, (ii) MCA Westover Hills Operating Company, LLC, a Tennessee limited liability company, (iii) MCA New Braunfels Operating Company, LLC, a Tennessee limited liability company; (iv) and Memory Care at Good Shepherd, LLC, an Arkansas limited liability company, and the other parties thereto.

10.2		Promissory Note and Second Amendment effective December 31, 2023 by Clearday, Inc. and A.G.P./Alliance Global Partners.

104		Cover Page Interactive Data File (embedded within the Inline XBRL document).

* Certain schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule and/or exhibit will be furnished to the SEC upon request.

SIGNATURE

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.

	CLEARDAY, INC.

	By:	*/s/ James Walesa*
	Name:	James Walesa
	Title:	Chief Executive Officer

Dated December 28, 2023

Exhibit 10.1

SECOND AMENDMENT TO LEASE TRANSITION AGREEMENT

This Second Amendment to Lease Transition Agreement (this “Amendment”) is entered into effective as of December 15, 2023 (the “Amendment Effective Date”), by and between: (1) MHI-MC San Antonio, LP, a Delaware limited partnership (“MHI San Antonio”); MHI-MC New Braunfels, LP, a Delaware limited partnership (“MHI New Braunfels”); and MHI Little Rock, LP, a Delaware limited partnership (“MHI Little Rock”) (individually and collectively, MHI San Antonio, MHI New Braunfels, MHI Little Rock are “Landlord”), on the one hand; and (2) MCA Mainstreet Tenant, LLC, a Tennessee limited liability company (“Tenant”); MCA Westover Hills Operating Company, LLC, a Tennessee limited liability company (“MCA Westover Hills”); MCA New Braunfels Operating Company, LLC, a Tennessee limited liability company (“MCA New Braunfels”); and Memory Care at Good Shepherd, LLC, an Arkansas limited liability company (“MCA Good Shepherd”) (individually and collectively, Tenant, MCA Westover Hills, MCA New Braunfels, and MCA Good Shepherd are “MCA”), on the other hand.

Recitals:

A. Landlord and MCA are parties to that certain Lease Transition Agreement effective as of March 31, 2021 (the “Agreement”).

B. The Agreement provided, among other things, that Tenant shall make a Down Payment in accordance with Section 2.4(i) of the Agreement.

C. The Agreement was amended by the First Amendment to Lease Transition Agreement dated as of September 8, 2023 (the “First Amendment” and together with this Amendment, the “Amendments”) which provided, among other matters, an amendment to the initial Outside Down Payment Date to be September 30, 2023.

D. As of the Amendment Effective Date, Clearday and Viveon have not completed a merger, but remain parties to a merger agreement that has not been terminated. However, Clearday and Viveon have not filed any Securities and Exchange Commission (“SEC”) Form S-4 and thus the merger is not yet pending government review and/or other necessary approvals for which Tenant has the right under Section 2.4(i)(c) to exercise an Outside Down Payment Date Extension.

E. Tenant has requested to extend the Outside Down Payment Date, and Landlord, although under no obligation to do so, has agreed to extend the Outside Down Payment Date on the terms and conditions set forth in the Agreement and herein.

F. James Walesa (“Walesa”) has filed bankruptcy, and thus is not a party to or signatory of this Amendment. This Amendment is not intended to alter or affect his liability under the Agreement. This Amendment is an agreement solely between Landlord and the Tenant Parties other than Walesa (such Tenant Parties other than Walesa are the “Signatory Tenant Parties”).

Agreement:

Now, Therefore, the parties hereby agree as follows:

1. Defined Terms. Any capitalized term used but not defined in this Amendment shall have the meaning that is given to that term in the Agreement.

2. Extention Payment. In addition to all other payment amounts set forth in Section 2.3 of the Agreement and the payment made to Landlord in connection with the First Amendment, Tenant shall be obligated to pay to Landlord the amount of $50,000 (the “Extension Fee”) as consideration for Landlord’s agreement to the extension of the Outside Down Payment Date and forbearance from exercising remedies in relation to the previous failure to pay the Down Payment against the Tenant Parties that are executing this Amendment. Such Extension Fee shall be paid by Tenant to Landlord upon the due date of the Down Payment and shall be paid in addition to the Down Payment. If requested by Landlord, Tenant shall execute a replacement of the Promissory Note in accordance with Section 2.1(c) of the Agreement that evidences the correct amount due and owing under the Agreement as amended by the Amendments.

3. Amendment of Section 2.4(i)(c). Section 2.4(i)(c) of the Agreement shall be deemed removed and replaced with the following:

(c)

The “Outside Down Payment Date” shall be calculated as set forth herein. The initial Outside Down Payment Date shall be December 31, 2023. In the event that as of two business days prior to the Outside Down Payment Date (i) the merger has not been terminated by Clearday or Viveon and to Clearday’s knowledge there is no reason to believe the merger will be terminated prior to the Outside Down Payment Date and (ii) the merger is pending government review and/or other necessary approvals, Tenant may extend the Outside Down Payment Date for thirty days (an “Outside Down Payment Date Extension”) by delivering to Landlord prior to the Outside Down Payment Date notice of the Outside Down Payment Date Extension and proof that the merger is pending government review and/or such other necessary approvals. Tenant may exercise an Outside Down Payment Date Extension up to two times, provided that each such extension must meet the terms for an Outside Down Payment Date Extension as of the date of delivery of the notice of the extension to Landlord. Additionally, the Outside Down Payment Date may be extended by the written agreement of the parties.

4. Representations and Warranties. Each Signatory Tenant Party hereby represents and warrants that all representations and warranties set forth in Section 5.1 of this Agreement are true and correct as of the Amendment Effective Date with respect to the Signatory Tenant Parties and apply to this Amendment as if this Amendment were the Agreement.

5. Reaffirmation of Guaranties.

(a) Except for Walesa, each Lease Guarantor hereby acknowledges and reaffirms its or his respective obligations under the Guaranty to which it or he is a party and all documents executed by that Lease Guarantor in connection therewith, including but not limited to the Reaffirmation and Agreement by Guarantor executed by each Lease Guarantor in connection with the Agreement.

(b) Clearday hereby acknowledges and reaffirms its obligations under the Guaranty executed by Clearday in connection with the Agreement (the “Clearday Guaranty”).

(c) This Amendment does not alter or affect Walesa’s liability under the Agreement.

6. Waiver of Defenses. Signatory Tenant Parties, for themselves and their Affiliates, hereby waive and relinquish any and all defenses and any and all rights to setoff or recoupment of any kind whatsoever that they, or any person claiming by or through them, may now have or may claim to have with respect to Landlord or its Affiliates, including any defenses or rights to setoff or recoupment under or relating to the Leases, the Guaranty, the Clearday Guaranty, the Agreement, the Promissory Note, or the negotiation and execution of this Amendment and/or any replacement Promissory Note.

7. No Further Modifications. Except as expressly modified in this Amendment, the Agreement shall remain in full force and effect and is expressly ratified and confirmed by the parties hereto.

8. Counterparts. This Agreement may be executed electronically and in counterparts, all of which executed counterparts shall together constitute a single document. Signature pages may be detached from the counterparts and attached to a single copy of this document to physically form one document. Executed versions of this Agreement may be delivered by the parties via facsimile transmission or email, either or both of which shall constitute delivery of an original.

[signature pages follow]

In Witness Whereof, this Agreement has been executed as of December 21, 2023.

MCA:

MCA Mainstreet Tenant, LLC, a Tennessee limited liability company;

MCA Westover Hills Operating Company, LLC, a Tennessee limited liability company;

MCA New Braunfels Operating Company, LLC, a Tennessee limited liability company; and

Memory Care at Good Shepherd, LLC, an Arkansas limited liability company

By:	/s/ BJ Parrish
Name:	BJ Parrish
Title:	COO

EXISTING Guarantor:

Trident Healthcare Properties I, L.P., a Delaware limited partnership; and

Memory Care America, LLC, a Tennessee limited liability company

By:	/s/ BJ Parrish
Name:	BJ Parrish
Title:	COO

By:	/s/ Steve Person
	Steve Person

CLEARDAY:

Clearday, Inc., a Delaware corporation

By:	/s/ BJ Parrish
Name:	BJ Parrish
Title:	COO

[signatures continue on following page]

S-1

LANDLORD:

MHI-MC San Antonio, LP,

MHI-MC New Braunfels, LP, and

MHI Little Rock, L.P.,

each a Delaware limited partnership

By:	/s/ Scott E. White
Name:	Scott E. White
Title:	Chief Executive Officer

S-2

Exhibit 10.2

PROMISSORY NOTE AND SECOND AMENDMENT

$578,795.89

December 31, 2023
New York, NY

Reference is hereby made to that certain Promissory Note and Amendment (the “Amended Note”) dated July 6, 2022 in the initial principal amount of $550,000 by Clearday, Inc. (the “Borrower”) payable to the order of A.G.P./Alliance Global Partners (the “Lender”). The Amended Note amended the Promissory Note in the initial principal amount of $2,630,000 payable to the order of Lender dated September 10, 2021 (the “Original Note”).

This Promissory Note and Second Amendment (the “Second Amended Note”) is dated as of December 31, 2023 by and among the Borrower and the Lender.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Borrower on behalf of itself and its subsidiaries on the one hand, and Lender on the other, agree to amend certain terms of the Amended Note in this Second Amended Note. All capitalized terms not otherwise defined herein shall have the respective meanings set forth in the Amended Note and, if not defined therein, then in the Original Note.

I. Amended Note Modification

Section I(1) of the Amended Note is hereby amended and restated in its entirety as follows:

Principal. As of the date of this Second Amended Note, the aggregate accrued interest is $28,795.89 and the aggregate amount of the obligations under the Second Amended Note is $578,795.89. The Loan Amount, as of Second Amended Note or the principal amount of the Note is $578,795.89.

Interest. Except as otherwise provided in this Note, the outstanding Loan Amount shall acrrue interest at a rate per annum equal to five percent (5%) (the “Interest Rate”) from the dated of this Second Amended Note until the entire Loan Amount, all accrued and unpaid interest thereon, and all other amounts and indebtedness payable under this Note, are paid in full, whether at maturity, upon acceleration, by prepayment, or otherwise.

Section I(3) of the Amended Note is hereby amended and restated in its entirety as follows:

Maturity Date. On the earlier of (i) September 30, 2024 (the “Maturity Date”) and (ii) the date on the Borrower consummates the proposed merger (the “Viveon Merger”) under the terms of the April 5, 2023 by and among Viveon Health Acquisition Corp. (“Viveon”), the Borrower and the other parties thereto (the “Closing Date”), and (iii) the date of an Event of Default under this Note, all amounts under the Note shall become due and payable.

Section 4 of the Amended Note is hereby amended and restated in its entirety as follows:

Prepayments. [Intentionally Omitted]

Except as specifically modified or amended by the terms of this Second Amended Note, the Amended Note and all provisions contained therein, and all surviving provisions of the Original Note shall remain in full force and effect. This Second Amended Note shall be governed and construed in accordance with the laws of the State of New York. This Second Amended Note may be executed in any number of counterparts with the same effect as if all parties hereto had signed the same document. All such counterparts shall be construed together and shall constitute one instrument, but in making proof hereof, it shall only be necessary to produce one such counterpart.

[Signature page follows]

IN WITNESS WHEREOF, Borrower has executed this Note as of the date set forth on the first page hereof.

Clearday, Inc.

By:	/s/ Richard Morris
	Richard M. Morris
	Executive Vice President

A.G.P./Alliance Global Partners

By:	/s/ Thomas Higgins
	Thomas Higgins
	Managing Director

Cover	Dec. 28, 2023
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Dec. 28, 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	false
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