United States securities and exchange commission logo
August 12, 2022
Jagi Gill
Chairman and Chief Executive Officer
Viveon Health Acquisition Corp.
3953 Holcomb Bridge Road
Suite 200
Norcross, GA 30092
Re: Viveon Health
Acquisition Corp.
Registration
Statement on From S-4
Filed July 13, 2022
File No. 333-266123
Dear Dr. Gill:
We have reviewed your registration statement and have the
following comments. In
some of our comments, we may ask you to provide us with information so
we may better
understand your disclosure.
Please respond to this letter by amending your registration
statement and providing the
requested information. If you do not believe our comments apply to your
facts and
circumstances or do not believe an amendment is appropriate, please tell
us why in your
response.
After reviewing any amendment to your registration statement and
the information you
provide in response to these comments, we may have additional comments.
Registration Statement on Form S-4 filed July 13, 2022
Questions and Answers About the Proposals
Q: Why is Viveon proposing the Business Combination Proposal?, page 6
1. Please highlight here
and elsewhere, where appropriate, the material differences in the
terms and prices of
securities issued at the time of the initial public offering as compared
to the Subscription
Warrants. We note Rom Papadopoulos participated in the Subscription
Agreements. Disclose if
any other of the SPAC s sponsors, directors, officers or their
affiliates participated
in the Subscription Agreements. We note your disclosure on page
222 that Subscription
Warrant holders may require the Company to purchase all or a
portion of their
warrants at a purchase price of $5.00 for each share into which such
warrants are
convertible while public warrant holders do not appear to have such a right to
Jagi Gill
FirstName LastNameJagi
Viveon Health AcquisitionGill
Corp.
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put their warrants back to the company. Please explain how the
Subscription Agreements
would comply with the requirements of Rule 14e-5 under the Exchange
Act. Consider the
guidance provided by Tender Offer Rules and Schedules Compliance and
Disclosure
Interpretation Question 166.01 in your response. Please revise to
discuss the risks that
these agreements may pose to other holders if you are required to buy
back the
Subscription Warrants as described therein. For example, discuss how
such forced
purchases would impact the cash you have available for other purposes
and to execute
your business strategy.
Q: What interests do Viveon's current executive officers and directors have in
the Business
Combination?, page 9
2. Please revise here to discuss the interests of Viveon s current
executive officers and
directors in the Business Combination rather than cross referencing to
a different section
of the proxy statement/prospectus.
Summary of the Proxy Statement/Prospectus, page 17
3. We note your disclosure on page 6 that there are currently 5,032,874
Viveon public shares
outstanding. Please disclose in the summary that based on the amount
of cash in the trust
account of $51.6 million as of March 31, 2022, an aggregate of 419,141
Viveon public
shares may be redeemed and still enable you to have sufficient cash to
satisfy the
minimum cash condition under the Merger Agreement, as referenced on
page 26. If
applicable, discuss in the summary risks related to the potential
waiver by Suneva or
further amendment of the minimum cash condition. Please also disclose
in the summary
that the business combination could be approved with the vote of only
813 additional
public shares, as referenced on page 64.
Suneva Medical Inc. , page 18
4. Revise to discuss here Suneva s history of net losses and
accumulated deficit. With regard
to your product portfolio, revise to discuss the extent to which
Suneva acts as distributor
for third-party products. Additionally, please revise to provide
equally prominent
disclosure concerning competition you face in the medical aesthetics
industry, as
referenced on page 178.
Risks Related to Suneva's Business and Industry, page 35
5. Please add a risk factor discussing the risks associated with the
alleged breach of
the Neauvia North America, Inc. agreement, as referenced on page 173.
Worldwide economic and market conditions, an unstable economy, a decline in
consumer
demand . . . ., page 37
6. We note your risk factor indicating that inflation could affect demand
for your products.
Please expand your disclosure to discuss whether recent inflationary
pressures have
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FirstName LastNameJagi
Viveon Health AcquisitionGill
Corp.
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materially impacted your operations. In this regard, identify the
types of inflationary
pressures you are facing and how your business has been affected.
We have received a notice of default regarding our minimum purchase obligations
under our
distribution agreement with Aurasten/Bimini., page 43
7. Please revise the last sentence of this risk factor as it appears to
be an incomplete
statement as currently drafted.
Risks Related to Viveon and the Business Combination
Our officers and directors may have a conflict of interest in supporting the
Business Combination
.. . . ., page 62
8. Revise to include here that Rom Papadopoulos may put his Subscription
Warrants back to
the company at a price of $5.00 per share following the business
combination.
If our Sponsor, directors, officers, advisors and their affiliates elect to
purchase shares from
stockholders . . . ., page 64
9. We note your disclosure here and elsewhere that your Sponsor,
directors, officers,
advisors, and their affiliates may purchase shares from stockholders
in privately
negotiated transactions. In particular, you disclose here that they
may pay a premium for
such shares while other shareholders may not receive such a premium.
Please explain how
such transactions would comply with the requirements of Rule 14e-5
under the Exchange
Act and the guidance provided by Tender Offer Rules and Schedules
Compliance and
Disclosure Interpretation Question 166.01.
Risks Related to New Suneva
New Suneva's Proposed Charter will provide that the Court of Chancery of the
State of Delaware
.. . . ., page 76
10. We note your disclosure that your exclusive forum provision will not
apply to suits
brought to enforce any duty or liability created by the Exchange Act
or the rules and
regulations thereunder. Please ensure that the exclusive forum
provision in your governing
documents states this clearly.
Proposal 1 The Business Combination Proposal
Background of the Business Combination, page 90
11. Revise the background section to disclose in greater detail the
process by which other
potential alternatives were eliminated by the Viveon board.
Additionally, please explain
what substantive criteria the Viveon board considered in its search
for an acquisition
target rather than list generic attributes such as a target that could
benefit from access to
additional capital, as referenced on page 90. As drafted, there is
little discussion of the
process by which all other potential targets were eliminated during
the period from the
initial public offering to July 2021.
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Viveon Health AcquisitionGill
Corp.
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12. We note the projections provided to Viveon assumed a concurrent
acquisition and that
these discussions were terminated before the Merger Agreement was
executed. Please
revise this section to disclose when the discussions to complete a
concurrent acquisition
were terminated and the impact of this development on the negotiations
and the Viveon
board's determination to approve the terms of the Business
Combination. We note your
disclosure on page 99 that certain developments occurred subsequent to
the preparation of
the projections. Explain how these events were considered by the
Viveon board generally
and specifically with regard to the valuation of Suneva.
13. We note your disclosure on page 93 that Viveon would use its best
efforts to complete a
PIPE financing of $50 million. Please revise here to further discuss
Viveon's efforts in
obtaining the PIPE financing and the status of the PIPE financing at
the time the Merger
Agreement was signed.
14. Please revise your disclosure to explain how the negotiations
progressed and how the
Viveon board arrived at a valuation for Suneva of $250 million. Please
address in your
revisions the methodology employed in reaching the valuation,
including the underlying
assumptions and conclusions of the Viveon board. We note your
reference to a public
company comparable analysis on page 93. Revise to describe the
underlying
methodology, selection criteria, companies selected and conclusions of
such analysis.
15. We note your disclosure that Viveon engaged numerous firms to act as
financial advisor
in connection with the business combination, including Truist
Securities, Inc., SVB
Leerink LLC, William Blair & Co. LLC, Oppenheimer and Co., Inc. Clear
Think Capital
LLC, Chardan Capital Markets, B. Riley Financial Inc., Cantor
Fitzgerald Inc., Ladenburg
Thalmann and Co., Inc. and Commenda Capital Inc. Please explain in
detail the advisory
work performed by each such advisor. If applicable, describe the
analyses performed and
information provided to the board by such parties.
Viveon Board of Directors' Reasons for the Approval of the Business
Combination, page 95
16. Please revise here to quantify aggregate fees and expenses to date
associated with
completing the Business Combination as well as the total estimated
fees and expenses, if
available. State separately the aggregate fees and expenses payable to
the firms engaged
by Viveon to act as financial advisor.
17. Please revise to present a factual description of the reasons for the
recommendation of the
Viveon board and remove disclosure indicating that the Viveon board
s reasons for
approving the merger constitute forward-looking statements.
Projected Financial Information, page 98
18. Please clarify here and in the Background of the Business Combination
section when the
projections were provided to the Viveon board. You state on page 98
that the projections
were prepared on February 4, 2022, which is subsequent to the signing
of the Merger
Agreement. Please revise your disclosure here to expand your
discussion of estimates and
Jagi Gill
Viveon Health Acquisition Corp.
August 12, 2022
Page 5
assumptions with respect to industry performance, competition,
economic, and market
conditions to include the specific assumptions made and risks to those
assumptions.
19. We note on slide 21 of the December 2021 Investor Presentation
included as an exhibit
to your January 13, 2022 Form 8-K that you state projected 2022 EBITDA
of a positive
number appearing to be in the low to mid-single digit millions. We
also note your
projected EBITDA for the same period on page 99 of the proxy
statement/prospectus in
the amount of (7.8) million. Please explain the inconsistency and
revise as appropriate, or
otherwise advise.
20. We note your discussion of Suneva s financial projections cross
references the Cautionary
Note Regarding Forward-Looking Statements, which claim the safe
harbors of the United
States Private Securities Litigation Reform Act of 1995. Given that
the availability of the
safe harbors in a de-SPAC transaction is unsettled, with no definitive
case law,
Commission statement, or language in the legislative history, please
revise to
acknowledge the legal uncertainty of reliance on the safe harbors.
21. We note your disclosure on page 93 that Viveon s valuation analysis
included a projection
for Suneva s 2022 revenue. Please revise to disclose the
projections, the underlying
quantitative and qualitative assumptions used to generate the
projections and risks to those
assumptions.
Interests of Viveon's Directors and Officers and Others in the Business
Combination, page 109
22. Please quantify the aggregate dollar amount and describe the nature of
what the sponsor
and its affiliates have at risk that depends on completion of a
business combination.
Include the current value of securities held, loans extended, fees
due, and out-of-pocket
expenses for which the sponsor and its affiliates are awaiting
reimbursement. Provide
similar disclosure for the company s officers and directors, if
material.
23. Please highlight the risk that the sponsor will benefit from the
completion of a business
combination and may be incentivized to complete an acquisition of a
less favorable target
company or on terms less favorable to shareholders rather than
liquidate.
24. Please clarify if the sponsor and its affiliates can earn a positive
rate of return on their
investment, even if other SPAC shareholders experience a negative rate
of return in the
post-business combination company.
25. Please revise here and elsewhere as appropriate to discuss Rom
Papadopoulos loan to
FirstName LastNameJagi Gill
Viveon and the Subscription Warrants he holds. Disclose the total
potential payment you
Comapany
will NameViveon
be obligated toHealth
make Acquisition Corp.
to Mr. Papadopoulos if he chooses to
exercise his right to have
Augustthe
12,company
2022 Pagepurchase
5 all 200,000 of his warrants.
FirstName LastName
Jagi Gill
FirstName LastNameJagi
Viveon Health AcquisitionGill
Corp.
Comapany
August 12, NameViveon
2022 Health Acquisition Corp.
August
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26. We note that Chardan Capital Markets performed additional services
after the initial
public offering and part of the IPO underwriting fee was deferred and
conditioned on
completion of a business combination. Please quantify here the
aggregate fees payable to
Chardan that are contingent on completion of the business combination.
Information About Suneva
Material Agreements, page 172
27. Please revise to address the following in your material agreements
disclosure:
Provide the duration terms for the Healeon Medical, Inc., Aurastem
Technologies,
LLC, Puregraft, LLC, Sanwell Medical Equipment Co. Ltd., and
Neauvia North
America, Inc. agreements;
disclose the jurisdictions where your distribution rights are
exclusive and non-
exclusive for the Healeon Medical, Inc., Aurastem Technologies,
LLC, and Puregraft,
LLC agreements;
disclose whether the alleged breaches of the Aurastem
Technologies, LLC and
Neauvia North America, Inc. agreements currently have any effect
on the exclusivity
of either agreement;
provide the termination terms for the Neauvia North America, Inc.
and Circa Skin
Ltd. agreements;
disclose the current payment obligations under the Circa Skin Ltd.
agreement; and
we note your disclosure on page 172 that the agreement between
Suneva and
Hangzhou St. Nova Trade Co. Ltd may be extended for successive two
year terms but
that the agreement is currently extended for a one year term.
Please reconcile your
disclosure or otherwise advise.
To the extent that you have not done so, ensure that your disclosure
throughout this
section includes your financial obligations under each agreement as
well as any non-
compete provisions applicable to you.
Our Market Opportunity, page 174
28. Please revise your disclosure on page 175 to provide the sources and
assumptions relied
on for your estimates of the number of plastic surgeons and
dermatologists globally, and
dermatologists, plastic surgeons, and non-core practitioners in the
United States.
29. Please revise your statement on page 175 to provide the basis for your
belief that you have
a leadership position in the market. Additionally, please place your
disclosure concerning
your market opportunity in appropriate context with reference to your
current market
share.
30. Please revise to provide the title of the FDA guidance for
manufacturers of cell-based
products and remove the statement that the FDA may begin to
proactively issue regulatory
guidance on approval pathways for manufacturers of regenerative
medicines and therapies
as such disclosure is speculative.
Jagi Gill
Viveon Health Acquisition Corp.
August 12, 2022
Page 7
Sales and Marketing, page 176
31. Please revise here to disclose the countries in which you sell your
products through
distribution agreements.
Intellectual Property, page 177
32. Please revise here to identify the type of patent protection, whether
the patent is owned or
licensed and the product to which the patent relates to for each
issued and pending patent.
Consider providing tabular disclosure in addition to narrative
disclosure. Ensure that you
disclose the relevant foreign jurisdictions segregated by issued
patents and pending
patents. With regard to patents scheduled to expire in 2022, revise to
discuss whether such
expiry is expected to have a material impact on your business.
Management's Discussion and Analysis of Financial Condition and Results of
Operations of
Suneva
Overview , page 201
33. We note your disclosure that Suneva commenced operations in 2009 when
it acquired
ArteFill (rebranded Bellafill) and related assets. You also state on
page 36 that until 2019,
your sole product was Bellafill. Revise to make clear in this section
the extent to which
you have developed any products and the extent to which you act as
distributor of third-
party products. Revise your discussion of research and development
activities and
expenses to explain in greater detail your activities in this area. We
note your generic
reference to innovation and improvement on page 177. You state
on page 169 that you
intend to leverage relationships with clinics and research
institutions to engage in clinical
trials. Explain here and in your business section your experience in
conducting clinical
trials and describe any material product candidates in development.
Make clear here and
throughout your filing the extent to which you are or have been
involved in the
development and regulatory approval of the products you sell as
distinct from the
activities of third parties.
General
34. We note that Chardan Capital Markets was an underwriter for the initial
public offering of
Viveon and was engaged in connection with a possible business
combination with Suneva,
as referenced on page 92. We further note that Viveon engaged numerous
firms to act as
financial advisor. We note press reports that certain firms are ending
their involvement in
SPAC business combination transactions. Please tell us, with a view to
disclosure,
whether you have received notice from any of your or Suneva s
financial advisor(s) about
FirstName LastNameJagi Gill
it ceasing involvement in your transaction and how that may impact your
deal or the
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deferred Health
underwriting Acquisitionowed
compensation Corp.to Chardan for the SPAC s
initial public
Augustoffering.
12, 2022 Page 7
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Viveon Health AcquisitionGill
Corp.
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We remind you that the company and its management are responsible for
the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action
or absence of
action by the staff.
Refer to Rules 460 and 461 regarding requests for acceleration. Please
allow adequate
time for us to review any amendment prior to the requested effective date of
the registration
statement.
You may contact Gary Newberry at 202-551-3761 or Daniel Gordon at
202-551-3486 if
you have questions regarding comments on the financial statements and related
matters. Please
contact Daniel Crawford at 202-551-7767 or Christine Westbrook at 202-551-5019
with any
other questions.
Sincerely,
Division of
Corporation Finance
Office of Life
Sciences
cc: Tahra Wright, Esq.