AND EXCHANGE COMMISSION
to Section 13 or Section 15(d) of the Securities Exchange Act of
of Report (Date of earliest event reported): January 8,
HEALTH SCIENCES, INC.
name of registrant as specified in its charter)
or other jurisdiction
Avenue of Science, Suite 200
Diego, CA 92128
of principal executive offices, including zip code)
telephone number, including area code: (858)
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:
communications pursuant to Rule 425 under the Securities Act (17
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e -4(c))
registered pursuant to Section 12(b) of the Act:
of each class
of each exchange on which registered
Stock, par value $0.001 per share
Nasdaq Stock Market LLC
by check mark whether the registrant is an emerging growth company
as defined in Rule 405 of the Securities Act of 1933 (§230.405 of
this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934
(§240.12b-2 of this chapter).
growth company [X]
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.
1.01. Entry into a Material Definitive Agreement.
January 8, 2021, Guardion Health Sciences, Inc. (the “Company”),
entered into an Equity Distribution Agreement (the “Sales
Agreement”) with Maxim Group LLC, as agent (“Maxim”), pursuant to
which the Company may offer and sell, from time to time through
Maxim, shares of the Company’s common stock, par value $0.001 per
share (the “Common Stock”), having an aggregate offering price of
up to $10,000,000 (the “Shares”).
The offer and sale of the Shares will be made pursuant to a shelf
registration statement on Form S-3 and the related prospectus (File
No. 333-248895) (the “Registration Statement”) filed by the Company
with the Securities and Exchange Commission (the “SEC”) on
September 18, 2020, amended on September 22, 2020 and declared
effective by the SEC on September 24, 2020, under the Securities
Act of 1933, as amended (the “Securities Act”).
to the Sales Agreement, Maxim may sell the Shares by any method
permitted by law deemed to be an “at the market offering” as
defined in Rule 415 of the Securities Act, including sales made by
means of ordinary brokers’ transactions, including on The Nasdaq
Capital Market, at market prices or as otherwise agreed with Maxim.
Maxim will use commercially reasonable efforts consistent with its
normal trading and sales practices to sell the Shares from time to
time, based upon instructions from the Company, including any price
or size limits or other customary parameters or conditions the
Company may impose.
Under the terms of the Sales Agreement, in no event will the
Company issue or sell through Maxim such number or dollar amount of
shares of Common Stock that would (i) exceed the number or dollar
amount of shares of Common Stock registered and available on the
Registration Statement, (ii) exceed the number of authorized but
unissued shares of Common Stock, (iii) exceed the number or dollar
amount of shares of Common Stock permitted to be sold under Form
S-3 (including General Instruction I.B.6 thereof, if applicable),
or (iv) exceed the number or dollar amount of Common Stock for
which the Company has filed a prospectus supplement to the
Company is not obligated to make any sales of the Shares under the
Sales Agreement. The offering pursuant to the Sales Agreement will
terminate upon the earlier of (i) the issuance and sale of all
shares of our common stock subject to the sales agreement, or (ii)
the termination of the sales agreement as permitted
Company will pay Maxim a commission rate equal to 3.0% of the
aggregate gross proceeds from each sale of Shares and has agreed to
provide Maxim with customary indemnification and contribution
rights. The Company will also reimburse Maxim for certain specified
expenses in connection with entering into the Sales Agreement. The
Sales Agreement contains customary representations and warranties
and conditions to the sale of the Shares pursuant
foregoing description of the Sales Agreement is not complete and is
qualified in its entirety by reference to the full text of such
agreement, a copy of which is filed herewith as Exhibit 1.1 to this
Current Report on Form 8-K and is incorporated herein by reference.
The opinion of Sheppard, Mullin, Richter & Hampton LLP, the
Company’s counsel, regarding the validity of the Shares that will
be issued pursuant to the Sales Agreement, is also filed herewith
as Exhibit 5.1.
Current Report on Form 8-K shall not constitute an offer to sell or
the solicitation of an offer to buy the Common Stock discussed
herein, nor shall there be any offer, solicitation, or sale of
common stock in any state in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the
securities laws of any such state.
Statement Regarding Forward-Looking Statements
Current Report on Form 8-K includes forward-looking statements
within the meaning of the Private Securities Litigation Reform Act
of 1995. Such statements include, but not are not limited to,
statements regarding the ability to sell shares and raise
additional funds pursuant to the Sales Agreement. Such statements
involve risks and uncertainties that could cause the Company’s
actual results and financial position to differ materially. These
risks and uncertainties include uncertainties associated with
market conditions and the satisfaction of pre-sale conditions under
the Sales Agreement, and other risks described under the heading
“Risk Factors” in the Company’s SEC Filings on Form 10-K and Form
10-Q. The Company assumes no responsibility to update or revise any
forward-looking statements to reflect events, trends or
circumstances after the date hereof.
9.01. Financial Statements and Exhibits.
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.
HEALTH SCIENCES, INC.
January 8, 2021