Item
1.01. Entry into a Material Definitive Agreement.
On
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”).
Pursuant
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 Registration
Statement.
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 therein.
The
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 thereto.
The
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.
This
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.
Cautionary
Statement Regarding Forward-Looking Statements
This
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.