Exhibit 10.2


 


PLACEMENT
AGENCY AGREEMENT


 


Guardion
Health Sciences, Inc.


 


	 	February
    18, 2022


 


Roth
Capital Partners, LLC


888
San Clemente Drive, Suite 400


Newport
Beach, CA 92660


 


Maxim
Group LLC


300
Park Avenue, 16th Floor


New
York, NY 10022


 


Ladies
and Gentlemen:


 


Introduction.
Subject to the terms and conditions herein (this “Agreement”), Guardion Health Sciences, Inc., a Delaware corporation
(the “Company”), hereby agrees to sell up to an aggregate of $11,099,555 of securities of the Company, including,
but not limited to, 32,550,000 shares (the “Shares”) of the Company’s common stock, $0.001 par value per share
(the “Common Stock”), pre-funded Common Stock purchase warrants to purchase up to an aggregate of 4,450,000 shares
of Common Stock (the “Pre-Funded Warrants”), and Common Stock purchase warrants to purchase up to an aggregate of
37,000,000 shares of Common Stock (the “Warrants” and the shares of Common Stock underlying the Pre-Funded Warrants
and the Warrants, the “Warrant Shares”) (the Shares, the Pre-Funded Warrants, the Warrants and the Warrant Shares,
collectively, the “Securities”) directly to various investors (each, an “Investor” and, collectively,
the “Investors”) through Roth Capital Partners, LLC, (“Roth”) and Maxim Group LLC (“Maxim”,
each a “Placement Agent” and collectively the “Placement Agents”). The documents executed and delivered
by the Company and the Investors in connection with the Offering (as defined below), including, without limitation, a securities purchase
agreement (the “Purchase Agreement”), shall be collectively referred to herein as the “Transaction Documents.”
The purchase price to the Investors for each Share and accompanying Warrants is $0.30, the purchase price for each Pre-Funded Warrant
and accompanying Warrants is $0.2999, and the exercise price to the Investors for each share of common stock issuable upon exercise of
the Warrants is $0.37. The Placement Agents may retain other brokers or dealers to act as sub-agents or selected-dealers on its behalf
in connection with the Offering.


 


The
Company hereby confirms its agreement with the Placement Agents as follows:


 


Section
1. Agreement to Act as Placement Agents.


 


(a)
On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions
of this Agreement, each of the Placement Agents, severally and not jointly, agrees to act as the exclusive placement agents in connection
with the offering and sale by the Company of the Securities pursuant to the Company’s registration statement on Form S-3 (File
No. 333-248895) (the “Registration Statement”), with the terms of such offering (the “Offering”)
to be subject to market conditions and negotiations between the Company, the Placement Agents and the prospective Investors. The Placement
Agents will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful
placement of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agents or
any of its “Affiliates” (as defined below) be obligated to underwrite or purchase any of the Securities for their own account
or otherwise provide any financing. The Placement Agents shall act solely as the Company’s agents and not as principals. The Placement
Agents shall have no authority to bind the Company with respect to any prospective offer to purchase Securities and the Company shall
have the sole right to accept offers to purchase Securities and may reject any such offer, in whole or in part. Subject to the terms
and conditions hereof, payment of the purchase price for, and delivery of, the Securities shall be made at one or more closings (each
a “Closing” and the date on which each Closing occurs, a “Closing Date”). As compensation for services
rendered, on each Closing Date, the Company shall pay to the Placement Agents the fees and expenses set forth below:





 


(i)
A cash fee equal to 7.0% of the gross proceeds received by the Company from the sale of the Securities at the closing of the Offering
(the “Closing”).


 






    	 



     


    

 


(ii)
Placement Agent warrants issuable to Roth (the “Placement Agent Warrants”) to acquire a number of shares of the Company’s
Common Stock equal to 5.0% of the number of shares of the Company’s Common Stock issued or issuable pursuant to the Securities
issued in the Offering. The Placement Agent Warrants shall be exercisable for a period of five (5) years following the Closing at an
exercise price equal to the exercise price of the Warrants in the Offering.


 


(iii)
The Company also agrees to reimburse the Placement Agents’ expenses, including the costs and expenses of its counsel, of $100,000
payable immediately upon the Closing of the Offering.


 


(iv)
In addition, for a period of six months (6) after the Closing, if the Company decides to (i) pursue any public or private offering of
equity, equity-linked or debt securities, then the Company shall offer Roth the right to act as the exclusive placement agent or lead
underwriter and bookrunner, as applicable, for such financing, in each case under a separate agreement containing terms and conditions
customary for transactions of this type and mutually agreed upon by the Company and Roth.


 


(b)
The term of Roth’s exclusive engagement will be until the completion of the Offering (the “Exclusive Term”);
provided, however, that a party hereto may terminate the engagement with respect to itself at any time upon 10 days written
notice to the other parties. Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification
and contribution contained herein and the Company’s obligations contained in the indemnification provisions will survive any expiration
or termination of this Agreement, and the Company’s obligation to pay fees actually earned and payable and to reimburse expenses
actually incurred and reimbursable pursuant to Section 1 hereof and which are permitted to be reimbursed under FINRA Rule 5110(f)(2)(D),
will survive any expiration or termination of this Agreement. Nothing in this Agreement shall be construed to limit the ability of Roth
or its Affiliates to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business
relationship with Persons (as defined below) other than the Company. As used herein (i) “Persons” means an individual or
corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any kind and (ii) “Affiliate” means any Person that,
directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such
terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”).


 




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Section
2. Representations, Warranties and Covenants of the Company. In addition to the representations and warrants contained in the Securities
Purchase Agreement, including the Disclosure Schedules attached thereto, dated the date hereof between the Company and the investors
named therein (the “Securities Purchase Agreement”), which representations and warrants are incorporated by reference
herein, the Company hereby represents, warrants and covenants to the Placement Agents as of the date hereof, and as of each Closing Date,
as follows:


 


(a)
Securities Law Filings. The Company has filed with the Securities and Exchange Commission (the “Commission”)
the Registration Statement under the Securities Act, which was declared effective on September 24, 2020 for the registration of the Securities
under the Securities Act. Following the determination of pricing among the Company and the prospective Investors introduced to the Company
by Placement Agents, the Company will file with the Commission pursuant to Rules 430A and 424(b) under the Securities Act, and the rules
and regulations (the “Rules and Regulations”) of the Commission promulgated thereunder, a final prospectus supplement
relating to the placement of the Securities, their respective pricings and the plan of distribution thereof and will advise the Placement
Agents of all further information (financial and other) with respect to the Company required to be set forth therein. Such registration
statement, at any given time, including the exhibits thereto filed at such time, as amended at such time, is hereinafter called the “Registration
Statement”; such prospectus in the form in which it appears in the Registration Statement at the time of effectiveness, together
with any preliminary prospectus supplement relating to the Offering, is hereinafter called the “Preliminary Prospectus”;
and the final prospectus supplement, in the form in which it will be filed with the Commission pursuant to Rule 430A and/or Rule 424(b)
(including the Preliminary Prospectus as so amended or supplemented) is hereinafter called the “Final Prospectus.”
The Registration Statement at the time it originally became effective is hereinafter called the “Original Registration Statement.”
Any reference in this Agreement to the Registration Statement, the Original Registration Statement, the Preliminary Prospectus, the Preliminary
Prospectus Supplement or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein
(the “Incorporated Documents”), if any, pursuant to Form S-3 which were or are filed under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), at any given time, as the case may be; and any reference in this Agreement
to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the
Original Registration Statement, the Preliminary Prospectus, the Preliminary Prospectus Supplement or the Final Prospectus shall be deemed
to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the
Preliminary Prospectus, the Preliminary Prospectus Supplement or the Final Prospectus, as the case may be, deemed to be incorporated
therein by reference. All references in this Agreement to financial statements and schedules and other information which is “contained,”
“included,” “described,” “referenced,” “set forth” or “stated” in the Registration
Statement, the Preliminary Prospectus, the Preliminary Prospectus Supplement or the Final Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and schedules and other information which is or is deemed to
be incorporated by reference in the Registration Statement, the Preliminary Prospectus, the Preliminary Prospectus Supplement or the
Final Prospectus, as the case may be. As used in this paragraph and elsewhere in this Agreement, “Time of Sale Disclosure Package”
means the Preliminary Prospectus, any preliminary prospectus supplement, any subscription agreement between the Company and the Investors,
and any issuer free writing prospectus as defined in Rule 433 of the Act (each, an “Issuer Free Writing Prospectus”),
if any, that the parties hereto shall hereafter expressly agree in writing to treat as part of the Time of Sale Disclosure Package. The
term “any Prospectus” shall mean, as the context requires, the Preliminary Prospectus, the Final Prospectus, and any
supplement to either thereof. The Company has not received any notice that the Commission has issued or intends to issue a stop order
suspending the effectiveness of the Registration Statement or the use of the Preliminary Prospectus or the Final Prospectus or intends
to commence a proceeding for any such purpose.


 




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(b)
Assurances. The Original Registration Statement, as amended, (and any further documents to be filed with the Commission) contains
all exhibits and schedules as required by the Securities Act. Each of the Registration Statement and any post-effective amendment thereto,
at the time it became effective, complied in all material respects with the Securities Act and the applicable Rules and Regulations and
did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. The Preliminary Prospectus, and the Final Prospectus, each as of its respective date, comply
or will comply in all material respects with the Securities Act and the applicable Rules and Regulations. Each of the Preliminary Prospectus
and the Final Prospectus, as amended or supplemented, did not and will not contain as of the date thereof any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they
were made, not misleading. The Incorporated Documents, when they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the applicable Rules and Regulations promulgated thereunder, and none of such documents, when
they were filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary
to make the statements therein (with respect to Incorporated Documents incorporated by reference in the Preliminary Prospectus or Final
Prospectus), in light of the circumstances under which they were made not misleading. No post-effective amendment to the Registration
Statement reflecting any facts or events arising after the date thereof which represent, individually or in the aggregate, a fundamental
change in the information set forth therein is required to be filed with the Commission. Except for this Agreement, there are no documents
required to be filed with the Commission in connection with the transaction contemplated hereby that (x) have not been filed as required
pursuant to the Securities Act or (y) will not be filed within the requisite time period. Except for this Agreement, there are no contracts
or other documents required to be described in the Preliminary Prospectus or Final Prospectus, or to be filed as exhibits or schedules
to the Registration Statement or incorporated by reference therein, which have not been described or filed as required.


 


(c)
Offering Materials. Neither the Company nor any of its directors and officers has distributed and none of them will distribute,
prior to each Closing Date, any offering material in connection with the offering and sale of the Securities other than the Time of Sale
Disclosure Package.


 


(d)
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions
contemplated by this Agreement and the Time of Sale Disclosure Package and otherwise to carry out its obligations hereunder and thereunder.
The execution and delivery of each of this Agreement by the Company and the consummation by it of the transactions contemplated hereby
and thereby and under the Time of Sale Disclosure Package have been duly authorized by all necessary action on the part of the Company
and no further action is required by the Company, the Company’s Board of Directors (the “Board of Directors”)
or the Company’s stockholders in connection therewith other than in connection with the Required Approvals (as defined below).
This Agreement has been duly executed by the Company and, when delivered in accordance with the terms hereof, will constitute the valid
and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general
equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.


 




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(e)
No Conflicts. The execution, delivery and performance by the Company of this Agreement and the transactions contemplated pursuant
to the Time of Sale Disclosure Package, the issuance and sale of the Securities and the consummation by it of the transactions contemplated
hereby and thereby to which it is a party do not and will not (i) conflict with or violate any provision of the Company’s or any
subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with,
or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation
of any lien or other encumbrance upon any of the properties or assets of the Company or any subsidiary, or give to others any rights
of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility,
debt or other instrument (evidencing a Company or subsidiary debt or otherwise) or other understanding to which the Company or any subsidiary
is a party or by which any property or asset of the Company or any subsidiary is bound or affected, or (iii) subject to the Required
Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction
of any court or governmental authority to which the Company or a subsidiary is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Company or a subsidiary is bound or affected; except in the case of each of clauses
(ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect (as defined in the Securities
Purchase Agreement).


 


(f)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any
notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other
Person in connection with the execution, delivery and performance by the Company of this Agreement and the transactions contemplated
pursuant to the Time of Sale Disclosure Package, other than: (i) the filing with the Commission of the Final Prospectus, (ii) application(s)
to the Nasdaq Capital Market (the “Trading Market”) for the listing of the Shares and the Warrant Shares for trading
thereon in the time and manner required thereby, and (iii) such filings as are required to be made under applicable state securities
laws (collectively, the “Required Approvals”).


 


Section
3. Delivery and Payment. The Closing shall occur at the offices of Lowenstein Sandler LLP, 1251 Avenue of the Americas, New York,
New York 10105 (“Placement Agents Counsel”) (or at such other place as shall be agreed upon by the Placement Agents
and the Company). Subject to the terms and conditions hereof, at the Closing payment of the purchase price for the Securities sold on
such Closing Date shall be made by Federal Funds wire transfer, against delivery of such Securities, and such Securities shall be registered
in such name or names and shall be in such denominations, as the Placement Agents may each request at least one business day before the
time of purchase (as defined below).


 


Deliveries
of the documents with respect to the purchase of the Securities, if any, shall be made at the offices of Placement Agents Counsel. All
actions taken at the Closing shall be deemed to have occurred simultaneously.


 




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Section
4. Covenants and Agreements of the Company. The Company further covenants and agrees with the Placement Agents as follows:


 


(a)
Registration Statement Matters. The Company will advise the Placement Agents promptly after it receives notice thereof of the
time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Preliminary Prospectus
or the Final Prospectus has been filed and will furnish the Placement Agents with copies thereof. The Company will file promptly all
reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section
13(a), 14 or 15(d) of the Exchange Act subsequent to the date of any Prospectus and for so long as the delivery of a prospectus is required
in connection with the Offering. The Company will advise the Placement Agents, promptly after it receives notice thereof (i) of any request
by the Commission to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii)
of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing
or suspending the use of the Preliminary Prospectus or the Final Prospectus or any prospectus supplement or any amendment or supplement
thereto or any post-effective amendment to the Registration Statement, of the suspension of the qualification of the Securities for offering
or sale in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by
the Commission for the amending or supplementing of the Registration Statement any Preliminary Prospectus or the Final Prospectus or
for additional information. The Company shall use its best efforts to prevent the issuance of any such stop order or prevention or suspension
of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time, the Company
will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration statement
and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company
agrees that it shall comply in all material respects with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the
Securities Act, including with respect to the timely filing of documents thereunder, and will use its reasonable efforts to confirm that
any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.


 


(b)
Blue Sky Compliance. The Company will cooperate with the Placement Agents and the Investors in endeavoring to qualify the Securities
for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agents and the Investors may reasonably
request and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose,
provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in
any jurisdiction where it is not now so qualified or required to file such a consent, and provided further that the Company shall not
be required to produce any new disclosure document. The Company will, from time to time, prepare and file such statements, reports and
other documents as are or may be required to continue such qualifications in effect for so long a period as the Placement Agents may
reasonably request for distribution of the Securities. The Company will advise the Placement Agents promptly of the suspension of the
qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction
or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification,
registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.


 




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(c)
Amendments and Supplements to the Registration Statement and Other Matters. The Company will comply in all material respects with
the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents, the Registration Statement and the
Final Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of
Securities contemplated by the Incorporated Documents or the Registration Statement (the “Prospectus Delivery Period”),
any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agents or Placement Agents
Counsel, it becomes necessary to amend or supplement the Incorporated Documents or the Registration Statement in order to make the statements
therein, in the light of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any
time to amend or supplement the Incorporated Documents or the Registration Statement or to file under the Exchange Act any Incorporated
Document to comply in all material respects with any law, the Company will promptly prepare and file with the Commission, and furnish
at its own expense to the Placement Agents and to dealers, an appropriate amendment to the Registration Statement or supplement to the
Registration Statement, the Incorporated Documents or the Final Prospectus that is necessary in order to make the statements in the Incorporated
Documents and the Registration Statement as so amended or supplemented, in the light of the circumstances under which they were made,
as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or the Final Prospectus, as so
amended or supplemented, will comply in all material respects with law. Before amending the Registration Statement or supplementing the
Incorporated Documents or the Final Prospectus in connection with the Offering, the Company will furnish the Placement Agents with a
copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement Agents reasonably
object.


 


(d)
Copies of any Amendments and Supplements to the Registration Statement. The Company will furnish the Placement Agents, without
charge, during the period beginning on the date hereof and ending on the last Closing Date of the Offering, as many copies of the Incorporated
Documents, Registration Statement, Preliminary Prospectus and the Final Prospectus and any amendments and supplements thereto as the
Placement Agent may reasonably request.


 


(e)
Free Writing Prospectus. The Company covenants that it will not, unless it obtains the prior written consent of the Placement
Agents, make any offer relating to the Securities that would constitute an Company Free Writing Prospectus or that would otherwise constitute
a “free writing prospectus” (as defined in Rule 405 of the Securities Act) required to be filed by the Company with
the Commission or retained by the Company under Rule 433 of the Securities Act. In the event that the Placement Agents expressly consent
in writing to any such free writing prospectus (a “Permitted Free Writing Prospectus”), the Company covenants that
it shall (i) treat each Permitted Free Writing Prospectus as an Company Free Writing Prospectus, and (ii) comply in all material respects
with the requirements of Rule 164 and 433 of the Securities Act applicable to such Permitted Free Writing Prospectus, including in respect
of timely filing with the Commission, legending and record keeping.


 


(f)
Transfer Agent. The Company will maintain, at its expense, a registrar and transfer agent for the Common Stock.


 


(g)
Earnings Statement. As soon as practicable and in accordance with applicable requirements under the Securities Act, but in any
event not later than 18 months after last Closing Date, the Company will make generally available to its security holders and to the
Placement Agents an earnings statement, covering a period of at least 12 consecutive months beginning after the Closing Date, that satisfies
the provisions of Section 11(a) and Rule 158 under the Securities Act.


 


(h)
Periodic Reporting Obligations. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the
Commission and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and subject
to any applicable extensions and in the manner required by the Exchange Act.


 




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(i)
Additional Documents. The Company will enter into any subscription, purchase or other customary agreements as the Placement
Agents or the Investors deem necessary or appropriate to consummate the Offering, all of which will be in form and substance reasonably
acceptable to the Placement Agents and the Investors. The Company agrees that the Placement Agents may rely upon, and each is a third
party beneficiary of, the representations and warranties, and applicable covenants, set forth in any such purchase, subscription or other
agreement with Investors in the Offering.


 


(j)
No Manipulation of Price. The Company will not take, directly or indirectly, any action designed to cause or result in,
or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities
of the Company.


 


(k)
Acknowledgment. The Company acknowledges that any advice given by the Placement Agents to the Company is solely for the benefit
and use of the Board of Directors and executive officers of the Company and may not be used, reproduced, disseminated, quoted or referred
to, without the Placement Agents’ prior written consent, as applicable.


 


(l)
Announcement of Offering. The Company acknowledges and agrees that the Placement Agents may, subsequent to the Closing, make public
its involvement with the Offering.


 


(m)
Reliance on Others. The Company confirms that it will rely on its own counsel and accountants for legal and accounting advice.


 


(n)
Research Matters. By entering into this Agreement, the Placement Agents do not provide
any promise, either explicitly or implicitly, of favorable or continued research coverage of the Company and the Company hereby acknowledges
and agrees that the Placement Agents’ selection as the Placement Agents for the Offering was in no way conditioned, explicitly
or implicitly, on the Placement Agents providing favorable or any research coverage of the Company. In accordance with FINRA Rule 2711(e),
the parties acknowledge and agree that the Placement Agents have not directly or indirectly offered favorable research, a specific rating
or a specific price target, or threatened to change research, a rating or a price target, to the Company or inducement for the receipt
of business or compensation.


 


Section
5. Conditions of the Obligations of the Placement Agents. The obligations of the Placement Agents hereunder shall be subject to the
accuracy of the representations and warranties on the part of the Company set forth in Section 2 hereof, in each case as of the date
hereof and as of the Closing Date as though then made, to the timely performance by each of the Company of its covenants and other obligations
hereunder on and as of such dates, and to each of the following additional conditions:


 


(a)
Compliance with Registration Requirements; No Stop Order; No Objection from the FINRA. The Final Prospectus (in accordance with
Rule 424(b)) and “free writing prospectus” (as defined in Rule 405 of the Securities Act), if any, shall have been
duly filed with the Commission, as appropriate; no stop order suspending the effectiveness of the Final Prospectus or any part thereof
shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no order preventing
or suspending the use of any Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened
by the Commission; no order having the effect of ceasing or suspending the distribution of the Securities or any other securities of
the Company shall have been issued by any securities commission, securities regulatory authority or stock exchange and no proceedings
for that purpose shall have been instituted or shall be pending or, to the knowledge of the Company, contemplated by any securities commission,
securities regulatory authority or stock exchange; all requests for additional information on the part of the Commission shall have been
complied with; and the FINRA shall have raised no objection to the fairness and reasonableness of the placement terms and arrangements.


 




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(b)
Corporate Proceedings. All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement
and the Final Prospectus, and the registration, sale and delivery of the Securities, shall have been completed or resolved in a manner
reasonably satisfactory to the Placement Agents Counsel, and such counsel shall have been furnished with such papers and information
as it may reasonably have requested to enable such counsel to pass upon the matters referred to in this Section 5.


 


(c)
No Material Adverse Change. Subsequent to the execution and delivery of this Agreement and prior to each Closing Date, in the
Placement Agents’ sole judgment after consultation with the Company, there shall not have occurred any Material Adverse Effect
or any material adverse change or development involving a prospective material adverse change in the condition or the business activities,
financial or otherwise, of the Company from the latest dates as of which such condition is set forth in the Registration Statement and
the Final Prospectus (“Material Adverse Change”).


 


(d)
Opinion of Counsel for the Company. The Placement Agents shall have received on the Closing Date the favorable opinion of US legal
and intellectual property counsel to the Company, dated as of such Closing Date, including, without limitation, a negative assurance
letter addressed to the Placement Agents and in form and substance satisfactory to the Placement Agents.


 


(e)
Officers’ Certificate. The Placement Agents shall have received on the Closing Date a certificate of the Company, dated
as of such Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, to the effect that, and the
Placement Agents shall be satisfied that, the signers of such certificate have reviewed the Registration Statement, the Incorporated
Documents, the Preliminary Prospectus and the Final Prospectus, and this Agreement and to the further effect that:


 


(i)
The representations and warranties of the Company in this Agreement are true and correct, as if made on and as of such Closing Date,
and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or
prior to such Closing Date;


 


(ii)
No stop order suspending the effectiveness of the Registration Statement or the use of the Preliminary Prospectus or the Final Prospectus
has been issued and no proceedings for that purpose have been instituted or are pending or, to the Company’s knowledge, threatened
under the Securities Act; no order having the effect of ceasing or suspending the distribution of the Securities or any other securities
of the Company has been issued by any securities commission, securities regulatory authority or stock exchange in the United States and
no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, contemplated by any securities
commission, securities regulatory authority or stock exchange in the United States;


 




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(iii)
When the Registration Statement became effective, at the time of sale, and at all times subsequent thereto up to the delivery of such
certificate, the Registration Statement and the Incorporated Documents, if any, when such documents became effective or were filed with
the Commission, contained all material information required to be included therein by the Securities Act and the Exchange Act and the
applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to the requirements
of the Securities Act and the Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be,
and the Registration Statement and the Incorporated Documents, if any, did not and do not include any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (provided, however, that the preceding representations and warranties contained
in this paragraph (iii) shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished
in writing to the Company by the Placement Agents expressly for use therein) and, since the effective date of the Registration Statement,
there has occurred no event required by the Securities Act and the rules and regulations of the Commission thereunder to be set forth
in the Incorporated Documents which has not been so set forth; and


 


(iv)
Subsequent to the respective dates as of which information is given in the Registration Statement, the Incorporated Documents and any
Prospectus, there has not been: (a) any Material Adverse Change; (b) any transaction that is material to the Company and the Subsidiaries
taken as a whole, except transactions entered into in the ordinary course of business; (c) any obligation, direct or contingent, that
is material to the Company and the Subsidiaries taken as a whole, incurred by the Company or any Subsidiary, except obligations incurred
in the ordinary course of business; (d) any material change in the capital stock (except changes thereto resulting from the exercise
of outstanding stock options or warrants) or outstanding indebtedness of the Company or any Subsidiary; (e) any dividend or distribution
of any kind declared, paid or made on the capital stock of the Company; or (f) any loss or damage (whether or not insured) to the property
of the Company or any Subsidiary which has been sustained or will have been sustained which has a Material Adverse Effect.


 


(f)
Stock Exchange Listing. The Common Stock shall be registered under the Exchange Act and shall be listed on the Trading Market,
and the Company shall not have taken any action designed to terminate, or likely to have the effect of terminating, the registration
of the Common Stock under the Exchange Act or delisting or suspending from trading the Common Stock from the Trading Market, nor shall
the Company have received any information suggesting that the Commission or the Trading Market is contemplating terminating such registration
or listing other than as disclosed in the Securities Purchase Agreement.


 


(g)
Accountants’ Comfort Letter. On the date hereof, the Placement Agents shall have received, and the Company shall have caused
to be delivered to the Placement Agents, a letter from each of Weinberg & Company, P.A. (the independent registered public accounting
firm of the Company), addressed to the Placement Agents, dated as of the date hereof, in form and substance satisfactory to the Placement
Agents. The letter shall not disclose any change in the condition (financial or other), earnings, operations, business or prospects of
the Company from that set forth in the Incorporated Documents or the applicable Preliminary Prospectus, which, in the Placement Agents’
sole judgment, is material and adverse and that makes it, in the Placement Agent’s sole judgment, impracticable or inadvisable
to proceed with the Offering of the Securities as contemplated by such Preliminary Prospectus.





 


(h)
Bring-down Comfort Letter. On the Closing Date, the Placement Agents shall have received from Weinberg & Company, P.A.
or such other independent registered public accounting firm of the Company, a letter dated as of such Closing Date, in form and substance
satisfactory to the Placement Agents, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection
(g) of this Section 5, except that the specified date referred to therein for the carrying out of procedures shall be no more than three
business days prior to such Closing Date.


 






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(i)
Lock-Up Agreements. On the Closing Date, the Placement Agents shall have received the executed lock-up agreement, in the form
attached hereto as Exhibit A, from each of the directors and officers of the Company.


 


(j)
Additional Documents. On or before the Closing Date, the Placement Agents and the Placement Agents Counsel shall have received
such information and documents as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of
the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction
of any of the conditions or agreements, herein contained.


 


If
any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by
the Placement Agents by notice to the Company at any time on or prior to a Closing Date, which termination shall be without liability
on the part of any party to any other party, except that Section 6 (Payment of Expenses), Section 7 (Indemnification and Contribution)
and Section 8 (Representations and Indemnities to Survive Delivery) shall at all times be effective and shall survive such termination.


 


Section
6. Payment of Expenses. In addition to the expenses set forth in Section 1(a), the Company agrees to pay all costs, fees and expenses
incurred by the Company in connection with the performance of its obligations hereunder and in connection with the transactions contemplated
hereby, including, without limitation: (i) all expenses incident to the issuance, delivery and qualification of the Securities (including
all printing and engraving costs); (ii) all fees and expenses of the registrar and transfer agent of the Common Stock; (iii) all necessary
issue, transfer and other stamp taxes in connection with the issuance and sale of the Securities; (iv) all fees and expenses of the Company’s
counsel, independent public or certified public accountants and other advisors; (v) all costs and expenses incurred in connection with
the preparation, printing, filing, shipping and distribution of the Registration Statement (including financial statements, exhibits,
schedules, consents and certificates of experts), the Preliminary Prospectus and the Final Prospectus, and all amendments and supplements
thereto, and this Agreement; (vi) all filing fees, reasonable attorneys’ fees and expenses incurred by the Company or the Placement
Agents in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part
of the Securities for offer and sale under the state securities or blue sky laws or the securities laws of any other country, and, if
requested by the Placement Agents, preparing and printing a “Blue Sky Survey,” an “International Blue Sky
Survey” or other memorandum, and any supplements thereto, advising the Placement Agent of such qualifications, registrations
and exemptions; (vii) if applicable, the filing fees incident to the review and approval by the FINRA of the Placement Agents’
participation in the offering and distribution of the Securities; (viii) the fees and expenses associated with including the Shares and
Warrant Shares on the Trading Market; (ix) all costs and expenses incident to the travel and accommodation of the Company’s employees
on the “roadshow,” if any; and (x) all other fees, costs and expenses referred to in Part II of the Registration Statement.


 




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Section
7. Indemnification and Contribution.


 


(a)
The Company agrees to indemnify and hold harmless each Placement Agent, its affiliates and each person controlling any Placement Agent
(within the meaning of Section 15 of the Securities Act), and the directors, officers, agents and employees of each Placement Agent,
their affiliates and each such controlling person (the Placement Agent, and each such entity or person. an “Indemnified Person”)
from and against any losses, claims, damages, judgments, assessments, costs and other liabilities (collectively, the “Liabilities”),
and shall reimburse each Indemnified Person for all fees and expenses (including the reasonable fees and expenses of one counsel for
all Indemnified Persons, except as otherwise expressly provided herein) (collectively, the “Expenses”) as they are
incurred by an Indemnified Person in investigating, preparing, pursuing or defending any Actions, whether or not any Indemnified Person
is a party thereto, (i) caused by, or arising out of or in connection with, any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, any Incorporated Document, the Preliminary Prospectus or the Final Prospectus or by any
omission or alleged omission to state therein a material fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading (other than untrue statements or alleged untrue statements in, or omissions or alleged omissions
from, information relating to an Indemnified Person furnished in writing by or on behalf of such Indemnified Person expressly for use
in the Incorporated Documents) or (ii) otherwise arising out of or in connection with advice or services rendered or to be rendered by
any Indemnified Person pursuant to this Agreement, the transactions contemplated thereby or any Indemnified Person’s actions or
inactions in connection with any such advice, services or transactions; provided, however, that, in the case of clause (ii) only,
the Company shall not be responsible for any Liabilities or Expenses of any Indemnified Person that are finally judicially determined
to have resulted solely from such Indemnified Person’s (x) gross negligence or willful misconduct in connection with any of the
advice, actions, inactions or services referred to above or (y) use of any offering materials or information concerning the Company in
connection with the offer or sale of the Securities in the Offering which were not authorized for such use by the Company and which use
constitutes gross negligence or willful misconduct. The Company also agrees to reimburse each Indemnified Person for all Expenses as
they are incurred in connection with enforcing such Indemnified Person’s rights under this Agreement.


 


(b)
Upon receipt by an Indemnified Person of actual notice of an Action against such Indemnified Person with respect to which indemnity may
be sought under this Agreement, such Indemnified Person shall promptly notify the Company in writing; provided that failure by any Indemnified
Person so to notify the Company shall not relieve the Company from any liability which the Company may have on account of this indemnity
or otherwise to such Indemnified Person, except to the extent the Company shall have been prejudiced by such failure. The Company shall,
if requested by any Placement Agent, assume the defense of any such Action including the employment of counsel reasonably satisfactory
to such Placement Agent, which counsel may also be counsel to the Company. Any Indemnified Person shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless: (i) the Company has failed promptly to assume the defense and employ counsel or (ii) the named parties
to any such Action (including any impeded parties) include such Indemnified Person and the Company, and such Indemnified Person shall
have been advised in the reasonable opinion of counsel that there is an actual conflict of interest that prevents the counsel selected
by the Company from representing both the Company (or another client of such counsel) and any Indemnified Person; provided that the Company
shall not in such event be responsible hereunder for the fees and expenses of more than one firm of separate counsel for all Indemnified
Persons in connection with any Action or related Actions, in addition to any local counsel. The Company shall not be liable for any settlement
of any Action effected without its written consent (which shall not be unreasonably withheld). In addition, the Company shall not, without
the prior written consent of such Placement Agent (which shall not be unreasonably withheld), settle, compromise or consent to the entry
of any judgment in or otherwise seek to terminate any pending or threatened Action in respect of which indemnification or contribution
may be sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination
includes an unconditional release of each Indemnified Person from all Liabilities arising out of such Action for which indemnification
or contribution may be sought hereunder. The indemnification required hereby shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as such expense, loss, damage or liability is incurred and is due and payable.


 




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(c)
In the event that the foregoing indemnity is unavailable to an Indemnified Person other than in accordance with this Agreement, the Company
shall contribute to the Liabilities and Expenses paid or payable by such Indemnified Person in such proportion as is appropriate to reflect
(i) the relative benefits to the Company, on the one hand, and to the Placement Agents and any other Indemnified Person, on the other
hand, of the matters contemplated by this Agreement or (ii) if the allocation provided by the immediately preceding clause is not permitted
by applicable law, not only such relative benefits but also the relative fault of the Company, on the one hand, and the Placement Agents
and any other Indemnified Person, on the other hand, in connection with the matters as to which such Liabilities or Expenses relate,
as well as any other relevant equitable considerations; provided that in no event shall the Company contribute less than the amount necessary
to ensure that all Indemnified Persons, in the aggregate, are not liable for any Liabilities and Expenses in excess of the amount of
fees actually received by the Placement Agents pursuant to this Agreement. For purposes of this paragraph, the relative benefits to the
Company, on the one hand, and to the Placement Agents on the other hand, of the matters contemplated by this Agreement shall be deemed
to be in the same proportion as (a) the total value paid or contemplated to be paid to or received or contemplated to be received by
the Company in the transaction or transactions that are within the scope of this Agreement, whether or not any such transaction is consummated,
bears to (b) the fees paid to the Placement Agents under this Agreement. Notwithstanding the above, no person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the Securities Act, as amended, shall be entitled to contribution from a party who was not guilty
of fraudulent misrepresentation.


 


(d)
The Company also agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise)
to the Company for or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant to this Agreement,
the transactions contemplated thereby or any Indemnified Person’s actions or inactions in connection with any such advice, services
or transactions except for Liabilities (and related Expenses) of the Company that are finally judicially determined to have resulted
solely from such Indemnified Person’s gross negligence or willful misconduct in connection with any such advice, actions, inactions
or services.


 


(e)
The reimbursement, indemnity and contribution obligations of the Company set forth herein shall apply to any modification of this Agreement
and shall remain in full force and effect regardless of any termination of, or the completion of any Indemnified Person’s services
under or in connection with, this Agreement.


 


Section
8. Representations and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and other
statements of the Company or any person controlling the Company, of its officers, and of the Placement Agents set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Placement Agents,
the Company, or any of its or their partners, officers or directors or any controlling person, as the case may be, and will survive delivery
of and payment for the Securities sold hereunder and any termination of this Agreement. A successor to a Placement Agents, or to the
Company, its directors or officers or any person controlling the Company, shall be entitled to the benefits of the indemnity, contribution
and reimbursement agreements contained in this Agreement.


 




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Section
9. Notices. All communications hereunder shall be in writing and shall be mailed, hand delivered or e-mailed and confirmed to the
parties hereto as follows:


 


If
to Roth to the address set forth above, attention: Aaron Gurewitz, email: ecm@roth.com


 


If
to Maxim to the address set forth above, attention Clifford A. Teller and James Siegel, email: cteller@maximgrp.com and/or jsiegel@maximgrp.com


 


With
a copy to: 


 


Lowenstein
Sandler LLP


1251
Avenue of the Americas


New
York, New York 10105


Attn:
Steven Skolnick


e-mail:
sskolnick@lowenstein.com


 


If
to the Company:


 


2925
Richmond Avenue, Suite 1200


Houston,
Texas 77098


e-mail:
bscholtes@guardionhealth.com


Attention:
Chief Executive Officer


 


With
a copy to: 


 


Sheppard,
Mullin, Richter & Hampton LLP


333
South Hope Street, 43rd Floor


Los
Angeles, California 90071


e-mail:
dsunkin@sheppardmullin.com


Attention:
David Sunkin


 


Any
party hereto may change the address for receipt of communications by giving written notice to the others.


 


Section
10. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the employees,
officers and directors and controlling persons referred to in Section 7 hereof, and to their respective successors, and personal representative,
and no other person will have any right or obligation hereunder.


 


Section
11. Partial Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not
affect the validity or enforceability of any other section, paragraph or provision hereof. If any Section, paragraph or provision of
this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and
only such minor changes) as are necessary to make it valid and enforceable.


 




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Section
12. Governing Law Provisions. This Agreement shall be deemed to have been made and delivered in New York City and both this engagement
letter and the transactions contemplated hereby shall be governed as to validity, interpretation, construction, effect and in all other
respects by the internal laws of the State of New York, without regard to the conflict of laws principles thereof. Each of the Placement
Agents and the Company: (i) agrees that any legal suit, action or proceeding arising out of or relating to this engagement letter and/or
the transactions contemplated hereby shall be instituted exclusively in New York Supreme Court, County of New York, or in the United
States District Court for the Southern District of New York, (ii) waives any objection which it may have or hereafter to the venue of
any such suit, action or proceeding, and (iii) irrevocably consents to the jurisdiction of the New York Supreme Court, County of New
York, and the United States District Court for the Southern District of New York in any such suit, action or proceeding. Each of the
Placement Agents and the Company further agrees to accept and acknowledge service of any and all process which may be served in any such
suit, action or proceeding in the New York Supreme Court, County of New York, or in the United States District Court for the Southern
District of New York and agrees that service of process upon the Company mailed by certified mail to the Company’s address shall
be deemed in every respect effective service of process upon the Company, in any such suit, action or proceeding, and service of process
upon each Placement Agent mailed by certified mail to each Placement Agents’ addresses shall be deemed in every respect effective
service process upon such Placement Agent, in any such suit, action or proceeding. Notwithstanding any provision of this engagement letter
to the contrary, the Company agrees that neither the Placement Agents, nor its affiliates, and the respective officers, directors, employees,
agents and representatives of the Placement Agents, their affiliates and each other person, if any, controlling the Placement Agents
or any of their affiliates, shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company for
or in connection with the engagement and transaction described herein except for any such liability for losses, claims, damages or liabilities
incurred by us that are finally judicially determined to have resulted from the willful misconduct or gross negligence of such individuals
or entities. If either party shall commence an action or proceeding to enforce any provision of this Agreement, then the prevailing party
in such action or proceeding shall be reimbursed by the other party for its reasonable attorney’s fees and other costs and expenses
incurred with the investigation, preparation and prosecution of such action or proceeding.


 


Section
13. General Provisions.


 


(a)
This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject matter hereof. Notwithstanding anything herein to the contrary,
the Engagement Agreement, dated February 11, 2022 (“Engagement Agreement”), between the Company and Roth shall continue
to be effective and the terms therein shall continue to survive and be enforceable by Roth in accordance with its terms, provided that,
in the event of a conflict between the terms of the Engagement Agreement and this Agreement, the terms of this Agreement shall prevail.
This Agreement may be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement may not be amended or modified unless in writing by all of the parties
hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant
to benefit. Section headings herein are for the convenience of the parties only and shall not affect the construction or interpretation
of this Agreement.


 


(b)
The Company acknowledges that in connection with the offering of the Securities: (i) the Placement Agents have acted at arms length,
are not agents of, and owe no fiduciary duties to the Company or any other person, (ii) the Placement Agents owe the Company only those
duties and obligations set forth in this Agreement and (iii) the Placement Agents may have interests that differ from those of the Company.
The Company waives to the full extent permitted by applicable law any claims it may have against the Placement Agents arising from an
alleged breach of fiduciary duty in connection with the offering of the Securities


 


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remainder of this page has been intentionally left blank.]


 




    	15



     


    

 


If
the foregoing is in accordance with your understanding of our agreement, please sign below whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.


 


	 	Very
    truly yours, 
	 	 
	 	GUARDION
    HEALTH SCIENCES, inc. 
	 	 	 
	 	By:	/s/
    Bret Scholtes
	 	Name:	Bret
    Scholtes
	 	Title:	Chief
    Executive Officer


 


The
foregoing Placement Agency Agreement is hereby confirmed and accepted as of the date first above written.


 


	Roth
    Capital Partners, LLC	 
	 	 	 
	By:	/s/
    Russ Nudelman	 
	Name:	Russ
    Nudelman	 
	Title:	Managing
    Director	 


 


	MAXIM
    GROUP LLC	 
	 	 	 
	By:
    	/s/
    Cliff Teller	 
	Name:	Cliff
    Teller	 
	Title:	Head
    of Banking	 


 




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