As filed with
the Securities and Exchange Commission on March 28, 2017
Registration No. 333-216607
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO.
2 TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
DARIOHEALTH CORP.
(Exact Name of Registrant as Specified in
Its Charter)
Delaware
(State or other jurisdiction
of incorporation or organization)
|
45-2973162
(I.R.S. Employer
Identification No.)
|
9 Halamish Street
Caesarea Industrial Park
3088900, Israel
Telephone: +(972)-(4) 770 4055
Facsimile: +(972)-(4) 770 4060
(Address, Including Zip Code, and Telephone
Number, Including Area Code, of Registrant’s Principal Executive Offices)
Mr. Erez Raphael
Chief Executive Officer
DarioHealth Corp.
9 Halamish Street
Caesarea Industrial Park
3088900, Israel
Telephone: +(972)-(4) 770 4055
Facsimile: +(972)-(4) 770 4060
(Name, address, including zip code, and
telephone number,
including area code, of agent for service)
Copies to:
Oded Har-Even, Esq.
Robert V. Condon III, Esq.
Zysman, Aharoni, Gayer and
Sullivan & Worcester LLP
1633 Broadway
New York, NY 10019
Telephone: (212) 660-5000
Facsimile: (212) 660-3001
Approximate date of commencement of proposed
sale to the public:
From time to time after the effective date of this registration statement, as determined by
market and other conditions.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans, please check the following box.
¨
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans, check the following box.
x
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
¨
If this form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following box.
¨
If this form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large
accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange
Act. (Check one):
Large accelerated filer:
¨
|
Accelerated filer:
¨
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Non-accelerated filer:
¨
(Do not check if a smaller
reporting company)
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Smaller reporting company:
x
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CALCULATION OF REGISTRATION FEE
Title of each class of
securities to be
registered
|
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Amount To Be
Registered (1)(2)
|
|
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Proposed Maximum
Offering Price Per
Share
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Proposed Maximum
Aggregate Offering
Price
|
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Amount of
Registration Fee
|
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Common Stock, $0.0001 par value
|
|
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3,649,427
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|
|
$
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3.78
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(3)
|
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$
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13,794,835
|
|
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$
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1,599
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(4)
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(1)
|
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, or the Act, this registration statement shall be deemed to cover any additional number of shares of the registrant’s common stock as may be issued from time to time upon exercise of the warrants to prevent dilution as a result of stock splits, stock dividends or similar transactions. No additional consideration will be received for the common stock, and therefore no registration fee is required pursuant to Rule 457(i) under the Act.
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(2)
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Represents 1,827,990 shares of common stock of the registrant being registered for resale that have been issued to the selling stockholders and 1,821,437 shares of common stock of the registrant being registered for resale issuable upon exercise of warrants that have been issued to the selling stockholders.
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(3)
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Estimated solely for purposes of calculating the amount of the registration fee pursuant to Rule 457(c) of the Act, based upon the average of the high and low sales prices of the registrant’s common stock as reported on the Nasdaq Capital Market on March 6, 2017.
|
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT
ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH
SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES
ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION
8(a), MAY DETERMINE.
The information in this preliminary prospectus is
not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities
and Exchange Commission is effective. This preliminary prospectus is not an offer to sell nor does it seek an offer
to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject to completion,
dated March 28, 2017
PROSPECTUS
3,649,427 SHARES OF COMMON STOCK
The selling stockholders identified in this
prospectus may offer from time to time up to 3,649,427 shares of our common stock consisting of (i) 1,821,437 shares of our common
stock being registered for resale issuable upon exercise of warrants that have been issued to the selling stockholders and (ii)
1,827,990 shares of our common stock being registered for resale that have been issued to the selling stockholders.
This prospectus describes the general manner
in which the shares may be offered and sold by the selling stockholders. If necessary, the specific manner in which the shares
may be offered and sold will be described in a supplement to this prospectus.
While we will not receive any proceeds from
the sale of the shares by the selling stockholders, we will receive cash proceeds equal to the total exercise price of warrants
that are exercised for cash, or approximately $6,375,029 based on an exercise price of $3.50 per share.
Our common stock is traded on the Nasdaq
Capital Market under the symbol “DRIO.”
Investing in our common stock involves
risks. See
“Risk Factors”
beginning on page 3 of this prospectus.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of
this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is ,
2017.
TABLE OF CONTENTS
You should rely only on the information
contained in this prospectus, any prospectus supplement and the documents incorporated by reference, or to which we have referred
you. Neither we nor the selling stockholders have authorized anyone to provide you with different information. If anyone provides
you with different or inconsistent information, you should not rely on it. This prospectus and any prospectus supplement does not
constitute an offer to sell, or a solicitation of an offer to purchase, the common stock offered by this prospectus and any prospectus
supplement in any jurisdiction to or from any person to whom or from whom it is unlawful to make such offer or solicitation of
an offer in such jurisdiction. You should not assume that the information contained in this prospectus, any prospectus supplement
or any document incorporated by reference is accurate as of any date other than the date on the front cover of the applicable document.
Neither the delivery of this prospectus
nor any distribution of common stock pursuant to this prospectus shall, under any circumstances, create any implication that there
has been no change in the information set forth or incorporated by reference into this prospectus or in our affairs since the date
of this prospectus. Our business, financial condition, results of operations and prospects may have changed since such
date.
When used herein, unless the context requires
otherwise, references to the “Company,” “we,” “our” and “us” refer to DarioHealth
Corp., a Delaware corporation, collectively with its wholly-owned subsidiary, LabStyle Innovation Ltd., an Israeli corporation.
All dollar amounts refer to U.S. dollars
unless otherwise indicated.
ABOUT THIS PROSPECTUS
This prospectus describes the general manner
in which the selling stockholders identified in this prospectus may offer from time to time up to 1,827,990 shares of our common
stock and 1,821,437 shares of our common stock issuable upon the exercise of warrants. If necessary, the specific manner in which
the shares may be offered and sold will be described in a supplement to this prospectus, which supplement may also add, update
or change any of the information contained in this prospectus. To the extent there is a conflict between the information contained
in this prospectus and the prospectus supplement, you should rely on the information in the prospectus supplement, provided that
if any statement in one of these documents is inconsistent with a statement in another document having a later date—for example,
a document incorporated by reference in this prospectus or any prospectus supplement—the statement in the document having
the later date modifies or supersedes the earlier statement.
OUR COMPANY
This summary highlights information contained
in the documents incorporated herein by reference. Before making an investment decision, you should read the entire prospectus,
and our other filings with the Securities and Exchange Commission, or the SEC, including those filings incorporated herein by reference,
carefully, including the sections entitled “Risk Factors” and “Cautionary Statement Regarding Forward-Looking
Statements.”
We are a digital health (mHealth) company
that is developing and commercializing a patented and proprietary technology providing consumers with laboratory-testing capabilities
using smart phones and other mobile devices. Our flagship product, Dario
TM
, which we also refer to as our Dario
TM
Smart Diabetes Management Solution, is a mobile, real-time, cloud-based, diabetes management solution based on an innovative, multi-feature
software application combined with a stylish, ‘all-in-one’, pocket-sized, blood glucose monitoring device, which we
call the Dario
TM
Smart Meter.
Beyond the benefits of individual diabetes
management, we envision the Dario
TM
application becoming the centerpiece in a new era of interconnected devices and
services, providing healthier and better lives for diabetic patients worldwide. With every single measurement captured and stored
on a secure cloud data base, our software driven, comprehensive data-management technology has the potential to deliver actionable
insight and analytical tools to manage individual patients or large populations, as well as provide a complete and comprehensive
“big data” solution for healthcare providers and payers.
Our address is 9 Halamish Street, Caesarea
Industrial Park, 3088900, Israel and our telephone number is +(972)-(4) 770 4055. Our corporate website is: www.mydario.com. The
content of our website shall not be deemed incorporated by reference in this prospectus.
About
This Offering
This prospectus relates to the resale by
the selling stockholders identified in this prospectus of up to 3,649,427 shares of our common stock consisting of (i) 1,821,437
shares of our common stock being registered for resale issuable upon exercise of warrants that have been issued to the selling
stockholders and (ii) 1,827,990 shares of our common stock being registered for resale that have been issued to the selling stockholders.
All of the shares, when sold, will be sold by these selling stockholders. The selling stockholders may sell their shares of common
stock from time to time at prevailing market prices. We will not receive any proceeds from the sale of the shares of common stock
by the selling stockholders. However, we may receive proceeds paid by the selling stockholders for any common stock we issue to
the selling stockholders upon exercise of the outstanding warrants.
Common Stock Offered:
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Up to 3,649,427 shares of common stock.
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|
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Common Stock Outstanding at March 21, 2017:
|
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7,976,521
|
|
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Use of Proceeds:
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We will not receive any proceeds from the sale of the 1,827,990 shares of common stock subject to resale by the selling stockholders under this prospectus; however, we may receive up to approximately $6,375,029 in proceeds upon exercise of the warrants held by the selling stockholders, as the warrants have an exercise price of $3.50 per share and are exercisable into 1,821,437 shares of our common stock.
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Risk Factors:
|
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An investment in the common stock offered under this prospectus is highly speculative and involves substantial risk. Please carefully consider the “Risk Factors” section and other information in this prospectus for a discussion of risks. Additional risks and uncertainties not presently known to us or that we currently deem to be immaterial may also impair our business and operations.
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|
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Nasdaq Symbol:
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DRIO
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RISK FACTORS
An investment in our common stock involves
significant risks. You should carefully consider the risk factors contained in any prospectus supplement and in our filings with
the SEC, including our Annual Report on Form 10-K for the fiscal year ended December 31, 2016, as well as all of the information
contained in this prospectus, any prospectus supplement and the documents incorporated by reference herein or therein, before
you decide to invest in our common stock. Our business, prospects, financial condition and results of operations may be materially
and adversely affected as a result of any of such risks. The value of our common stock could decline as a result of
any of these risks. You could lose all or part of your investment in our common stock. Some of our statements in sections
entitled
“Risk Factors”
are forward-looking statements. The risks and uncertainties we have
described are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem
immaterial may also affect our business, prospects, financial condition and results of operations.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus, any prospectus supplement
and the documents we incorporate by reference contain forward-looking statements within the meaning of the Private Securities Litigation
Reform Act of 1995 and other federal securities laws, regarding our business, clinical trials, financial condition, expenditures,
results of operations and prospects. Words such as “expects,” “anticipates,” “intends,” “plans,”
“planned expenditures,” “believes,” “seeks,” “estimates” and similar expressions
or variations of such words are intended to identify forward-looking statements, but are not deemed to represent an all-inclusive
means of identifying forward-looking statements as denoted in this prospectus, any prospectus supplement and the documents we incorporate
by reference. Additionally, statements concerning future matters are forward-looking statements.
Although forward-looking statements in this
prospectus, any prospectus supplement and the documents we incorporate by reference reflect the good faith judgment of our management,
such statements can only be based on facts and factors known by us as of such date. Consequently, forward-looking statements are
inherently subject to risks and uncertainties and actual results and outcomes may differ materially from the results and outcomes
discussed in or anticipated by the forward-looking statements. Factors that could cause or contribute to such differences
in results and outcomes include, without limitation, those specifically addressed under the heading
“Risk Factors”
herein and in the documents we incorporate by reference, as well as those discussed elsewhere in this prospectus and any prospectus
supplement. Readers are urged not to place undue reliance on these forward-looking statements, which speak only as of
the date of this prospectus, any prospectus supplement or the respective documents incorporated by reference, as applicable. Except
as required by law, we undertake no obligation to revise or update any forward-looking statements in order to reflect any event
or circumstance that may arise after the date of such forward-looking statements. Readers are urged to carefully review and consider
the various disclosures made throughout the entirety of this prospectus, any prospectus supplement and the documents incorporated
by reference, which attempt to advise interested parties of the risks and factors that may affect our business, financial condition,
results of operations and prospects.
USE OF PROCEEDS
We will not receive any of the proceeds
from the sale of the shares of our common stock being offered for sale by the selling stockholders. However, we may receive up
to approximately $6,375,029 in proceeds upon exercise of the warrants held by the selling stockholders, as the warrants have an
exercise price of $3.50 per share and are exercisable into 1,821,437 shares of our common stock. The selling stockholders have
not presently advised us of their intention to exercise the warrants at this time. All potential proceeds will be used for commercialization
efforts for our products, such as increased marketing or production expenses, and for general working capital purposes. We will
incur all costs associated with the preparation and filing of the registration statement of which this prospectus is a part. Brokerage
fees, commissions and similar expenses, if any, attributable to the sale of shares offered hereby will be borne by the applicable
selling stockholders.
SELLING STOCKHOLDERS
The selling stockholders acquired the common
stock being registered for resale pursuant to this prospectus, and the warrants related thereto, pursuant to a contractual agreement
or as remuneration for services rendered, as detailed below:
On June 22, 2016, we
entered into a public relation services agreement with 5W Public Relations, LLC, or the Service Provider, which was amended on
October 26, 2016, collectively referred to as the Service Provider Agreement. Pursuant to the Service Provider Agreement, we have
the right, at our sole discretion, to issue shares of common stock in lieu of cash consideration. On January 26, 2017, we issued
6,553 shares of our common stock to the Service Provider, in lieu of cash consideration, pursuant to our Amended and Restated 2012
Equity Incentive Plan.
On January 9, 2017,
we commenced a private placement offering, or the Offering, of up to $5.1 million of our securities, consisting of up to 1,821,437
shares of our common stock at a purchase price of $2.80 per share, and warrants, or the Warrants, to purchase up to 1,821,437 shares
of Common Stock, or the Warrant Shares, at an exercise price of $3.50 per share, or the January 2017 Private Placement. The Warrants
will be exercisable after the six month anniversary of the closing at which they were issued and will expire on the 5 year anniversary
of their issuance.
On January 9, 2017,
we held the initial closing of the Offering with OurCrowd Digital Health L.P., or OurCrowd, the lead investor in the Offering,
and an additional investor, and issued and sold 1,113,922 shares of common stock and Warrants to purchase 1,113,922 shares of common
stock. Pursuant to the terms of the securities purchase agreement with OurCrowd, or the Purchase Agreement, we granted OurCrowd
the right to nominate two individuals to the Company’s Board of Directors, or the Board, and further agreed to permit such
Board designees to serve on the Company’s Nominating and Corporate Governance Committee, or the Committee. In addition, we
granted OurCrowd the right, for a two year period, to participate in our future securities offerings.
On January 11, 2017,
we entered into securities purchase agreements with 18 investors for the future issuance and sale of 707,515 shares of common stock
and Warrants to purchase 707,515 shares of common stock, or the Future Issuance, provided that the issuance and sale of such securities
shall only occur upon our obtaining stockholder approval, pursuant to Nasdaq rules.
On February 28, 2017, each of Yossi Bahagon
and Allen Kamer were appointed as members of the Board, by the existing Board to fill vacancies on the Board, with such appointments
to take effect immediately. Following the appointments of Messrs. Bahagon and Kamer, the Board reconstituted the membership of
the Committee, such that the Committee’s membership is now composed of Richard B. Stone, as chairman, Rami Yehudiha, Allen
Kamer and Yossi Bahagon. Messrs. Bahagon and Kamer were nominated to the Board by OurCrowd, pursuant to OurCrowd’s right
under the Purchase Agreement, as mentioned above. Messrs. Bahagon and Kamer currently serve as the managing partners of OurCrowd.
On March 9, 2017 we
held a special meeting of our stockholders in which the stockholders approved the Future Issuance and also on March 9, 2017, we
held the second closing of the Offering with the remaining investors and sold 707,515 shares of common stock and Warrants to purchase
707,515 shares of common stock.
We have also entered into registration rights
agreements, or the Registration Rights Agreements, with the January 2017 Private Placement investors whereby we have agreed to
file a registration statement for the registration of the common stock and Warrant Shares sold in the offering. Pursuant to the
terms of the Registration Rights Agreements, the Company has agreed to file a registration statement within 60 days of each closing
of the Offering. This prospectus is being filed pursuant to the Registration Rights Agreements.
Other than the relationships described herein,
to our knowledge, none of the selling stockholders are employees or suppliers of ours or our affiliates. Within the past three
years, other than the relationships described herein, none of the selling stockholders has held a position as an officer a director
of ours, nor has any selling stockholder had any material relationship of any kind with us or any of our affiliates, except that
certain selling stockholders acquired shares of our common stock and Warrants and registration rights pursuant to the transactions
described above. All information with respect to share ownership has been furnished by the selling stockholders, unless
otherwise noted. The shares being offered are being registered to permit public secondary trading of such shares and
each selling stockholder may offer all or part of the shares it owns for resale from time to time pursuant to this prospectus.
In addition, except for Shmuel Farhi, who is a first degree cousin of our Board member, Yalon Farhi, none of the selling stockholders
has any family relationships with our officers, other directors or controlling stockholders.
Any selling stockholders who are affiliates
of broker-dealers and any participating broker-dealers are deemed to be “underwriters” within the meaning of the Securities
Act of 1933, as amended, or the Securities Act, and any commissions or discounts given to any such selling stockholder or broker-dealer
may be regarded as underwriting commissions or discounts under the Securities Act.
The term “selling stockholders”
also includes any transferees, pledgees, donees, or other successors in interest to the selling stockholders named in the table
below. Unless otherwise indicated, to our knowledge, each person named in the table below has sole voting and investment power
(subject to applicable community property laws) with respect to the shares of common stock set forth opposite such person’s
name. We will file a supplement to this prospectus (or a post-effective amendment hereto, if necessary) to name successors to any
named selling stockholders who are able to use this prospectus to resell the common stock registered hereby.
Name of Selling
Stockholder
|
|
Shares Beneficially
Owned Before the
Offering
(excluding shares
issuable upon the
exercise of
warrants or
options) (1)
|
|
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Shares
Beneficially
Owned Before
the Offering that
are Issuable
Upon the
Exercise of
Warrants or
Options (1)
|
|
|
Maximum
Number of
Shares
(including
shares
issuable upon
the exercise
of warrants
or options) to
be Offered in
the Offering
|
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Number of Shares
(including shares
issuable upon the
exercise of warrants or
options) Beneficially
Owned Immediately
After Sale of Maximum
Number of Shares in the
Offering
|
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#
of Shares
(1)(2)
|
|
|
%
of
Class
(1)(2)
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OurCrowd
Digital Health L.P.(3)
|
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892,858
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892,858
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1,785,716
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|
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-
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-
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Shmuel
Farhi (4)
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579,743
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361,113
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|
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500,002
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440,854
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5.5
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%
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Dicilyon
Holdings Ltd. (5)
|
|
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150,000
|
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150,000
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300,000
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-
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-
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Robert
Faissal
|
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35,715
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35,715
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71,430
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-
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|
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-
|
|
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|
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Andrew
Freundlich
|
|
|
71,429
|
|
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|
71,429
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|
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|
142,858
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|
|
-
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|
|
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-
|
|
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Rachel
Gordon
|
|
|
17,858
|
|
|
|
17,858
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|
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|
35,716
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|
|
|
-
|
|
|
|
-
|
|
|
|
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|
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|
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TwoChi
LLC (6)
|
|
|
30,000
|
|
|
|
30,000
|
|
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|
60,000
|
|
|
|
-
|
|
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|
-
|
|
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|
Israeli
(Reli) Harel
|
|
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20,000
|
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20,000
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40,000
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|
|
-
|
|
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-
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|
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Ofer
Shabtai
|
|
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50,000
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50,000
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100,000
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-
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|
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-
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|
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|
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|
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Radwiz
Systems Inc. (7)
|
|
|
30,000
|
|
|
|
30,000
|
|
|
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60,000
|
|
|
|
-
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|
|
|
-
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|
Amiram
Peleg
|
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10,000
|
|
|
|
10,000
|
|
|
|
20,000
|
|
|
|
-
|
|
|
|
-
|
|
|
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|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
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|
Avraham
Chen
|
|
|
18,000
|
|
|
|
18,000
|
|
|
|
36,000
|
|
|
|
-
|
|
|
|
-
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
Elyakim
Kislev
|
|
|
67,150
|
|
|
|
67,150
|
|
|
|
134,300
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tuffy
Associates Corp. (8)
|
|
|
17,858
|
|
|
|
17,858
|
|
|
|
35,716
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Maxis
Investments & Holdings Ltd. (9)
|
|
|
17,858
|
|
|
|
17,858
|
|
|
|
35,716
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Magal
Capital Ltd. (10)
|
|
|
17,858
|
|
|
|
17,858
|
|
|
|
35,716
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Scorpio
Investments (A.W.) Ltd. (11)
|
|
|
17,858
|
|
|
|
17,858
|
|
|
|
35,716
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lior
Tamar Investments Ltd. (12)
|
|
|
17,708
|
|
|
|
17,708
|
|
|
|
35,416
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5W
Public Relations, LLC (13)
|
|
|
6,553
|
|
|
|
-
|
|
|
|
6,553
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sheer
Roichman
|
|
|
89,286
|
|
|
|
89,286
|
|
|
|
178,572
|
|
|
|
-
|
|
|
|
-
|
|
|
(1)
|
Beneficial
ownership is determined in accordance with SEC rules and generally includes voting or
investment power with respect to securities. Shares of common stock subject to warrants
currently exercisable, or exercisable within 60 days of March 21, 2017 are counted as
outstanding for computing the percentage of the selling stockholder holding such options
or warrants but are not counted as outstanding for computing the percentage of any other
selling stockholder.
|
|
(2)
|
Assumes
all of the shares of common stock offered (including shares issuable upon the exercise
of warrants or options) are sold. Percentage ownership is based on 7,976,521
shares of common stock issued and outstanding on March 21, 2017.
|
|
(3)
|
OurCrowd Israel General Partner
L.P holds sole voting and dispositive power over our shares held by OurCrowd Digital Health L.P., as described above. Allen Kamer
holds sole voting and dispositive power over the securities of OurCrowd Israel General Partner L.P.
|
|
(4)
|
The number of shares beneficially
owned before this offering is based on information contained in the Schedule 13D filed with the SEC on June 3, 2016, reporting
beneficial ownership of Mr. Shmuel Farhi and on the securities purchase agreement dated January 9, 2017 by and between Mr. Shmuel
Farhi and the Company. Shares being offered by this prospectus include 250,001 shares of our common stock issued on January 9,
2017 and 250,001 shares of our common stock issuable upon exercise of warrants that have been issued to Shmuel Farhi and are being
registered for resale.
|
|
(5)
|
David Edery holds sole voting
and dispositive power over our shares held by Dicilyon Holdings Ltd.
|
|
(6)
|
Amos Vizer holds sole voting
and dispositive power over our shares held by TwoChi LLC.
|
|
(7)
|
Lorenzo Sharlene Santos holds
sole voting and dispositive power over our shares held by Radwiz Systems Inc.
|
|
(8)
|
Matthew Albert Nissim, the
President of Tuffy Associates Corp., holds sole voting and dispositive power over our shares held by Tuffy Associates Corp.
|
|
(9)
|
Boaz Harel holds sole voting
and dispositive power over our shares held by Maxis Investments & Holdings Ltd.
|
|
(10)
|
Tal
Malka (indirectly, through sole voting and dispositive power over Mata Tsouut Ltd’s shares) holds sole voting and dispositive
power over our shares held by Magal Capital Ltd.
|
|
(11)
|
Arie
Weber holds sole voting and dispositive power over our shares held by Scorpio Investments (A.W.) Ltd.
|
|
(12)
|
Yossi Tamar and Shy Yitzhak
Lior equally hold sole voting and dispositive power over our shares held by Lior Tamar Investments Ltd.
|
|
(13)
|
Ronn Torossian holds sole
voting and dispositive power over our shares held by 5W Public Relations, LLC.
|
We may require the selling stockholders
to suspend the sales of the common stock offered by this prospectus upon the occurrence of any event that makes any statement in
this prospectus or the related registration statement untrue in any material respect or that requires the changing of statements
in these documents in order to make statements in those documents not misleading.
Information concerning additional selling
stockholders not identified in this prospectus will be set forth in prospectus supplements from time to time, if and as required.
Information concerning the selling stockholders may change from time to time and any changed information will be set forth in prospectus
supplements if and when necessary.
PLAN OF DISTRIBUTION
The selling stockholders, and their pledgees,
donees, transferees or other successors in interest, may from time to time offer and sell, separately or together, some or all
of the shares of common stock, or the securities, covered by this prospectus. Registration of the securities covered by this prospectus
does not mean, however, that those securities necessarily will be offered or sold.
The securities covered by this prospectus
may be sold from time to time, at market prices prevailing at the time of sale, at prices related to market prices, at a fixed
price or prices subject to change or at negotiated prices, by a variety of methods including the following:
|
·
|
in the Nasdaq Capital Market;
|
|
·
|
in privately negotiated transactions;
|
|
·
|
through broker-dealers, who may act as agents or principals;
|
|
·
|
through one or more underwriters on a firm commitment or best-efforts basis;
|
|
·
|
in a block trade in which a broker-dealer will attempt to sell a block of securities as agent but may position and resell a
portion of the block as principal to facilitate the transaction;
|
|
·
|
directly to one or more purchasers;
|
|
·
|
in any combination of the above.
|
In effecting sales, brokers or dealers engaged
by the selling stockholders may arrange for other brokers or dealers to participate. Broker-dealer transactions may include:
|
·
|
purchases of the securities by a broker-dealer as principal and resales of the securities by the broker-dealer for its account
pursuant to this prospectus;
|
|
·
|
ordinary brokerage transactions; or
|
|
·
|
transactions in which the broker-dealer solicits purchasers on a best efforts basis.
|
To our knowledge, the selling stockholders
have not entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding the sale
of the securities covered by this prospectus. At any time a particular offer of the securities covered by this prospectus is made,
a revised prospectus or prospectus supplement, if required, will be distributed which will set forth the aggregate amount of securities
covered by this prospectus being offered and the terms of the offering, including the name or names of any underwriters, dealers,
brokers or agents. In addition, to the extent required, any discounts, commissions, concessions and other items constituting underwriters’
or agents’ compensation, as well as any discounts, commissions or concessions allowed or reallowed or paid to dealers, will
be set forth in such revised prospectus supplement. Any such required prospectus supplement, and, if necessary, a post-effective
amendment to the registration statement of which this prospectus is a part, will be filed with the SEC to reflect the disclosure
of additional information with respect to the distribution of the securities covered by this prospectus.
LEGAL MATTERS
Zysman, Aharoni, Gayer and Sullivan &
Worcester LLP, New York, New York, passed upon the validity of the shares of common stock that may be offered hereby.
EXPERTS
The consolidated financial statements
of DarioHealth Corp. at December 31, 2016 and 2015, and for each of the two years in the period ended December 31, 2016, incorporated
by reference in this prospectus have been audited by Kost Forer Gabbay & Kasierer, a member of Ernst & Young Global, independent
registered public accounting firm, as set forth in their report thereon (which contains an explanatory paragraph describing conditions
that raise substantial doubt about our ability to continue as a going concern as described in Note 1c to the consolidated financial
statements) appearing elsewhere herein, and are included in reliance upon such report given on the authority of such firm as experts
in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the reporting and information
requirements of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and as a result file periodic reports and
other information with the SEC. These periodic reports and other information will be available for inspection and copying at the
SEC’s public reference room and the website of the SEC referred to below. We also make available on our website under “Investors/Filings,”
free of charge, our proxy statements, annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K
and amendments to those reports as soon as reasonably practicable after we electronically file such materials with or furnish them
to the SEC. Our website address is www.mydario.com. This reference to our website is an inactive textual reference
only, and is not a hyperlink. The contents of our website are not part of this prospectus, and you should not consider the contents
of our website in making an investment decision with respect to the common stock offered hereby.
We have filed a registration statement on
Form S-3 under the Securities Act with the SEC with respect to the shares of our common stock offered through this prospectus.
This prospectus is filed as a part of that registration statement and does not contain all of the information contained in the
registration statement and exhibits. We refer you to our registration statement and each exhibit attached to it for a more complete
description of matters involving us, and the statements we have made in this prospectus are qualified in their entirety by reference
to these additional materials.
You may read and copy the reports and other
information we file with the SEC at the SEC’s Public Reference Room at 100 F Street, N.E., Washington D.C. 20549, on official
business days during the hours of 10:00 am to 3:00 pm. You may also obtain copies of this information by mail from the public reference
section of the SEC, 100 F Street, N.E., Washington, D.C. 20549, at prescribed rates. You may obtain information regarding
the operation of the public reference room by calling the SEC at 1 (800) SEC-0330. The SEC also maintains a website that contains
reports and other information about issuers, like us, who file electronically with the SEC. The address of that website is http://www.sec.gov.
This reference to the SEC’s website is an inactive textual reference only, and is not a hyperlink.
INCORPORATION OF DOCUMENTS BY REFERENCE
We are “incorporating by reference”
certain documents we file with the SEC, which means that we can disclose important information to you by referring you to those
documents. The information in the documents incorporated by reference is considered to be part of this prospectus. Statements contained
in documents that we file with the SEC and that are incorporated by reference in this prospectus will automatically update and
supersede information contained in this prospectus, including information in previously filed documents or reports that have been
incorporated by reference in this prospectus, to the extent the new information differs from or is inconsistent with the old information.
We have filed the following documents
with the SEC. These documents are incorporated herein by reference as of their respective dates of filing:
(1) Our
Annual Report on Form 10-K for the fiscal year ended December 31, 2016, as filed with the SEC on March 22, 2017;
(2) Our
Current Reports on Form 8-K, as filed with the SEC on January 12, 2017, March 2, 2017 and March 10, 2017; and
(3) The
description of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on February 25, 2016,
including any amendments and reports filed for the purpose of updating such description.
All documents filed by us pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act (1) after the date of the filing of the registration statement of which this prospectus
forms a part and prior to its effectiveness and (2) until all of the common stock to which this prospectus relates has been
sold or the offering is otherwise terminated, except in each case for information contained in any such filing where we indicate
that such information is being furnished and is not to be considered “filed” under the Exchange Act, will be deemed
to be incorporated by reference in this prospectus and any accompanying prospectus supplement and to be a part hereof from the
date of filing of such documents.
We will provide a copy of the documents
we incorporate by reference, at no cost, to any person who receives this prospectus. To request a copy of any or all of these documents,
you should write or telephone us at 9 Halamish Street, Caesarea Industrial Park, 3088900, Israel, Attention: Controller, +(972)-(4)
770 4055.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
|
ITEM 14.
|
OTHER EXPENSES OF ISSUANCE
AND DISTRIBUTION.
|
The following is a statement of approximate
expenses to be incurred by DarioHealth Corp., or the Company, we, us or our, in connection with the distribution of the common
stock registered under this registration statement:
|
|
Amount
|
|
Registration fee under Securities Act of 1933
|
|
$
|
1,599
|
|
Legal fees and expenses
|
|
$
|
7,500
|
|
Accountant’s fees and expenses
|
|
$
|
4,000
|
|
Miscellaneous fees and expenses
|
|
$
|
2,000
|
|
Total
|
|
$
|
15,099
|
|
|
ITEM 15.
|
INDEMNIFICATION OF
DIRECTORS AND OFFICERS.
|
Section 145 of the Delaware General Corporation
Law (which we refer to as the DGCL) provides, in general, that a corporation incorporated under the laws of the State of Delaware,
as we are, may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding (other than a derivative action by or in the right of the corporation) by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another enterprise, against expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding
if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests
of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s
conduct was unlawful. In the case of a derivative action, a Delaware corporation may indemnify any such person against expenses
(including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed
to the best interests of the corporation, except that no indemnification will be made in respect of any claim, issue or matter
as to which such person will have been adjudged to be liable to the corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or any other court in which such action was brought determines such person is fairly and reasonably
entitled to indemnity for such expenses.
Our certificate of incorporation and bylaws
provide that we will indemnify our directors, officers, employees and agents to the extent and in the manner permitted by the provisions
of the DGCL, as amended from time to time, subject to any permissible expansion or limitation of such indemnification, as may be
set forth in any stockholders’ or directors’ resolution or by contract. In addition, our director and officer indemnification
agreements with each of our directors and officers provide, among other things, for the indemnification to the fullest extent permitted
or required by Delaware law, provided that no indemnitee will be entitled to indemnification in connection with any claim initiated
by the indemnitee against us or our directors or officers unless we join or consent to the initiation of the claim, or the purchase
and sale of securities by the indemnitee in violation of Section 16(b) of the Exchange Act.
Any repeal or modification of these provisions
approved by our stockholders will be prospective only and will not adversely affect any limitation on the liability of any of our
directors or officers existing as of the time of such repeal or modification.
We are also permitted to apply for insurance
on behalf of any director, officer, employee or other agent for liability arising out of his actions, whether or not the DGCL would
permit indemnification.
The exhibits filed with this registration statement are set
forth on the
“Exhibit Index”
set forth elsewhere herein.
The undersigned registrant hereby
undertakes:
(A) (1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any
prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus
any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material
information with respect to the plan of distribution not previously disclosed in the registration statement or any material change
to such information in the registration statement.
Provided, however
, that
paragraphs (i), (ii) and (iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs
is contained in reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining
any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(3) To remove from registration by means
of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining
liability under the Securities Act to any purchaser:
(i) Each prospectus filed by
the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and
(ii) Each prospectus required
to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating
to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section
10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date
such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in
the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to
be the initial
bona fide
offering thereof.
Provided, however
, that no statement made in a registration statement
or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(B) That,
for the purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(C) Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Caesarea, Israel on the 28
th
day of March, 2017.
|
DARIOHEALTH CORP.
|
|
|
|
|
|
|
By:
|
/s/ Erez Raphael
|
|
|
|
Name:
|
Erez Raphael
|
|
|
|
Title:
|
Chairman and Chief Executive Officer
|
|
Pursuant to the requirements
of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and
on the dates indicated.
Person
|
|
Capacity
|
|
Date
|
|
|
|
|
|
/s/ Erez Raphael
|
|
Chairman and Chief Executive Officer
|
|
March 28, 2017
|
Erez Raphael
|
|
(Principal Executive Officer)
|
|
|
|
|
|
|
|
/s/ Zvi Ben David
|
|
Chief Financial Officer, Secretary and Treasurer
|
|
March 28, 2017
|
Zvi Ben David
|
|
(Principal Financial and Accounting Officer)
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
March 28, 2017
|
Yossi Bahagon
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
March 28, 2017
|
Yalon Farhi
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
March 28, 2017
|
Malcolm Hoenlein
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
March 28, 2017
|
Allen Kamer
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
March 28, 2017
|
Hila Karah
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
March 28, 2017
|
Dennis M. McGrath
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
March 28, 2017
|
Richard B. Stone
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
March 28, 2017
|
Rami Yehudiha
|
|
|
|
|
* by Erez Raphael as Attorney-in-Fact
EXHIBIT INDEX
Exhibit
No.
|
|
Description
|
4.1
|
|
Warrant dated January 9, 2017 issued to OurCrowd Digital Health L.P.*
|
4.2
|
|
Form of Warrant (incorporated by reference to Exhibit C to the Company’s Definitive Proxy Statement on Form 14-A filed with the Securities and Exchange Commission on February 13, 2017)
|
5.1
|
|
Opinion of Zysman, Aharoni, Gayer and Sullivan & Worcester LLP*
|
10.1
|
|
Securities Purchase Agreement between the Company and OurCrowd Digital Health L.P., dated January 9, 2017*
|
10.2
|
|
Securities Purchase Agreement between the Company and Shmuel Farhi, dated January 9, 2017*
|
10.3
|
|
Securities Purchase Agreement between the Company and the remaining investors, dated January 11, 2017(incorporated by reference to Exhibit A to the Company’s Definitive Proxy Statement on Form 14-A filed with the Securities and Exchange Commission on February 13, 2017)
|
10.4
|
|
Form of Registration Rights Agreement between the Company and OurCrowd Digital Health L.P.*
|
10.5
|
|
Form of Registration Rights Agreement between the Company and the remaining investors (incorporated by reference to Exhibit B to the Company’s Definitive Proxy Statement on Form 14-A filed with the Securities and Exchange Commission on February 13, 2017)
|
23.1
|
|
Consent of Kost Forer
Gabbay & Kasierer, a member of Ernst & Young Global**
|
23.2
|
|
Consent of Zysman, Aharoni, Gayer and Sullivan & Worcester LLP (included in Exhibit 5.1)*
|
24.1
|
|
Power of Attorney*
|
* Previously filed
** Filed herewith
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