Securities Registration: Employee Benefit Plan (s-8)
June 08 2021 - 4:12PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on June 8, 2021
Registration No. 333-
United
States
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
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)
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45-2973162
(I.R.S. Employer Identification No.)
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142 W. 57th St., 8th Floor
New York, New York
(Address of Principal Executive Offices)
DarioHealth Corp. 2020 Equity Incentive Plan
(Full title of the plan)
Mr. Erez Raphael
Chief Executive Officer
DarioHealth Corp.
142 W. 57th St., 8th Floor
New York, New York
Telephone: (646) 665-4667
(Name, Address and Telephone Number of Agent For
Service)
Copies to:
Oded Har-Even, Esq.
Ron Ben-Bassat, Esq.
Sullivan & Worcester LLP
1633 Broadway
New York, NY 10019
Telephone: (212) 660-3000
Facsimile: (212) 660-3001
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth
company” in Rule 12b-2 of the Exchange Act
Large accelerated filer ¨
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Accelerated filer ¨
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Non-accelerated filer x
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Smaller reporting company x
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Emerging growth company ¨
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If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 7(a)(2)(B) of the Securities Act. ¨
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered
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Amount to be
registered (1)
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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 (2)
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Shares of common stock, $0.0001 par value per share (3)
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700,000
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$17.41
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$12,187,000
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$1,329.60
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an indeterminate number of additional securities which may be offered and issued to prevent dilution resulting from stock splits, stock dividends, recapitalizations or similar transactions.
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(2)
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The fee is based on the number of shares of common stock which may be issued under the plan this registration statement relates to and is estimated in accordance with Rule 457(c) and (h) under the Securities Act solely for the purpose of calculating the registration fee based upon the average of the high and low sales price of DarioHealth Corp.’s (the “Company”) common stock as reported on the Nasdaq Capital Market on June 2, 2021.
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(3)
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Represents shares of common stock issuable upon stock options or other awards to be granted pursuant to the Company’s 2020 Equity Incentive Plan, as amended (the “2020 Plan”).
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EXPLANATORY NOTE
On
October 14, 2020, the Company filed a Registration Statement on Form S-8 (File No. 333-249474) (the “Original Registration Statement”)
with the Securities and Exchange Commission (the “Commission”) to register an aggregate of 900,000 shares of the Company’s
common stock, $0.0001 par value per share (the “Common Stock”), that may be issued pursuant to the 2020 Plan.
On January 8, 2021, the Company
filed a Registration Statement on Form S-8 (File No. 333-251968) (the “Second Registration
Statement” and together with the Original Registration Statement, the “Prior Registration Statements”) with
the Commission to register an additional 928,890 shares of Common that may be issued pursuant to the 2020 Plan.
The Company is filing this
Registration Statement to register an additional 700,000 shares of Common Stock that may be issued under the 2020 Plan. The Company’s
stockholders approved increasing the reservation of aforementioned additional shares under the 2020 Plan at the Company’s Annual
Meeting of Stockholders on June 7, 2021.
Pursuant to General Instruction
E to Form S-8, the contents of the Prior Registration Statements are incorporated herein by reference, except for Item 3 and Item 8 of
Part II of the Prior Registration Statements, which are being updated by this registration statement.
PART I
INFORMATION REQUIRED
IN THE SECTION 10(a) PROSPECTUS
The
documents containing the information required in Part I of this registration statement have been or will be sent or given to participating
employees as specified in Rule 428(b)(1) under the Securities Act in accordance with the rules and regulations of the United States Securities
and Exchange Commission (the “Commission”). Such documents are not being filed with the Commission either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the
documents incorporated by reference into this registration statement pursuant to Item 3 of Part II of this registration statement, taken
together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
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Incorporation of Documents by Reference.
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The following documents, which
have been filed by the Company with the Commission are incorporated by reference in and made a part of this registration statement, as
of their respective dates:
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(b)
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The Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2021, filed with the Commission on May 17, 2021;
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All documents subsequently
filed by us with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior
to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be part hereof from the date
of filing of such documents.
Any statement contained in
a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of
this registration statement to the extent that a statement herein, or in any subsequently filed document which also is or is deemed to
be incorporated by reference, modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this registration statement.
Item 8. Exhibits.
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4.1
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Composite
Copy of Certificate of Incorporation, as amended as of November 18, 2019, of the registrant (Incorporated by reference to Exhibit 3.1
to the registrant’s Annual Report on Form 10-K, filed with the Commission on March 17, 2020).
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4.2
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Bylaws
of the registrant (Incorporated by reference to Exhibit 3.2 to the registrant’s Registration Statement on Form S-1
(File No. 333-186054), filed with the Commission on January 16, 2013).
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4.3
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Amendment
No. 1 to the registrant’s bylaws (Incorporated by reference to the registrant’s Current Report on Form 8-K
filed with the Commission on November 29, 2018).
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5.1*
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Opinion of Sullivan & Worcester LLP.
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23.1*
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Consent of Kost Forer Gabbay & Kasierer, A Member of Ernst &
Young Global.
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23.2*
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Consent of Sullivan & Worcester LLP (contained in Exhibit 5.1).
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24.1*
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Power of Attorney (included on signature page).
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99.1
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The
registrant’s 2020 Equity Incentive Plan (Incorporated by reference to Annex A to the registrant’s Proxy Statement on
Schedule 14A filed with the Commission on September 2, 2020).
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99.2
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First Amendment to the
registrant’s 2020 Equity Incentive Plan (Incorporated by reference to Annex A to the registrant’s Proxy Statement on
Schedule 14A filed with the Commission on April 26, 2021).
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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-8 and has duly caused this registration statement on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of New York, New York, on the 8th day of June, 2021.
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DARIOHEALTH CORP.
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By:
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/s/ Erez Raphael
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Name: Erez Raphael
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Title: Chief Executive Officer
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power
of attorney and signatures
We, the undersigned officers
and directors of DarioHealth Corp., hereby severally constitute and appoint Erez Raphael and Zvi Ben David, and each of them individually,
our true and lawful attorney to sign for us and in our names in the capacities indicated below any and all amendments or supplements,
including any post-effective amendments, to this registration statement on Form S-8 and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney full power and authority to
do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes
as he might or could do in person, hereby ratifying and confirming our signatures to said amendments to this registration statement signed
by our said attorney and all else that said attorney may lawfully do and cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act, this registration statement on Form S-8 has been signed below by the following persons in the capacities and on the dates indicated.
Person
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Capacity
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Date
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/s/ Erez Raphael
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Chief Executive Officer
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June 8, 2021
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Erez Raphael
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(Principal Executive Officer)
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/s/ Zvi Ben David
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Chief Financial Officer, Secretary and Treasurer
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June 8, 2021
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Zvi Ben David
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(Principal Financial and Accounting Officer)
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/s/ Yoav Shaked
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Chairman of the Board of Directors
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June 8, 2021
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Yoav Shaked
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/s/ Hila Karah
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Director
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June 8, 2021
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Hila Karah
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/s/ Dennis Matheis
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Director
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June 8, 2021
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Dennis Matheis
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/s/ Dennis M. McGrath
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Director
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June 8, 2021
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Dennis M. McGrath
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/s/ Adam K. Stern
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Director
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June 8, 2021
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Adam K. Stern
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/s/ Richard B. Stone
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Director
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June 8, 2021
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Richard B. Stone
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