As filed with the Securities and Exchange Commission
on January 19, 2024
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 |
|
45-2973162 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer Identification No.) |
122 W 57th St, #33B
New York, New York 10019
(Address of Principal Executive Offices)
DarioHealth Corp. 2020 Equity Incentive Plan
(Full title of the plan)
Mr. Erez Raphael
Chief Executive Officer
122 W 57th St, #33B
New York, New York 10019
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 ¨ |
Accelerated filer ¨ |
Non-accelerated filer x |
Smaller reporting company x |
Emerging growth company ¨ |
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. ¨
EXPLANATORY NOTE
On
October 14, 2020, DarioHealth Corp. (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 Company’s 2020 Equity Incentive Plan, as amended (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”) with the Commission to register an additional 928,890 shares of Common Stock that may be issued
pursuant to the 2020 Plan.
On June 8, 2021, the
Company filed a Registration Statement on Form S-8 (File No. 333-256897) (the “Third
Registration Statement”) with the Commission to register an additional 700,000 shares of Common Stock that may be issued
pursuant to the 2020 Plan.
On
January 7, 2022, the Company filed a Registration Statement on Form S-8 (File
No. 333-262056) (the “Fourth Registration Statement”) with the Commission to register an additional 1,339,624 shares
of Common Stock that may be issued pursuant to the 2020 Plan.
On
January 6, 2023, the Company filed a Registration Statement on Form S-8 (File
No. 333-269147) (the “Fifth Registration Statement” and together with the Original Registration Statement, the Second
Registration Statement, the Third Registration Statement and the Fourth Registration Statement, the “Prior Registration Statements”)
with the Commission to register an additional 1,994,346 shares of Common Stock that may be issued pursuant to the 2020 Plan.
Pursuant to the 2020 Plan,
the number of shares of Common Stock of the Company made available under the 2020 Plan for each of the calendar years ending on December 31,
2022, December 31, 2023, December 31, 2024, and December 31, 2025 shall be increased by an additional number of shares
of Common Stock equal to six percent (6%) of the number of shares of Common Stock issued and outstanding on a fully diluted basis (as
defined in the 2020 Plan) on the immediately preceding December 31.
The Company is filing this
Registration Statement to register an additional 2,493,764 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 December 7, 2022.
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 of 1933, as amended (the “Securities Act”) in
accordance with the rules and regulations of 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. |
Incorporation of Documents by Reference. |
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:
| (2) |
Our Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2023, June 30, 2023 and September 30, 2023, as filed with the SEC on May 11, 2023, August 10, 2023 and November 2, 2023, respectively; |
| |
|
| (3) |
Our Current Reports on Form 8-K, as filed with the SEC on January 13, 2023, January 27, 2023, February 6, 2023, February 24, 2023, March 10, 2023, May 5, 2023, May 9, 2023, June 20, 2023, July 24, 2023 and December 11, 2023; and |
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.
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 19th day of January, 2024.
| |
DARIOHEALTH CORP. |
| |
|
|
| |
By: |
/s/ Erez Raphael |
| |
|
Name: Erez Raphael |
| |
|
Title: Chief Executive Officer |
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 |
|
Capacity |
|
Date |
| |
|
|
|
|
| /s/ Erez Raphael |
|
Chief Executive Officer |
|
January 19, 2024 |
| Erez Raphael |
|
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/ Zvi Ben David |
|
Chief Financial Officer, Secretary and Treasurer |
|
January 19, 2024 |
| Zvi Ben David |
|
(Principal Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| /s/ Yoav Shaked |
|
Chairman of the Board of Directors |
|
January 19, 2024 |
| Yoav Shaked |
|
|
|
|
| |
|
|
|
|
| /s/ Hila Karah |
|
Director |
|
January 19, 2024 |
| Hila Karah |
|
|
|
|
| |
|
|
|
|
| /s/ Dennis Matheis |
|
Director |
|
January 19, 2024 |
| Dennis Matheis |
|
|
|
|
| |
|
|
|
|
| /s/ Dennis M. McGrath |
|
Director |
|
January 19, 2024 |
|
Dennis M. McGrath |
|
|
|
|
| |
|
|
|
|
| /s/ Adam K. Stern |
|
Director |
|
January 19, 2024 |
| Adam K. Stern |
|
|
|
|
| |
|
|
|
|
| /s/ Jon Kaplan |
|
Director |
|
January 19, 2024 |
| Jon Kaplan |
|
|
|
|
Exhibit 5.1
January 19, 2024
DarioHealth Corp.
122 W 57th St, #33B
New York, New York 10019
| |
Re: |
DarioHealth Corp. Registration Statement on Form S-8 |
Ladies and Gentlemen:
In connection with the registration
under the Securities Act of 1933, as amended (the “Act”), by DarioHealth Corp., a Delaware corporation (the “Company”),
of 2,493,764 shares of its common stock, par value $0.0001 per share (the “Registered Shares”), that are to be offered
and may be issued under the DarioHealth Corp. 2020 Equity Incentive Plan, as amended (the “Plan”), the following opinion
is furnished to you to be filed with the Securities and Exchange Commission (the “Commission”) as Exhibit 5.1 to the
Company’s Registration Statement on Form S-8 (the “Registration Statement”) under the Act.
We have acted as counsel to
the Company in connection with the Registration Statement, and we have examined originals or copies, certified or otherwise identified
to our satisfaction, of the Registration Statement, the Certificate of Incorporation of the Company as presently in effect, the bylaws,
minute books and corporate records of the Company, and such other documents as we have considered necessary in order to furnish the opinion
hereinafter set forth.
We express no opinion herein
as to any laws other than the General Corporation Law statute of the State of Delaware, and we express no opinion as to state securities
or blue sky laws.
Based on and subject to the
foregoing, we are of the opinion that, when issued in accordance with the terms of the Plan and the options or other rights granted thereunder,
the Registered Shares will be duly authorized, validly issued, fully paid and nonassessable by the Company.
We hereby consent to the filing
of this opinion as an exhibit to the Registration Statement and to the reference to our firm in the Prospectus forming a part of the Registration
Statement. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Sullivan & Worcester LLP
SULLIVAN & WORCESTER LLP
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
We consent to the incorporation by reference in
the Registration Statement (Form S-8) pertaining to the 2020 Equity Incentive Plan of DarioHealth Corp. report dated March 9, 2023,
with respect to the consolidated financial statements of DarioHealth Corp. included in its Annual Report (Form 10-K) for the year ended
December 31, 2022, filed with the Securities and Exchange Commission.
| Tel-Aviv, Israel |
|
/s/ KOST FORER GABBAY & KASIERER |
| January 19, 2024 |
|
A Member of Ernst & Young Global |
Exhibit 107
Calculation of Filing
Fee Tables
Form S-8
(Form Type)
DarioHealth Corp.
(Exact Name of Registrant
as Specified in its Charter)
Newly Registered Securities
| |
|
Security
Type |
|
Security
Class
Title |
|
Fee
Calculation |
|
Amount
Registered
(1)(2) |
|
|
Proposed
Maximum
Offering Price
Per Share (3) |
|
|
Proposed
Maximum
Aggregate
Offering Price |
|
|
Fee Rate |
|
|
Amount of
Registration
`Fee |
|
| Newly Registered Securities |
| Fees to Be Paid |
|
Equity |
|
Common Stock, $0.0001 par value per share (3) |
|
Rule 457(h) |
|
|
2,493,764 |
|
|
$ |
2.21 |
|
|
$ |
5,511,218.44 |
|
|
$ |
0.00014760 |
|
|
$ |
813.46 |
|
| |
|
Total Offering Amounts |
|
|
|
|
|
|
|
|
|
$ |
5,511,218.44 |
|
|
|
|
|
|
$ |
813.46 |
|
| |
|
Total Fees Previously Paid |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
--- |
|
| |
|
Total Fee Offsets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
--- |
|
| |
|
Net Fee Due |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
--- |
|
| (1) |
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. |
| (2) |
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. |
| |
|
| (3) |
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 common stock as reported on the Nasdaq Capital Market on January 12, 2024. |
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