As filed with the Securities and Exchange Commission
on February 21, 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
(State or other jurisdiction of
incorporation or organization) |
45-2973162
(I.R.S. Employer Identification No.) |
122 W 57th St, #33B
New York, New York 10019
(Address of Principal Executive Offices)
Individual Stock Option Agreements
(Full title of the plan)
Mr. Erez Raphael
Chief Executive Officer
DarioHealth Corp.
122 W 57th St, #33B
New York, New York 10019
(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 or about February 15, 2024,
the registrant completed its acquisition of Twill, Inc. (“Twill”). The registrant has prepared this registration statement
in accordance with the requirements of Form S-8 under the Securities Act to register 2,963,459 shares of the registrant’s common
stock (“Common Stock”) issuable upon the purchase of shares pursuant to individual stock option agreements granted as a material
inducement of employment to former employees of Twill in connection with the registrant’s acquisition of Twill.
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. 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; |
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| (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, December 11, 2023 and February 21, 2024; 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 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts
and Counsel.
Not Applicable.
Item 6. 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.
Item 7. Exemption from Registration
Claimed.
Not Applicable.
Item 8. Exhibits.
Item 9. Undertakings.
| (a) |
The undersigned registrant hereby undertakes: |
| |
(1) |
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
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(i) |
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
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(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 this 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 a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
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(iii) |
To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement; |
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provided, however, that subparagraphs
(a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs
is contained in the periodic reports filed with or furnished to the 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 this registration statement. |
| |
(2) |
That, for the purpose of determining any liability under the Securities Act of 1933, 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. |
| (b) |
The undersigned registrant hereby further undertakes that, for the purposes of determining any liability under the Securities Act of 1933, each filing of the Company’s annual report pursuant to Section 13(a) or Section 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 this 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 of 1933 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 Commission such indemnification is against public policy as expressed in the Securities Act of 1933 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 of 1933 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-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 New York, New York on the 21st day February 2024.
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DARIOHEALTH CORP. |
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By: |
/s/ Erez Raphael |
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Name: Erez Raphael |
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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 |
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Capacity |
|
Date |
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| /s/ Erez Raphael |
|
Chief Executive Officer |
|
February 21, 2024 |
| Erez Raphael |
|
(Principal Executive Officer) |
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| /s/ Zvi Ben David |
|
Chief Financial Officer, Secretary and Treasurer |
|
February 21, 2024 |
| Zvi Ben David |
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(Principal Financial and Accounting Officer) |
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| /s/ Yoav Shaked |
|
Chairman of the Board of Directors |
|
February 21, 2024 |
| Yoav Shaked |
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| /s/ Hila Karah |
|
Director |
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February 21, 2024 |
| Hila Karah |
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| /s/ Dennis Matheis |
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Director |
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February 21, 2024 |
| Dennis Matheis |
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| /s/ Dennis M. McGrath |
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Director |
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February 21, 2024 |
|
Dennis M. McGrath |
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| /s/ Adam K. Stern |
|
Director |
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February 21, 2024 |
| Adam K. Stern |
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| /s/ Jon Kaplan |
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Director |
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February 21, 2024 |
| Jon Kaplan |
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Exhibit 5.1
February 21, 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 2,963,459 shares of its common stock, par value $0.0001 per share (the “Registered Shares”), that are to be offered
and may be issued pursuant to the exercise of individual non-statutory stock option agreements, issued as an inducement, in the form specified
in the Registration Statement, 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 non-statutory stock option agreements, 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 inducement awards 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 |
KOST FORER GABBAY
& KASIERER |
| February 21, 2024 |
 |
| |
A Member of Ernst & Young
Global |
Exhibit 99.1
STOCK OPTION AGREEMENT
THIS
STOCK OPTION AGREEMENT (the “Agreement”) and the associated grant award information (the “Customizing
Information”), is made and entered into as of the “Grant Date” specified in the Customizing Information included
hereto at Exhibit A (the “Grant Date”), by and between DarioHealth Corp., a Delaware corporation (the “Corporation”),
and the individual identified in the Customizing Information (the “Optionee”).
WHEREAS,
the Optionee, as an employee of Twill, Inc., is being issued this Option as an inducement to their employment with the Corporation
and its affiliates;
WHEREAS,
the Corporation considers it desirable and in its best interests that Optionee be given an opportunity to acquire a proprietary option
to purchase shares of common stock of the Corporation, par value $0.0001 per share (the “Shares”).
NOW,
THEREFORE, for good and valuable consideration, the adequacy of which is hereby acknowledged, and the mutual covenants hereinafter
set forth, the parties agree as follows:
1. Definitions.
The following capitalized terms have the following meanings. Other capitalized terms are defined elsewhere herein.
(a) “Affiliate”
means (i) any person or entity that directly or indirectly controls, is controlled by or is under common control with the Corporation
and/or (ii) to the extent provided by the Board, any person or entity in which the Corporation has a significant interest as determined
by the Board in its discretion. The term “control” (including, with correlative meaning, the terms “controlled by”
and “under common control with”), as applied to any person or entity, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such person or entity, whether through the ownership of voting
or other securities, by contract or otherwise.
(b) “Board” means the Board of Directors of the Corporation.
(c) “Business
Day” means any day other than a Saturday, a Sunday or a day on which banking institutions in New York City, New York are authorized
or obligated by federal law or executive order to be closed.
(d) “Cause”
means (i) conviction of, or plea of guilty or no contest to, any felony or any crime involving moral turpitude or dishonesty or the
commission of any other act involving willful malfeasance or material fiduciary breach with respect to the Corporation or an Affiliate;
(ii) participation in a fraud, misappropriation or embezzlement of Corporation and/or its Affiliate funds or property or act of dishonesty
against the Corporation and/or its Affiliate; (iii) material violation of any rule, regulation, policy or plan for the conduct of
(as the case may be) any director, officer, employee, member, manager, consultant or service provider of or to the Corporation or its
Affiliates or its or their business (which, if curable, is not cured within five (5) Business Days after notice thereof is provided
to the Optionee); (iv) conduct that results in or is reasonably likely to result in harm to the reputation or business of the Corporation
or any of its Affiliates; (v) gross negligence or willful misconduct with respect to the Corporation or an Affiliate; (vi) material
violation of U.S. state, federal or other applicable (including non-U.S.) securities laws; or (vii) material breach of Optionee’s
obligations under his employment agreement/offer letter with the Corporation.
(e) “Change
in Control” means (i) an acquisition (whether directly from the Corporation or otherwise) of any voting securities of the
Corporation (the “Voting Securities”) by any “Person” (as the term person is used for purposes of Section 13(d) or
14(d) of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”)), immediately after which such
Person has “Beneficial Ownership” (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than
fifty percent (50%) of the combined voting power of the Corporation’s then outstanding Voting Securities; (ii) the individuals
who constitute the members of the full Board cease, by reason of a financing, merger, combination, acquisition, takeover or other non-ordinary
course transaction affecting the Corporation, to constitute at least fifty-one percent (51%) of the members of the full Board; or (iii) approval
by the full Board and, if required, stockholders of the Corporation of, or execution by the Corporation of any definitive agreement with
respect to, or the consummation of (it being understood that the mere execution of a term sheet, memorandum of understanding or other
non-binding document shall not constitute a Change in Control): (A) a merger, consolidation or reorganization involving the Corporation,
where either or both of the events described in clauses (i) or (ii) above would be the result; (B) a liquidation or dissolution
of or appointment of a receiver, rehabilitator, conservator or similar person for, or the filing by a third party of an involuntary bankruptcy
against, the Corporation; or (C) an agreement for the sale or other disposition of all or substantially all of the assets of the
Corporation to any Person (other than a transfer to a subsidiary of the Corporation).
(f) “Continuous
Service” means that the Optionee’s service with the Corporation or an Affiliate, whether as an employee, member of the
Board, consultant or any other nonemployee relationship, is not interrupted or terminated. The Optionee’s Continuous Service shall
not be deemed to have terminated merely because of a change in the capacity in which the Optionee renders service to the Corporation or
an Affiliate as an employee, consultant, member of the Board or any other nonemployee relationship or a change in the entity for which
the Optionee renders such service, provided that there is no interruption or termination of the Optionee’s Continuous Service.
For example, a change in status from an employee of the Corporation to a consultant of an Affiliate or a member of the Board will not
constitute an interruption of Continuous Service. The Board or its delegate, in its sole discretion, may determine whether Continuous
Service shall be considered interrupted in the case of any leave of absence approved by that party, including sick leave, military leave.
relocation or any other personal or family leave of absence.
(g) “Disability”
means that the Optionee is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental
impairment. The determination of whether an individual has a Disability shall be determined under procedures established by the Board.
The Board may rely on any determination that the Optionee is disabled for purposes of benefits under any long-term disability plan maintained
by the Corporation or any Affiliate in which the Optionee participates.
(h) “Fair
Market Value” means, as of any date, the value of a Share of common stock determined as follows: (i) if the Share is listed
on any established stock exchange or a national market system, including without limitation, the New York Stock Exchange or the NASDAQ
Stock Market, or quoted on a national exchange or other recognized securities quotation system (such as the Nasdaq Stock Market/OTC Bulletin
Board/OTCQB Market), the Fair Market Value of a Share shall be the closing sales price for such stock as quoted on such exchange, market
or quotation system (or the exchange or market with the greatest volume of trading in the Shares) on the last market trading day prior
to the day of determination (or the closing price on the date immediately preceding such date if no sales activity occurred on the day
of determination), as reported by Bloomberg or such other source as the Board deems reliable, and (ii) in the absence of such markets
for the Share, the Fair Market Value shall be determined in good faith and in accordance with applicable law by the Board and such determination
shall be conclusive and binding.
2. Grant
of Option. The Corporation hereby grants to the Optionee the right and option to purchase up to an aggregate of the number of Shares
shown in the Customizing Information under “Shares Granted” (subject to adjustment as
provided in Section 8 hereof), on the terms and conditions set forth herein (hereinafter the “Option”). The Optionee
acknowledges that the Option will not be an “incentive option” within the meaning of Section 422 of the Internal Revenue
Code of 1986, as amended (the “Code”). This Option is not being issued pursuant to the Corporation’s
2020 Equity Incentive Plan (the “Plan”); provided, however, that this Option is granted as a material inducement
to employment in accordance with Nasdaq Listing Rule 5635(c)(4).
3. Exercise
of Options. The vested portion of this Option shall be exercisable at the “Exercise Price” per Share shown in the
Customizing Information (subject to adjustment as provided for herein) (the “Exercise Price”).
4. Vesting
of Options. Subject to the Optionee’s Continuous Service on each vesting date, the Option shall vest in accordance with the
“Vesting Schedule” set forth in the Customizing Information. For purposes of calculating the number of Shares subject to the
Option that shall vest on each vesting date, any resulting fraction of a Share shall be rounded up to the nearest full Share.
Subject to applicable law, the Board, in its sole
discretion, shall have the power to accelerate the time at which the Option may first be exercised or the time during which the Option
or any part thereof will vest.
5. Term
of the Option. The Option shall expire on the ten (10) year anniversary of the Grant Date, or upon its earlier termination as
provided in this Agreement.
6. Method
of Exercising Option. The Optionee may exercise the vested portion of the Option in whole or in part (to the extent that it is exercisable
in accordance with its terms) by giving written notice to the Corporation in the form annexed hereto as Exhibit B, together
with the tender of the full purchase price of the Shares covered by the Option. The purchase price may consist of (a) cash, (b) certified
or bank check payable to the order of the Corporation in the amount of the purchase price, (c) a net exercise procedure, consisting
of authorization from the Optionee to the Corporation to retain from the total number of Shares as to which the Option is exercised that
number of Shares having a Fair Market Value (as defined below) on the date of the exercise equal to purchase price (and any withholding
if so requested) for the total number of Shares as to which the Option is exercised, (d) if agreed to by the Board, a broker-assisted
cashless exercise, (e) other method, property or consideration if the Board determines acceptance thereof is beneficial to the Corporation
or (f any combination of the methods described in (a) through (f) above.
As soon as practicable after receipt by the Corporation
of such notice and of payment in full of the purchase price of all the Shares with respect to which the Option has been exercised, a certificate
or certificates ( or book entry) representing such Shares shall be issued in the name of the Optionee and shall be delivered to the Optionee.
All Shares shall be issued only upon receipt by the Corporation of the Optionee’s representation that the Shares are purchased for
investment and not with a view toward distribution thereof.
In the event this Option is exercised via a net
exercise as set forth in Section 6(c) above, the Optionee shall deliver written notice to the Corporation as set forth above
in this Section 6, in which event the Corporation shall issue to Optionee the number of Option Shares computed according to the following
equation:
; where
| X = | the number of Shares to be issued to the Optionee. |
| Y = | the Shares purchasable under this Option or, if only a portion of this Option is being exercised, the portion of the Shares being
exercised. |
| A = | the Fair Market Value (as defined in the Plan) of one Share
on the exercise date. |
In the event the above formula would result in
the issuance of a fractional Share of common stock, then in lieu of issuing such fractional Share, the Corporation in its sole and absolute
discretion may elect to pay an amount of cash equal to the fair market value of such fractional Share as reasonably determined by the
Corporation.
7. Availability
of Shares. The Corporation, during the term of this Agreement, shall keep available at all times the number of Shares required to
satisfy the Option. The Corporation shall utilize its best efforts to comply with the requirements of each regulatory commission or agency
having jurisdiction in order to issue to allow the Optionee to sell the Shares, with respect to the Option.
8. Adjustments.
If prior to the exercise of any portion of the Option granted hereunder the Corporation shall have effected one or more stock splits,
stock dividends, consolidation, reorganization, recapitalization, reincorporation, dividend in property other than cash, liquidating dividend,
combination of shares, exchange of shares, change in corporate structure or other increases or reductions of the number of its shares
outstanding without receiving compensation therefor in money, services or property, the number of Shares subject to the Option hereby
granted shall (a) if a net increase shall have been effected in the number of outstanding the Corporation’s Shares, be proportionately
increased and the Exercise Price of the Shares issuable upon exercise of the Option shall be proportionately reduced; and (b) if
a net reduction shall have been effected in the number of outstanding Shares of the Corporation’s common stock, be proportionately
reduced and the Exercise Price of the Shares issuable upon exercise of the Option shall be proportionately increased. Any adjustment shall
be done in accordance with Treasury Regulation Section 1.409A- 1(b)(5)(v)(D).
9. Dissolution
or Liquidation. In the event of a dissolution or liquidation of the Corporation, the Corporation shall immediately notify the Optionee
of such dissolution or liquidation. The Corporation may provide the Optionee thirty (30) days to exercise all or a portion of any outstanding
vested Options held by the Optionee at that time, and upon the expiration of such thirty (30) day period, all remaining outstanding Options
shall terminate immediately. Alternatively, the Corporation may provide that all or any portion of any vested Option shall convert into
the right to receive liquidation proceeds (if applicable, net of the Exercise Price and any applicable tax withholdings). Any adjustment
shall be done in accordance with Treasury Regulation Section 1.409A-1(b)(5)(v)(D).
10. Change in Control.
(a) In
the event of a Change in Control, then, without the consent or action required of the Optionee:
(i) Any
surviving corporation or acquiring corporation or any parent or affiliate thereof, as determined by the Corporation in its discretion,
shall assume or continue any Options outstanding under this Agreement in all or in part or shall substitute to similar stock awards in
all or in part, in accordance with the requirements of Section 409A of the Code, if applicable; or
(ii) In
the event any surviving corporation or acquiring corporation does not assume or continue the Option or substitute similar awards, then
vested Shares covered by the Option (including those that accelerate) shall terminate if not exercised at or prior to such Change in Control;
or
(iii) The
Corporation may, in its sole discretion, accelerate the vesting, partially or in full, of the Option as the Corporation may determine
to be appropriate prior to such events; or
(iv) In
the event of a Change in Control under the terms of which holders of Shares will receive upon consummation thereof a cash payment for
each Share surrendered in the Change in Control (the “Acquisition Price”), the Optionee shall be provided a cash payment
with respect to each vested Option held by the Optionee equal to (A) the number of Shares subject to the vested Option (after giving
effect to any acceleration of vesting that occurs upon or immediately prior to such Change in Control) multiplied by (B) the excess,
if any, of (I) the Acquisition Price over (II) the Exercise Price and any applicable tax withholdings, in exchange for the termination
of such Awards.
(b) Upon
the occurrence of a Change in Control, the repurchase and other rights of the Corporation with respect to outstanding Restricted Stock
(as defined below) shall inure to the benefit of the Corporation’s successor and shall, unless the determines otherwise, apply to
the cash, securities or other property that the Shares were converted into or exchanged for pursuant to such Change in Control in the
same manner and to the same extent as they applied to the Restricted Stock; provided, however, that the Corporation may provide for termination
or deemed satisfaction of repurchase or other rights under this Agreement evidencing any Restricted Stock or any other agreement between
the Optionee and the Corporation, either initially or by amendment.
(c) Notwithstanding
the above, in case of Change in Control and in the event all or substantially all of the shares of the Corporation are to be exchanged
for securities of another company, then the Optionee shall be obliged to sell or exchange, as the case may be, any Shares the Optionee
holds or purchased under this Agreement, in accordance with the instructions issued by the Corporation, whose determination shall be final.
(d) Notwithstanding
the above, the Corporation may, in its sole discretion, decide other terms regarding the treatment of the outstanding Option Shares in
case of a Change in Control.
11. Restrictions.
The Optionee, by acceptance hereof, represents and warrants as follows:
(a) The
Option and the right to purchase Shares hereunder is personal to the Optionee and shall not be transferred to any other person, other
than (i) by will or the laws of descent and distribution, or (ii) pursuant to a domestic relations order. This Option shall
not be collaterally assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and shall not be subject to
execution, attachment or similar process. Any attempted transfer, assignment, pledge, hypothecation or other disposition of the Option
or of any rights granted hereunder contrary to the provisions of this Section 11, or the levy of any attachment or similar process
upon the Option or such right, shall be null and void. Notwithstanding the foregoing, the Optionee may, with approval by the Board and
in a form satisfactory to the Corporation, designate a third party who, in the event of the death of the Optionee, shall thereafter be
entitled to exercise the Option.
(b) The
Optionee has been advised and understands that the Option and the resulting Shares issuable upon its exercise, is intended to be registered
on a Registration Statement on Form S-8, resulting in the securities issuable hereunder being registered under the Securities Act
of 1933, as amended (the “Securities Act”). However, in the absence of such registration, the Optionee has been advised
and understands that the Option has been issued in reliance upon exemptions from registration under the Securities Act and applicable
state statutes; the Shares have not been registered under the Securities Act or applicable state statutes and must be held and may not
be sold, transferred or otherwise disposed of for value unless they are subsequently registered under the Securities Act or an exemption
from such registration is available, except as set forth herein; the Corporation is under no obligation to register the Option or the
Shares under the Securities Act or the applicable state statutes; in the absence of such registration, the sale of the Shares may be practicably
impossible; the Shares will bear a legend (on any certificate or book entry) in substantially the following form restricting the sale
of the Shares:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR BOOK ENTRY
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND ARE “RESTRICTED SECURITIES”
WITHIN THE MEANING OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT
BE SOLD OR TRANSFERRED WITHOUT COMPLYING WITH RULE 144 IN THE ABSENCE OF EFFECTIVE REGISTRATION OR OTHER COMPLIANCE UNDER THE SECURITIES
ACT.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO CERTAIN RESTRICTIONS ON TRANSFERABILITY AS SET FORTH IN A STOCK OPTION AGREEMENT, A COPY OF WHICH IS ON FILE WITH THE RECORDS OF THE
CORPORATION.
(c) Regardless
of whether the offering and sale of Shares have been registered under the Securities Act or have been registered or qualified under the
securities laws of any state, the Corporation at its discretion may impose restrictions upon the sale, pledge or other transfer of such
Shares (including the placement of appropriate legends on stock certificates or the imposition of stop-transfer instructions) (“Restricted
Stock”) if, in the judgment of the Corporation, such restrictions are necessary or desirable in order to achieve compliance
with the Securities Act, the securities laws of any state or any other law.
12. Shareholder’s
Rights. This Option is non-transferable by the Optionee, except in the event of the Optionee’s death as provided in Section 16
hereof and during the Optionee’s lifetime is exercisable only by the Optionee. The Optionee shall have no rights as a shareholder
with respect to any Shares covered by the Option until exercise of the Option pursuant to this Agreement and delivery to the Optionee
of the Shares as provided herein.
13. Right of First Refusal.
(a) Notwithstanding
anything to the contrary in the Certificate of Incorporation and the By-Laws of the Corporation, the Optionee shall not have a right of
first refusal or preemptive right in relation with any sale of Shares in the Corporation.
(b) Sale
of Shares by the Optionee shall be subject to the right of first refusal of other shareholders as set forth in the Certificate of Incorporation
and/or the By-Laws of the Corporation, to the extent applicable.
(c) The
Corporation may refuse to approve the transfer of Shares to any competitor of the Corporation or to any other person or entity the Corporation
determines, in its discretion, may be detrimental to the Corporation.
14. Termination
of Continuous Service. In the event an Optionee’s Continuous Service terminates (other than upon the Optionee’s death
or Disability or as a result of termination for Cause), and unless otherwise specified in this Agreement, the Optionee may exercise the
Option (to the extent that the Optionee was entitled to exercise the Option as of the date of termination) but only within such period
of time ending on the earlier of (a) the date three (3) months following the termination of the Optionee’s Continuous
Service, or (b) the expiration of the term of the Option as set forth in Section 5 of this Agreement. If, after termination
of Continuous Service, the Optionee does not exercise his Option within the time periods specified in this Section 14, the Option
shall terminate. If such exercise of the Option following termination of Continuous Services as provided in this section would be prohibited
at any time solely because the issuance of Shares would violate the registration requirements under the Securities Act, then the Option
shall terminate on the earlier of (i) the expiration of the term of the Option and (ii) the expiration of three (3) months
after the termination of the Optionee’s Continuous Service during which the exercise of the Option would not be in violation of
such registration requirements.
15. Disability
of Optionee. In the event that the Optionee’s Continuous Service terminates as a result of the Optionee’s Disability,
the Optionee may exercise his Option (to the extent that the Optionee was entitled to exercise such Option as of the date of termination),
but only within such period of time ending on the earlier of (a) the date twelve (12) months following such termination or (b) the
expiration of the term of the Option as set forth in this Agreement. If, after termination, the Optionee does not exercise his Option
within the time specified herein, the Option shall terminate.
16. Death
of Optionee. Unless otherwise provided in this Agreement, in the event (a) the Optionee’s Continuous Service terminates
as a result of the Optionee’s death or (b) the Optionee dies within three (3) months after the termination of the Optionee’s
Continuous Service, then the Option may be exercised (to the extent the Optionee was entitled to exercise such Option as of the date of
death) by the Optionee’s estate, by a person who acquired the right to exercise the Option by bequest or inheritance or by a person
designated to exercise the Option upon the Optionee’s death pursuant to Section 11(a), but only within the period ending on
the earlier of (i) the date twelve (12) months following the date of death or (ii) the expiration of the term of the Option
as set forth in this Agreement. If, after death, the Option is not exercised within the time specified herein, the Option shall terminate.
17. Termination
of Continuous Service for Cause. Notwithstanding anything herein to the contrary, in the event of termination of Optionee’s
employment with the Corporation or any of its Affiliates, or if applicable, the termination of services given to the Corporation or any
of its Affiliates as a consultant, contractor or as a member of the board of the Corporation or any of its Affiliates for Cause, all outstanding
Option awards granted to the Optionee hereunder (whether vested or not) will immediately expire and terminate on the date of such termination
and the Optionee shall not have any right in connection to the outstanding Option, unless otherwise determined by the Corporation.
18. Compliance
with Laws. Notwithstanding the foregoing, in no event shall the Optionee be permitted to exercise an Option in a manner that the Corporation
determines would violate the Sarbanes-Oxley Act of 2002, if applicable, or any other applicable law or the applicable rules and regulations
of the Securities and Exchange Commission or the applicable rules and regulations of any securities exchange, inter-dealer quotation
system or other recognized securities quotation system on which the securities of the Corporation are listed, quoted or traded.
19. Investment
Assurances. The Corporation may require the Optionee, as a condition of exercising or acquiring Shares under this Agreement: (a) to
give assurances satisfactory to the Corporation as to the Optionee’s knowledge and experience in financial and business matters
and/or to employ a purchaser representative reasonably satisfactory to the Corporation who is knowledgeable and experienced in financial
and business matters and that the Optionee is capable of evaluating, alone or together with the Optionee’s representative, the merits
and risks of exercising the Option; and (b) to give assurances satisfactory to the Corporation stating that the Optionee is acquiring
Shares subject to the Option for the Optionee’s own account and not with any present intention of selling or otherwise distributing
the Shares. The foregoing requirements, and any assurances given pursuant to such requirements, shall be inoperative if (i) the issuance
of the Shares upon the exercise of the Option has been registered under a then currently effective registration statement under the Securities
Act or (ii) as to any particular requirement, a determination is made by counsel for the Corporation that such requirement need not
be met in the circumstances under the then applicable securities laws. The Corporation may, upon advice of counsel to the Corporation,
place legends on stock certificates as such counsel deems necessary or appropriate in order to comply with applicable securities laws,
including, but not limited to, legends restricting the transfer of the Shares.
20. Withholding
Obligations. The Corporation or any Affiliate may take such action as it may deem necessary or appropriate, in its discretion, for
the purpose of or in connection with withholding of any taxes that the Corporation or Affiliate is required by any applicable law to withhold
in connection with the Option (collectively, “Withholding Obligations”). Such actions may include, without limitation:
(a) requiring the Optionee to remit to the Corporation in cash an amount sufficient to satisfy such Withholding Obligations; (b) subject
to applicable law, allowing the Optionee to provide shares to the Corporation, in an amount that at such time, reflects a value that the
Corporation determines to be sufficient to satisfy such Withholding Obligations; (c) withholding Shares otherwise issuable upon the
exercise of the Option at a value that is determined by the Corporation to be sufficient to satisfy such Withholding Obligations; or (d) any
combination of the foregoing. The Corporation shall not be obligated to allow the exercise of the Option by or on behalf of the Optionee
until all withholding tax consequences arising from the exercise of the Option are resolved in a manner acceptable to the Corporation.
21. Conditions
on Delivery of Stock. The Corporation will not be obligated to deliver any Shares pursuant to this Agreement or to remove restrictions
from Shares previously issued or delivered under this Agreement until (a) all conditions of this Agreement have been met or removed
to the satisfaction of the Corporation, (b) in the opinion of the Corporation’s counsel, all other legal matters in connection
with the issuance and delivery of the Shares have been satisfied, including any applicable securities laws and regulations and any applicable
rules and regulations of a national exchange or other recognized securities quotation system (such as the Nasdaq Stock Market/OTC
Bulletin Board/OTCQB Market), on which the Shares are listed or admitted to trading and (c) the Optionee has executed and delivered
to the Corporation such representations or agreements as the Corporation may consider appropriate to satisfy the requirements of any applicable
laws, rules or regulations.
22. Tax Consequences.
(a) Any
tax consequences arising from the grant, exercise or settlement of the Option, from the payment for Shares covered thereby or from any
other event or act (of the Corporation and/or its Affiliates, or the Optionee) hereunder shall be borne solely by the Optionee. The Corporation
and/or its Affiliates shall withhold taxes according to the requirements under the applicable laws, rules and regulations, including
withholding taxes at the source. Furthermore, the Optionee shall agree to indemnify the Corporation and/or its Affiliates and hold them
harmless against and from any and all liability for any such tax or interest or penalty thereon, including without limitation, liabilities
relating to the necessity to withhold, or to have withheld, any such tax from any payment made to the Participant. It is the intention
of the Corporation that no payment or entitlement pursuant to this Agreement will give rise to any adverse tax consequences to any person
pursuant to Section 409A of the Code.
(b) The
Corporation shall not be required to release any share certificate or register the Shares in book entry form to the Optionee until all
required payments have been fully made.
23. Rounding
Conventions. The Corporation may, in its sole discretion and taking into account any requirements of the Code, determine the effect
of any adjustments on Shares and may provide that no fractional Shares will be issued (rounding up or down as determined by the Corporation).
24. Amendment
of Award. The Corporation at any time, and from time to time, may amend the term of this Agreement; provided, however, that
the rights under the Agreement shall not be impaired by any such amendment unless (a) the Corporation requests the consent of the
Optionee and (b) the Optionee consents in writing (such consent to not be unreasonably withheld or delayed).
25. Notices.
Any notice to be given to the Corporation shall be addressed to the Corporation in care of its Secretary at its principal office, and
any notice to be given to the Optionee shall be addressed to him or her at the address given beneath his or her signature hereto or at
such other address as the Optionee may hereafter designate in writing to the Corporation. Notice may be given by e-mail.
26. Corporate
Policies. This Option shall be subject to any applicable clawback or recoupment policies, share trading policies, and other policies
that may be implemented by the Board from time to time, in accordance with applicable law.
27. Choice
of Law. This Agreement and all documents evidencing awards and all other related documents will be governed by, and construed in accordance
with, the laws of the State of Delaware; provided that the tax treatment and the tax rules and regulations applying to a grant
in any specific jurisdiction shall be the local tax laws of such jurisdiction in addition to the Federal income tax laws of the U.S.
28. No
Guaranty. It is understood and agreed that nothing contained in this Agreement, nor any action taken by the Board, shall confer upon
the Optionee any right with respect to the continuation of services by the Optionee to the Corporation or any Affiliate, nor interfere
in any way with the right of the Corporation or an Affiliate to terminate the Optionee’s services at any time.
29. Headings.
The headings in this Agreement are for the purpose of reference only and shall not limit or otherwise affect the meaning of any provision
of this Agreement.
30. Severability.
If it is determined that any provision of this Agreement is invalid and unenforceable, the remaining provisions of this Agreement, as
applicable, will continue in effect.
31. Counterparts.
This Agreement may be executed in any number of counterparts, and each such counterpart shall, for all purposes, be deemed to be an original
and all of which together shall constitute one (1) agreement. Facsimile signatures and those transmitted by mail or other electronic
means shall have the same effect as originals.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
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DARIOHEALTH CORP. |
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By: |
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Name: |
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Title: |
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OPTIONEE |
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By: |
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Name: |
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Address: |
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EXHIBIT A
Stock Option Schedule
In accordance with the Agreement, of which this
Schedule is a part (which together, constitute the “Option Agreement”), the Corporation hereby grants to <<Name>>
(the “Optionee”) the following Option to purchase Shares of stock.
| Grant Date: |
<<GrantDate>> |
| Shares Granted: |
<<Shares>> |
| Exercise Price: |
<<ExercisePrice>> |
Vesting Schedule:
| Vesting Date | |
Percentage of Total Option |
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Shares Subject to Exercise |
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Incremental | |
Cumulative |
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Amount | |
Amount |
| <<Vest1>>1 | |
<<Vest1_I>> | |
<<Vest1_C>> |
| <<Vest2>> | |
<<Vest2_I>> | |
<<Vest2_C>> |
| <<Vest3>> | |
<<Vest3_I>> | |
<<Vest3_C>> |
| <<Vest4>> | |
<<Vest4_I>> | |
<<Vest4_C>> |
| <<Vest5>> | |
<<Vest5_I>> | |
<<Vest5_C>> |
1[This would be a phrase like “On or after February
20, 2023”]
EXHIBIT B
Exercise Form
| To: DarioHealth Corp. |
Dated: ________________________ |
The undersigned, pursuant to the provisions set
forth in the Agreement, dated as of the Grant Date identified therein, a copy of which is attached hereto, hereby irrevocably elects
to purchase _______ Shares of common stock covered by the Option. The undersigned [check as applicable]:
¨
herewith makes payment of [$________] representing the full Exercise Price for such Shares at the price per Share provided for in
such Agreement. Such payment takes the form of lawful money of the United States or delivery of Shares of the Corporation’s
common stock in accordance with the terms of the Agreement.
OR
¨
elects that the Corporation withhold Shares as provided in Section 6 of such Agreement [NTD: To be modified at the time of
exercise consistent with Section 6] .
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Signature |
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Print Name |
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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
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Security
Type |
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Security
Class
Title |
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Fee
Calculation |
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Amount
Registered
(1)(2) |
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Proposed
Maximum
Offering
Price
Per
Share (3) |
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Proposed
Maximum
Aggregate
Offering
Price |
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Fee Rate |
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Amount of
Registration
`Fee |
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| Newly Registered Securities |
| Fees to Be Paid |
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Equity |
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Common Stock, $0.0001 par value per share (3) |
|
Rule 457(h) |
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2,963,459 |
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$ |
2.07 |
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$ |
6,134,360.13 |
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$ |
0.00014760 |
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$ |
905.44 |
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Total Offering Amounts |
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$ |
6,134,360.13 |
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$ |
905.44 |
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Total Fees Previously Paid |
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--- |
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Total Fee Offsets |
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--- |
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Net Fee Due |
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$ |
905.44 |
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| (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 issuable pursuant to individual stock option agreements, which options will be granted as a material inducement of employment to former employees of Twill in connection with the registrant’s acquisition of Twill. |
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| (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 February 14, 2024. |
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