DRIO DarioHealth Corporation

 

As filed with the Securities and Exchange Commission on July 10, 2023

 

Registration No. 333-273019

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION 

Washington, D.C. 20549

 

AMENDMENT NO. 1

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.)

 

18 W. 18th St.
New York, New York
Telephone: (646) 665-4667

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. 

18 W. 18th St.
New York, New York
Telephone: (646) 665-4667

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. 

Ron Ben-Bassat, Esq. 

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, 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 Securities Act.  ¨

 

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.

 

 

 

EXPLANATORY NOTE

 

This Pre-Effective Amendment No.1 (the “Amendment”) is being filed to amend the Registration Statement on Form S-3 (File No. 333-273019), originally filed by the registrant on June 29, 2023 (the “Registration Statement”). The sole purpose of this Amendment is to include Exhibit 10.3, the Loan and Security Agreement, dated May 1, 2023, by and among the registrant, as borrower, and Avenue Venture Opportunities Fund II, L.P., as lender, as an exhibit filed herewith on the Exhibit Index hereto. Accordingly, this Amendment consists only of the cover page of the Registration Statement, this Explanatory Note, the Exhibit Index to the Registration Statement, the signature pages and Exhibit 10.3 filed herewith. This Amendment does not modify any provision of the prospectus contained in Part I or the balance of Part II of the Registration Statement.

 

 

Item 16. Exhibits

 

A list of exhibits filed with this registration statement is contained in the exhibits index, which is incorporated by reference.

  

 

EXHIBIT INDEX

 

Exhibit No.		Description
3.1*		Amended and Restated Certificate of Designation of Preferences, Rights and Limitations of Series B Preferred Stock (incorporated by reference to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 20, 2023).
3.2*		Amended and Restated Certificate of Designation of Preferences, Rights and Limitations of Series B-1 Preferred Stock (incorporated by reference to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 20, 2023).
3.3*		Amended and Restated Certificate of Designation of Preferences, Rights and Limitations of Series B-2 Preferred Stock (incorporated by reference to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 20, 2023).
3.4*		Amended and Restated Certificate of Designation of Preferences, Rights and Limitations of Series B-3 Preferred Stock (incorporated by reference to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 20, 2023).
4.1*		Form of Warrant (incorporated by reference to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on May 5, 2023).
5.1*		Opinion of Sullivan & Worcester LLP
10.1*		Form of Securities Purchase Agreement for Series B, Series B-1, Series B-2 Preferred Stock (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on May 5, 2023)
10.2*		Form of Securities Purchase Agreement for Series B-3 Preferred Stock (incorporated by reference to Exhibit 10.4 to the Current Report on Form 8-K filed with the Securities and Exchange Commission on May 5, 2023)
10.3**		Loan and Security Agreement, dated May 1, 2023, by and among the Company, as borrower, and Avenue Venture Opportunities Fund II, L.P., as lender (incorporated by reference to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on May 5, 2023).
23.1*		Consent of Kost Forer Gabbay & Kasierer, a member of Ernst & Young Global
23.2*		Consent of Sullivan & Worcester LLP (included in Exhibit 5.1)
24.1*		Power of Attorney
107*		Filing Fee Table

 

* Previously filed

** Filed herewith

 

 

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 New York, New York on the 10th day of July 2023.

 

	DARIOHEALTH CORP.
	By:	/s/ Erez Raphael
		Name:	Erez Raphael
		Title:	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		Chief Executive Officer		July 10, 2023
Erez Raphael		(Principal Executive Officer)
/s/ Zvi Ben David		Chief Financial Officer, Secretary and Treasurer		July 10, 2023
Zvi Ben David		(Principal Financial and Accounting Officer)
*		Chairman of the Board of Directors		July 10, 2023
Yoav Shaked
*		Director		July 10, 2023
Jon Kaplan
*		Director		July 10, 2023
Hila Karah
*		Director		July 10, 2023
Dennis Matheis
*		Director		July 10, 2023
Dennis M. McGrath
*		Director		July 10, 2023
Adam K. Stern
* by Erez Raphael as Attorney-in-Fact

 

 

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