DRIO DarioHealth Corporation

 

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:

 

(1)	Our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, as filed with the SEC on March 9, 2023;

 

(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

 

(4)	The description of our Common Stock contained in our Registration Statement on Form 8-A filed with the SEC on February 25, 2016, including any amendments and reports filed for the purpose of updating such description.

 

All documents 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.

 

	4.1	Composite copy of Certificate of Incorporation, as amended (incorporated by reference to the Company’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on March 17, 2020).
	4.2	Bylaws (incorporated by reference to the Company’s Quarterly Report on Form 10-Q filed with the Commission on August 16, 2021).
	5.1*	Opinion of Sullivan & Worcester LLP.
	23.1*	Consent of Kost Forer Gabbay & Kasierer, A Member of Ernst & Young Global.
	23.2*	Consent of Sullivan & Worcester LLP (contained in Exhibit 5.1).
	24.1*	Power of Attorney (included on signature page).
	99.1	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).
	99.2	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).
	99.3	Amendment to the Company’s Amended and Restated 2020 Equity Incentive Plan (incorporated by reference to the Company’s Definitive Proxy Statement filed with the Securities and Exchange Commission on October 14, 2022).
	107*	Filing Fee Table.

 

*	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-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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