DarioHealth Corp S-3, filed Mar 19, 2020
DarioHealth Corp. (DRIO)
As filed with the Securities and Exchange Commission on March 19, 2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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.) |
8 HaTokhen Street
Caesarea Industrial Park
3088900, Israel
Telephone: +(972)-(4) 770 4055
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.
8 HaTokhen Street
Caesarea Industrial Park
3088900, Israel
Telephone: +(972)-(4) 770 4055
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.
Zysman, Aharoni, Gayer and
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. ¨
CALCULATION OF REGISTRATION FEE
| Title of each class of securities to be registered |
Amount To Be Registered (1)(2) |
Proposed Maximum Offering Price Per Share |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee |
||||||||||||
| Common Stock, $0.0001 par value | 4,652,126 | $ | $4.38 | (3) | $ | 20,376,311.88 |
$ | 2,644.85 | ||||||||
| (1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, or the Act, this registration statement shall be deemed to cover any additional number of shares of the registrant’s common stock as may be issued from time to time upon exercise of the warrants to prevent dilution as a result of stock splits, stock dividends or similar transactions. No additional consideration will be received for the common stock, and therefore no registration fee is required pursuant to Rule 457(i) under the Act. |
| (2) | Represents 4,652,126 shares of our common stock, $0.0001 par value per share (the “Common Stock”) consisting of (i) 1,903,382 shares of the registrant’s Common Stock issuable upon conversion of outstanding shares of Series A Convertible Preferred Stock; (ii) 1,284,400 shares of the registrant’s Common Stock issuable upon conversion of outstanding shares of Series A-1 Convertible Preferred Stock; (iii) 436,410 shares of the registrant’s Common Stock issuable upon conversion of outstanding shares of Series A-2 Convertible Preferred Stock; (iv) 901,284 shares of the registrant’s Common Stock issuable upon conversion of outstanding shares of Series A-3 Convertible Preferred Stock; and (v) 126,650 shares of the registrant’s Common Stock issuable upon conversion of outstanding shares of Series A-4 Convertible Preferred Stock. |
| (3) | Estimated solely for purposes of calculating the amount of the registration fee pursuant to Rule 457(c) of the Act, based upon the average of the high and low sales prices of the registrant’s Common Stock as reported on the Nasdaq Capital Market on March 18, 2020. |
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.
The information in this preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell nor does it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject to completion, dated March 19, 2020
PROSPECTUS
4,652,126 SHARES OF COMMON STOCK
The selling stockholders identified in this prospectus may offer from time to time up to 4,652,126 shares of our common stock, $0.0001 par value per share (the “Common Stock”), consisting of (i) 1,903,382 shares of the registrant’s Common Stock issuable upon conversion of outstanding shares of Series A Convertible Preferred Stock; (ii) 1,284,400 shares of the registrant’s Common Stock issuable upon conversion of outstanding shares of Series A-1 Convertible Preferred Stock; (iii) 436,410 shares of the registrant’s Common Stock issuable upon conversion of outstanding shares of Series A-2 Convertible Preferred Stock; (iv) 901,284 shares of the registrant’s Common Stock issuable upon conversion of outstanding shares of Series A-3 Convertible Preferred Stock; and (v) 126,650 shares of the registrant’s Common Stock issuable upon conversion of outstanding shares of Series A-4 Convertible Preferred Stock.
This prospectus describes the general manner in which the shares may be offered and sold by the selling stockholders. If necessary, the specific manner in which the shares may be offered and sold will be described in a supplement to this prospectus.
While we will not receive any proceeds from the sale of the shares by the selling stockholders. We will pay the expenses of registering these shares.
Our Common Stock is traded on the Nasdaq Capital Market under the symbol “DRIO.”
Investing in our Common Stock involves risks. See “Risk Factors” beginning on page 3 of this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2020.
TABLE OF CONTENTS
You should rely only on the information contained in this prospectus, any prospectus supplement and the documents incorporated by reference, or to which we have referred you. Neither we nor the selling stockholders have authorized anyone to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. This prospectus and any prospectus supplement does not constitute an offer to sell, or a solicitation of an offer to purchase, the Common Stock offered by this prospectus and any prospectus supplement in any jurisdiction to or from any person to whom or from whom it is unlawful to make such offer or solicitation of an offer in such jurisdiction. You should not assume that the information contained in this prospectus, any prospectus supplement or any document incorporated by reference is accurate as of any date other than the date on the front cover of the applicable document.
Neither the delivery of this prospectus nor any distribution of Common Stock pursuant to this prospectus shall, under any circumstances, create any implication that there has been no change in the information set forth or incorporated by reference into this prospectus or in our affairs since the date of this prospectus. Our business, financial condition, results of operations and prospects may have changed since such date.
When used herein, unless the context requires otherwise, references to the “Company,” “we,” “our” and “us” refer to DarioHealth Corp., a Delaware corporation, collectively with its wholly-owned subsidiary, LabStyle Innovation Ltd., an Israeli corporation.
All dollar amounts refer to U.S. dollars unless otherwise indicated.
This prospectus describes the general manner in which the selling stockholders identified in this prospectus may offer from time to time up to 4,652,126 shares of our Common Stock. If necessary, the specific manner in which the shares may be offered and sold will be described in a supplement to this prospectus, which supplement may also add, update or change any of the information contained in this prospectus. To the extent there is a conflict between the information contained in this prospectus and the prospectus supplement, you should rely on the information in the prospectus supplement, provided that if any statement in one of these documents is inconsistent with a statement in another document having a later date—for example, a document incorporated by reference in this prospectus or any prospectus supplement—the statement in the document having the later date modifies or supersedes the earlier statement.
This summary highlights information contained in the documents incorporated herein by reference. Before making an investment decision, you should read the entire prospectus, and our other filings with the Securities and Exchange Commission, or the SEC, including those filings incorporated herein by reference, carefully, including the sections entitled “Risk Factors” and “Cautionary Statement Regarding Forward-Looking Statements.”
We are a leading global Digital Therapeutics, or DTx, company revolutionizing the way people manage their health across the chronic condition spectrum to live a better and healthier life. By delivering personalized evidence-based interventions that are driven by data, high quality software, easy-to-use medical devices and coaching, we empower individuals to make healthy adjustments to their daily lifestyle choices in a personalized way and improve their overall health. Our cross-functional team operates at the intersection of life sciences, behavioral science and software technology to deliver highly engaging therapeutic interventions. The DarioTM Blood Sugar Monitor is among the most downloaded healthcare apps, with 4.9/5.0 stars from 9,000+ reviews on the Apple Store as of March 2020. We are rapidly moving into new chronic conditions such as hypertension, using a performance-based approach to improve the health of users managing chronic disease.
We attempt to drive behavioral change by creating highly personalized, closed-loop interactions that support our customers, who become members of our services, via connected FDA cleared monitoring devices, just-in-time health information and real-time coaching. This highly scalable infrastructure results in members with significant improvement in their health conditions at a modest price-point. The Dario solution is intended to stretch across various health conditions and ailments. We currently focus our efforts on diabetes and hypertension, and we plan to expand our focus into additional chronic conditions during 2020, including hypertension.
Our address is 8 HaTokhen Street, Caesarea Industrial Park, 3088900, Israel and our telephone number is +(972)-(4) 770 4055. Our corporate website is: www.mydario.com. The content of our website shall not be deemed incorporated by reference in this prospectus.
| 2 |
This prospectus relates to the resale by the selling stockholders identified in this prospectus of up to 4,652,126 shares of our common stock, $0.0001 par value per share (the “Common Stock”) purchased in our private placement offering, which had multiple closings between November 27, 2019 and December 19, 2019 (the “December 2019 Private Placement”), consisting of (i) 1,903,382 shares of the registrant’s Common Stock issuable upon conversion of outstanding shares of Series A Convertible Preferred Stock; (ii) 1,284,400 shares of the registrant’s Common Stock issuable upon conversion of outstanding shares of Series A-1 Convertible Preferred Stock; (iii) 436,410 shares of the registrant’s Common Stock issuable upon conversion of outstanding shares of Series A-2 Convertible Preferred Stock; (iv) 901,284 shares of the registrant’s Common Stock issuable upon conversion of outstanding shares of Series A-3 Convertible Preferred Stock; and (v) 126,650 shares of the registrant’s Common Stock issuable upon conversion of outstanding shares of Series A-4 Convertible Preferred Stock. All of the shares, when sold, will be sold by these selling stockholders. The selling stockholders may sell their shares of Common Stock from time to time at prevailing market prices. We will not receive any proceeds from the sale of the shares of Common Stock by the selling stockholders.
| Common Stock Offered: | Up to 4,652,126 shares of common stock. | |
| Common Stock Outstanding at March 17, 2020: | 3,101,410 | |
| Use of Proceeds: | We will not receive any proceeds from the sale of the 4,652,126 shares of Common Stock subject to resale by the selling stockholders under this prospectus. | |
| Risk Factors: | An investment in the Common Stock offered under this prospectus is highly speculative and involves substantial risk. Please carefully consider the “Risk Factors” section and other information in this prospectus for a discussion of risks. Additional risks and uncertainties not presently known to us or that we currently deem to be immaterial may also impair our business and operations. | |
| Nasdaq Symbol: | DRIO |
| 3 |
An investment in our Common Stock involves significant risks. You should carefully consider the risk factors contained in any prospectus supplement and in our filings with the SEC, including our Annual Report on Form 10-K for the fiscal year ended December 31, 2019 as well as all of the information contained in this prospectus, any prospectus supplement and the documents incorporated by reference herein or therein, before you decide to invest in our Common Stock. Our business, prospects, financial condition and results of operations may be materially and adversely affected as a result of any of such risks. The value of our Common Stock could decline as a result of any of these risks. You could lose all or part of your investment in our Common Stock. Some of our statements in sections entitled “Risk Factors” are forward-looking statements. The risks and uncertainties we have described are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business, prospects, financial condition and results of operations.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement and the documents we incorporate by reference contain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 and other federal securities laws, regarding our business, clinical trials, financial condition, expenditures, results of operations and prospects. Words such as “expects,” “anticipates,” “intends,” “plans,” “planned expenditures,” “believes,” “seeks,” “estimates” and similar expressions or variations of such words are intended to identify forward-looking statements, but are not deemed to represent an all-inclusive means of identifying forward-looking statements as denoted in this prospectus, any prospectus supplement and the documents we incorporate by reference. Additionally, statements concerning future matters are forward-looking statements.
Although forward-looking statements in this prospectus, any prospectus supplement and the documents we incorporate by reference reflect the good faith judgment of our management, such statements can only be based on facts and factors known by us as of such date. Consequently, forward-looking statements are inherently subject to risks and uncertainties and actual results and outcomes may differ materially from the results and outcomes discussed in or anticipated by the forward-looking statements. Factors that could cause or contribute to such differences in results and outcomes include, without limitation, those specifically addressed under the heading “Risk Factors” herein and in the documents we incorporate by reference, as well as those discussed elsewhere in this prospectus and any prospectus supplement. Readers are urged not to place undue reliance on these forward-looking statements, which speak only as of the date of this prospectus, any prospectus supplement or the respective documents incorporated by reference, as applicable. Except as required by law, we undertake no obligation to revise or update any forward-looking statements in order to reflect any event or circumstance that may arise after the date of such forward-looking statements. Readers are urged to carefully review and consider the various disclosures made throughout the entirety of this prospectus, any prospectus supplement and the documents incorporated by reference, which attempt to advise interested parties of the risks and factors that may affect our business, financial condition, results of operations and prospects.
We will not receive any proceeds from the sale of the 4,652,126 shares of Common Stock subject to resale by the selling stockholders under this prospectus. We will incur all costs associated with the preparation and filing of the registration statement of which this prospectus is a part. Brokerage fees, commissions and similar expenses, if any, attributable to the sale of shares offered hereby will be borne by the applicable selling stockholders.
| 4 |
The shares of common stock being offered by the selling stockholders listed below (or their successors and assigns) were issued, or may be issued, as the case may be, in connection with our December 2019 Private Placement.
Between November 27, 2019 to December 19, 2019, we entered into subscription agreements with accredited investors relating to an offering and the sale of an aggregate of 8,361 shares of Series A Convertible Preferred Stock (convertible into 2,065,167 shares of Common Stock), with a conversion price of $4.05 per share, 5,200 shares of Series A-1 Convertible Preferred Stock (convertible into 1,284,400 shares of Common Stock), with a conversion price of $4.05 per share, 1,915 shares of Series A-2 Convertible Preferred Stock (convertible into 448,110 shares of Common Stock), with a conversion price of $4.28 per share, 5,154 shares of Series A-3 Convertible Preferred Stock (convertible into 1,035,954 shares of Common Stock), with a conversion price of $4.98 per share and 745 shares of Series A-4 Convertible Preferred Stock (convertible into 126,650 shares of Common Stock), with a conversion price of $5.90 per share. Aegis Capital Corp. served as the placement agent for this offering.
In connection with the December 2019 Private Placement we have agreed to file this registration statement covering the resale of the shares of Common Stock sold in the offering by March 18, 2020.
The Series A-1 Convertible Preferred Stock contains limitations that prevent the holder of any Series A-1 Convertible Preferred Stock from acquiring shares upon conversion of the Series A-1 Preferred Stock that would result in the number of shares beneficially owned by it and its affiliates exceeding 9.99% of the total number of shares of our Common Stock then issued and outstanding. The number of shares in the third column reflects this limitation. The selling stockholders may sell all, some or none of their shares in this offering. See “Plan of Distribution.”
Other than the relationships described herein, to our knowledge, none of the selling stockholders are employees or suppliers of ours or our affiliates. Within the past three years, other than the relationships described herein, none of the selling stockholders has held a position as an officer a director of ours, nor has any selling stockholder had any material relationship of any kind with us or any of our affiliates. All information with respect to share ownership has been furnished by the selling stockholders, unless otherwise noted. The shares being offered are being registered to permit public secondary trading of such shares and each selling stockholder may offer all or part of the shares it owns for resale from time to time pursuant to this prospectus. None of the selling stockholders has any family relationships with our officers, other directors or controlling stockholders.
Any selling stockholders who are affiliates of broker-dealers and any participating broker-dealers are deemed to be “underwriters” within the meaning of the Securities Act of 1933, as amended, or the Securities Act, and any commissions or discounts given to any such selling stockholder or broker-dealer may be regarded as underwriting commissions or discounts under the Securities Act.
The term “selling stockholders” also includes any transferees, pledgees, donees, or other successors in interest to the selling stockholders named in the table below. Unless otherwise indicated, to our knowledge, each person named in the table below has sole voting and investment power (subject to applicable community property laws) with respect to the shares of Common Stock set forth opposite such person’s name. We will file a supplement to this prospectus (or a post-effective amendment hereto, if necessary) to name successors to any named selling stockholders who are able to use this prospectus to resell the Common Stock registered hereby.
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| Name of Selling Stockholder | Shares Beneficially Owned Before the Offering (1) | Shares Beneficially Owned Before the Offering that are Issuable Upon the Exercise of Warrants or Options (1)(2) | Maximum Number of Shares to be Offered in the Offering | Number of Shares Beneficially Owned Immediately After Sale of Maximum Number of Shares in the Offering | |||||||||||
| # of Shares (1)(2) | % of Class (1)(2) | ||||||||||||||
| David Snazuk and Janet Snazuk (3) | 10,050 | - | 10,050 | - | - | ||||||||||
| Jeffrey Feingold and Barbara Feingold (4) | 123,500 | - | 123,500 | - | - | ||||||||||
| Alpha Capital Anstalt (5) | 141,652 | - | 100,500 | 41,152 | 1.33 | % | |||||||||
| Bart W. Silverman (6) | 20,390 | - | 20,390 | - | - | ||||||||||
| Daniel P. Hafeman (7) | 6,175 | - | 6,175 | - | - | ||||||||||
| Gil Sudai (8) | 10,540 | - | 8,040 | 2,500 | * | % | |||||||||
| GJG Life Sciences LLC (9) | 51,870 | - | 51,870 | - | - | ||||||||||
| Lee Christopher Brandon (10) | 14,820 | - | 14,820 | - | - | ||||||||||
| Lior Tamar Investments (11) | 123,500 | - | 123,500 | - | * | % | |||||||||
| Russel Linderman and Diane Linderman (12) | 1,700 | - | 1,700 | - | - | ||||||||||
| Sheer Roichman (13) | 74,100 | - | 74,100 | - | - | ||||||||||
| Steven Roy Bento (14) | 12,350 | - | 12,350 | - | - | ||||||||||
| Sunil Ravi (15) | 4,250 | - | 4,250 | - | - | ||||||||||
| The Bahr Family Limited Partnership (16) | 10,425 | - | 10,425 | - | - | ||||||||||
| The Roger C. Clarke Revocable Trust (17) | 3,705 | - | 3,705 | - | - | ||||||||||
| Veronica Marano & Thomas M. Volckening (18) | 5,850 | - | 5,850 | - | - | ||||||||||
| Aimee E. Coopersmith 2010 Trust (19) | 1,407 | - | 1,407 | - | - | ||||||||||
| Aimee Coopersmith and Felicidad Coopersmith (20) | 7,035 | - | 7,035 | - | - | ||||||||||
| C. James Prieur and Karen A. Prieur (21) | 24,700 | - | 24,700 | - | - | ||||||||||
| Charles Richard Scott (22) | 3,015 | - | 3,015 | - | - | ||||||||||
| Emircan Sahin (23) | 5,025 | - | 5,025 | - | - | ||||||||||
| GDR Associates GP (24) | 18,525 | - | 18,525 | - | - | ||||||||||
| Geoffrey Hoguet (25) | 40,200 | - | 40,200 | - | - | ||||||||||
| RBC Capital Markets LLC C/F Gregg D. Rock IRA (26) | 12,350 | - | 12,350 | - | - | ||||||||||
| Gregg D. Rock DPMPC Defined Benefit Plan (27) | 6,175 | - | 6,175 | - | - | ||||||||||
| Gregg D. Rock (28) | 126,650 | - | 126,650 | - | - | ||||||||||
| Iosif Kikirov (29) | 12,350 | - | 12,350 | - | - | ||||||||||
| Jamey Gelardi (30) | 5,025 | - | 5,025 | - | - | ||||||||||
| Arkad Holdings, LLC (31) | 20,100 | - | 20,100 | - | - | ||||||||||
| Joel Frank Henning (32) | 4,020 | - | 4,020 | - | - | ||||||||||
| 6 |
| Joel Yanowitz and Amy Metzenbaum 2003 Revocable Trust (33) | 9,880 | - | 9,880 | - | - | ||||||||||
| Michael G. Ginder (34) | 6,175 | - | 6,175 | - | - | ||||||||||
| Paul Bernard Herzoff (35) | 9,880 | - | 9,880 | - | - | ||||||||||
| Sakumzi Justice Macozoma (36) | 24,700 | - | 24,700 | - | - | ||||||||||
| Scott Minuta (37) | 12,350 | - | 12,350 | - | - | ||||||||||
| Adam Michael Hutt and Didi Hutt (38) | 12,350 | - | 12,350 | - | - | ||||||||||
| Advance Trust (39) | 11,700 | - | 11,700 | - | - | ||||||||||
| Ariel Jacob Bentata (40) | 12,350 | - | 12,350 | - | - | ||||||||||
| Vista Capital Investments, LLC (41) | 91,000 | - | 91,000 | - | - | ||||||||||
| Gary Kenneth Parsons (42) | 64,900 | - | 64,900 | - | - | ||||||||||
| George R. Murphy (43) | 15,075 | - | 15,075 | - | - | ||||||||||
| Hurricane Capital Management, LLC (44) | 4,250 | - | 4,250 | - | - | ||||||||||
| James P. Mahood (45) | 12,350 | - | 12,350 | - | - | ||||||||||
| Law Offices of Kenneth E. Chyten Defined Benefit Pension Plan (46) | 11,700 | - | 11,700 | - | - | ||||||||||
| Kurtis D. Hughes (47) | 6,175 | - | 6,175 | - | - | ||||||||||
| Ligi Investments, LLLP (48) | 23,400 | - | 23,400 | - | - | ||||||||||
| Mazen Hanna (49) | 48,100 | - | 48,100 | - | - | ||||||||||
| Melville Ezra Ingalls (50) | 7,410 | - | 7,410 | - | - | ||||||||||
| Moises Benzaquen (51) | 44,800 | - | 44,800 | - | - | ||||||||||
| Ralph Pawlick (52) | 5,025 | - | 5,025 | - | - | ||||||||||
| Robert Crames (53) | 12,350 | - | 12,350 | - | - | ||||||||||
| Rosen Family Trust (54) | 10,050 | - | 10,050 | - | - | ||||||||||
| John Scott Bradley and Jenny Elena Bradley (55) | 12,350 | - | 12,350 | - | - | ||||||||||
| Timothy John Rainey & Sianne Lousie Rainey JTWROS (56) | 9,880 | - | 9,880 | - | - | ||||||||||
| Chava Corporation (57) | 34,000 | - | 34,000 | - | - | ||||||||||
| Adrian Charles Kimberley (58) | 12,350 | - | 12,350 | - | - | ||||||||||
| Barbara McShane (59) | 20,100 | - | 20,100 | - | - | ||||||||||
| Cheryl Hintzen (60) | 10,920 | - | 10,920 | - | - | ||||||||||
| Clifford Degel (61) | 6,175 | - | 6,175 | - | - | ||||||||||
| Dale Myer (62) | 12,350 | - | 12,350 | - | - | ||||||||||
| Daniel Fagin (63) | 11,700 | - | 11,700 | - | - | ||||||||||
| Daniel S. Messina (64) | 12,350 | - | 12,350 | - | - | ||||||||||
| David S. Nagelberg 2003 Revocable Trust (65) | 48,100 | - | 48,100 | - | - | ||||||||||
| RBC Capital Markets LLC C/F Deborah Marshall Herzoff IRA (66) | 3,705 | - | 3,705 | - | - | ||||||||||
| Emerald Shoals Targeted Opportunities Fund, L.P. (67) | 201,000 | - | 201,000 | - | - | ||||||||||
| Frederick Cortese Donna Cortese (68) | 12,350 | - | 12,350 | - | - | ||||||||||
| Harold Stuart Gault (69) | 4,199 | - | 4,199 | - | - | ||||||||||
| Jaden T. Feldman Irrevocable Trust (70) | 6,175 | - | 6,175 | - | - | ||||||||||
| RBC Capital Markets LLC C/F James Alan Herzoff IRA (71) | 9,880 | - | 9,880 | - | - |
| 7 |
| RBC Capital Markets LLC C/F James Kononoff IRA (72) | 6,175 | - | 6,175 | - | - | ||||||||||
| Jason D. Klein (73) | 2,470 | - | 2,470 | - | - | ||||||||||
| Jasper M. Feldman Irrevocable Trust (74) | 6,175 | - | 6,175 | - | - | ||||||||||
| John V. Boulger (75) | 10,050 | - | 10,050 | - | - | ||||||||||
| Mara Roth (76) | 6,175 | - | 6,175 | - | - | ||||||||||
| Michael Evan Sokoloff (77) | 5,025 | - | 5,025 | - | - | ||||||||||
| Rexford Capital LLC (78) | 69,500 | - | 69,500 | - | - | ||||||||||
| SFS Growth Fund LLC (79) | 40,200 | - | 40,200 | - | - | ||||||||||
| Stephen E Smith (80) | 4,623 | - | 4,623 | - | - | ||||||||||
| Theodore J. Flocco Jr. (81) | 10,050 | - | 10,050 | - | - | ||||||||||
| Thomas A Masci Jr (82) | 49,400 | - | 49,400 | - | - | ||||||||||
| Thomas Richard Knoll (83) | 20,100 | - | 20,100 | - | - | ||||||||||
| Adolfo Carmona and Donna Carmona (84) | 48,100 | - | 48,100 | - | - | ||||||||||
| Andrew Fisher & Melissa Fisher JTWROS (85) | 9,360 | - | 9,360 | - | - | ||||||||||
| RBC Capital Markets LLC C/F Anthony Intenzo IRA (86) | 24,700 | - | 24,700 | - | - | ||||||||||
| Osher Capital Partners (87) | 50,367 | - | 40,200 | 10,167 | * | % | |||||||||
| Zemel Family Trust (88) | 12,025 | - | 12,025 | - | - | ||||||||||
| Bradley C. Karp and Belinda Karp (89) | 20,100 | - | 20,100 | - | - | ||||||||||
| Brian Feinglass (90) | 2,010 | - | 2,010 | - | - | ||||||||||
| Daniel B. Salvas (91) | 4,020 | - | 4,020 | - | - | ||||||||||
| College Trader Co. (92) | 12,350 | - | 12,350 | - | - | ||||||||||
| David Saferstein (93) | 12,350 | - | 12,350 | - | - | ||||||||||
| IRAR trust FBO David Murray 35-228877 (94) | 5,025 | - | 5,025 | - | - | ||||||||||
| Debra Reuben (95) | 23,400 | - | 23,400 | - | - | ||||||||||
| Donald P. Sesterhenn (96) | 6,175 | - | 6,175 | - | - | ||||||||||
| Erich J Weidenbener (97) | 4,020 | - | 4,020 | - | - | ||||||||||
| Garth Neil McVicar (98) | 23,504 | - | 23,504 | - | - | ||||||||||
| Greg Jillings (99) | 46,800 | - | 46,800 | - | - | ||||||||||
| Hans Joachim Ditmar Weber (100) | 7,410 | - | 7,410 | - | - | ||||||||||
| Ian R. Miller and Lynne D. Miller (101) | 10,050 | - | 10,050 | - | - | ||||||||||
| Isaac H. Isakow and Jennifer L. Isakow, as Trustees of the Isaac H. Isakow & Jennifer L. Isakow Family 2014 Revocable Living Trust (102) | 61,750 | - | 61,750 | - | - | ||||||||||
| Jacqueline Eubany (103) | 5,025 | - | 5,025 | - | - | ||||||||||
| JAPS Capital LLC (104) | 9,880 | - | 9,880 | - | - | ||||||||||
| Jeffrey Dalgety Christensen and Diane Jill Christensen (105) | 20,100 | - | 20,100 | - | - | ||||||||||
| John C. Yandle (106) | 23,400 | - | 23,400 | - | - | ||||||||||
| Joseph Benjamin Broudy (107) | 5,025 | - | 5,025 | - | - | ||||||||||
| Lester Petracca (108) | 61,750 | - | 61,750 | - | - | ||||||||||
| Mark D. Dwen (109) | 35,460 | - | 35,460 | - | - | ||||||||||
| Matthew Grodin (110) | 5,850 | - | 5,850 | - | - | ||||||||||
| Michael James Cutler (111) | 5,025 | - | 5,025 | - | - | ||||||||||
| Michele L. Simon (112) | 2,340 | - | 2,340 | - | - | ||||||||||
| Philip David Adelson (113) | 6,175 | - | 6,175 | - | - |
| 8 |
| Philip Koren (114) | 42,500 | - | 42,500 | - | - | ||||||||||
| Preston Edward Cloke (115) | 9,880 | - | 9,880 | - | - | ||||||||||
| Ramjet Capital, LTD (116) | 12,350 | - | 12,350 | - | - | ||||||||||
| RBC Capital Markets LLC C/F Ronald D. Wenger IRA (117) | 4,940 | - | 4,940 | - | - | ||||||||||
| Terence Oi (118) | 5,025 | - | 5,025 | - | - | ||||||||||
| RBC Capital Markets LLC C/F William J. Cook IRA (119) | 6,175 | - | 6,175 | - | - | ||||||||||
| Antonyk Ter-Gevondyan (120) | 4,940 | - | 4,940 | - | - | ||||||||||
| The Samantha M. Feingold 2014 Irrevocable Trust B (121) | 123,500 | - | 123,500 | - | - | ||||||||||
| William Havlik & Deborah Havlik (122) | 7,410 | - | 7,410 | - | - | ||||||||||
| Tarad Family Trust (123) | 49,400 | - | 49,400 | - | - | ||||||||||
| Stephen R Shumpert (124) | 48,100 | - | 48,100 | - | - | ||||||||||
| Robert Mark Franklin Brawn (125) | 20,850 | - | 20,850 | - | - | ||||||||||
| The Robert L. Bahr Revocable Trust (126) | 6,175 | - | 6,175 | - | - | ||||||||||
| Ira Kalfus (127) | 6,800 | - | 6,800 | - | - | ||||||||||
| John Alexander Palesty (128) | 18,525 | - | 18,525 | - | - | ||||||||||
| Radha Freese (129) | 28,743 | - | 28,743 | - | - | ||||||||||
| Duane Blech and Andrea Blech, Trustees of the Duane and Andrea Blech Revocable Trust dated August 10, 2005, and any amendments thereto (130) | 12,350 | - | 12,350 | - | - | ||||||||||
| Clayton A. Struve (131) | 61,750 | - | 61,750 | - | - | ||||||||||
| David John DiQuollo (132) | 5,025 | - | 5,025 | - | - | ||||||||||
| RBC Capital Markets LLC C/F Gregory Kenneth Lewis IRA (133) | 6,175 | - | 6,175 | - | - | ||||||||||
| John Ferguson Leslie (134) | 57,200 | - | 57,200 | - | - | ||||||||||
| Jonathan Kui (135) | 58,500 | - | 58,500 | - | - | ||||||||||
| Kirsten Lewis (136) | 6,175 | - | 6,175 | - | - | ||||||||||
| Lesmar Investments Pty Ltd. as Trustee for Lesmar Family Trust (137) | 37,050 | - | 37,050 | - | - | ||||||||||
| Manny Family Revocable Trust (138) | 7,410 | - | 7,410 | - | - | ||||||||||
| Matthew (Mehdi) Mohebbi (139) | 7,410 | - | 7,410 | - | - | ||||||||||
| Patrick deCavaignac (140) | 12,350 | - | 12,350 | - | - | ||||||||||
| Richard Thomas Loffer (141) | 13,280 | - | 13,280 | - | - | ||||||||||
| Safika US, Inc. (142) | 61,750 | - | 61,750 | - | - | ||||||||||
| RBC Capital Markets LLC C/F Vivian Turner IRA (143) | 6,175 | - | 6,175 | - | - | ||||||||||
| Scorpio Investments (A.W) Ltd. (144) | 10,050 | - | 10,050 | - | - | ||||||||||
| Foriland Investments Ltd. (145) | 23,400 | - | 23,400 | - | - | ||||||||||
| First Riverside Investors LP (146) | 24,700 | - | 24,700 | - | - | ||||||||||
| Gary Lee Gettelfinger (147) | 13,585 | - | 13,585 | - | - | ||||||||||
| Niraj Ashu Gupta (148) | 23,400 | - | 23,400 | - | - | ||||||||||
| NCL QR LP (149) (150) | 90,994 | 54,078 | 83,980 | 61,092 | 1.94 | % |
| 9 |
| Nantahala Capital Partners SI, LP (149) (151) | 760,903 | 207,779 | 652,327 | 316,355 | 9.56 | % | |||||||||
| Blackwell Partners LLC – Series A (149) (152) | 219,314 | 80,385 | 184,509 | 115,190 | 3.62 | % | |||||||||
| Silver Creek CS SAV, L.L.C. (149) (153) | 73,053 | 26,410 | 60,268 | 39,195 | 1.25 | % | |||||||||
| Nantahala Capital Partners II Limited Partnership (149) (154) | 253,274 | 102,846 | 218,595 | 137,525 | 4.29 | % | |||||||||
| Nantahala Capital Partners Limited Partnership (149) (155) | 100,953 | 37,285 | 84,721 | 53,517 | 1.94 | % |
* less than 1%
| (1) | Beneficial ownership is determined in accordance with SEC rules and generally includes voting or investment power with respect to securities. Shares of Common Stock subject to warrants currently exercisable, or exercisable within 60 days of March 17, 2020, are counted as outstanding for computing the percentage of the selling stockholder holding such options or warrants but are not counted as outstanding for computing the percentage of any other selling stockholder. Notwithstanding the foregoing, certain selling stockholders may not have voting or investment power over such shares, and therefore may not beneficially own such shares, due to their inability to exercise warrants or convert shares of preferred stock as a result of certain contractual beneficial ownership limitations contained therein. |
| (2) | Assumes all of the shares of Common Stock offered are sold. Percentage ownership is based on 3,101,410 shares of Common Stock issued and outstanding on March 17, 2020. |
| (3) | Consists of 10,050 shares of Common Stock underlying 50 shares of Series A-3 Preferred Stock. |
| (4) | Consists of 123,500 shares of Common Stock underlying 500 shares of Series A Preferred Stock. |
| (5) | Consists of (i) 41,152 shares of Common Stock, (ii) 100,500 shares of Common Stock underlying 500 shares of Series A-3 Preferred Stock. Konrad Ackermann has voting and dispositive power over our shares held by the selling stockholder. |
| (6) | Consists of (i) 12,350 shares of Common Stock underlying 50 shares of Series A Preferred Stock and (ii) 8,040 shares of Common Stock underlying 40 shares of Series A-3 Preferred Stock |
| (7) | Consists of 6,175 shares of Common Stock underlying 25 shares of Series A Preferred Stock. |
| (8) | Consists of (i) 2,500 shares of Common Stock and (ii) 8,040 shares of Common Stock underlying 40 shares of Series A-3 Preferred Stock. |
| (9) | Consists of 51,870 shares of Common Stock underlying 210 shares of Series A Preferred Stock. Jennifer Lorenzo has voting and dispositive power over our shares held by the selling stockholder. |
| (10) | Consists of 14,820 shares of Common Stock underlying 60 shares of Series A Preferred Stock. |
| (11) | Consists of 123,500 shares of Common Stock underlying 500 shares of Series A Preferred Stock. Lior Tamar Investments has voting and dispositive power over our shares held by the selling stockholder. |
| (12) | Consists of 1,700 shares of Common Stock underlying 10 shares of Series A-4 Preferred Stock. |
| (13) | Consists of 74,100 shares of Common Stock underlying 300 shares of Series A Preferred Stock. |
| (14) | Consists of 12,350 shares of Common Stock underlying 50 shares of Series A Preferred Stock. |
| (15) | Consists of 4,250 shares of Common Stock underlying 25 shares of Series A-4 Preferred Stock. |
| (16) | Consists of (i) 6,175 shares of Common Stock underlying 25 shares of Series A Preferred Stock and (ii) 4,250 shares of Common Stock underlying 25 shares of Series A-4 Preferred Stock. Robert Lawrence Bahr has voting and dispositive power over our shares held by the selling stockholder. |
| (17) | Consists of 3,705 shares of Common Stock underlying 15 shares of Series A Preferred Stock. Roger C. Clarke has voting and dispositive power over our shares held by the selling stockholder. |
| (18) | Consists of 5,850 shares of Common Stock underlying 25 shares of Series A-2 Preferred Stock. |
| (19) | Consists of 1,407 shares of Common Stock underlying 7 shares of Series A-3 Preferred Stock. Jeffrey S. Coopersmith has voting and dispositive power over our shares held by the selling stockholder. |
| (20) | Consists of 7,035 shares of Common Stock underlying 35 shares of Series A-3 Preferred Stock. |
| (21) | Consists of 24,700 shares of Common Stock underlying 100 shares of Series A Preferred Stock. |
| (22) | Consists of 3,015 shares of Common Stock underlying 15 shares of Series A-3 Preferred Stock. |
| (23) | Consists of 5,025 shares of Common Stock underlying 25 shares of Series A-3 Preferred Stock. |
| (24) | Consists of 18,525 shares of Common Stock underlying 75 shares of Series A Preferred Stock. Jeffrey S. Coopersmith has voting and dispositive power over our shares held by the selling stockholder. |
| (25) | Consists of 40,200 shares of Common Stock underlying 200 shares of Series A-3 Preferred Stock. |
| (26) | Consists of 12,350 shares of Common Stock underlying 50 shares of Series A Preferred Stock. Gregg D. Rock has voting and dispositive power over our shares held by the selling stockholder. |
| 10 |
| (27) | Consists of 6,175 shares of Common Stock underlying 25 shares of Series A Preferred Stock. Gregg D. Rock has voting and dispositive power over our shares held by the selling stockholder. |
| (28) | Consists of (i) 86,450 shares of Common Stock underlying 350 shares of Series A and (ii) 40,200 shares of Common Stock underlying 200 shares of Series A-3 Preferred Stock. |
| (29) | Consists of 12,350 shares of Common Stock underlying 50 shares of Series A Preferred Stock. |
| (30) | Consists of 5,025 shares of Common Stock underlying 25 shares of Series A-3 Preferred Stock. |
| (31) | Consists of 20,100 shares of Common Stock underlying 100 shares of Series A-3 Preferred Stock. Joel Bary has voting and dispositive power over our shares held by the selling stockholder. |
| (32) | Consists of 4,020 shares of Common Stock underlying 20 shares of Series A-3 Preferred Stock. |
| (33) | Consists of 9,880 shares of Common Stock underlying 40 shares of Series A Preferred Stock. Joel Yanowitz has voting and dispositive power over our shares held by the selling stockholder. |
| (34) | Consists of 6,175 shares of Common Stock underlying 25 shares of Series A Preferred Stock. |
| (35) | Consists of 9,880 shares of Common Stock underlying 40 shares of Series A Preferred Stock. |
| (36) | Consists of 24,700 shares of Common Stock underlying 100 shares of Series A Preferred Stock. |
| (37) | Consists of 12,350 shares of Common Stock underlying 50 shares of Series A Preferred Stock. |
| (38) | Consists of 12,350 shares of Common Stock underlying 50 shares of Series A Preferred Stock. |
| (39) | Consists of 11,700 shares of Common Stock underlying 50 shares of Series A-2 Preferred Stock. Craig Lawrence Whale has voting and dispositive power over our shares held by the selling stockholder. |
| (40) | Consists of 12,350 shares of Common Stock underlying 50 shares of Series A Preferred Stock. |
| (41) | Consists of (i) 61,750 shares of Common Stock underlying 250 shares of Series A Preferred Stock and (ii) 29,250 shares of Common Stock underlying 125 shares of Series A-2 Preferred Stock. David Clark has voting and dispositive power over our shares held by the selling stockholder. |
| (42) | Consists of (i) 24,700 shares of Common Stock underlying 100 shares of Series A Preferred Stock and (ii) 42,200 shares of Common Stock underlying 200 shares of Series A-3 Preferred Stock. |
| (43) | Consists of 15,075 shares of Common Stock underlying 75 shares of Series A-3 Preferred Stock. |
| (44) | Consists of 4,250 shares of Common Stock underlying 25 shares of Series A-4 Preferred Stock. Brian Feinglass has voting and dispositive power over our shares held by the selling stockholder. |
| (45) | Consists of 12,350 shares of Common Stock underlying 50 shares of Series A Preferred Stock. |
| (46) | Consists of 11,700 shares of Common Stock underlying 50 shares of Series A-2 Preferred Stock. Kenneth E. Chyten has voting and dispositive power over our shares held by the selling stockholder. |
| (47) | Consists of 6,175 shares of Common Stock underlying 25 shares of Series A Preferred Stock. |
| (48) | Consists of 23,400 shares of Common Stock underlying 100 shares of Series A-2 Preferred Stock. Jennifer Ligeti has voting and dispositive power over our shares held by the selling stockholder. |
| (49) | Consists of (i) 24,700 shares of Common Stock underlying 100 shares of Series A Preferred Stock and (ii) 23,400 shares of Common Stock underlying 100 shares of Series A-2 Preferred Stock. |
| (50) | Consists of 7,410 shares of Common Stock underlying 30 shares of Series A Preferred Stock. |
| (51) | Consists of (i) 24,700 shares of Common Stock underlying 100 shares of Series A Preferred Stock and (ii) 20,100 shares of Common Stock underlying 100 shares of Series A-3 Preferred Stock. |
| (52) | Consists of 5,025 shares of Common Stock underlying 25 shares of Series A-3 Preferred Stock. |
| (53) | Consists of 12,350 shares of Common Stock underlying 50 shares of Series A Preferred Stock. |
| (54) | Consists of 10,050 shares of Common Stock underlying 50 shares of Series A-3 Preferred Stock. David K. Rosen has voting and dispositive power over our shares held by the selling stockholder. |
| (55) | Consists of 12,350 shares of Common Stock underlying 50 shares of Series A Preferred Stock. |
| (56) | Consists of 9,880 shares of Common Stock underlying 40 shares of Series A Preferred Stock. |
| (57) | Consists of 34,000 shares of Common Stock underlying 200 shares of Series A-4 Preferred Stock. Vineeta Ahooja has voting and dispositive power over our shares held by the selling stockholder. |
| (58) | Consists of 12,350 shares of Common Stock underlying 50 shares of Series A Preferred Stock. |
| (59) | Consists of 20,100 shares of Common Stock underlying 100 shares of Series A-3 Preferred Stock. |
| (60) | Consists of (i) 7,410 shares of Common Stock underlying 30 shares of Series A Preferred Stock and (ii) 3,510 shares of Common Stock underlying 15 shares of Series A-2 Preferred Stock. |
| (61) | Consists of 6,175 shares of Common Stock underlying 25 shares of Series A Preferred Stock. |
| (62) | Consists of 12,350 shares of Common Stock underlying 50 shares of Series A Preferred Stock. |
| (63) | Consists of 11,700 shares of Common Stock underlying 50 shares of Series A-2 Preferred Stock. |
| (64) | Consists of 12,350 shares of Common Stock underlying 50 shares of Series A Preferred Stock. |
| 11 |
| (65) | Consists of (i) 24,700 shares of Common Stock underlying 100 shares of Series A Preferred Stock and (ii) 23,400 shares of Common Stock underlying 100 shares of Series A-2 Preferred Stock. David S. Nagelberg has voting and dispositive power over our shares held by the selling stockholder. |
| (66) | Consists of 3,705 shares of Common Stock underlying 15 shares of Series A Preferred Stock. Deborah Marshall Herzoff has voting and dispositive power over our shares held by the selling stockholder. |
| (67) | Consists of 201,000 shares of Common Stock underlying 1000 shares of Series A-3 Preferred Stock. Michael Layman has voting and dispositive power over our shares held by the selling stockholder. |
| (68) | Consists of 12,350 shares of Common Stock underlying 50 shares of Series A Preferred Stock. |
| (69) | Consists of 4,199 shares of Common Stock underlying 17 shares of Series A Preferred Stock. |
| (70) | Consists of 6,175 shares of Common Stock underlying 25 shares of Series A Preferred Stock. Allison D. Feldman has voting and dispositive power over our shares held by the selling stockholder. |
| (71) | Consists of 9,880 shares of Common Stock underlying 40 shares of Series A Preferred Stock. James Alan Herzoff has voting and dispositive power over our shares held by the selling stockholder. |
| (72) | Consists of 6,175 shares of Common Stock underlying 25 shares of Series A Preferred Stock. James Kononoff has voting and dispositive power over our shares held by the selling stockholder. |
| (73) | Consists of 2,470 shares of Common Stock underlying 10 shares of Series A Preferred Stock. |
| (74) | Consists of 6,175 shares of Common Stock underlying 25 shares of Series A Preferred Stock. Allison D. Feldman has voting and dispositive power over our shares held by the selling stockholder. |
| (75) | Consists of 10,050 shares of Common Stock underlying 50 shares of Series A-3 Preferred Stock. |
| (76) | Consists of 6,175 shares of Common Stock underlying 25 shares of Series A Preferred Stock. |
| (77) | Consists of 5,025 shares of Common Stock underlying 25 shares of Series A-3 Preferred Stock. |
| (78) | Consists of (i) 49,400 shares of Common Stock underlying 200 shares of Series A Preferred Stock and (ii) 20,100 shares of Common Stock underlying 100 shares of Series A-3 Preferred Stock. Kimberly Langston has voting and dispositive power over our shares held by the selling stockholder. |
| (79) | Consists of 40,200 shares of Common Stock underlying 200 shares of Series A-3 Preferred Stock. Spencer F. Segura has voting and dispositive power over our shares held by the selling stockholder. |
| (80) | Consists of 4,623 shares of Common Stock underlying 23 shares of Series A-3 Preferred Stock. |
| (81) | Consists of 10,050 shares of Common Stock underlying 50 shares of Series A-3 Preferred Stock. |
| (82) | Consists of 49,400 shares of Common Stock underlying 200 shares of Series A Preferred Stock. |
| (83) | Consists of 20,100 shares of Common Stock underlying 100 shares of Series A-3 Preferred Stock. |
| (84) | Consists of (i) 24,700 shares of Common Stock underlying 100 shares of Series A Preferred Stock and (ii) 23,400 shares of Common Stock underlying 100 shares of Series A-2 Preferred Stock. |
| (85) | Consists of 9,360 shares of Common Stock underlying 40 shares of Series A-2 Preferred Stock. |
| (86) | Consists of 24,700 shares of Common Stock underlying 100 shares of Series A Preferred Stock. Anthony Intenzo has voting and dispositive power over our shares held by the selling stockholder. |
| (87) | Consists of (i) 10,167 shares of Common Stock and (ii) 40,200 shares of Common Stock underlying 200 shares of Series A-3 Preferred Stock. Ari Kluger has voting and dispositive power over our shares held by the selling stockholder. |
| (88) | Consists of (i) 6,175 shares of Common Stock underlying 25 shares of Series A Preferred Stock and (ii) 5,850 shares of Common Stock underlying 25 shares of Series A-2 Preferred Stock. Barry Zemel has voting and dispositive power over our shares held by the selling stockholder. |
| (89) | Consists of 20,100 shares of Common Stock underlying 100 shares of Series A-3 Preferred Stock. |
| (90) | Consists of 2,010 shares of Common Stock underlying 10 shares of Series A-3 Preferred Stock. |
| (91) | Consists of 4,020 shares of Common Stock underlying 20 shares of Series A-3 Preferred Stock. |
| (92) | Consists of 12,350 shares of Common Stock underlying 50 shares of Series A Preferred Stock. Daniel Feigenbaum has voting and dispositive power over our shares held by the selling stockholder. |
| (93) | Consists of 12,350 shares of Common Stock underlying 50 shares of Series A Preferred Stock. |
| (94) | Consists of 5,025 shares of Common Stock underlying 25 shares of Series A-3 Preferred Stock. David Murray has voting and dispositive power over our shares held by the selling stockholder. |
| (95) | Consists of 23,400 shares of Common Stock underlying 100 shares of Series A-2 Preferred Stock. |
| (96) | Consists of 6,175 shares of Common Stock underlying 25 shares of Series A Preferred Stock. |
| (97) | Consists of 4,020 shares of Common Stock underlying 20 shares of Series A-3 Preferred Stock. |
| (98) | Consists of (i) 18,278 shares of Common Stock underlying 74 shares of Series A Preferred Stock and (ii) 5,226 shares of Common Stock underlying 26 shares of Series A-3 Preferred Stock. |
| (99) | Consists of 46,800 shares of Common Stock underlying 200 shares of Series A-2 Preferred Stock. |
| (100) | Consists of 7,410 shares of Common Stock underlying 30 shares of Series A Preferred Stock. |
| 12 |
| (101) | Consists of 10,050 shares of Common Stock underlying 50 shares of Series A-3 Preferred Stock. |
| (102) | Consists of 61,750 shares of Common Stock underlying 250 shares of Series A Preferred Stock. Isaac Hylton Isakow and Jennifer Lynn Isakow has voting and dispositive power over our shares held by the selling stockholder. |
| (103) | Consists of 5,025 shares of Common Stock underlying 25 shares of Series A-3 Preferred Stock. |
| (104) | Consists of 9,880 shares of Common Stock underlying 40 shares of Series A Preferred Stock. Sanitago Albanese has voting and dispositive power over our shares held by the selling stockholder. |
| (105) | Consists of 20,100 shares of Common Stock underlying 100 shares of Series A-3 Preferred Stock. |
| (106) | Consists of 23,400 shares of Common Stock underlying 100 shares of Series A-2 Preferred Stock. |
| (107) | Consists of 5,025 shares of Common Stock underlying 25 shares of Series A-3 Preferred Stock. |
| (108) | Consists of 61,750 shares of Common Stock underlying 250 shares of Series A Preferred Stock. |
| (109) | Consists of (i) 12,060 shares of Common Stock underlying 60 shares of Series A-3 Preferred Stock and (ii) 23,400 shares of Common Stock underlying 100 shares of Series A-2 Preferred Stock. |
| (110) | Consists of 5,850 shares of Common Stock underlying 25 shares of Series A-2 Preferred Stock. |
| (111) | Consists of 5,025 shares of Common Stock underlying 25 shares of Series A-3 Preferred Stock. |
| (112) | Consists of 2,340 shares of Common Stock underlying 10 shares of Series A-2 Preferred Stock. |
| (113) | Consists of 6,175 shares of Common Stock underlying 25 shares of Series A Preferred Stock. |
| (114) | Consists of 42,500 shares of Common Stock underlying 250 shares of Series A-4 Preferred Stock. |
| (115) | Consists of 9,880 shares of Common Stock underlying 40 shares of Series A Preferred Stock. |
| (116) | Consists of 12,350 shares of Common Stock underlying 50 shares of Series A Preferred Stock. Carrie R. Williams has voting and dispositive power over our shares held by the selling stockholder. |
| (117) | Consists of 4,940 shares of Common Stock underlying 20 shares of Series A Preferred Stock. Ronald D. Wenger has voting and dispositive power over our shares held by the selling stockholder. |
| (118) | Consists of 5,025 shares of Common Stock underlying 25 shares of Series A-3 Preferred Stock. |
| (119) | Consists of 6,175 shares of Common Stock underlying 25 shares of Series A Preferred Stock. William J. Cook has voting and dispositive power over our shares held by the selling stockholder. |
| (120) | Consists of 4,940 shares of Common Stock underlying 20 shares of Series A Preferred Stock. |
| (121) | Consists of 123,500 shares of Common Stock underlying 500 shares of Series A Preferred Stock. Steven Moss has voting and dispositive power over our shares held by the selling stockholder. |
| (122) | Consists of 7,410 shares of Common Stock underlying 30 shares of Series A Preferred Stock. |
| (123) | Consists of 49,400 shares of Common Stock underlying 200 shares of Series A Preferred Stock. Simon Peter Barnes has voting and dispositive power over our shares held by the selling stockholder. |
| (124) | Consists of (i) 24,700 shares of Common Stock underlying 100 shares of Series A Preferred Stock and (ii) 23,400 shares of Common Stock underlying 100 shares of Series A-2 Preferred Stock. |
| (125) | Consists of (i) 12,350 shares of Common Stock underlying 50 shares of Series A Preferred Stock and (ii) 8,500 shares of Common Stock underlying 50 shares of Series A-4 Preferred Stock. |
| (126) | Consists of 6,175 shares of Common Stock underlying 25 shares of Series A Preferred Stock. Robert Lawrence Bahr has voting and dispositive power over our shares held by the selling stockholder. |
| (127) | Consists of 6,800 shares of Common Stock underlying 40 shares of Series A-4 Preferred Stock. |
| (128) | Consists of 18,525 shares of Common Stock underlying 75 shares of Series A Preferred Stock. |
| (129) | Consists of 28,743 shares of Common Stock underlying 143 shares of Series A-3 Preferred Stock. |
| (130) | Consists of 12,350 shares of Common Stock underlying 50 shares of Series A Preferred Stock. Duane Blech and Andrea Blech has voting and dispositive power over our shares held by the selling stockholder. |
| (131) | Consists of 61,750 shares of Common Stock underlying 250 shares of Series A Preferred Stock. |
| (132) | Consists of 5,025 shares of Common Stock underlying 25 shares of Series A-3 Preferred Stock. |
| (133) | Consists of 6,175 shares of Common Stock underlying 25 shares of Series A Preferred Stock. Gregory Kenneth Lewis has voting and dispositive power over our shares held by the selling stockholder. |
| (134) | Consists of (i) 40,200 shares of Common Stock underlying 200 shares of Series A-3 Preferred Stock and (ii) 17,000 shares of Common Stock underlying 100 shares of Series A-4 Preferred Stock. |
| (135) | Consists of 58,500 shares of Common Stock underlying 250 shares of Series A-2 Preferred Stock. |
| (136) | Consists of 6,175 shares of Common Stock underlying 25 shares of Series A Preferred Stock. |
| (137) | Consists of 37,050 shares of Common Stock underlying 150 shares of Series A Preferred Stock. Marc Ber has voting and dispositive power over our shares held by the selling stockholder. |
| (138) | Consists of 7,410 shares of Common Stock underlying 30 shares of Series A Preferred Stock. Benjamin L. Manny, Jr. has voting and dispositive power over our shares held by the selling stockholder. |
| (139) | Consists of 7,410 shares of Common Stock underlying 30 shares of Series A Preferred Stock. |
| 13 |
| (140) | Consists of 12,350 shares of Common Stock underlying 50 shares of Series A Preferred Stock. |
| (141) |
Consists of (i) 9,880 shares of Common Stock underlying 40 shares of Series A Preferred Stock and (ii) 3,400 shares of Common Stock underlying 20 shares of Series A-4 Preferred Stock. |
| (142) | Consists of 61,750 shares of Common Stock underlying 250 shares of Series A Preferred Stock. Marc Ber has voting and dispositive power over our shares held by the selling stockholder. |
| (143) | Consists of 6,175 shares of Common Stock underlying 25 shares of Series A Preferred Stock. Vivian Turner has voting and dispositive power over our shares held by the selling stockholder. |
| (144) | Consists of 10,050 shares of Common Stock underlying 50 shares of Series A-3 Preferred Stock. Arie Weber has voting and dispositive power over our shares held by the selling stockholder. |
| (145) | Consists of 23,400 shares of Common Stock underlying 100 shares of Series A-2 Preferred Stock. |
| (146) | Consists of 24,700 shares of Common Stock underlying 100 shares of Series A Preferred Stock. Stephen Bolduc has voting and dispositive power over our shares held by the selling stockholder. |
| (147) | Consists of 13,585 shares of Common Stock underlying 55 shares of Series A Preferred Stock. |
| (148) | Consists of 23,400 shares of Common Stock underlying 100 shares of Series A-2 Preferred Stock. |
| (149) | Nantahala Capital Management, LLC is a Registered Investment Adviser and has been delegated the legal power to vote and/or direct the disposition of such securities on behalf of the selling stockholder as a General Partner or Investment Manager and would be considered the beneficial owner of such securities. The above shall not be deemed to be an admission by the record owners or the selling stockholder that they are themselves beneficial owners of these securities for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, or any other purpose. Wilmot Harkey and Daniel Mack are managing members of Nantahala Capital Management, LLC and may be deemed to have voting and dispositive power over the shares held by the selling stockholder. Each selling stockholder’s warrants contain a contractual beneficial ownership limitation of 9.99% and each selling stockholder’s Series A-1 Preferred Stock contain a contractual beneficial ownership limitation of 4.9%. Due to contractual beneficial ownership limitations for such selling stockholder's warrants and Series A-1 Preferred Stock, the "% of Class" calculations contained in the table above are not reflective of the actual beneficial ownership of such selling stockholder (or such person or persons as have been delegated voting and investment power on behalf of such selling stockholder.) |
| (150) | Consists of (i) 7,014 shares of Common Stock, (ii) 54,078 shares of Common Stock underlying warrants and (iii) 83,980 shares of Common Stock underlying 340 shares of Series A-1 Preferred Stock. |
| (151) | Consists of (i) 108,576 shares of Common Stock, (ii) 207,779 shares of Common Stock underlying warrants and (iv) 652,327 shares of Common Stock underlying 2,641 shares of Series A-1 Preferred Stock. |
| (152) | Consists of (i) 34,805 shares of Common Stock, (ii) 80,385 shares of Common Stock underlying warrants and (iv) 184,509 shares of Common Stock underlying 747 shares of Series A-1 Preferred Stock. |
| (153) | Consists of (i) 12,785 shares of Common Stock, (ii) 26,410 shares of Common Stock underlying warrants and (iii) 60,268 shares of Common Stock underlying 244 shares of Series A-1 Preferred Stock. |
| (154) | Consists of (i) 34,679 shares of Common Stock, (ii) 102,846 shares of Common Stock underlying warrants and (iv) 218,595 shares of Common Stock underlying 885 shares of Series A-1 Preferred Stock. |
| (155) | Consists of (i) 16,232 shares of Common Stock, (ii) 37,285 shares of Common Stock underlying warrants and (iv) 84,721 shares of Common Stock underlying 343 shares of Series A-1 Preferred Stock. |
We may require the selling stockholders to suspend the sales of the Common Stock offered by this prospectus upon the occurrence of any event that makes any statement in this prospectus or the related registration statement untrue in any material respect or that requires the changing of statements in these documents in order to make statements in those documents not misleading.
Information concerning additional selling stockholders not identified in this prospectus will be set forth in prospectus supplements from time to time, if and as required. Information concerning the selling stockholders may change from time to time and any changed information will be set forth in prospectus supplements if and when necessary.
The selling stockholders, and their pledgees, donees, transferees or other successors in interest, may from time to time offer and sell, separately or together, some or all of the shares of Common Stock, or the securities, covered by this prospectus. Registration of the securities covered by this prospectus does not mean, however, that those securities necessarily will be offered or sold.
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The securities covered by this prospectus may be sold from time to time, at market prices prevailing at the time of sale, at prices related to market prices, at a fixed price or prices subject to change or at negotiated prices, by a variety of methods including the following:
| · | in the Nasdaq Capital Market; |
| · | in privately negotiated transactions; |
| · | through broker-dealers, who may act as agents or principals; |
| · | through one or more underwriters on a firm commitment or best-efforts basis; |
| · | in a block trade in which a broker-dealer will attempt to sell a block of securities as agent but may position and resell a portion of the block as principal to facilitate the transaction; |
| · | directly to one or more purchasers; |
| · | through agents; or |
| · | in any combination of the above. |
In effecting sales, brokers or dealers engaged by the selling stockholders may arrange for other brokers or dealers to participate. Broker-dealer transactions may include:
| · | purchases of the securities by a broker-dealer as principal and resales of the securities by the broker-dealer for its account pursuant to this prospectus; |
| · | ordinary brokerage transactions; or |
| · | transactions in which the broker-dealer solicits purchasers on a best efforts basis. |
To our knowledge, the selling stockholders have not entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding the sale of the securities covered by this prospectus. At any time a particular offer of the securities covered by this prospectus is made, a revised prospectus or prospectus supplement, if required, will be distributed which will set forth the aggregate amount of securities covered by this prospectus being offered and the terms of the offering, including the name or names of any underwriters, dealers, brokers or agents. In addition, to the extent required, any discounts, commissions, concessions and other items constituting underwriters’ or agents’ compensation, as well as any discounts, commissions or concessions allowed or reallowed or paid to dealers, will be set forth in such revised prospectus supplement. Any such required prospectus supplement, and, if necessary, a post-effective amendment to the registration statement of which this prospectus is a part, will be filed with the SEC to reflect the disclosure of additional information with respect to the distribution of the securities covered by this prospectus.
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Zysman, Aharoni, Gayer and Sullivan & Worcester LLP, New York, New York, passed upon the validity of the shares of Common Stock that may be offered hereby.
The consolidated financial statements of DarioHealth Corp. at December 31, 2019 and 2018, and for each of the two years in the period ended December 31, 2019, incorporated by reference in this prospectus have been audited by Kost Forer Gabbay & Kasierer, a member of Ernst & Young Global, independent registered public accounting firm, as set forth in their report thereon (which contains an explanatory paragraph describing conditions that raise substantial doubt about our ability to continue as a going concern as described in Note 1c to the consolidated financial statements) appearing elsewhere herein, and are included in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the reporting and information requirements of the Exchange Act and as a result file periodic reports and other information with the SEC. These periodic reports and other information will be available for inspection and copying at the SEC’s public reference room and the website of the SEC referred to below. We also make available on our website under “Investors/Filings,” free of charge, our proxy statements, annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to those reports as soon as reasonably practicable after we electronically file such materials with or furnish them to the SEC. Our website address is www.mydario.com. This reference to our website is an inactive textual reference only, and is not a hyperlink. The contents of our website are not part of this prospectus, and you should not consider the contents of our website in making an investment decision with respect to the Common Stock offered hereby.
We have filed a registration statement on Form S-3 under the Securities Act with the SEC with respect to the shares of our Common Stock offered through this prospectus. This prospectus is filed as a part of that registration statement and does not contain all of the information contained in the registration statement and exhibits. We refer you to our registration statement and each exhibit attached to it for a more complete description of matters involving us, and the statements we have made in this prospectus are qualified in their entirety by reference to these additional materials.
You may read and copy the reports and other information we file with the SEC at the SEC’s Public Reference Room at 100 F Street, N.E., Washington D.C. 20549, on official business days during the hours of 10:00 am to 3:00 pm. You may also obtain copies of this information by mail from the public reference section of the SEC, 100 F Street, N.E., Washington, D.C. 20549, at prescribed rates. You may obtain information regarding the operation of the public reference room by calling the SEC at 1 (800) SEC-0330. The SEC also maintains a website that contains reports and other information about issuers, like us, who file electronically with the SEC. The address of that website is http://www.sec.gov. This reference to the SEC’s website is an inactive textual reference only, and is not a hyperlink.
INCORPORATION OF DOCUMENTS BY REFERENCE
We are “incorporating by reference” certain documents we file with the SEC, which means that we can disclose important information to you by referring you to those documents. The information in the documents incorporated by reference is considered to be part of this prospectus. Statements contained in documents that we file with the SEC and that are incorporated by reference in this prospectus will automatically update and supersede information contained in this prospectus, including information in previously filed documents or reports that have been incorporated by reference in this prospectus, to the extent the new information differs from or is inconsistent with the old information.
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We have filed the following documents with the SEC. These documents are incorporated herein by reference as of their respective dates of filing:
| (1) | Our Annual Report on Form 10-K for the fiscal year ended December 31, 2019, as filed with the SEC on March 17, 2020; |
| (2) | Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2019, June 30, 2019, and September 30, 2019, as filed with the SEC on May 13, 2019, August 13, 2019, and October 28, 2019, respectively; |
| (3) | Our Current Reports on Form 8-K, as filed with the SEC on May 21, 2019, May 22, 2019, July 2, 2019, July 9, 2019, November 6, 2019, November 15, 2019, December 3, 2019, December 6, 2019, December 19, 2019, January 9, 2020, January 24, 2020, February 5, 2020, February 14, 2020 and March 5, 2020and the Company’s Current Report on Form 8-K/A filed with the Commission on December 3, 2019; and |
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All documents filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (1) after the date of the filing of the registration statement of which this prospectus forms a part and prior to its effectiveness and (2) until all of the Common Stock to which this prospectus relates has been sold or the offering is otherwise terminated, except in each case for information contained in any such filing where we indicate that such information is being furnished and is not to be considered “filed” under the Exchange Act, will be deemed to be incorporated by reference in this prospectus and any accompanying prospectus supplement and to be a part hereof from the date of filing of such documents.
We will provide a copy of the documents we incorporate by reference, at no cost, to any person who receives this prospectus. To request a copy of any or all of these documents, you should write or telephone us at 8 HaToKhen Street, Caesarea Industrial Park, 3088900, Israel, Attention: Controller, +(972)-(4) 770 4055.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| ITEM 14. | OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. |
The following is a statement of approximate expenses to be incurred by DarioHealth Corp., or the Company, we, us or our, in connection with the distribution of the Common Stock registered under this registration statement:
| Amount | ||||
| Registration fee under Securities Act of 1933 | $ | 2,874.31 | ||
| Legal fees and expenses | $ | 7,500 | ||
| Accountant’s fees and expenses | $ | 4,000 | ||
| Miscellaneous fees and expenses | $ | 1,000 | ||
| Total | $ | 15,374.31 | ||
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| ITEM 15. | 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 16. | EXHIBITS. |
The exhibits filed with this registration statement are set forth on the “Exhibit Index” set forth elsewhere herein.
| ITEM 17. | UNDERTAKINGS. |
The undersigned registrant hereby undertakes:
(A) (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(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 the 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 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
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Provided, however , that paragraphs (i), (ii) and (iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange 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 the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, 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.
(4) That, for the purpose of determining liability under the Securities Act to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however , that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(B) That, for the purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 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 the 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 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 SEC such indemnification is against public policy as expressed in the Securities Act 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 and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Caesarea, Israel on the 19th day of March 2020.
| DARIOHEALTH CORP. | |||
| By: | /s/ Erez Raphael | ||
| Name: | Erez Raphael | ||
| Title: | Chief Executive Officer | ||
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KNOW ALL PERSONS BY THESE PRESENTS, that we, the undersigned officers and directors of DarioHealth Corp., a Delaware corporation, do hereby constitute and appoint Erez Raphael and Zvi Ben David, and each of them, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for him and in his name, place, and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments, exhibits thereto and other documents in connection therewith) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
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 | March 19, 2020 | ||
| Erez Raphael | (Principal Executive Officer) | |||
| /s/ Zvi Ben David | Chief Financial Officer, Secretary and Treasurer | March 19, 2020 | ||
| Zvi Ben David | (Principal Financial and Accounting Officer) | |||
| /s/ Yoav Shaked | Chairman of the Board of Directors | March 19, 2020 | ||
| Yoav Shaked | ||||
| Director | March 19, 2020 | |||
| Yalon Farhi | ||||
| /s/ Allen Kamer | Director | March 19, 2020 | ||
| Allen Kamer | ||||
| /s/ Hila Karah | Director | March 19, 2020 | ||
| Hila Karah | ||||
| /s/ Dennis M. McGrath | Director | March 19, 2020 | ||
| Dennis M. McGrath | ||||
| /s/ Yadin Shemmer | Director | March 19, 2020 | ||
| Yadin Shemmer | ||||
| /s/ Adam K. Stern | Director | March 19, 2020 | ||
| Adam K. Stern | ||||
| /s/ Richard B. Stone | Director | March 19, 2020 | ||
| Richard B. Stone |
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EXHIBIT INDEX
* Filed herewith
| 24 |
Exhibit 5.1
 |
 |
March 19, 2020
DarioHealth Corp.
8 HaTokhen Street
Caesarea Industrial Park
3088900, Israel
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
This opinion is furnished to you in connection with a Registration Statement on Form S-3 (the “Registration Statement”) being filed by DarioHealth Corp., a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), for the registration of the re-sales of 4,652,126 shares of common stock, $0.0001 par value per share of the Company (the “Common Stock”) issuable upon conversion of shares (such shares collectively referred to as the “Conversion Shares”) of the Company’s Series A Convertible Preferred Stock, Series A-1 Convertible Preferred Stock, Series A-2 Convertible Preferred Stock, Series A-3 Convertible Preferred Stock and Series A-4 Convertible Preferred Stock (collectively, the “Preferred Stock”), each of such Conversion Shares to be offered and sold from time to time by certain of the selling stockholders listed in the Registration Statement under the heading “Selling Stockholders”.
We are acting as counsel for the Company in connection with the Registration Statement. We have examined and relied upon resolutions of the Board of Directors of the Company as provided to us by the Company, a certificate of an officer of the Company and the Certificate of Incorporation and By-Laws of the Company, each as amended to date, and such other documents as we have deemed necessary for purposes of rendering the opinions hereinafter set forth.
In our examination of the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies, the authenticity of the originals of such latter documents and the legal competence of all signatories to such documents. Other than our examination of the documents indicated above, we have made no other examination in connection with this opinion.
Our opinions set forth below with respect to the validity of any security may be limited by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, marshaling, moratorium or other similar laws affecting the enforcement generally of the rights and remedies of creditors and secured parties or the obligations of debtors, and (ii) general principles of equity (whether considered in a proceeding in equity or at law), including but not limited to principles limiting the availability of specific performance or injunctive relief, and concepts of materiality, reasonableness, good faith and fair dealing. The opinions rendered herein are limited to the Delaware General Corporation Law and the federal laws of the United States.
Based upon and subject to the foregoing, we are of the opinion that when the Conversion Shares have been issued and sold as contemplated by the terms of the relevant class of Preferred Stock, the Conversion Shares will be validly issued, fully paid and nonassessable.
The opinions set forth herein are rendered as of the date hereof, and we assume no obligation to update such opinions to reflect any facts or circumstances which may hereafter come to our attention or any changes in the law which may hereafter occur (which may have retroactive effect).
This opinion is rendered to you in connection with the filing of the Registration Statement. This opinion may not be relied upon for any other purpose, or furnished to, quoted or relied upon by any other person, firm or corporation for any purpose, without our prior written consent, except that (A) this opinion may be furnished or quoted to judicial or regulatory authorities having jurisdiction over you, and (B) this opinion may be relied upon by purchasers and holders of the securities covered by the Registration Statement currently entitled to rely on it pursuant to applicable provisions of federal securities law.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to this firm under the caption “Legal Matters” in the Registration Statement. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
| Very truly yours, | |
| /s/ Zysman, Aharoni, Gayer and Sullivan & Worcester LLP | |
| Zysman, Aharoni, Gayer and Sullivan & Worcester LLP |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption "Experts" and to the use of our report dated March 16, 2020, in the Registration Statement (Form S-3) and related Prospectus of DarioHealth Corp. dated March 19, 2020.
| Tel-Aviv, Israel | /s/ KOST FORER GABBAY & KASIERER |
| March 19, 2020 | A Member of Ernst & Young Global |