As filed with the Securities and Exchange Commission on October 22, 2021December 30, 2022

 

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.)

 

14218 W. 57th St., 8th18th St, 5th Floor

New York, New York 10011
Telephone: (646) 665-4667

Facsimile: +(972)-(4) 770 4060

(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal
Executive Offices)

 

Mr. Erez Raphael

Chief Executive Officer

DarioHealth Corp.

18 W. 18th St, 5th Floor

DarioHealth Corp.

142 W. 57th St., 8th Floor
New York, New York 10011
Telephone: (646) 665-4667

Facsimile: +(972)-(4) 770 4060

(Name, address, including zip code, and telephone number,

including area code, of agent for service)

 

Copies to:

Oded Har-Even, Esq.

Ron Ben-Bassat, Esq.

Sullivan & Worcester LLP

1633 Broadway

New York, NY 10019

Telephone: (212) 660-5000

Facsimile: (212) 660-3001

 

Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement, as determined by market and other conditions.

 

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ¨

 

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: x

 

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

 

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

 

If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨

 

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and "emerging growth company" in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer:¨¨Accelerated filer:¨
Non-accelerated filer:xxSmaller 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, $0.0001 par value$ 200,000,000 (3)(4)$18,540.00 (5)

(1)There are being registered under this registration statement such indeterminate number of shares of common stock, as may be sold by the registrant from time to time, which shall have an aggregate initial offering price not to exceed $200,000,000. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended, or the Securities Act, the shares of common stock being registered hereunder include such indeterminate number of shares of common stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions.

(2)Not required to be included in accordance with General Instruction II.D. of Form S-3 and Rule 457(o).

(3)The proposed maximum offering price per common stock will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder.
(4)Estimated solely to calculate the registration fee in accordance with Rule 457(o) under the Securities Act.  The aggregate maximum offering price of all securities issued pursuant to this registration statement will not exceed $200,000,000.
(5)Calculated pursuant to Rule 457(o) based on the proposed maximum aggregate offering price.

 

THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.

 

 

 

EXPLANATORY NOTE

This registration statement contains:

a base prospectus, which covers the offering, issuance and sales by us of up to $200,000,000 in the aggregate of common stock as may be sold by the registrant from time to time; and

a sales agreement prospectus covering the offer, issuance and sale by us of up to a maximum aggregate offering of up to $50,000,000 of our common stock that may be issued and sold from time to time under a sales agreement, or Sales Agreement, with Cowen and Company, LLC, or Cowen.

The base prospectus immediately follows this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus will be specified in a prospectus supplement to the base prospectus. The Sales Agreement prospectus immediately follows the base prospectus. The $50,000,000 of common stock that may be offered, issued and sold under the Sales Agreement prospectus is included in the $200,000,000 of securities that may be offered, issued and sold by us under the base prospectus. Upon termination of the Sales Agreement, any portion of the $50,000,000 included in the Sales Agreement prospectus that is not sold pursuant to the Sales Agreement will be available for sale in other offerings pursuant to the base prospectus, and if no shares are sold under the Sales Agreement, the full $50,000,000 of securities may be sold in other offerings pursuant to the base prospectus.

 

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.

 

PROSPECTUSSubject to completion, dated October 22, 2021

 Subject to completion, dated December 30, 2022

 

$200,000,000PROSPECTUS

 

UP TO 107,409 SHARES OF COMMON STOCK

 

WeThe selling stockholder identified in this prospectus may offer from time to time sellup to 107,409 shares of our common stock, in one$0.0001 par value per share, or more offerings, for an aggregate initial offering amount of $200,000,000. We refer to the common stock as the securities. Common Stock.

This prospectus describes the general manner in which our securitiesthe shares may be offered usingand sold by the selling stockholder. If necessary, the specific manner in which the shares may be offered and sold will be described in a supplement to this prospectus.

We will not receive any proceeds from the sale of the shares by the selling stockholder. See “Use of Proceeds.” We will pay the expenses of registering these shares. The selling stockholder may sell these securitiesall or a portion of the shares from time to time in market transactions through any market on which our shares are then traded, in negotiated transactions or otherwise, and at prices and on terms that will be determined by the then prevailing market price or at negotiated prices directly or through underwritersa broker or dealers, directly to purchasersbrokers, who may act as agent or through agents. We will set forth the namesas principal or by a combination of any underwriters, dealers or agents in an accompanying prospectus supplement. You should carefully read this prospectus and any accompanying supplements before you decide to invest in anysuch methods of these securities.sale. See “Plan of Distribution.”

 

Our common stockCommon Stock is traded on the Nasdaq Capital Market or Nasdaq, under the symbol “DRIO.”

 

Investing in the securitiesour Common Stock involves risks. See “Risk Factors” beginning on page 6 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 December , 2021.2022.

 

 

TABLE OF CONTENTS

 

 Page 
Page 
About This Prospectus3
Our CompanyProspectus Summary4
About This Offering5
Risk Factors6
Cautionary Statement Regarding Forward-Looking Statements67
Use of Proceeds78
The Securities We May OfferSelling Stockholder8
Description of Capital Stock9
Plan of Distribution11
Legal Matters1312
Experts1312
Where You Can Find More Information1312
Incorporation of Documents by Reference1413

 

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. WeNeither we nor the selling stockholder have not 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 do not constitute an offer to sell, or a solicitation of an offer to purchase, the securitiesCommon 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 securitiesCommon 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-ownedour subsidiaries LabStyle Innovation Ltd. and Upright Technologies Ltd., each of which arean Israeli companies, and Upright Technologies Inc.company, and PsyInnovations Inc., each a Delaware company. “Dario” is registered as a trademark in the United States, Israel, China, Canada, Hong Kong, South Africa, Japan, Costa Rica and Panama. “DarioHealth” is registered as a trademark in the United States and Israel.

 

All dollar amounts refer to U.S. dollars unless otherwise indicated.

 


ABOUT THIS PROSPECTUS

 

This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or the SEC, using a “shelf” registration process. Under this shelf registration process, we may, from time to time, sell the securities described in this prospectus in one or more offerings up to a total dollar amount of $200,000,000. This prospectus describes the securities we may offer and the general manner in which the selling stockholder identified in this prospectus may offer from time to time up to 107,409 shares of our securitiesCommon Stock. If necessary, the specific manner in which the shares may be offered byand sold will be described in a supplement to this prospectus. Each time we sell securities, we will provide a prospectus, which supplement that will contain specific information about the terms of that offering. We may also add, update or change in the prospectus supplement 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.

 


 

OUR COMPANYPROSPECTUS SUMMARY

 

This summary highlights information contained elsewhere in this prospectus. This summary does not contain all of the documents incorporated herein by reference.information you should consider before investing in our Common Stock. Before making an investment decision,you decide to invest in our Common Stock, 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” section, and “Cautionary Statement Regarding Forward-Looking Statements.”the financial statements and related notes thereto and the other information incorporated by reference herein.

Our Company

 

We are a leading global Digital Therapeutics company revolutionizing the wayhow people with chronic conditions manage their health acrossthrough the chronic condition spectrum to liveinnovation of a better and healthier life. Our mission is to transform how affected individuals manage their health and chronic conditions by empowering our customers to easily manage their conditions and take steps to improve their overall health. Most chronic conditions are driven by personal behaviors and the individual actions that are or are not taken.new category of digital health: Digital Therapeutics as a Service (DTaaS). We believe that changing these behaviors can dramatically improve our customers’ overall health and substantially reduce unnecessary health spending. However, behavioral change and habit formation are difficult, especially in managing chronic disease and related conditions. Ourinnovative approach to digital therapeutics endeavordisrupts the traditional provider-centered system of health care delivery by offering user-centric care that is continuous, customized and multi-condition. Our solutions combine the power of technologies and behavior science to produce lasting behavior changesmake better health accessible, affordable, and easy for all by solving for what people need, when and where they want it, with hyper-personalized care that is always connected – to services, devices, and people – and delivered continuously. This is how we deliver meaningful and sustainable results that result in our customers by applyingmeasurable value for all stakeholders, supporting the full transformation of health care into a novel combination of artificial intelligence, or AI, driven dynamic personalizationmore effective and behavioral science at scale. This allows us to engage and support our customers, and offer them a complete virtual care solution, ideally resulting in improved health outcomes and reduced total cost of care.affordable ecosystem.

 

We began our sales in the direct-to-consumer space, solving first for what we deemed the most difficult problems: how to engage users and support behavior change to improve clinical outcomes in diabetes. Our most developed AI tools leverage the direct-to-consumer experience from over 150,000 members to drive superior engagement and outcomes. In early 2020, we broadened our solutions to include other medical conditions in addition to diabetes, and to serve business customers who seek to improve the health of their stakeholders. Presently, we have deployed solutions for diabetes, hypertension, and pre-diabetes, and through our acquisition of Upright Technologies Ltd., we now offer solutions for musculoskeletal conditions. We are currently delivering Business to Business to Consumer solutions for providers, employers, and pharmaceutical companies, and we plan to develop a full-risk health plan business, which we expect will provide our AI driven, remote patient monitoring and coaching for a variety of chronic conditions, across a range of customer product lines in 2021.Corporate Information

 

Our address is 14218 W. 57th St., 8th18th St, 5th Floor, New York, New York and our telephone number is (646) 665-4667. Our corporate website is: www.mydario.com. The content of our website shall not be deemed incorporated by reference in this prospectus.

 

Recent Developments


ABOUT THIS OFFERING

 

AcquisitionThis prospectus relates to the resale by the selling stockholder, an affiliate of PsyInnovations, Inc.

On June 7, 2021, we completedone of our acquisitionboard members, identified in this prospectus of PsyInnovations, Inc. (dba wayForward), a behavioral health digital platform that includes AI-enabled screening to triage and navigate members to specific interventions, digital Cognitive Behavioral Therapy (CBT), self-directed care, expert coaching and access to in-person and telehealth provider visits. We agreed to pay (A) $5.75 million in cash and (B) up to $21.25 million in shares of the Company’s common stock, including up to $5.0 million structured as an earn-out payable in shares of common stock if our behavioral health exceed a certain threshold in 2022, subject to customary working capital and other adjustments as of the closing of the acquisition. $3.0 million of the merger consideration, consisting of $2.75 in shares of common stock and $250,000 in cash, are subject to a hold-back for a minimum of eighteen (18) months to secure indemnification obligations. At closing, we issued an aggregate of approximately 898,500107,409 shares of our common stock,Common, which were issued following a mandatory conversion of our previously designated Series A Convertible Preferred Stock, $0.0001 par value per share, or the Series A Convertible Preferred Stock, including dividends issued to the hold-back shares.holders of Series A Convertible Preferred Stock. The selling stockholder may sell its 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 stockholder.

 

Common Stock Offered:

Up to 107,409 shares of Common Stock.

Common Stock Outstanding at December 28, 2022:25,679,410 shares of Common Stock.

Use of Proceeds:

We will not receive any proceeds from the sale of the 107,409 shares of Common Stock subject to resale by the selling stockholder under this prospectus. See “Use of Proceeds.”

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:

Our Common Stock is listed on the Nasdaq Capital Market under the symbol “DRIO.”

Upright GO S LaunchUnless we indicate otherwise, all information in this prospectus supplement is based on 25,679,410 shares of Common Stock outstanding as of December 28, 2022, and excludes:

 

In June 2021, we announced the launch of the Upright GO S, a new wearable sensor based on the company's pioneering biofeedback technologies to make better back health accessible to more people. This new product from Upright, by Dario, is part of our planned growth strategy for increasing platform membership across both business partnerships and consumer channels.

·517.231 shares of our Common Stock issuable upon exercise of outstanding stock options under our Amended and Restated 2012 Equity Incentive Plan at a weighted average exercise price of $16.73, 1,418,397 shares of our Common Stock issuable upon exercise of outstanding stock options under our 2020 Equity Incentive Plan at a weighted average exercise price of $11.52, and 205,736 shares of our Common Stock issuable upon exercise of outstanding non-plan stock options at a weighted average exercise price of $18.04 per share;

 

·1,332,552 shares of our Common Stock issuable upon the conversion of our existing issued and outstanding shares of preferred stock; and

 


·1,711,796 shares of our Common Stock issuable upon exercise of outstanding warrants at a weighted average exercise price of $13.13 per share as of December 28, 2022.

  

Coastal Family Health Center

In June 2021, we announced that we were selected as digital health provider by Coastal Family Health Center, a local, non-profit healthcare network providing comprehensive primary care to patients across several underserved counties in and around the Mississippi Gulf Coast.

Workplace Options

In June 2021, we announced that we our digital behavioral health solution now includes Workplace Options (WPO) services for its global users. WPO is the largest independent provider of integrated employee wellbeing solutions around the world. Our digital behavioral health solution, powered by wayForward and now WPO, gives multi-national employers a way to improve mental health parity for international employees by offering the same high-quality care to people outside of the United States.

People One Health

In August 2021, we announced that our digital behavioral health solution was selected by regional primary care provider PeopleOne Health to be the digital behavioral health solution of choice for patients beginning in September 2021.

Employer Contracts

In September 2021, we announced that our digital behavioral health solution was selected by a casino resort company in California, which is expected to contribute revenue beginning in the fourth quarter of 2021. In addition, in September 2021, we also announced that we entered into an agreement to provide our suite of digital therapeutics for diabetes, hypertension and pre-diabetes to a Northeast regional employer, which is expected to contribute revenue beginning in the first quarter of 2022.

Agreement with Leading National Health Plan

In October 2021, we announced that we entered into an agreement with one of the largest U.S. national health plans to offer its self-insured employer customers the Dario digital behavioral health solution as part of its behavioral health offering. Initial members are expected on the platform in the fourth fiscal quarter of 2021, with additional rollout anticipated over the course of 2022. Dario will be paid a monthly fee for members that have access to the platform. We believe that the agreement has the potential to generate millions of dollars in annual revenue.

 


RISK FACTORS

 

An investment in our securitiesCommon 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, 20202021, our Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2022, our Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2022, 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 securities.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 securities.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.

 


USE OF PROCEEDS

 

Unless we otherwise indicate in the applicable prospectus supplement, we currently intend to use the netWe will not receive any proceeds from the sale of the securities for research107,409 shares of Common Stock subject to resale by the selling stockholder under this prospectus. We will incur all costs associated with the preparation and developmentfiling of our productsthe registration statement of which this prospectus is a part. Brokerage fees, commissions and for general working capital purposes.

We may set forth additional information on the use of net proceeds fromsimilar expenses, if any, attributable to the sale of securities we offer under this prospectus in a prospectus supplement relating toshares offered hereby will be borne by the specific offering. Pending the application of the net proceeds, we intend to invest the net proceeds in bank deposits or investment-grade and interest-bearing securities subject to any investment policies our management may determine from time to time.applicable selling stockholder.

 


THE SECURITIES WE MAY OFFERSELLING STOCKHOLDER

 

The descriptionsshares of Common Stock being offered by the selling stockholder listed below (or its successors and assigns) were issued following a mandatory conversion of our previously designated Series A Convertible Preferred Stock, including dividends issued to the holders of Series A Convertible Preferred Stock.

The selling stockholder may sell all, some or none of their shares in this offering. See “Plan of Distribution.”

Mr. Adam Stern, a member of our Board of Directors, is an affiliate of the securities contained in this prospectus, together with any applicable prospectus supplement, summarize the material terms and provisions of the various types of securities that we may offer. We will describe in any applicable prospectus supplement relatingselling stockholder. Pursuant to any securities the particular terms of the securities offered by that prospectus supplement. If we so indicate in any applicable prospectus supplement, the terms of the securities may differ fromplacement agency agreement between us and Aegis Capital Corp., or Aegis, dated October 22, 2019, we granted Aegis the terms we have summarized below. We may also include in any prospectus supplement information, where applicable, about material U.S. federal income tax consequences relatingright to nominate an individual to the securities,Board for a period of three years, which resulted in the appointment of Mr. Stern to serve on our Board. Other than the relationships described herein, to our knowledge, the selling stockholder is not an employee or supplier of ours or our affiliates. Within the past three years, other than the relationships described herein, the selling stockholder has not held a position as an officer a director of ours, nor has the 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 stockholder, unless otherwise noted. The shares being offered are being registered to permit public secondary trading of such shares and the securities exchangeselling stockholder may offer all or market,part of the shares it owns for resale from time to time pursuant to this prospectus. The selling stockholder does not have any family relationships with our officers, other directors or controlling stockholders.

To the extent the selling stockholder is an affiliate 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 stockholder” also includes any transferees, pledgees, donees, or other successors in interest to the selling stockholder named in the table below. Unless otherwise indicated, to our knowledge, the 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 on whichnamed selling stockholder who are able to use this prospectus to resell the securities will be listed.Common Stock registered hereby.

Name of Selling Stockholders

 

 

Number of

Common

Stock

Owned Prior to

Offering

  

Maximum

Number of

Common

Stock to be

Offered

Pursuant

to this

Prospectus

  

Number of Common

Stock Owned

Immediately After

Sale of

Maximum Number of

Common Stock in this

Offering

 
  Number(1)  Percent  Number  Percent  Number(1)(2)  Percent(1)(2) 
AKS Family Partners, L.P. (3)  587,169   2.25%  107,409   *%   479,760   1.84%
Total  587,169   -   107,409   -   479,760   - 

* 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 December 30, 2022, 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 stockholder 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 25,679,410 shares of Common Stock issued and outstanding on December 21, 2022.
(3)These securities are held of record by AKS Family Partners, L.P., of which Adam K. Stern holds sole voting and dispositive power, and include 587,169 shares held by Mr. Adam Stern, subject to a contractual beneficial ownership limitation of 4.99%. Address: 9429 Harding Ave #225, Surfside, FL 33154.

 

We may sellrequire the selling stockholder 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 stockholder may change from time to time and any changed information will be set forth in one or more offerings, shares of common stock. The total initial offering price of all securities that we may issue in these offerings will not exceed $200,000,000.prospectus supplements if and when necessary.

 


DESCRIPTIONPLAN OF CAPITAL STOCKDISTRIBUTION

 

The following summary is a description of the material terms of our share capital. We encourage you to read our Certificate of Incorporation, as amended,selling stockholder, and Amended and Restated By-laws which have been filed with the SEC, as well as the provisions of the Delaware General Corporation Law.

General

Our authorized capital stock currently consists of one hundred sixty million (160,000,000) shares of common stock, par value $0.0001 per share and five million (5,000,000) shares of blank-check preferred stock, par value $0.0001 per share. As of October 19, 2021, we had 16,562,472 shares of common stock and 12,097 shares of preferred stock,their pledgees, donees, transferees or the Preferred Stock, outstanding. To date, the Company has designated twenty five thousand (25,000) shares of its blank check Preferred Stock as Series A Preferred Stock, twelve thousand five hundred (12,500) shares of its blank check preferred stock as Series A-1 Preferred Stock, twelve thousand five hundred (12,500) shares of its blank check preferred stock as Series A-2 Preferred Stock, twelve thousand five hundred (12,500) shares of its blank check preferred stock as Series A-3 Preferred Stock and twelve thousand five hundred (12,500) shares of its blank check preferred stock as Series A-4 Preferred Stock. No other class or series of capital stock has been established.

Description of Common Stock

Upon our liquidation, dissolution or winding up, the holders of common stock are entitled to share ratablysuccessors in all net assets available for distribution to security holders after payment to creditors. The common stock is not convertible or redeemable and has no preemptive, subscription or conversion rights. Each outstanding share of common stock is entitled to one vote on all matters submitted to a vote of security holders. There are no cumulative voting rights. The holders of outstanding shares of common stock are entitled to receive dividends out of assets legally available therefore at such times and in such amounts as our Board of Directors, or our Board,interest, may from time to time determine. Holdersoffer and sell, separately or together, some or all of common stock will share equally on a per share basis in any dividend declaredthe shares of Common Stock, or the securities, covered by our Board. We havethis prospectus. Registration of the securities covered by this prospectus does not paid any dividends on our common stock and do not anticipate paying any cash dividends on such stock in the foreseeable future. In the event of a merger or consolidation, all holders of common stockmean, however, that those securities necessarily will be entitled to receive the same per share consideration.offered or sold.

 

Description of Preferred Stock

There canThe securities covered by this prospectus may be one or more series of Preferred Stock. The Company can establishsold from time to time, the number of shares to be included in each such series, as well as to fix the designation and any preferences, conversion and other rights and limitations of such series. These rights and limitations may include voting powers, limitations as to dividends, and qualifications and terms and conditions of redemption of the shares of each such series.

Meetings of Stockholders

An annual meeting of our stockholders shall be held on the day andat market prices prevailing at the time as may be set by our Board,of sale, at which the stockholders shall elect the board of directors and transact such other business as may properly be brought before the meeting. All annual meetings of stockholders areprices related to be heldmarket prices, at our registered office in the State of Delawarea fixed price or prices subject to change or at such other place as may be determinednegotiated prices, by our Board.

Special meetingsa variety of our stockholders may be called for any purpose or purposes, unless otherwise prescribed by statute, by our Board of Directors,methods including the Chairman of the Board or the Chief Executive Officer, President or other executive officer of the Company, or at the request, in writing, of the stockholders of record, and only of record, owning not less than sixty-six and two-thirds percent (66 2/3%) of the entire capital stock of the Company issued and outstanding and entitled to vote. Business transacted at any special meeting of stockholders shall be confined to the purpose or purposes stated in the notice for such meeting.

Anti-Takeover Effect of Delaware Law, Certain Charter and Bylaw Provisions

Our certificate of incorporation and bylaws contain provisions that could have the effect of discouraging potential acquisition proposals or tender offers or delaying or preventing a change of control of our company. These provisions are as follows:following:

 

 ·they provide that special meetings of stockholders may be called only byin the Board of Directors, Chief Executive Officer, President or our Chairman of the Board of Directors, or at the request, in writing, by stockholders of record owning at least sixty-six and two-thirds (66 2/3%) percent of the issued and outstanding voting shares of common stock;Nasdaq Capital Market;

 ·they do not include a provision for cumulative voting in the election of directors. Under cumulative voting, a minority stockholder holding a sufficient number of shares may be able to ensure the election of one or more directors. The absence of cumulative voting may have the effect of limiting the ability of minority stockholders to effect changes in our Board of Directors; and


·they allow us to issue, without stockholder approval, up to 5,000,000 shares of preferred stock that could adversely affect the rights and powers of the holders of our common stock.

We are subject to the provisions of Section 203 of the General Corporation Law of the State of Delaware, an anti-takeover law. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business combination is approved in the following prescribed manner:

·prior to the time of the transaction, the board of directors of the corporation approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder;

·upon completion of the transaction that resulted in the stockholder becoming an interested stockholder, the stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding (1) shares owned by persons who are directors and also officers and (2) shares owned by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; and

·on or subsequent to the time of the transaction, the business combination is approved by the board and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock which is not owned by the interested stockholder.

Generally, for purposes of Section 203, a “business combination” includes a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. An “interested stockholder” is a person who, together with affiliates and associates, owns or, within three years prior to the determination of interested stockholder status, owned 15% or more of a corporation’s outstanding voting securities.

Transfer Agent and Registrar

VStock Transfer, LLC is the transfer agent and registrar for our common stock. Their address is 18 Lafayette Place, Woodmere, NY 11598, telephone (212) 828-8436.

Listing

Our common stock is traded on Nasdaq under the symbol “DRIO.”


PLAN OF DISTRIBUTION

We may sell the securities being offered hereby in one or more of the following ways from time to time:

·through agents to the public or to investors;

·to one or more underwriters for resale to the public or to investors;

·to the extent we are eligible, in “at the market offerings,” within the meaning of Rule 415(a)(4) of the Securities Act of 1933, as amended, or the Securities Act, to or through a market maker or into an existing trading market, on an exchange or otherwise;

·directly to investors 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 a purchaser pursuant to what is known as an “equity line of credit” as described below;one or more purchasers;

·through agents; or

 

 ·through ain any combination of these methods of sale.the above.

 

The securities that we distributeIn effecting sales, brokers or dealers engaged by any of these methodsthe selling stockholder may be sold, in onearrange for other brokers or moredealers to participate. Broker-dealer transactions at:may include:

 

 ·purchases of the securities by a fixed price or prices, which may be changed;broker-dealer as principal and resales of the securities by the broker-dealer for its account pursuant to this prospectus;

 ·market prices prevailing at the time of sale;

·prices related to prevailing market prices;ordinary brokerage transactions; or

 

 ·negotiated prices.transactions in which the broker-dealer solicits purchasers on a best efforts basis.

 

The accompanyingTo our knowledge, the selling stockholder 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 describebe 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 our securities, including:

·the name or names of any agents or underwriters;

·any securities exchange or market on which the common stock may be listed;

·the purchase price and commission, if any, to be paid in connection with the sale of the securities being offered and the proceeds we will receive from the sale;

·any options pursuant to which underwriters may purchase additional securities from us;

·any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation;

·any public offering price; and

·any discounts or concessions allowed or reallowed or paid to dealers.

If underwriters, are used in the sale, they will acquire the securities for their own account and may resell the securities from time to time in onedealers, brokers or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of the sale. The obligations of the underwriters to purchase the securities will be subjectagents. In addition, to the conditions set forth in the applicable underwriting agreement. We may offer the securities to the public through underwriting syndicates represented by managing underwritersextent required, any discounts, commissions, concessions and other items constituting underwriters’ or by underwriters without a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all the securities offered by the prospectus supplement. We may change from time to time the public offering price andagents’ compensation, as well as any discounts, commissions or concessions allowed or reallowed or paid to dealers.

If we use a dealerdealers, will be set forth in the sale of the securities being offered pursuant to thissuch revised prospectus or anysupplement. Any such required prospectus supplement, we will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. The names of the dealers and, the terms of the transaction will be specified inif necessary, a prospectus supplement.

We may sell the securities directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of securities and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, any agent will act on a best-efforts basis for the period of its appointment.

We may also sell securities pursuant to an “equity line of credit.” In such event, we will enter into a common stock purchase agreement with the purchaser to be named therein, which will be described in a Current Report on Form 8-K that we will file with the SEC. In that Form 8-K, we will describe the total amount of securities that we may require the purchaser to purchase under the purchase agreement and the other terms of purchase, and any rights that the purchaser is granted to purchase securities from us. In addition to our issuance of shares of common stock to the equity line purchaser pursuant to the purchase agreement, this prospectus (and the applicable prospectus supplement or post-effective amendment to the registration statement of which this prospectus formsis a part) also covers the resale of those shares from time to time by the equity line purchaser to the public. The equity line purchaserpart, will be considered an “underwriter” within the meaning of Section 2(a)(11) of the Securities Act. Its resales may be effected through a number of methods, including without limitation, ordinary brokerage transactions and transactions in which the broker solicits purchasers and block trades in which the broker or dealer so engaged will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction.  The equity line purchaser will be bound by various anti-manipulation rules offiled with the SEC and may not, for example, engage in any stabilization activity in connection with its resalesto reflect the disclosure of our securities and may not bid for or purchase any of our securities or attempt to induce any person to purchase any of our securities other than as permitted under the Securities Exchange Act of 1934, as amended, or the Exchange Act.


We may sell our securities directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of our common stock, and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, our agent will act on a best-efforts basis for the period of its appointment.

We may provide underwriters and agents with indemnification against civil liabilities related to offerings pursuant to this prospectus, including liabilities under the Securities Act, or contributionadditional information with respect to payments that the underwriters or agents may make with respect to these liabilities. Underwriters and agents may engage in transactions with, or perform services for, us in the ordinary course of business. We will describe such relationships in the prospectus supplement naming the underwriter or agent and the nature of any such relationship.

Rules of the SEC may limit the ability of any underwriters to bid for or purchase securities before the distribution of the shares of common stock is completed. However, underwriters may engage in the following activities in accordance with the rules:

·Stabilizing transactions — Underwriters may make bids or purchases for the purpose of pegging, fixing or maintaining the price of the shares, so long as stabilizing bids do not exceed a specified maximum.

·Options to purchase additional stock and syndicate covering transactions — Underwriters may sell more shares of our common stock than the number of shares that they have committed to purchase in any underwritten offering. This creates a short position for the underwriters. This short position may involve either “covered” short sales or “naked” short sales. Covered short sales are short sales made in an amount not greater than the underwriters’ option to purchase additional shares in any underwritten offering. The underwriters may close out any covered short position either by exercising their option or by purchasing shares in the open market. To determine how they will close the covered short position, the underwriters will consider, among other things, the price of shares available for purchase in the open market, as compared to the price at which they may purchase shares through their option. Naked short sales are short sales in excess of the option. The underwriters must close out any naked position by purchasing shares in the open market. A naked short position is more likely to be created if the underwriters are concerned that, in the open market after pricing, there may be downward pressure on the price of the shares that could adversely affect investors who purchase shares in the offering.

·Penalty bids — If underwriters purchase shares in the open market in a stabilizing transaction or syndicate covering transaction, they may reclaim a selling concession from other underwriters and selling group members who sold those shares as part of the offering.

Similar to other purchase transactions, an underwriter’s purchases to cover the syndicate short sales or to stabilize the market price of our common stock may have the effect of raising or maintaining the market price of our common stock or preventing or mitigating a decline in the market price of our common stock. As a result, the price of the shares of our common stock may be higher than the price that might otherwise exist in the open market. The imposition of a penalty bid might also have an effect on the price of shares if it discourages resales of the shares.securities covered by this prospectus.

 

If commenced, the underwriters may discontinue any of these activities at any time.

11

 

Our common stock is traded on Nasdaq. One or more underwriters may make a market in our common stock, but the underwriters will not be obligated to do so and may discontinue market making at any time without notice. We cannot give any assurance as to liquidity of the trading market for our common stock.

Any underwriters who are qualified market makers on Nasdaq may engage in passive market making transactions in that market in the common stock in accordance with Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before the commencement of offers or sales of the common stock. Passive market makers must comply with applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded.


LEGAL MATTERS

 

Sullivan & Worcester LLP, New York, New York, has passed upon the validity of the securitiesshares of Common Stock that may be offered hereby.

 

EXPERTS

 

The consolidated financial statements of DarioHealth Corp. at December 31, 20202021 and 2019,2020, and for each of the two years in the period ended December 31, 2020, 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, 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 at 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 securities 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 the securities 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.

The SEC 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.

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, 2020, as filed with the SEC on March 9, 2021;

(2)Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2021, and June 30, 2021, filed with the SEC on May 17, 2021 and August 16, 2021, respectively;
(3)Our Current Reports on Form 8-K and 8-K/A, as filed with the SEC on January 28, 2021, February 4, 2021, April 1, 2021May 18, 2021, June 7, 2021, June 8, 2021, July 9, 2021, August 16, 2021 and October 22, 2021; 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 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 securities 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 142 W. 57th St., 8th Floor, New York, New York, Attention: Controller, (646) 665-4667.


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.

PROSPECTUSSubject to completion, dated October 22, 2021

 

Up to $50,000,000

COMMON STOCK

We have entered into a sales agreement with Cowen and Company, LLC, or Cowen, relating to the shares of our common stock offered by this prospectus supplement and the accompanying prospectus. In accordance with the terms of the sales agreement, we may offer and sell shares of our common stock having an aggregate offering price of up to $50,000,000, from time to time, through Cowen acting as our agent.

Our common stock is traded on The Nasdaq Capital Market, or the Nasdaq, under the symbol “DRIO.” On October 19, 2021, the last reported sale price of our common stock on the Nasdaq was $16.65, per share.

Sales of shares of our common stock, if any, under this prospectus supplement and the accompanying prospectus may be made in sales deemed to be “at-the-market” offerings, as defined in Rule 415 promulgated under the Securities Act of 1933, as amended, or the Securities Act, including sales made directly on the Nasdaq or any other trading market for our common stock. Cowen is not required to sell any specific amount of securities, but will act as our sales agent using commercially reasonable efforts consistent with its normal trading and sales practices, on mutually agreed terms between Cowen and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.

The aggregate compensation payable to Cowen as sales agent equals 3.0% of the gross sales price of the shares of our common stock sold through it pursuant to the sales agreement. See “Plan of Distribution” beginning on page 10 for additional information regarding the compensation to be paid to Cowen. In connection with the sale of the shares our common stock on our behalf, Cowen will be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation of Cowen will be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to Cowen with respect to certain liabilities, including liabilities under the Securities Act or the Exchange Act of 1934, as amended, or the Exchange Act.

Our business and an investment in our common stock involves a high degree of risk. Please read “Risk Factors” beginning on page 6 of this prospectus supplement and under similar headings in the documents incorporated by reference into this prospectus supplement concerning factors you should consider before investing in our common stock.

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus supplement or the accompanying prospectus. Any representation to the contrary is a criminal offense.

Cowen

The date of this prospectus is         , 2021

TABLE OF CONTENTS

Page
About This Prospectus3
Prospectus Summary4
Our Company4
Risk Factors6
Use of Proceeds8
Dilution9
Plan of Distribution10
Legal Matters11
Experts11
Where You Can Find More Information11
Incorporation of Documents by Reference12


ABOUT THIS PROSPECTUS

This prospectus relates to the offering of our common stock. Before buying any of the common stock that we are offering, we urge you to carefully read this prospectus, together with the accompanying base prospectus and the information incorporated by reference as described under the headings “Where You Can Find More Information” and “Incorporation of Certain Information by Reference” in this prospectus, and any free writing prospectus or prospectus that we have authorized for use in connection with this offering. These documents contain important information that you should consider when making your investment decision.

This prospectus describes the terms of this offering of common stock and also adds to and updates information contained in the documents incorporated by reference into this prospectus. To the extent there is a conflict between the information contained in this prospectus, on the one hand, and the information contained in any document incorporated by reference into this prospectus that was filed with the Securities and Exchange Commission, or SEC, before the date of this prospectus, on the other hand, you should rely on the information in this prospectus. 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 into this prospectus — the statement in the document having the later date modifies or supersedes the earlier statement.

You should rely only on the information contained in or incorporated by reference into this prospectus and the accompanying prospectus. We have not, and Cowen has not, authorized anyone to provide you with information that is different. This prospectus is not an offer to sell or solicitation of an offer to buy our securities in any circumstances under which the offer or solicitation is unlawful. We are offering to sell, and seeking offers to buy, our securities only in jurisdictions where offers and sales are permitted. You should not assume that the information we have included in this prospectus or the accompanying prospectus is accurate as of any date other than the date of this prospectus or the accompanying prospectus, respectively, or that any information we have incorporated by reference is accurate as of any date other than the date of the document incorporated by reference, regardless of the time of delivery of this prospectus or of any of our securities. Our business, financial condition, results of operations and prospects may have changed since those dates.

Unless otherwise stated or unless the context requires otherwise, the terms “DarioHealth,” “the Company,” “we,” “our,” and “us” refer to DarioHealth Corp., a Delaware corporation and our wholly-owned subsidiaries LabStyle Innovation Ltd. and Upright Technologies Ltd., each of which are Israeli companies, and Upright Technologies Inc. and PsyInnovations Inc., each a Delaware company.


PROSPECTUS SUMMARY

This summary highlights information contained elsewhere or incorporated by reference into this prospectus and the accompanying prospectus. This summary does not contain all of the information that you should consider before investing in our securities. You should carefully read the entire prospectus and the accompanying prospectus, including the “Risk Factors” sections, starting on page 6 of this prospectus, page 6 of the accompanying prospectus and page 21 of our Annual Report on Form 10-K for the fiscal year ended December 31, 2020, as well as the financial statements and the other information incorporated by reference herein, before making an investment decision.

Our Company

We are a leading global Digital Therapeutics company revolutionizing the way people manage their health across the chronic condition spectrum to live a better and healthier life. Our mission is to transform how affected individuals manage their health and chronic conditions by empowering our customers to easily manage their conditions and take steps to improve their overall health. Most chronic conditions are driven by personal behaviors and the individual actions that are or are not taken. We believe that changing these behaviors can dramatically improve our customers’ overall health and substantially reduce unnecessary health spending. However, behavioral change and habit formation are difficult, especially in managing chronic disease and related conditions. Our digital therapeutics endeavor to produce lasting behavior changes in our customers by applying a novel combination of artificial intelligence, or AI, driven dynamic personalization and behavioral science at scale. This allows us to engage and support our customers, and offer them a complete virtual care solution, ideally resulting in improved health outcomes and reduced total cost of care.

We began our sales in the direct-to-consumer space, solving first for what we deemed the most difficult problems: how to engage users and support behavior change to improve clinical outcomes in diabetes. Our most developed AI tools leverage the direct-to-consumer experience from over 150,000 members to drive superior engagement and outcomes. In early 2020, we broadened our solutions to include other medical conditions in addition to diabetes, and to serve business customers who seek to improve the health of their stakeholders. Presently, we have deployed solutions for diabetes, hypertension, and pre-diabetes, and through our acquisition of Upright Technologies Ltd., we now offer solutions for musculoskeletal conditions. We are currently delivering Business to Business to Consumer solutions for providers, employers, and pharmaceutical companies, and we plan to develop a full-risk health plan business, which we expect will provide our AI driven, remote patient monitoring and coaching for a variety of chronic conditions, across a range of customer product lines in 2021.

Our address is 142 W. 57th St., 8th Floor, New York, New York and our telephone number is (646) 665-4667. Our corporate website is: www.mydario.com. The content of our website shall not be deemed incorporated by reference in this prospectus.


THE OFFERING

Common stock to be offered by usShares  of our common stock having an aggregate offering price of up to $50,000,000.
Common stock to be outstanding after this offeringAssuming all $50,000,000 of shares of our common stock are sold in this offering at an assumed offering price of $16.65 per share, the last reported sale price of shares of our common stock on the Nasdaq on October 19, 2021, we would have had 19,333,845 shares of our common stock outstanding as of June 30, 2021.
Manner of Offering“At-the-market” offering that may be made from time to time through Cowen as our sales agent. See “Plan of Distribution” on page 10 of this prospectus. 
Use of ProceedsWe expect to use the net proceeds of this offering, if any, for general corporate purposes. See “Use of Proceeds” on page 8.
Risk FactorsSee “Risk Factors” beginning on page 6 of this prospectus and page 6 of the accompanying prospectus and under similar headings in other documents filed after the date hereof and incorporated by reference into this prospectus and the accompanying prospectus for a discussion of the risks you should carefully consider before deciding to invest in our securities.
Listing on Nasdaq Capital MarketOur common stock is listed on The Nasdaq Capital Market under the symbol “DRIO”.

Unless we indicate otherwise, all information in this prospectus supplement is based on 16,562,472 shares of common stock outstanding as of October 19, 2021, and excludes:

·662,120 shares of our common stock issuable upon exercise of outstanding stock options under our Amended and Restated 2012 Equity Incentive Plan at a weighted average exercise price of $16.27, 827,060 shares of our common stock issuable upon exercise of outstanding stock options under our 2020 Equity Incentive Plan at a weighted average exercise price of $19.63, and 303,459 shares of our common stock issuable upon exercise of outstanding non-plan stock options at a weighted average exercise price of $18.48 per share; and
·1,114,784 shares of our common stock issuable upon exercise of outstanding warrants at a weighted average exercise price of $14.49 per share as of October 19, 2021.


RISK FACTORS

Investing in our common stock involves a high degree of risk. Before deciding whether to invest in our common stock, you should carefully consider the risks and uncertainties described below and under the section titled “Risk Factors” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2020, as updated by our annual, quarterly and other reports and documents that are incorporated by reference into this prospectus supplement and the accompanying prospectus and any free writing prospectus that we have authorized for use in connection with this offering. Each of the risk factors could adversely affect our business, operating results and financial condition, as well as adversely affect the value of an investment in our common stock, and the occurrence of any of these risks might cause you to lose all or part of your investment. There may be additional risks that we do not presently know of or that we currently believe are immaterial which could also impair our business and financial position. Please also read carefully the following section titled “Special Note Regarding Forward-Looking Statements.”

Risks Related to This Offering and Ownership of our Common Stock

Our management will have broad discretion in the use of the net proceeds from this offering and may not use them effectively.

Our management will have broad discretion in the application of the net proceeds from this offering and could spend the proceeds in ways that do not improve our business, financial condition or results of operations or enhance the value of our common stock. Our stockholders will not have the opportunity as part of their investment decision to assess whether the net proceeds are being used appropriately. You may not agree with our decisions, and our use of the net proceeds may not yield any return on your investment. Because of the number and variability of factors that will determine our use of the net proceeds from this offering, their ultimate use may vary substantially from their currently intended use. Our failure to apply the net proceeds of this offering effectively could compromise our ability to pursue our growth strategy and we might not be able to yield a significant return, if any, on our investment of these net proceeds. You will not have the opportunity to influence our decisions on how to use our net proceeds from this offering. The failure by our management to apply these funds effectively could result in financial losses that could harm our business, cause the price of our common stock to decline and delay the development of any product candidates we may develop. Pending their use, we may invest our cash, including the net proceeds from this offering, in a manner that does not produce income or that loses value. See “Use of Proceeds.”

If you purchase our shares of our common stock in this offering, you will incur immediate and substantial dilution in the net tangible book value of your shares of our common stock.

The shares of our common stock sold in this offering from time to time will be sold at various prices; however, we expect that the public offering price of our common stock will be substantially higher than the net tangible book value per share of our common stock. Therefore, if you purchase shares of our common stock in this offering, you will pay a price per share that substantially exceeds our net tangible book value per share after this offering and will suffer substantial dilution with respect to the net tangible book value of those shares of our common stock. Assuming that an aggregate of 3,003,003 shares of our common stock are sold at a public offering price of $16.65 per share, the last reported sale price of our common stock on the Nasdaq on October 19, 2021, for aggregate gross proceeds of approximately $50,000,000, and after deducting estimated commissions and offering expenses payable by us, you would incur immediate dilution of $8.04 per share, representing the difference between the assumed public offering price and our as adjusted net tangible book value per share, as of June 30, 2021, of $8.61 after giving effect to this offering. Further, the future exercise of any options or warrants to purchase shares of our common stock and the vesting and settlement of any restricted stock units will result in additional dilution of your investment. See the section titled “Dilution” for a more detailed illustration of the dilution that you would incur if you participate in this offering.

Future sales of shares of our common stock, or the perception that such sales may occur, could depress our share price, even if our business is doing well.

Sales of a substantial number of shares of our common stock in the public market following this offering, or the perception by investors that our stockholders intend to sell substantial amounts of our common stock in the public market, could depress the market price of our common stock even if our business is doing well.

All of the shares sold in this offering, as well as shares issued upon the exercise of options and warrants granted to persons other than our officers and directors, are freely transferable without restrictions or further registration under the Securities Act. If our large stockholders, including our Founders, or any of our other executive officers or directors were to sell a substantial portion of our common stock, or if the market perceived that any such stockholders or other executive officers or directors intends to sell shares of our common stock, such sale or perception could negatively affect our common stock price.


SPECIAL NOTE REGARDING FORWARD-LOOKING INFORMATION

The statements contained in this prospectus, the accompanying prospectus and the documents we incorporate by reference herein or therein that are not historical facts are “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 and other federal securities laws.  Such forward-looking statements may be identified by, among other things, the use of forward-looking terminology such as “believes,” “intends,” “plans,” “expects,” “may,” “will,” “should,” or “anticipates” or the negative thereof or other variations thereon or comparable terminology, and similar expressions are intended to identify forward-looking statements.  We remind readers that forward-looking statements are merely predictions and therefore inherently subject to uncertainties and other factors and involve known and unknown risks that could cause the actual results, performance, levels of activity, or our achievements, or industry results, to be materially different from any future results, performance, levels of activity, achievements or industry results, expressed or implied by such forward-looking statements.  Such forward-looking statements include, among other statements, statements regarding the following:

our current and future capital requirements and our ability to satisfy our capital needs through financing transactions or otherwise;

our launch and market penetration plans;
the expected execution of agreements with various providers for our solution;

our ability to manufacture, market and generate sales of our medical devices, including Dario Blood Glucose monitor, Dario Blood Pressure monitor and Dario Weight Scale;

our ability to commercialize our membership programs, including our per member per month program for people with diabetes and hypertension, and our Business to Business to Consumer services;

our ability to develop, launch and commercialize the Dario Loop;

our ability to maintain our relationships with key partners;

our ability to complete required clinical trials of our product and obtain clearance or approval from the United States Food and Drug Administration, or other regulatory agencies in different jurisdictions;

our ability to maintain or protect the validity of our U.S. and other patents and other intellectual property;

our ability to retain key executive members;

our ability to internally develop new inventions and intellectual property;

interpretations of current laws and the passages of future laws; and

acceptance of our business model by investors.

The foregoing does not represent an exhaustive list of matters that may be covered by the forward-looking statements contained herein or risk factors that we are faced with that may cause our actual results to differ from those anticipated in our forward-looking statements. Please see “Risk Factors” for additional risks that could adversely impact our business and financial performance.

Moreover, new risks regularly emerge and it is not possible for our management to predict or articulate all the risks we face, nor can we assess the impact of all risks on our business or the extent to which any risk, or combination of risks, may cause actual results to differ from those contained in any forward-looking statements. All forward-looking statements included in this prospectus are based on information available to us on the date of this prospectus. Except to the extent required by applicable laws or rules, we undertake no obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future events or otherwise. All subsequent written and oral forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements contained above and throughout this prospectus.


USE OF PROCEEDS

We may issue and sell shares of our common stock having aggregate sales proceeds of up to $50,000,000, from time to time, in this offering. Because there is no minimum offering amount required as a condition to close this offering, the actual total public offering amount, commissions and net proceeds to us, if any, are not determinable at this time. There can be no assurance that, in the future, we will sell any shares under or fully utilize the sales agreement with Cowen as a source of financing.

We currently intend to use the net proceeds from the sale of shares our common stock offered hereby for general corporate purposes.


DILUTION

Dilution with respect to net tangible book value per share represents the difference between the price per share paid by the purchasers of the shares of common stock sold in this offering and the net tangible book value per share of common stock immediately after this offering. Net tangible book value per share is determined by subtracting our total liabilities from the total book value of our tangible assets and dividing the difference by the number of shares of common stock deemed to be outstanding at that date.

Our historical net tangible book value as of June 30, 2021 was approximately $118,113,000, or $7.23 per share.

After giving effect to the assumed sale of 3,003,003 shares of our common stock in this offering at an assumed offering price of $16.65 per share, the last reported sale price of our common stock on the Nasdaq on October��19, 2021, and after deducting estimated commissions and offering expenses payable by us, our as adjusted net tangible book value as of June 30, 2021 would have been approximately $166,501, or $8.61 per share. This represents an immediate increase in as adjusted net tangible book value of $1.38 per share to existing stockholders and immediate dilution of $8.04 per share to new investors purchasing shares of our common stock in this offering at the assumed offering price.

The following table illustrates this calculation on a per share basis. The pro forma as adjusted information is illustrative only and will adjust based on the actual public offering price, the actual number of shares sold and other terms of the offering determined at the time shares of our common stock are sold pursuant to this prospectus. The pro forma as adjusted information assumes that all shares of our common stock in the aggregate amount of $50,000,000 are sold at the assumed public offering price of $16.65 per share, the last reported sale price of our common stock on the Nasdaq on October 19, 2021. The shares of our common stock sold in this offering, if any, will be sold from time to time at various prices.

Assumed public offering price per share   $16.65 
Historical net tangible book value per share as of June 30, 2021$118,113,000    
Increase in net tangible book value per share after giving effect to this offering$48,373,000    
Pro forma as adjusted net tangible book value per share as of June 30, 2021, after giving effect to this offering   $8.61 
Dilution in adjusted net tangible book value per share to new investors purchasing shares of our common stock in this offering   $8.04 

The above discussion and table are based on 16,330,842 shares of our common stock outstanding as of June 30, 2021, and exclude, as of such date:

·678,544 shares of our common stock issuable upon exercise of outstanding stock options under our Amended and Restated 2012 Equity Incentive Plan at a weighted average exercise price of $18.48, 581,217 shares of our common stock issuable upon exercise of outstanding stock options under our 2020 Equity Incentive Plan at a weighted average exercise price of $21.34, and 285,425 shares of our common stock issuable upon exercise of outstanding non-plan stock options at a weighted average exercise price of $19.00 per share; and
·1,020,271 shares of our common stock issuable upon exercise of outstanding warrants at a weighted average exercise price of $14.14.

PLAN OF DISTRIBUTION

We have entered into a sales agreement with Cowen, under which we may issue and sell from time to time up to $50,000,000 of our common stock through Cowen as our sales agent. Sales of our common stock, if any, will be made at market prices by any method that is deemed to be an “at the market” offering as defined in Rule 415 under the Securities Act, including sales made directly on the Nasdaq or any other trading market for our common stock. If authorized by us in writing, Cowen may purchase shares of our common stock as principal.

Cowen will offer our common stock subject to the terms and conditions of the sales agreement on a daily basis or as otherwise agreed upon by us and Cowen. We will designate the maximum amount of common stock to be sold through Cowen on a daily basis or otherwise determine such maximum amount together with Cowen. Subject to the terms and conditions of the sales agreement, Cowen will use its commercially reasonable efforts to sell on our behalf all of the shares of common stock requested to be sold by us. We may instruct Cowen not to sell common stock if the sales cannot be effected at or above the price designated by us in any such instruction. Cowen or we may suspend the offering of our common stock being made through Cowen under the sales agreement upon proper notice to the other party. Cowen and we each have the right, by giving written notice as specified in the sales agreement, to terminate the sales agreement in each party’s sole discretion at any time.

The aggregate compensation payable to Cowen as sales agent equals 3.0% of the gross sales price of the shares sold through it pursuant to the sales agreement. We have also agreed to reimburse Cowen up to $50,000 of Cowen’s expenses incurred in connection with this offering. We estimate that the total expenses of the offering payable by us, excluding commissions payable to Cowen under the sales agreement, will be approximately $127,000.

The remaining sales proceeds, after deducting any expenses payable by us and any transaction fees imposed by any governmental, regulatory, or self-regulatory organization in connection with the sales, will equal our net proceeds for the sale of such common stock.

Cowen will provide written confirmation to us following the close of trading on the Nasdaq on each day in which common stock is sold through it as sales agent under the sales agreement. Each confirmation will include the number of shares of common stock sold through it as sales agent on that day, the volume weighted average price of the shares sold, the percentage of the daily trading volume and the net proceeds to us.

We will report at least quarterly the number of shares of common stock sold through Cowen under the sales agreement, the net proceeds to us and the compensation paid by us to Cowen in connection with the sales of common stock.

Settlement for sales of common stock will occur, unless the parties agree otherwise, on the second business day that is also a trading day following the date on which any sales were made in return for payment of the net proceeds to us. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.

In connection with the sales of our common stock on our behalf, Cowen will be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation paid to Cowen will be deemed to be underwriting commissions or discounts. We have agreed in the sales agreement to provide indemnification and contribution to Cowen against certain liabilities, including liabilities under the Securities Act. As sales agent, Cowen will not engage in any transactions that stabilizes our common stock.

Our common stock is listed on the Nasdaq and trades under the symbol “DRIO.” The transfer agent of our common stock is VStock Transfer, LLC.

Cowen and/or its affiliates have provided, and may in the future provide, various investment banking and other financial services for us for which services they have received and, may in the future receive, customary fees.


LEGAL MATTERS

The validity of the securities offered hereby will be passed upon for us by Sullivan & Worcester LLP, New York, New York. Cowen and Company, LLC is being represented in connection with this offering by DLA Piper LLP, New York, New York.

EXPERTS

The consolidated financial statements of DarioHealth Corp. at December 31, 2020 and 2019, and for each of the two years in the period ended December 31, 2020, 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, 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 at 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 stockCommon 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.

 

The SEC 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.

 


12

 

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.

 

We have filed the following documents with the SEC. These documents are incorporated herein by reference as of their respective dates of filing:

 

(1)(1)Our Annual Report on Form 10-K for the fiscal year ended December 31, 2020,2021, as filed with the SEC on March 9, 2021;22, 2022;
  
(2)Our Quarterly Reports on Form 10-Q for the quartersquarter ended March 31, 2021 and June 30, 2021,2022, as filed with the SEC on May 17, 2021August 15, 2022 and our August 16, 2021Quarterly Reports on Form 10-Q for the quarter ended September 30, 2022, as filed with the SEC on November 14, 2022, respectively;

(3)Our Current Reports on Form 8-K, and 8-K/A, as filed with the SEC on, January 28, 202119, 2022, FebruaryMarch 2, 2022, March 4, 20212022, April 1, 2021, May 18, 20212022, June 7, 2016, 2022, June 8, 2021, July 9, 202113, 2022, August 16, 202115, 2022, October 3, 2022 and October 22, 2021December 7, 2022; and

 

(4)(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 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 securitiesCommon 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 142is 18 W. 57th St., 8th18th St, 5th Floor, New York, New York, Attention: Controller, (646) 665-4667.

 


 

 

Up to $50,000,000

UP TO 107,409 SHARES OF COMMON STOCK

 

PROSPECTUS

 

Cowen

, 20212022

 

 

 

 

PART II

 

INFORMATION NOT REQUIRED IN PROSPECTUS

 

ITEMItem 14.OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.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 securitiesCommon Stock registered under this registration statement:

 

 Amount  Amount 
Registration fee under Securities Act of 1933 $18,540  $46 
Legal fees and expenses $60,000  $7,500 
Accountant’s fees and expenses $45,500  $4,000 
Miscellaneous fees and expenses $3,000  $100 
Total $127,040  $11,646 

 

ITEMItem 15.INDEMNIFICATION OF DIRECTORS AND OFFICERS.Indemnification of Directors and Officers.

 

Section 145 of the Delaware General Corporation Law (which we refer to as the DGCL)“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.

 


ITEMItem 16.EXHIBITS.Exhibits.

 

The exhibits filed with this registration statement are set forth on the “Exhibit Index” set forth elsewhere herein.

Exhibit
No.
Description
5.1*Opinion of Sullivan & Worcester LLP
23.1*Consent of Kost Forer Gabbay & Kasierer, a member of Ernst & Young Global
23.2Consent of Sullivan & Worcester LLP (included in Exhibit 5.1)
24.1Power of Attorney
107*Filing Fee Table

  

ITEMItem 17.UNDERTAKINGS.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.

 

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.

 


EXHIBIT INDEX

Exhibit No.Description
1.1**Form of Underwriting Agreement in connection with the offering of any securities
1.2Sales Agreement, dated October 22, 2021, by and between DarioHealth Corp. and Cowen and Company, LLC (1)
3.1Composite Copy of Certificate of Incorporation, as amended (2)
3.2Bylaws(3)
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 (included in Exhibit 5.1)
24.1*Power of Attorney (included on the signature page hereto)

*Filed herewith.

**To be filed by amendment or incorporated by reference in connection with the offering of any securities, as appropriate.

(1)

Incorporated by reference to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on October 22, 2021.

(2)Incorporated by reference to the Company’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on March 9, 2021.

(3)Incorporated by reference to the Company’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on August 16, 2021.


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, IsraelNew York, New York on the 2230ndth day of October, 2021.December 2022.

 

 DARIOHEALTH CORP.
   
 By:/s/ Erez Raphael
  Name:Erez Raphael Erez Raphael
  Title:Chief Executive Officer

 

POWER OF ATTORNEY

 

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 October 22, 2021December 30, 2022
Erez Raphael (Principal Executive Officer)  
     
/s/ Zvi Ben David Chief Financial Officer, Secretary and Treasurer October 22, 2021December 30, 2022
Zvi Ben David (Principal Financial and Accounting Officer)  
     
/s/ Yoav Shaked Chairman of the Board of Directors October 22, 2021December 30, 2022
Yoav Shaked    
     
/s/ Hila Karah Director October 22, 2021December 30, 2022
Hila Karah    
     
/s/ Dennis Matheis Director October 22, 2021December 30, 2022
Dennis Matheis    
     
/s/ Dennis M. McGrath Director October 22, 2021December 30, 2022
Dennis M. McGrath    
     
/s/ Adam K. Stern Director October 22, 2021December 30, 2022
Adam K. Stern    
/s/ Richard B. StoneDirectorOctober 22, 2021
Richard B. Stone