SEC Company Response from DarioHealth Corp. (DRIO) (CIK 0001533998) (DRIO) — Feb 11, 2013
DarioHealth Corp. (DRIO) (CIK 0001533998)
Date: Feb. 11, 2013 · CIK: 0001533998 · Accession: 0001144204-13-007363
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File numbers found in text: 333-186054
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CORRESP
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150 EAST 42nd STREET, 11th FLOOR
NEW YORK, NEW YORK 10017
TELEPHONE: (212) 370-1300
FACSIMILE: (212) 370-7889
www.egsllp.com
VIA EDGAR
February 11, 2013
U.S. Securities and Exchange Commission
100 F Street, N.E.
Mail Stop 3010
Washington, D.C. 20549
Attention: Amanda Ravitz
Re: LabStyle Innovations Corp.
Registration Statement on Form
S-l
File No. 333-186054
Dear Ms. Ravitz:
On behalf of LabStyle Innovations Corp.,
a Delaware corporation (the “Company”), we hereby supplementally submit for review by the staff (the “Staff”)
of the Securities and Exchange Commission a proposed Addendum (the “Addendum”) to the Securities Purchase Agreement
between the Company and the investors in the Company’s August 2012 private placement.
Further to our discussions with the Staff
on this topic, the Addendum is intended to memorialize certain clarifications to tranches 2 and 3 to the Company’s August
2012 private placement. Once finalized, the Addendum will be filed as an exhibit to the Company’s registration statement
on Form S-1 and described therein.
We thank the Staff in advance for its consideration
of the Addendum. Should you have any questions or comments, please contact me at (212) 370-1300.
Sincerely,
/s/ Lawrence A. Rosenbloom
Lawrence A. Rosenbloom
cc: LabStyle Innovations Corp.
ADDENDUM TO SECURITIES PURCHASE AGREEMENT
This ADDENDUM TO
SECURITIES PURCHASE AGREEMENT (this “Addendum”), dated as of February 11, 2013, is made and entered into
by and between LabStyle Innovations Corp., a company incorporated under the laws of the Delaware (the “Company”),
and each of the purchasers who have executed a signature page to this Addendum (each a “Purchaser”
and collectively the “Purchasers”).
WHEREAS, the
Company and the Purchasers are parties to that certain Securities Purchase Agreement, dated August 29, 2012, under which the
Company agreed to issue to the Purchasers, and the Purchasers irrevocably agreed to purchase from the Company, an aggregate of
1,500,000 units (each, a “Unit”), at a price of US$1.00 per Unit, with each Unit consisting of: (i) one (1)
share of the Company’s common stock, par value US$0.0001 per share (the
“Common Stock”) and (ii) one (1) warrant (the “Warrants”) to purchase one (1) share
(collectively, the “Warrant Shares”) of Common Stock at a price per share of US$1.00 (such Units, Common Stock,
Warrants and Warrant Shares offered hereby, the “Purchased Securities”);
and
WHEREAS, in
order to be compliant with the requirements of the United States federal securities laws, the Company and the Purchasers desire
to memorialize certain items with respect to their rights and obligations under the Agreement.
NOW THEREFORE,
in consideration of the foregoing and the matters forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties enter into the following addendum to the Agreement:
1. Defined
Terms. All capitalized terms used but not defined herein shall have the meanings ascribed to them in the Agreement.
2. Addendum
to Timing for Tranches; Registration Rights.
(a) Second
Tranche. Notwithstanding anything to the contrary in the Agreement, it is understood and agreed that the Section Tranche Funding
Date shall be no later than five (5) business days following the Effective Date (as defined in this Addendum and not in the Agreement).
Each Purchaser irrevocably agrees to fund his, her or its respective portion of the Second Tranche no later than five (5) business
days following such Effective Date.
(b) Third
Tranche. Notwithstanding anything to the contrary in the Agreement, it is understood and agreed that it shall not be a condition
for the funding of the Third Tranche that the Purchased Securities be registered for resale in a registration statement declared
effective by the Securities and Exchange Commission (the “SEC”) or that the Company shall have received a ticker
symbol for its Common Stock and caused its Common Stock to be eligible for trading on the Over-the-Counter Bulletin Board, OTCQB
Market or similar trading system. The Purchasers shall nonetheless be irrevocably obligated to fund their respective portions
of the Third Tranche on or before the 100th day following the Third Tranche Effective Date (as defined in this Addendum
and not in the Agreement), and the Purchasers agree to so fund their respective portions of the Third Tranche. In addition, the
Purchasers agree that they will exercise the Warrants issued in the Third Tranche within thirty (30) business days of the issuance
of such Warrants.
(c) Registration
Rights. The Company shall afford the Purchasers the registration rights set forth on Exhibit A hereto with respect
to the Purchased Securities sold in the Third Tranche.
(d) Effective
Date; Third Tranche Effective Date. For purposes of the Agreement, the term “Effective Date” shall mean
the date that any registration statement covering the sale or resale of any securities of the Company is declared effective by
the SEC. For purposes of the Agreement, the term “Third Tranche Effective Date” shall mean the date
that both: (i) any registration statement covering the sale or resale of any securities of the Company is declared effective by
the SEC and (ii) the Company has received a ticker symbol for its Common Stock and caused its Common Stock to be eligible for
trading on the Over-the-Counter Bulletin Board, OTCQB Market or similar trading system.
(e) Tranche
Funding Dates. The definitions of “Second Tranche Funding Date” and “Third Tranche Funding Date” appearing
in the Agreement are modified to reflect the dates and timing set forth in this Addendum.
(f) Promissory
Notes. The Company and each Purchaser agree that the respective promissory notes evidencing the obligations of the Purchasers
to fund the Second Tranche and the Third Tranche shall be deemed modified and amended by this Addendum to reflect the timing for
the funding of the Second Tranche and the Third Tranche as set forth herein.
3. No
Further Modification. Except as modified hereby, the Agreement shall remain unchanged and in full force and effect. Without
limiting the generality of the foregoing, it is specifically agreed that the amount and pricing of the Purchased Securities to
be purchased shall not be modified or amended in any respect.
4. Counterparts.
This Addendum may be executed in any number of counterparts, each of which shall be deemed an original and enforceable against
the parties actually executing such counterpart, and all of which together shall constitute one and the same instrument. Such
counterparts may be delivered by facsimile or e-mail/.pdf transmission, which shall constitute valid delivery thereof.
IN WITNESS
WHEREOF, each Purchaser and the Company have caused its respective signature page to this Addendum to be duly executed as
of the date first written above.
COMPANY:
LABSTYLE
INNOVATIONS CORP.
By:
Name:
Title:
[Purchaser Signature Pages Follow]
2
IN WITNESS WHEREOF,
each Purchaser and the Company have caused its respective signature page to this Addendum to be duly executed as of the date
first written above.
DIT EQUITY
HOLDINGS, LLC
By:
Name:
Title:
Purchaser Signature Page to Addendum
IN WITNESS WHEREOF,
each Purchaser and the Company have caused its respective signature page to this Addendum to be duly executed as of the date
first written above.
Anthony Ivankovich
Purchaser Signature Page to Addendum
IN WITNESS WHEREOF,
each Purchaser and the Company have caused its respective signature page to this Addendum to be duly executed as of the date
first written above.
FEQ REALTY,
LLC
By:
Name:
Title:
Purchaser Signature Page to Addendum
IN WITNESS WHEREOF,
each Purchaser and the Company have caused its respective signature page to this Addendum to be duly executed as of the date
first written above.
VELADEN
INVESTMENTS CORP, LLC
By:
Name:
Title:
Purchaser Signature Page to Addendum
IN WITNESS WHEREOF,
each Purchaser and the Company have caused its respective signature page to this Addendum to be duly executed as of the date
first written above.
George Karfunkel
Purchaser Signature Page to Addendum
IN WITNESS WHEREOF,
each Purchaser and the Company have caused its respective signature page to this Addendum to be duly executed as of the date
first written above.
MOGGLE INVESTORS,
LLC
By:
Name:
Title:
Purchaser Signature Page to Addendum
IN WITNESS WHEREOF,
each Purchaser and the Company have caused its respective signature page to this Addendum to be duly executed as of the date
first written above.
Steven B. Rosner
Purchaser Signature Page to Addendum
IN WITNESS WHEREOF,
each Purchaser and the Company have caused its respective signature page to this Addendum to be duly executed as of the date first
written above.
Sten-Anders Fellman
Purchaser Signature
Page to Addendum
IN WITNESS WHEREOF,
each Purchaser and the Company have caused its respective signature page to this Addendum to be duly executed as of the date first
written above.
David A. Rosner
Purchaser Signature
Page to Addendum
IN WITNESS WHEREOF,
each Purchaser and the Company have caused its respective signature page to this Addendum to be duly executed as of the date first
written above.
Lauren Paige Rosner
Purchaser Signature
Page to Addendum
IN WITNESS WHEREOF,
each Purchaser and the Company have caused its respective signature page to this Addendum to be duly executed as of the date first
written above.
SLD CAPITAL CORP. MPP
By:
Name: Steven B. Rosner
Title: Trustee
Purchaser Signature
Page to Addendum
IN WITNESS WHEREOF,
each Purchaser and the Company have caused its respective signature page to this Addendum to be duly executed as of the date first
written above.
Ron Eller
Purchaser Signature
Page to Addendum
IN WITNESS WHEREOF,
each Purchaser and the Company have caused its respective signature page to this Addendum to be duly executed as of the date first
written above.
Henry Rothman
Purchaser Signature
Page to Addendum
Exhibit A
Registration Rights
The shares of Common
Stock underlying the Purchased Securities purchased by the Purchasers in the Third Tranche will be deemed “Registrable
Securities” subject to the provisions of this Exhibit A.
All capitalized terms
used but not defined in this Exhibit A shall have the meanings ascribed to such terms in the Agreement and related Addendum thereto
to which this Exhibit is attached and made a part of.
1. Demand
Registration.
1.1 Request
for Registration. At any time following the compete funding of the Third Tranche by all Purchasers (but no later than five
(5) years from such funding), the holders of a majority-in-interest of the Registrable Securities, held by the Purchasers or the
transferees of the Purchasers, may make a written demand for resale registration under the Securities Act of 1933, as amended (the
“Securities Act”), of all (but not less than all) of their Registrable Securities (a “Demand Registration”).
Any demand for a Demand Registration shall specify the number and type of Registrable Securities proposed to be sold and the intended
method(s) of distribution thereof. The Company will notify all holders of Registrable Securities of the demand within two (2) business
days from the receipt of the Demand Registration, and each holder of Registrable Securities who wishes to include such holder’s
Registrable Securities in the Demand Registration (each such holder including shares of Registrable Securities in such registration,
a “Demanding Holder”) shall so notify the Company within two (2) business days after the receipt by the holder
of the notice from the Company. Upon any such request, the Demanding Holders shall be entitled to have their Registrable Securities
included in the Demand Registration, subject to potential reduction as set forth on this Exhibit A. The Company shall not
be obligated to effect more than an aggregate of one (1) Demand Registration in respect of Registrable Securities.
1.2 Implementation
of Demand Registration. The Company shall effect the Demand Registration by filing with the U.S. Securities and Exchange Commission
(the “SEC”) a registration statement on Form S-1 (for Form S-3, if the Company is then eligible to use such
form) (a “Registration Statement”) covering the resale of the Registrable Securities within thirty (30) days
of the determination of the Demanding Holders who have elected to participate in the Demand Registration. The Company shall use
its commercially reasonable efforts to have the Registration Statement covering the resale of the Registrable Securities declared
effective by the SEC.
1.3 Effective
Registration. A registration will not count as a Demand Registration until the Registration Statement filed with the SEC with
respect to such Demand Registration has been declared effective.
2. Piggy-Back
Registration.
2.1 Piggy-Back
Rights. If at any time following the compete funding of the Third Tranche by all Purchasers (but no later than five (5) years
from such funding), but provided that a Demand Registration has not at that time been effected, the Company proposes to file a
Registration Statement under the Securities Act with respect to an offering of equity securities, or securities or other obligations
exercisable or exchangeable for, or convertible into, equity securities, by the Company for its own account or for stockholders
of the Company for their account (or by the Company and by stockholders of the Company), other than a Registration Statement (i)
filed in connection with any employee stock option or other benefit plan, (ii) for a dividend reinvestment plan or (iii) in connection
with a merger or acquisition, then the Company shall (x) give written notice of such proposed filing to the holders of Registrable
Securities appearing on the books and records of the Company as such a holder as soon as practicable but in no event less than
ten (10) days before the anticipated filing date, which notice shall describe the amount and type of securities to be included
in such Registration Statement, the intended method(s) of distribution, and the name of the proposed managing underwriter or underwriters
(the “Underwriters”), if any, of the offering, and (y) offer to the holders of Registrable Securities in such
notice the opportunity to register the sale of such number of Registrable Securities as such holders may request in writing within
five (5) days following receipt of such notice (a “Piggy-Back Registration”). Subject to Section 2.2 below,
the Company shall cause such Registrable Securities to be included in such Registration Statement and shall use its commercially
reasonable efforts to cause the Underwriters of a proposed underwritten offering to permit the Registrable Securities requested
to be included in a Piggy-Back Registration. All holders of Registrable Securities proposing to distribute their securities through
a Piggy-Back Registration that involves Underwriters shall enter into an underwriting agreement and/or custody agreement and/or
lock-up agreement in customary form with the Underwriters selected for such Piggy-Back Registration. The Company may elect to utilize
a dual prospectus covering the underwritten offering and the separate public resale of the Registrable Securities in satisfaction
of its obligations hereunder.
A-1
2.2 Reduction
of Offering. If the Underwriters for a Piggy Back Registration that is to be an underwritten offering advise the Company and
the holders of Registrable Securities i