SEC Company Response from DarioHealth Corp. (DRIO) (CIK 0001533998) (DRIO) — Jun 22, 2017
DarioHealth Corp. (DRIO) (CIK 0001533998)
Date: June 22, 2017 · CIK: 0001533998 · Accession: 0001144204-17-033606
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File numbers found in text: 333-209002
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CORRESP
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DARIOHEALTH CORP.
9 Halamish Street
Caesarea Industrial Park
3088900, Israel
June 22, 2017
Via EDGAR
Amanda Ravitz, Assistant Director
Securities and Exchange Commission
Division of Corporation Finance
100 F Street, NE
Washington, DC 20549
Re: DarioHealth Corp. (the “Company”)
Post-Effective
Amendment No. 1 to Registration Statement on Form S-1
Filed
May 25, 2017
File
No. 333-209002
Dear Ms. Ravitz:
The purpose of this letter is to respond
to your oral comment of June 12, 2017 to our counsel regarding the above-referenced registration statement (the “Registration
Statement”).
On March 3, 2016, the Securities and Exchange
Commission (the “Commission”) declared the Registration Statement effective, and on March 8, 2016, the Company delivered
securities subject to the Registration Statement to investors in the related offering (the “Offering”). Certain of
the securities registered by the Registration Statement were shares of the Company’s common stock underlying warrants issued
in the Offering.
On May 25, 2017, the Company filed Post-Effective
Amendment No. 1 to the Registration Statement to include the information contained in the Company’s Annual Report on Form
10-K for the fiscal year ended December 31, 2016 that was filed with the Commission on March 22, 2017, to cover the sale of the
shares of the Company’s common stock issuable from time to time upon exercise of such warrants that remain unexercised.
On June 12, 2017, you advised our counsel
that the sale of certain of the shares of common stock and certain of the shares of common stock underlying warrants issued in
the Offering may not have been properly registered with the Commission and that the sales of such securities may have violated
Section 5 of the Securities Act of 1933, as amended (the “Securities Act”).
The Company acknowledges the Commission’s
comment and believes that the sale of approximately 55,555 shares of common stock and approximately 255,555 shares of common stock
underlying warrants sold in the Offering may have been inadvertently sold in violation of Section 5 of the Securities Act. Accordingly,
the Company may be subject to rescission offer liabilities or other potential contingent liabilities to the purchasers of those
securities. The Company notes that no purchaser has asserted any claim for damages and that claims for rescission must generally
be brought within one year of the violation. Furthermore, none of the warrants have been exercised to date and all of the warrants
are currently out of the money. As a result, any analysis of potential liability is merely speculative and the Company is unable
to determine the amount, if any, of potential liability as a result of these sales. Based on the Company’s current financial
condition, the Company believes that the amount, if any, of potential liability for rescission or other contingent liabilities
would not be material to its financial condition.
Because the Company is unable to accurately
estimate its potential liability, the Company intends to file Post-Effective Amendment No. 2 to the Registration Statement to reflect
the reduced number of shares of common stock underlying warrants that were properly registered by the Registration Statement and
intends to add to Post-Effective Amendment No. 2 to the Registration Statement the following risk factor:
We may be subject to claims for rescission or damages
in connection with certain sales of shares of our securities.
In March 2016, the Securities and Exchange Commission declared
effective a registration statement that we filed to cover the sale of shares of common stock and shares of common stock underlying
warrants. A small portion of the sales of common stock and shares of common stock underlying warrants may not have been made in
accordance with Section 5 of the Securities Act of 1933, as amended. Accordingly, the purchasers of those securities may have rescission
rights or be entitled to damages. However, claims for rescission must generally be brought within one year of the violation and
therefore are likely time barred. The amount of such liability, if any, is uncertain. In the unlikely event that we are required
to make payments to investors as a result of these unregistered sales of securities, our liquidity could be negatively impacted.
* * *
We appreciate your comment. Please call
our counsel, Oded Har-Even, (212) 660-5002, of Zysman, Aharoni, Gayer and Sullivan & Worcester LLP, if you have any questions
or require additional information.
Sincerely,
DarioHealth Corp.
By: /s/ Zvi Ben David
Name: Zvi Ben David
Title: Chief Financial Officer