UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): November 29, 2018 (November 29, 2018)
DARIOHEALTH CORP.
(Exact name of registrant as specified in its charter)
| Delaware | 001-37704 | 45-2973162 | ||
|
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
8 HaTokhen Street
Caesarea Industrial Park
38900, Israel
(Address of Principal Executive Offices)
972-4-770-4055
(Issuer’s telephone number)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation to the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company x
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 13(a) of the Exchange Act. ¨
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Adoption of Amendment to Amended and Restated 2012 Equity Incentive Plan
On November 29, 2018, DarioHealth Corp. (the “ Company ”) held its 2018 Special Meeting of Stockholders (the “ Special Meeting ”). At the Special Meeting, the Company’s stockholders approved an amendment to the Company's Amended and Restated 2012 Equity Incentive Plan (the “ 2012 Plan Amendment ”), increasing the number of shares authorized for issuance under the Company's Amended and Restated 2012 Equity Incentive Plan by 2,500,000 shares from 5,373,000 to 7,873,000. The 2012 Plan Amendment previously had been approved, subject to stockholder approval, by the Company’s Board of Directors on October 7, 2018. The Company’s officers and directors are among the persons eligible to receive awards under the 2012 Plan Amendment in accordance with the terms and conditions thereunder.
The description of the 2012 Plan Amendment is qualified in its entirety by reference to the full text of the 2012 Plan Amendment a copy of which is attached as Exhibit 10.1.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
At the Special Meeting, the Company’s stockholders approved an amendment to Article 3, Section 3.3 of the Company’s bylaws (the “ Bylaws ”), which became effective upon such approval, to provide stockholders with the right to remove a director with or without cause by a vote of the majority of the stockholders entitled to vote at a meeting of the stockholders (the “ Bylaw Amendment ”). The Bylaws previously provided that stockholders could only remove a director for cause by a vote of 66 2/3% of the stockholders entitled to vote at a meeting of the stockholders.
A copy of the Bylaw Amendment is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference.
| Item 5.07 | Submission of Matters to a Vote of Security Holders. |
The final voting results of the Special Meeting held on November 29, 2018 are set forth below. Stockholders voted on the following proposals:
Proposal No. 1 — Private Placement Proposal.
The stockholders approved, for purposes of Nasdaq Listing Rule 5635(d), the conversion of 1,890,257 shares of the Company’s Series D Convertible Preferred Stock (the “ Series D Preferred Stock ”), which was issued pursuant to a private placement transaction that closed on September 13, 2018 and September 26, 2018, into an aggregate of 7,561,028 shares of common stock based on a conversion price of $0.90 per share (the “ Private Placement Proposal ”). The Private Placement Proposal required the affirmative vote of a majority of the stockholders entitled to vote at a meeting of the stockholders. The votes were as follows:
| For (1) | Against | Abstain | Broker Non-Votes | |||
| 17,312,460 | 82,732 | 65,475 | - |
(1) Holders of 5,764,666 shares of common stock indicated that they purchased such shares of common stock in the private placement offering that closed on September 13, 2018 and September 26, 2018, and therefore were not counted in determining whether or not the Private Placement Proposal was approved.
Proposal No. 2 — Incentive Plan Proposal.
The stockholders approved the 2012 Plan Amendment. The 2012 Plan Amendment proposal required the affirmative vote of a majority of the stockholders entitled to vote at a meeting of the stockholders. The votes were as follows:
| For | Against | Abstain | Broker Non-Votes | |||
| 17,017,811 | 213,387 | 229,469 | - |
Proposal No. 3 — Bylaw Amendment Proposal.
The stockholders approved the Bylaw Amendment. The Bylaw Amendment required the affirmative vote of sixty-six and two-thirds percent (66 2/3%) of the stockholders entitled to vote at a meeting of the stockholders. The votes were as follows:
| For | Against | Abstain | Broker Non-Votes | |||
| 17,414,407 | 40,772 | 5,488 | - |
| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits |
| 3.1 | Amendment No. 1 to the Company’s Bylaws. |
| 10.1 | Amendment to the Company’s Amended and Restated 2012 Equity Incentive Plan. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Dated: November 29, 2018 | DARIOHEALTH CORP. | |
| By: | /s/ Zvi Ben David | |
|
Name: Zvi Ben David
|
||
| Title: Chief Financial Officer, Treasurer and Secretary | ||
Exhibit 3.1
AMENDMENT NO. 1 TO
BYLAWS OF
DARIOHEALTH CORP.
(a Delaware Corporation)
(adopted effective as of November 29, 2018)
| 1. | Article 3, Section 3.3 of the Bylaws is deleted in its entirety and replaced with the following: |
SECTION 3.3. Vacancies, Additional Directors; Removal From Office; Resignation . If any vacancy occurs in the Board of Directors caused by death, resignation, retirement, disqualification, removal from office or otherwise, or if any new directorship is created by an increase in the authorized number of directors, a majority of the directors then in office, though less than a quorum, or a sole remaining director, but not the stockholders of the Corporation, may choose a successor or fill the newly created directorship. Any director so chosen shall hold office for the unexpired term of his or her predecessor in his or her office and until his or her successor shall be elected and qualified, unless sooner displaced. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director. A director may be removed from his or her position by the Board of Directors with or without cause. The stockholders of the Corporation may remove a member of the Board of Directors with or without cause, which removal shall only occur at a meeting of the stockholders, duly called, by the affirmative vote of a majority of the stockholders entitled to vote thereat. Any director may resign or voluntarily retire upon giving written notice to the Chairman of the Board or the Board of Directors. Such retirement or resignation shall be effective upon the giving of the notice, unless the notice specifies a later time for its effectiveness. If such retirement or resignation is effective at a future time, the Board of Directors may elect a successor to take office when the retirement or resignation becomes effective.
Exhibit 10.1
Amendment to Amended and Restated 2012 Equity Incentive Plan
WHEREAS , DarioHealth Corp. (the “Company”) maintains the DarioHealth Corp.’s Amended and Restated 2012 Equity Incentive Plan (the “Incentive Plan”);
WHEREAS , the Board of Directors (the “Board”) and the Compensation Committee of the Board has determined that it is in the best interests of the Company to amend the Incentive Plan to increase the maximum number of shares of the Company’s common stock authorized to be issued under the Incentive Plan by 2,500,000, from 5,373,000 to 7,873,000; and
WHEREAS , pursuant to Section 13 of the Incentive Plan, an amendment that materially increases the aggregate number of shares that may be issued under the Incentive Plan generally must be approved by a majority of votes cast by the stockholders of the Company in accordance with applicable stock exchange rules.
NOW, THEREFORE , effective as of the date of approval by a majority of votes cast by the stockholders of the Company in accordance with applicable stock exchange rules, the Incentive Plan is hereby amended in the following particulars:
| 1. | Section 4(a) of the Incentive Plan is deleted in its entirety and replaced with the following: |
Share Reserve . Subject to the provisions of Section 11 relating to adjustments upon changes in Common Stock, the Common Stock that may be issued pursuant to Awards shall not exceed in the aggregate of 7,873,000 shares of Common Stock. During the terms of the Awards, the Company shall keep available at all times the number of shares of Common Stock required to satisfy such Awards.
| 2. | In all other respects the Incentive Plan shall remain unchanged and in full force and effect. |