As filed with the Securities and Exchange Commission on November 18, 2020

Registration No. 333-_____________

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

_________

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

_______________________________________

DIGIRAD CORPORATION
(Exact name of registrant as specified in its charter)

_______________________________________________________________

Digirad Corporation 2018 Incentive Plan

(Full title of the plan)

Matthew G. Molchan

President and Chief Executive Officer

Digirad Corporation

1048 Industrial Court

Suwanee, Georgia 30024

(Name and address of agent for service)

(858) 726-1600

(Telephone number, including area code, of agent for service)

Copy to:

Adam W. Finerman, Esq.
Olshan Frome Wolosky LLP
1325 Avenue of the Americas
New York, NY 10019
(212) 451-2300

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.

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 the Securities Act. ☐ 

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CALCULATION OF REGISTRATION FEE

1. Digirad Corporation (the “Company” or the “Registrant”) previously registered an aggregate of 188,338 shares of common stock, par value $0.0001 per share (“Common Stock”) of the Company on registration statement on Form S-8 (File No. 333-228214) (the “2018 Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) on November 6, 2018. The shares registered on the 2018 Registration Statement consisted of: shares registered for the first time pursuant to the Digirad Corporation 2018 Incentive Plan (the “2018 Plan”), plus shares (the “Initial Carryover Shares”) previously registered under the Digirad Corporation 2014 Equity Incentive Award Plan (the “2014 Plan”) on Form S-8, filed with the Commission on June 6, 2014 (Registration Statement No. 333-196562) (the “2014 Registration Statement”).

On July 31, 2020, the stockholders of the Company approved an amendment to the 2018 Plan to, among other things, increase the number of shares of Common Stock authorized for issuance under 2018 Plan from 150,000 shares (plus certain shares available under prior plans) to 450,000 shares (plus certain shares available under prior plans).

This registration statement on Form S-8 is being filed to register an additional 316,040 shares of our Common Stock available for future issuance under the 2018 Plan, as amended effective as of July 31, 2020 (the “Amended 2018 Plan”), consisting of (a) 300,000 shares being registered for the first time pursuant to the Amended 2018 Plan, plus (b) 16,040 shares (the “Additional Carryover Shares”) previously registered under the 2014 Plan on the 2014 Registration Statement. The Additional Carryover Shares, which were not included in the 2018 Registration Statement, have again become available after November 2, 2018, for issuance pursuant to the reserved share replenishment provisions of the 2014 Plan and may now be issued under the Amended 2018 Plan. A post-effective amendment to the 2014 Registration Statement to deregister the Additional Carryover Shares was filed immediately prior to the filing of this registration statement.

On June 4, 2019, the Company effected a reverse stock split of the issued and outstanding shares of its common stock at a ratio of 1-for-10 (the “Reverse Stock Split”). All share amounts contained herein have been adjusted to reflect the Reverse Stock Split.

2. In accordance with Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.

3. Pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as amended, the proposed maximum offering price per share, proposed maximum aggregate offering price and the amount of the registration fee are calculated based on the average of the high and low prices of the Registrant’s common stock on the NASDAQ Global Market on November 13, 2020. The Registrant is paying registration fees with respect to both the 300,000 shares of Common Stock being newly registered hereby and the Additional Carryover Shares.  Pursuant to General Instruction E to Form S-8, a filing fee is only being paid with respect to the registration of additional securities under the Amended 2018 Plan.

EXPLANATORY NOTE

Digirad Corporation (the “Company” or the “Registrant”) is filing this registration statement on Form S-8 (this “Registration Statement”) to register an additional 316,040 shares (the “Additional Shares”) of its common stock, $0.0001 per share (“Common Stock”), issuable pursuant to the terms and in the manner set forth in the Digirad Corporation 2018 Incentive Plan (the “2018 Plan”), as amended effective as of July 31, 2020 (the “Amended 2018 Plan”). On July 31, 2020, the stockholders of the Company approved an amendment to the 2018 Plan in order to, among other things, increase the number of shares of Common Stock authorized for issuance under the 2018 Plan from 150,000 shares (plus certain shares available under prior plans) to 450,000 shares (plus certain shares available under prior plans). The shareholders of Company originally approved the 2018 Plan on April 27, 2018 (the “Effective Date”).  

On June 4, 2019, the Company effected a reverse stock split of the issued and outstanding shares of its common stock at a ratio of 1-for-10 (the “Reverse Stock Split”). All share amounts contained in this Registration Statement have been adjusted to reflect the Reverse Stock Split.

The Additional Shares consist of: (a) 300,000 shares of Common Stock (the “Additional Plan Shares”); and (b) shares of Common Stock (of which there are 16,040 shares) that, on or after November 3, 2018, have again become available for issuance pursuant to the reserved share replenishment provisions of the Digirad Corporation 2014 Equity Incentive Award Plan (the “2014 Plan”) as a result of (i) stock options issued thereunder expiring or becoming unexercisable for any reason before being exercised in full, or (ii) restricted stock being forfeited to the Company or repurchased by the Company pursuant to the terms of the agreements governing such shares (the “Additional Carryover Shares”).

A registration statement on Form S-8 (File No. 333-228214) (the “2018 Registration Statement”) was filed with the Securities and Exchange Commission (the “Commission”) on November 6, 2018, registering the initial 188,338 shares of Common Stock available for issuance under the 2018 Plan on the Effective Date consisting of (a) 150,000 shares of Common Stock (the “Initial Plan Shares”); (b) shares of Common Stock (of which there were 30,867 shares) remaining available for future grants under the 2014 Plan as of the Effective Date (the “Available 2014 Plan Shares”); and (c) shares of Common Stock (of which there were 7,471 shares) that, between the Effective Date and before November 3, 2018, again become available for issuance pursuant to the reserved share replenishment provisions of the 2014 Plan (the “Initial Replenishment Shares”) as a result of (i) stock options issued thereunder expiring or becoming unexercisable for any reason before being exercised in full, and (ii) restricted stock being forfeited to the Company or repurchased by the Company pursuant to the terms of the agreements governing such shares. The Available 2014 Plan Shares and the Initial Replenishment Shares are collectively referred to herein as the “Initial Carryover Shares.” The Company’s authority to grant new awards under the 2014 Plan terminated upon shareholder approval of the 2018 Plan on the Effective Date.

The Initial Carryover Shares (of which there were 38,338 shares) and the Additional Carryover Shares (of which there are 16,040 shares) were previously registered under the 2014 Plan on Form S-8, filed with the Commission on June 6, 2014 (Registration Statement No. 333-196562) (the “2014 Registration Statement”).  The 2014 Registration Statement registered an aggregate of 150,674 shares of Common Stock.  A post-effective amendment to the 2014 Registration Statement to deregister the Initial Carryover Shares was filed immediately prior to the 2018 Registration Statement. A post-effective amendment to the 2014 Registration Statement to deregister the Additional Carryover Shares was filed immediately prior to the filing of this Registration Statement.

This Registration Statement relates to securities of the same class as that to which the 2018 Registration Statement relates, and is submitted in accordance with General Instruction E to Form S-8 regarding registration of additional securities. Pursuant to General Instruction E to Form S-8, the contents of the 2018 Registration Statement are incorporated by reference into this Registration Statement, except that the provisions contained in Part II of the Prior Registration Statements are modified as set forth in this Registration Statement. 

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The information required by Item 1 and Item 2 of Part I of Form S-8 is omitted from this filing in accordance with Rule 428 under the Securities Act and the introductory note to Part I of Form S-8.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.  Incorporation of Certain Documents by Reference.

The following documents filed by the Company with the Commission are hereby incorporated by reference herein (other than any such documents or portions thereof that are furnished under Item 2.02 or Item 7.01 of Form 8-K, unless otherwise indicated therein, including any exhibits included with such Items):

All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Registration Statement (other than any such documents or portions thereof that are furnished under Item 2.02 or Item 7.01 of Form 8-K, unless otherwise indicated therein, including any exhibits included with such Items), prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.

Any statement contained in this Registration Statement or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained or incorporated by reference herein or in any subsequently filed document that is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

Item 6. Indemnification of Officers and Directors.

Our restated certificate of incorporation (the “Certificate of Incorporation”) provides that, to the fullest extent permitted by law, a director of the Company (also referred to herein as, the “Corporation”) shall not be personally liable to the Company or to its stockholders for monetary damages for any breach of fiduciary duty as a director.

Article V of our Certificate of Incorporation also provides:

“(A) EXCULPATION. A director of the Corporation (each, a “Director” and collectively, the “Directors”) shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director, except for liability (i) for any breach of the Director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law or (iv) for any transaction from which the Director derived any improper personal benefit. If the Delaware General Corporation Law is hereafter amended to further reduce or to authorize, with the approval of the Corporation’s stockholders, further reductions in the liability of the Directors for breach of fiduciary duty, then a Director shall not be liable for any such breach to the fullest extent permitted by the Delaware General Corporation Law as so amended.

(B) INDEMNIFICATION. To the extent permitted by applicable law, the Corporation is also authorized to provide indemnification of (and advancement of expenses to) such agents (and any other persons to which Delaware law permits the Corporation to provide indemnification) through bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested Directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the Delaware General Corporation Law, subject only to limits created by applicable Delaware law (statutory or non-statutory), with respect to actions for breach of duty to the Corporation, its stockholders and others.

(C) EFFECT OF REPEAL OR MODIFICATION. Any repeal or modification of any of the foregoing provisions of this Article V shall be prospective and shall not adversely affect any right or protection of a Director, officer, agent or other person existing at the time of, or increase the liability of any Director with respect to any acts or omissions of such Director occurring prior to, such repeal or modification.”

Furthermore, our amended and restated bylaws (the “Bylaws”) provides:

“Section 1. The corporation shall indemnify its Directors and executive officers to the fullest extent not prohibited by the Delaware General Corporation Law; provided, however, that the corporation may limit the extent of such indemnification by individual contracts with its Directors and executive officers; and, provided, further, that the corporation shall not be required to indemnify any Director or executive officer in connection with any proceeding (or part thereof) initiated by such person or any proceeding by such person against the corporation or its Directors, officers, employees or other agents unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the corporation, or (iii) such indemnification is provided by the corporation, in its sole discretion, pursuant to the powers vested in the corporation under the Delaware General Corporation Law.

Section 2. The corporation shall have power to indemnify its other officers, employees and other agents to the fullest extent permitted by the Delaware General Corporation Law.”

Section 145 of the Delaware General Corporation Law also provides for indemnification of officers, directors, employees, and agents of Delaware corporations. It is set forth below:

“Section 145. Indemnification of officers, directors, employees and agents; insurance.

We have entered into, and intend to continue to enter into, separate indemnification agreements with our directors, executive officers, and other key employees, in addition to the indemnification provided for in our Certificate of Incorporation and Bylaws. We also have directors and officers insurance which includes insurance for claims against these persons brought under securities laws.

Item 8.  Exhibits.

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* Filed herewith.

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-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Suwanee, State of Georgia, on November 18, 2020.

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints each of Matthew G. Molchan and David J. Noble as his attorney-in-fact and agent, with full power of substitution for him and in his name, place or stead, in any and all capacities, to sign any and all amendments to this registration statement (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their 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 by the following persons in the capacities and on the dates indicated.