STOCKHOLDERS' EQUITY | 11. STOCKHOLDERS’ EQUITY: Preferred Stock In June 2019, the Company amended and restated its certificate of incorporation. The amended and restated certificate of incorporation authorizes the issuance of up to 5,000,000 shares of “blank check” preferred stock, with such designation rights and preferences as may be determined from time to time by the Board of Directors. Common Stock In June 2019, the Company amended and restated its certificate of incorporation. The amended and restated certificate of incorporation increased the number of shares of common stock from 50,000,000 shares authorized to be issued to 100,000,000 shares. Shelf Registration On July 26, 2018, the Company filed a registration statement on Form S‑3 with the SEC (as amended, the “2018 Shelf”). The 2018 Shelf, which was declared effective on August 7, 2018, enables the Company to offer and sell, in one or more offerings, any combination of common stock, preferred stock, senior or subordinated debt securities, warrants and units, up to a total dollar amount of $150 million. Termination of Controlled Equity Offering Sales Agreement with Cantor Fitzgerald & Co. On May 31, 2019, the Company delivered to Cantor Fitzgerald & Co. ("Cantor") written notice of termination (the "Termination Notice") of the Controlled Equity Offering Sales Agreement, dated November 4, 2015, by and between the Company and Cantor, as amended by Amendment No. 1 to Sales Agreement, dated July 26, 2018 (collectively, the "Sales Agreement"). In accordance with Section 13(b) thereof, the Sales Agreement terminated on June 10, 2019, ten (10) days after the delivery of the Termination Notice. As provided in the Sales Agreement, the Sales Agreement terminated without liability of any party to any other party, except that certain provisions of the Sales Agreement identified therein shall remain in full force and effect notwithstanding the termination. Pursuant to the Sales Agreement, the Company offered and sold, from time to time through Cantor, shares of the Company's common stock. In the aggregate, the Company sold 2,094,140 shares pursuant to the Sales Agreement, at an average selling price of $8.72 per share, generating net proceeds of approximately $17,718,000 from November 4, 2015 through December 31, 2018. There were no sales during the year ended December 31, 2019. Open Market Sale Agreement with Jefferies LLC and B. Riley FBR, Inc. On July 9, 2019 the Company entered into an Open Market Sale Agreement (the "New Sale Agreement") with Jefferies LLC and B. Riley FBR, Inc. (each an "Agent" and, together, the "Agents"), pursuant to which the Company may sell, from time to time, at its option, up to an aggregate proceeds of $25,000,000 from shares of the Company’s common stock through the Agents, as the Company’s sales agents. Any shares of the Company's common stock to be offered and sold under the New Sale Agreement will be issued and sold pursuant to the Company’s 2018 Shelf by methods deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended, in block transactions or if specified by the Company, in privately negotiated transactions. Subject to the terms of the New Sale Agreement, the Agents will use their commercially reasonable efforts consistent with their normal sales and trading practices to sell the shares of the Company's common stock from time to time, based upon the Company's instructions (including any price, time or size limits or other customary parameters or conditions the Company may impose). The Company will pay the Agents a commission of up to 3.0% of the gross proceeds from the sale of the shares of the Company's common stock sold thereunder, if any. The Company has also agreed to provide the Agents with customary indemnification rights. The offering of the shares of the Company's common stock will terminate upon the earliest of (a) the sale of the maximum number or amount of the shares of the Company's stock permitted to be sold under the New Sale Agreement and (b) the termination of the New Sale Agreement by the parties thereto. During the year ended December 31, 2019, the Company sold 191,244 shares pursuant to the New Sale Agreement, at an average selling price of $4.11 per share, generating net proceeds of approximately $762,000. During the period from January 1, 2020 through March 2, 2020, the Company sold 2,435,086 shares pursuant to the New Sale Agreement, at an average selling price of $5.64 per share, generating net proceeds of approximately $13,322,000. In the aggregate, the Company has sold 2,626,330 shares pursuant to the New Sale Agreement, at an average selling price of $5.53 per share, generating net proceeds of approximately $14,083,000. Stock Option Plans As of December 31, 2019, the Company had two Long Term Incentive Plans (the “2014 Plan” and the “2006 Plan”) to attract, retain, and provide incentives to employees, officers, directors, and consultants. The Plans generally provide for the granting of stock, stock options, stock appreciation rights, restricted shares, or any combination of the foregoing to eligible participants. A total of 13,400,000 and 2,400,000 shares of common stock are reserved for issuance under the 2014 Plan and the 2006 Plan, respectively. As of December 31, 2019, there were outstanding options to purchase approximately 6,100,000 and 743,000 shares of common stock reserved under the 2014 Plan and the 2006 Plan, respectively. The 2014 and 2006 Plans as well as grants issued outside of the Plan are administered by the Compensation Committee of the Board of Directors (the “Compensation Committee”). The Compensation Committee is authorized to select from among eligible employees, directors, advisors and consultants those individuals to whom incentives are to be granted and to determine the number of shares to be subject to, and the terms and conditions of the options. The Compensation Committee is also authorized to prescribe, amend and rescind terms relating to options granted under the Plans. Generally, the interpretation and construction of any provision of the Plans or any options granted hereunder is within the discretion of the Compensation Committee. The 2014 Plan provides that options may or may not be Incentive Stock Options (ISOs) within the meaning of Section 422 of the Internal Revenue Code. Only employees of the Company are eligible to receive ISOs, while employees and non-employee directors, advisors and consultants are eligible to receive options, which are not ISOs, i.e. “Non-Qualified Options.” Because the Company has not yet obtained shareholder approval of the 2006 Plan, all options granted thereunder to date are “Non-Qualified Options” and until such shareholder approval is obtained, all future options issued under the 2006 Plan will also be “Non-Qualified Options.” In December 2014, the Company’s received shareholder approval authorizing the Board of Directors to implement the form, terms and provisions of the 2014 Plan. Accordingly, any options issued to employees under the 2014 Plan will be ISOs within the meaning of Section 422 of the Internal Revenue Code. Stock-based Compensation Total share-based employee, director, and consultant compensation for the years ended December 31, 2019, 2018 and 2017 amounted to approximately $1,666,000, $4,437,000 and $3,314,000, respectively. These amounts are included in selling, general, and administrative expenses on the consolidated statements of operations. The summary of the stock option activity for the years ended December 31, 2019, 2018 and 2017 is as follows: Weighted Weighted Average Average Remaining Exercise Contractual Shares per Share Life (Years) Outstanding January 1, 2017 2,762,177 $ 4.69 6.0 Granted 1,204,950 $ 5.46 9.2 Forfeited (165,720) $ 5.50 — Expired (34,020) $ 34.61 — Exercised (188,849) $ 4.40 — Outstanding, December 31, 2017 3,578,538 $ 4.64 6.3 Granted 1,481,675 $ 8.01 9.2 Forfeited (544,671) $ 7.49 — Expired (800) $ 2.88 — Exercised (856,280) $ 3.65 — Outstanding, December 31, 2018 3,658,462 $ 5.82 7.0 Granted 1,557,300 $ 7.19 9.5 Forfeited (747,671) $ 7. 39 — Expired (16,320) $ 4.16 — Exercised (233,582) $ 4.09 — Outstanding, December 31, 2019 4,218,189 $ 6. 16 7.0 The fair value of each stock option was estimated using the Black Scholes pricing model which takes into account as of the grant date the exercise price (ranging from $3.84 to $8.25 per share in 2019) and expected life of the stock option (10 years in 2019), the current price of the underlying stock and its expected volatility (ranging from 61.9 to 74.3 percent in 2019), expected dividends (-0- percent) on the stock and the risk free interest rate (1.40 to 2.61 percent) for the term of the stock option. In addition, the Company recognizes forfeitures as they occur. The intrinsic value is calculated at the difference between the market value as of December 31, 2019 of $3.85 and the exercise price of the shares. Options Exercisable Number Weighted Exercisable at Average Aggregate December 31, Exercise Intrinsic 2019 Price Value 3,034,399 $ 5.74 $ 212,313 Options Outstanding Number Weighted Weighted Range of Outstanding at Average Average Aggregate Exercise December 31, Exercise Remaining Intrinsic Price 2019 Price Life (Years) Value $2.23 - $14.80 4,218,189 $ 6.16 7.0 $ 212,353 The summary of the status of the Company’s non-vested options for the year ended December 31, 2019 is as follows: Weighted Average Grant Date Shares Fair Value Non-vested, January 1, 2019 1,251,617 $ 4.56 Granted 1,557,300 4.51 Forfeited (716,855) 4. 67 Vested (908,272) 4.47 Non-vested, December 31, 2019 1,183,790 $ 4. 49 As of December 31, 2019, the Company had approximately $3,098,000 of total unrecognized compensation cost related to stock options which will, on average, be amortized over four years. In 2020, the Board of Directors intends to grant a pool of options to purchase shares of common stock to the Company’s employees which will vest upon the achievement of certain specific, predetermined milestones related to the Company’s 2020 operations. Since these options relate exclusively to the achievement of 2020 milestones, no charge for these options has been recorded in the consolidated statements of operations for the year ended December 31, 2019. The Company will assess the likelihood of meeting these milestones throughout 2020 and will record stock option expense as appropriate. Awards of Stock Options: On July 22, 2019, the Board of Directors granted options to purchase 926,800 shares of common stock to the Company's employees which will vest upon the achievement of certain specific, predetermined milestones related to the Company's 2019 operations. The grant date fair value of these unvested options amounted to approximately $4,294,000. On February 18, 2020, Board of Directors determined that the Company has met 35% of these milestones, and accordingly we have recorded approximately $315,000 of stock option expense related to these options for the year ended December 31, 2019. On March 15, 2018, the Board of Directors granted options to purchase 531,900 shares of common stock to the Company’s management. On April 23, 2018, the Board of Directors granted options to purchase 668,550 shares of common stock to the Company’s employees. These grants, which total 1,200,450 shares of common stock, will vest upon the achievement of certain specific, predetermined milestones related to the Company’s 2018 operations. The grant date fair value of these unvested options amounted to approximately $5,636,000. On February 19, 2019, based upon the finalization of its review of the Company's progress to meeting the predetermined milestones for 2018, the Board of Directors determined that 726,920 of these options would immediately vest. Accordingly, a charge of approximately $3,381,000 related to these options has been recorded in the consolidated statements of operations for the year ended December 31, 2018. On February 24, 2017, the Board of Directors granted options to purchase 953,200 shares of common stock to the Company’s employees which will vest upon the achievement of certain specific, predetermined milestones related to the Company’s 2017 operations. The grant date fair value of these unvested options amounted to approximately $3,284,000. On February 15, 2018, based upon the finalization of its review of the Company’s progress to meeting the predetermined milestones for 2017, the Board of Directors determined that 810,220 of these options would immediately vest. Accordingly, a charge of approximately $2,791,000 related to these options has been recorded in the consolidated statements of operations for the year ended December 31, 2017. Change in Control-Based Awards of Restricted Stock Units: The Board of Directors has granted restricted stock units to members of the Board of Directors, to the Company’s executive officers, and to employees of the Company. These restricted stock units will only vest upon a Change in Control of the Company, as defined in the Company’s 2014 Long-Term Incentive Plan. The following table is a summary of these restricted stock units: Board of Executive Other Directors Management Employees Total Intrinsic Value December 31, 2017 264,000 675,300 815,700 1,755,000 Granted 2018 13,200 49,200 256,350 318,750 Forfeited 2018 — (69,750) (69,750) December 31, 2018 277,200 724,500 1,002,300 2,004,000 $ 16,192,320 Granted 2019 — — 264,500 264,500 Forfeited 2019 — (120,000) (61,750) (181,750) December 31, 2019 277,200 604,500 1,205,050 2,086,750 $ 8,033,988 Due to the uncertainty over whether these restricted stock units will vest, which will only happen upon a Change in Control, no charge for these restricted stock units has been recorded in the consolidated statements of operations and comprehensive loss for the year ended December 31, 2019. Performance Based Stock Awards: Pursuant to a review of the compensation of the senior management of the Company and managements’ performance in 2016, on February 24, 2017, the Board of Directors granted 125,000 restricted stock units to certain senior managers of the Company in order to settle bonuses accrued as of December 31, 2016. These awards were valued at approximately $700,000 on the date of issuance, based upon the market price of the Company’s common stock at the date of the grant, and vest one third on the date of the grant, one third on the first anniversary of the grant, and one third on the second anniversary of the date of the grant. For the years ended December 31, 2019, 2018 and 2017, the Company recorded a charge of approximately $150,000, $329,000, and $201,000, respectively related to these restricted stock unit awards. Pursuant to a review of the compensation of the senior management of the Company and managements’ performance in 2017, on February 28, 2018, the Board of Directors granted 146,200 restricted stock units to certain senior managers of the Company in order to settle bonuses accrued as of December 31, 2017. These awards were valued at approximately $1,148,000 at the date of issuance, based upon the market price of the Company’s common stock at the date of the grant, and vest one third on the date of the grant, one third on the first anniversary of the grant, and one third on the second anniversary of the date of the grant. For the years ended December 31, 2019, 2018 and 2017, the Company recorded a charge of approximately $363,000, $319,000, and $383,000, respectively related to these restricted stock unit awards. Pursuant to a review of the compensation of the senior management of the Company and managements' performance in 2018, on March 4, 2019 the Board of Directors granted 22,220 restricted stock units to certain senior managers of the Company in order to settle bonuses accrued as of December 31, 2018. These awards were valued at approximately $179,000 at the date of issuance, based upon the market price of the Company's common stock at the date of the grant, and vest one third on the date of the grant, one third on the first anniversary of the date of the grant, and one third on the second anniversary of the date of the grant. For the years ended December 31, 2019, the Company recorded a charge of approximately $39,000 related to these restricted stock unit awards. Pursuant to a review of the compensation of the senior management of the Company and managements' performance in 2019, on July 22, 2019 the Board of Directors granted 180,300 restricted stock units to certain senior managers of the Company. These awards were valued at approximately $1,300,000 at the date of issuance, based upon the market price of the Company's common stock at the date of the grant, and vest one third on the date of the grant, one third on the first anniversary of the date of the grant, and one third on the second anniversary of the date of the grant. For the years ended December 31, 2019, the Company recorded a charge of approximately $621,000 related to these restricted stock unit awards. The following table outlines the restricted stock unit activity for the year ended December 31, 2019: Weighted Average Grant Date Shares Fair Value Non-vested, January 1, 2019 139,138 $ 7.18 Granted 202,520 $ 7.41 Forfeited (15,882) $ 7.62 Vested (157,904) $ 7.07 Non-vested, December 31, 2019 167,872 $ 7.52 Warrants: As of December 31, 2019, the Company has warrants outstanding to purchase 30,000 shares of the Company's common stock. These warrants had an exercise price of $9.90 and expired on January 14, 2020. During the year ended December 31, 2019, warrants representing 369,387 shares of the Company’s common stock were exercised. |