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 authorized for issuance from 50,000,000 shares to 100,000,000 shares. Shelf Registration On July 14, 2021, the Company filed a registration statement on Form S-3 with the SEC, which was amended on July 20, 2021 and declared effective by the SEC on July 27, 2021 (as amended, the “2021 Shelf”). The 2021 Shelf 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. Open Market Sale Agreement with Jefferies LLC On December 30, 2021, the Company entered into an Open Market Sale Agreement (the “Sale Agreement”) with Jefferies LLC (the “Agent”), pursuant to which the Company could sell, from time to time, at its option, shares of the Company’s common stock having an aggregate offering price of up to $25 million through the Agent, as the Company’s sales agent. All shares of the Company’s common stock offered and sold, or to be offered and sold under the Sale Agreement, would have been issued and sold pursuant to the Company’s 2021 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 Sales Agreement, the Agent is required to 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 is required to pay the Agent 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. There were no sales pursuant to the Amended Sale Agreement during the years ended December 31, 2022 and 2021, respectively. In addition, during the year ended December 31, 2021, the Company paid approximately $90,000 related to the Amended Sale Agreement. Stock Option Plans As of December 31, 2022, 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, 2022, there were shares remaining to purchase approximately 3,713,000 and 258,000 units 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 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, 2022, 2021 and 2020 amounted to approximately $3,424,000, $4,021,000, and $3,514,000, respectively. These amounts are included in selling, general, and administrative expenses on the consolidated statements of operations and comprehensive loss. The summary of the stock option activity for the years ended December 31, 2022, 2021 and 2020 is as follows: Weighted Weighted Average Average Remaining Exercise Contractual Shares per Share Life (Years) Outstanding January 1, 2020 4,218,189 $ 6.16 7.0 Granted 1,579,106 $ 6.37 9.0 Forfeited (34,644) $ 7.50 — Expired (226,440) $ 5.60 — Exercised (371,007) $ 4.46 — Outstanding, December 31, 2020 5,165,204 $ 6.36 7.26 Granted 2,051,980 $ 8.78 9.30 Forfeited (138,037) $ 6.73 — Expired (21,756) $ 7.46 — Exercised (171,413) $ 5.73 — Outstanding, December 31, 2021 6,885,978 $ 7.09 7.15 Granted 2,721,205 $ 1.99 9.60 Forfeited (1,270,155) $ 8.65 — Expired (227,204) $ 7.71 — Exercised — $ — — Outstanding, December 31, 2022 8,109,824 $ 5.11 6.91 The fair value of each stock option was estimated using the Black-Scholes pricing model which takes the following factors into account. Current Price of the Underlying Stock and its Grant Date Expected Life Expected Risk Free Exercise Price of the Stock Volatility Expected Interest Rate Year - Ended Range Option Range Dividends Range December 31, 2020 $ 5.00 - $10.58 per share 6 years 61.7% to 69.8 % 0 % 0.28% to 0.96 % December 31, 2021 $ 4.26 - $11.39 per share 6 years 58.2% to 60.7 % 0 % 0.47% to 1.39 % December 31, 2022 $ 1.11 - $3.91 per share 6 years 59.3% to 67.9 % 0 % 1.52% to 4.20 % 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, 2022 of $1.55 and the exercise price of the shares. Options Outstanding Number Weighted Weighted Range of Outstanding at Average Average Aggregate Exercise December 31, Exercise Remaining Intrinsic Price 2022 Price Life (Years) Value $1.11 - $13.20 8,109,824 $ 5.11 6.91 $ 7,280 Options Exercisable Number Weighted Exercisable at Average Aggregate December 31, Exercise Intrinsic 2022 Price Value 4,623,085 $ 6.32 $ 1,250 The summary of the status of the Company’s non-vested options for the year ended December 31, 2022, is as follows: Weighted Average Grant Date Shares Fair Value Non-vested, January 1, 2022 2,994,846 $ 4.68 Granted 2,721,205 1.99 Forfeited (1,270,155) 8.65 Vested (959,157) 3.65 Non-vested, December 31, 2022 3,486,739 $ 2.10 As of December 31, 2022, the Company had approximately $4,745,000 of total unrecognized compensation cost related to stock options which will, on average, be amortized over 43 months. Awards of Stock Options: On August 10, 2022, the Board of Directors granted options to purchase 1,163,800 shares of common stock to the Company’s employees which will be awarded based upon each employee’s 2022 individual performance evaluation. Once awarded, these options will vest one quarter on February 15, 2023, one quarter on February 15, 2024, one quarter on February 15, 2025 and one quarter on February 15, 2026. The grant date fair value of these unvested options amounted to approximately $1,381,000. The Company has recorded approximately $180,440 in stock option expense related to these options for the year ended December 31, 2022. On August 10, 2022, the Board of Directors granted options to purchase 772,905 shares of common stock to the Company’s employees. These options will vest one eighth on the six-month anniversary of the grant date, one eighth on the first anniversary of the grant date, one quarter on second anniversary of the grant date, one quarter on third anniversary of the grant date and one quarter on fourth anniversary of the grant date. The grant date fair value of these unvested options amounted to approximately $917,000. The Company has recorded approximately $89,662 in stock option expense related to these options for the year ended December 31, 2022. On August 10, 2022, the Board of Directors granted options to purchase 113,850 shares of common stock to members of the Company’s Board of Directors. These options will vest one quarter on the grant date, one quarter on September 30, 2022, one quarter on December 31, 2022, and one quarter on March 31, 2023. The grant date fair value of these unvested options amounted to approximately $135,000. The Company has recorded approximately $101,336 in stock option expense related to these options for the year ended December 31, 2022. On August 10, 2022, the Board of Directors granted options to purchase 473,750 shares of common stock to certain senior managers of the Company. These options will vest one quarter on the grant date, one quarter on the first anniversary of the grant date, one quarter on second anniversary of the grant date, one quarter on third anniversary of the grant date. The grant date fair value of these unvested options amounted to approximately $562,000. The Company has recorded approximately $160,944 in stock option expense related to these options for the year ended December 31, 2022. On August 10, 2022, the Board of Directors granted options to purchase 1,365,000 shares of common stock to certain senior managers of the Company which will only vest upon the achievement of certain specific, predetermined milestones related to the Company’s long-term performance goals. The grant date fair value of these unvested options amounted to approximately $1,620,000. As of December 31, 2022, none of these milestones has been met. Accordingly, no charge for these options has been recorded in the consolidated statements of operations and comprehensive loss for the year ended December 31, 2022. On April 12, 2021, the Board of Directors granted options to purchase 1,323,400 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 2021 operations. Once awarded, these options will vest in four equal tranches, the first tranche vesting on the date of the award. The grant date fair value of these unvested options amounted to approximately $7,042,000. On March 1, 2022, Board of Directors determined that the Company met approximately 19% of these milestones, and accordingly, the Company has recorded $314,000, and $273,000 in stock option expense related to these options for the years ended December 31, 2022, and 2021, respectively. On February 28, 2020, the Board of Directors granted options to purchase 1,114,325 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. The grant date fair value of these unvested options amounted to approximately $3,883,000. On April 12, 2021, Board of Directors determined that the Company met approximately 88% of these milestones, and accordingly, the Company has recorded $951,000 and $1,070,000 in stock option expense related to these options for the years ended December 31, 2022, and 2021, respectively. 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, 2019 277,200 604,500 1,205,050 2,086,750 $ 8,033,988 Granted 2020 — 120,000 265,700 385,700 Forfeited 2020 — — (25,250) (25,250) December 31, 2020 277,200 724,500 1,445,500 2,447,200 $ 19,504,184 Granted 2021 — — 396,000 396,000 Forfeited 2021 — — (132,000) (132,000) December 31, 2021 277,200 724,500 1,709,500 2,711,200 $ 11,359,928 Granted 2022 69,300 55,000 373,750 498,050 Forfeited 2022 — — (318,750) (318,750) December 31, 2022 346,500 779,500 1,764,500 2,890,500 $ 4,480,275 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 statement of operations and comprehensive loss through the year ended December 31, 2022. Performance-Based Awards of Restricted Stock Units: Pursuant to a review of the compensation of the senior management of the Company and management’s performance in 2020, on February 28, 2020, the Board of Directors granted 168,100 restricted stock units to certain senior managers of the Company. These awards were valued at approximately $1,014,000 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 Pursuant to a review of the compensation of the senior management of the Company and management’s performance in 2021, on April 12, 2021, the Board of Directors granted 235,765 restricted stock units to certain senior managers of the Company. These awards were valued at approximately $2,120,000 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 one one On August 10, 2022, certain named executive officers and senior managers were granted 288,500 restricted stock units. These awards were valued at approximately $563,000 at the date of issuance, based upon the market price of the Company’s common stock at the date of the grant, and vested (or will vest) one one one Additionally, in 2021 and 2020 certain employees were offered 91,750 restricted stock units as a condition of their employment. These awards were valued at approximately $713,868 at the date of issuance. 46,750 of these restricted stock units vest upon the earlier of a Change in Control or one one one The following table outlines the restricted stock unit activity for the year ended December 31, 2022: Weighted Average Grant Date Shares Fair Value Non-vested, January 1, 2022 304,962 $ 8.08 Granted 288,500 $ 1.95 Forfeited (45,000) $ 8.35 Vested (236,370) $ 5.38 Non-vested, December 31, 2022 312,092 $ 4.42 Warrants: As of December 31, 2022, the Company had no warrants outstanding. |