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. December 13, 2023 Offering On December 13, 2023, the Company closed on a registered direct offering for the sale, directly to investors, of 7,733,090 registered shares of common stock and warrants to purchase up to 2,706,561 shares of common stock (the “Offering”). Each share of common stock and accompanying warrant to purchase up to 0.35 shares of common stock, were sold together for a combined purchase price of $1.33, for an aggregate purchase price of approximately $10,285,000. After deducting transaction fees and expenses payable by the Company in connection with the Offering, the Company received net proceeds of approximately $9,785,000, excluding any proceeds that may be received upon the exercise of the warrants. Each warrant is immediately cash exercisable at an exercise price of $2.00 per share and will expire on the fifth anniversary of the issue date. The Company’s executive officers, directors, and certain non-executive officer employees of the Company also participated in the Offering with a combined investment of $435,000. 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 year ended December 31, 2022. During the year ended December 31, 2023, the Company sold 2,656,464 shares pursuant to the Sale Agreement, at an average selling price of $1.76 per share, generating net proceeds of approximately $4,532,000. In addition, during the years ended December 31, 2023 and 2022, the Company paid approximately $61,000 and $45,000, respectively, in expenses related to the Sale Agreement. Stock Option Plans As of December 31, 2023, 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, 2023, there were approximately 647,000 and 320,000 shares of common stock remaining for issuance under the 2014 Plan and the 2006 Plan, respectively. The 2014 and 2006 Plans as well as grants issued outside of the Plans 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 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, 2023, 2022 and 2021 amounted to approximately $3,329,000, $3,424,000, and $4,021,000, 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, 2023, 2022 and 2021 is as follows: Weighted Weighted Average Average Remaining Exercise Contractual Shares per Share Life (Years) Outstanding January 1, 2021 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 4,086,205 $ 1.97 9.61 Forfeited (1,270,155) $ 8.65 — Expired (227,204) $ 7.71 — Exercised — $ — — Outstanding, December 31, 2022 9,474,824 $ 4.66 7.36 Granted 2,601,880 $ 3.43 9.52 Forfeited (974,555) $ 2.96 — Expired (467,332) $ 5.61 — Exercised (86,643) $ 2.59 — Outstanding, December 31, 2023 10,548,174 $ 4.49 7.01 During the third quarter of 2023, management identified a misstatement related to the number of granted options within the option roll forward activity disclosure for the year ended December 31, 2022. The options granted were properly disclosed within the stock-based compensation footnote however; the number was incorrectly omitted from the tabular disclosure. The Company assessed the materiality of these misstatements on prior period financial statements in accordance with U.S. Securities and Exchange Commission Staff Accounting Bulletin No. 99, Materiality, codified in ASC 250, Presentation of Financial Statements, and concluded that this misstatement was not material to any prior annual or interim period. As such, the Company has revised the 2022 options granted and the options outstanding amounts as of December 31, 2022 to include the 1,365,000 options granted and disclosed. The fair value of each stock option was estimated using the Black-Scholes pricing model which takes the following factors into account. 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, 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 % December 31, 2023 $ 1.17 - $3.71 per share 6 years 70.4% to 75.6 % 0 % 3.50% to 4.76 % 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, 2023 of $1.11 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 2023 Price Life (Years) Value $1.17 - $13.20 10,548,174 $ 4.49 7.01 $ — Options Exercisable Number Weighted Exercisable at Average Aggregate December 31, Exercise Intrinsic 2023 Price Value 5,342,438 $ 5.97 $ — The summary of the status of the Company’s non-vested options for the year ended December 31, 2023, is as follows: Weighted Average Grant Date Shares Fair Value Non-vested, January 1, 2023 4,851,739 $ 1.84 Granted 2,601,880 2.35 Forfeited (974,555) 1.95 Vested (1,273,328) 2.59 Non-vested, December 31, 2023 5,205,736 $ 1.89 As of December 31, 2023, the Company had approximately $4,868,000 of total unrecognized compensation cost related to stock options which will, on average, be amortized over 42 months. Awards of Stock Options: On July 7, 2023, the Board of Directors granted options to purchase 1,138,750 shares of common stock to the Company’s employees which will be awarded based upon each employee’s 2023 individual performance evaluation. Once awarded, these options will vest one quarter on the first anniversary of the grant date, one quarter on the second anniversary of the grant date, one quarter on the 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 $2,665,000. The Company has recorded approximately $260,000 in stock option expense related to these options for the year ended December 31, 2023. On July 7, 2023, the Board of Directors granted options to purchase 56,130 shares of common stock to certain of the Company’s employees. These options will vest in full on the first anniversary of the grant date. The grant date fair value of these unvested options amounted to approximately $178,000. The Company has recorded approximately $59,000 in stock option expense related to these options for the year ended December 31, 2023. On July 7, 2023, the Board of Directors granted options to purchase 100,000 shares of common stock to members of the Company’s Board of Directors. These options will vest in full on the first anniversary of the grant date. The grant date fair value of these unvested options amounted to approximately $234,000. The Company has recorded approximately $113,000 in stock option expense related to these options for the year ended December 31, 2023. On July 7, 2023, the Board of Directors granted options to purchase 20,000 shares of common stock to a named executive officer of the Company. These options will vest in full on the first anniversary of the grant date. The grant date fair value of these unvested options amounted to approximately $47,000. The Company has recorded approximately $23,000 in stock option expense related to these options for the year ended December 31, 2023. On July 7, 2023, the Board of Directors granted options to purchase 424,000 shares of common stock to certain senior managers of the Company. These options will vest one half 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 $992,000. The Company has recorded approximately $285,000 in stock option expense related to these options for the year ended December 31, 2023. On July 7, 2023, the Board of Directors granted options to purchase 182,000 shares of common stock to the named executive officers and certain senior managers of the Company. These options were awarded as a one-time award to each executive officer or senior manager in order to account for lost wages resulting from the salary freezes implemented by the Company over the preceding two years and to account for recent inflation. These options will vest one half on the first anniversary of the grant date, one half on second anniversary of the grant date. The grant date fair value of these unvested options amounted to approximately $426,000. The Company has recorded approximately $104,000 in stock option expense related to these options for the year ended December 31, 2023. On July 7, 2023, the Board of Directors granted options to purchase 115,000 shares of common stock to a senior manager of the Company. These options will vest only upon the achievement of certain milestones pursuant to the terms of the Company’s existing 2022-2025 performance pool in place for the Company’s management team. The grant date fair value of these unvested options amounted to approximately $320,000. As of December 31, 2023, 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, 2023. On July 10, 2023, in connection with his appointment as Chief Financial Officer, Mr. Alexander D’Amico was awarded options to purchase 70,000 shares of common stock which will vest as follows: 25,000 options upon the six-month anniversary of the date of grant and 15,000 options upon each of the first, second and third anniversaries of the date of grant. Mr. D’Amico was also granted options to purchase 215,000 shares of common stock that will vest only upon the achievement of certain milestones pursuant to the terms of the Company’s existing 2022-2025 performance pool in place for the Company’s management team. All of these options were forfeited upon the termination of Mr. D’Amico’s employment agreement. See Note 10. 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 $311,000, and $180,000 in stock option expense related to these options for the years ended December 31, 2023, and 2022, respectively. 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 $201,000, and $90,000 in stock option expense related to these options for the years ended December 31, 2023, and 2022, respectively. 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 $34,000, and $101,000 in stock option expense related to these options for the years ended December 31, 2023, and 2022, respectively. 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 $107,000, and $161,000 in stock option expense related to these options for the years ended December 31, 2023, and 2022, respectively. 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, 2023, 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 years ended December 31, 2023, and 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 were designed to vest upon the achievement of certain specific, predetermined milestones related to the Company’s 2021 operations. Once awarded, these options were designed to 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 $320,000, and $314,000 in stock option expense related to these options for the years ended December 31, 2023, and 2022, respectively. During the years ended December 31, 2023, 2022, and 2021, 281,000, 196,900 and 281,880 options were awarded to newly hired employees, respectively, in connection with their employment agreements. 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 the outstanding balance of these restricted stock units at the end of each of the past three calendar years:: Board of Executive Other Directors Management Employees Total Intrinsic Value 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 Granted 2023 — 150,000 244,000 394,000 Forfeited 2023 — (150,000) (311,000) (461,000) December 31, 2023 346,500 779,500 1,697,500 2,823,500 $ 3,134,085 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 through the year ended December 31, 2023. 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 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 On July 7, 2023, certain named executive officers and senior managers were granted 250,000 restricted stock units. These awards were valued at approximately $883,000 at the date of issuance, based upon the market price of the Company’s common stock at the date of the grant, and will vest two-third on the first anniversary of date of the grant, and one-third on the second anniversary of the date of the grant. For the years ended December 31, 2023 and 2022, the Company recorded expense of approximately $213,000 and $0, respectively, related to these restricted stock unit awards. On September 18, 2023, a named executive officer was granted 45,000 restricted stock units. This award was valued at approximately $89,000 at the date of issuance, based upon the market price of the Company’s common stock at the date of the grant, and vested (will vest) two-thirds 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, 2023 and 2022, the Company recorded expense of approximately $55,000 and $0, respectively, related to these restricted stock unit awards. On January 23, 2023, an employee was awarded 30,000 restricted stock units, as a condition of her employment. These awards were valued at $64,200 at the date of issuance. Also in 2023, 2,500 restricted stock units were forfeited. The remaining unvested restricted stock awards will vest based upon a change of control or over the next two to four years, whichever occurs first. For the year ended December 31, 2023 and 2022, the Company recorded (income) expense of approximately $80,000 and $(16,000), respectively, related to these restricted stock unit awards. On July 10, 2023, in connection with his appointment as Chief Financial Officer, Mr. D’Amico was awarded 45,000 restricted stock units which were scheduled to vest one half on the first anniversary of the grant date and one half on the second anniversary of the grant date. These restricted stock units were valued at approximately $157,000 at the date of issuance, based upon the market price of the Company’s common stock at the date of the grant. Additionally, on July 10, 2023, Mr. D’Amico was awarded 15,000 restricted stock units which were scheduled to vest either upon a Change of Control or will cliff vest on the second anniversary of the date of the grant, subject to Mr. D’Amico’s continued service with the Company as of the applicable vesting date. Upon Mr. D’Amico’s resignation effective August 28, 2023, all 60,000 of his restricted stock units were forfeited. 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, 2023 312,092 $ 4.42 Granted 385,000 $ 3.23 Forfeited (62,500) $ 3.57 Vested (204,087) $ 4.79 Non-vested, December 31, 2023 430,505 $ 3.31 Warrants: As of December 31, 2023, the Company had 2,706,561 warrants outstanding related to the Company’s December 13, 2023 Offering. These warrants are immediately cash exercisable at an exercise price of $2.00 per share and expire on December 13, 2028. |