STOCKHOLDERS’ EQUITY AND STOCK-BASED COMPENSATION | NOTE 15. STOCKHOLDERS’ EQUITY AND STOCK-BASED COMPENSATION Preferred Stock At December 31, 2022 and 2021, the Company had 5,000,000 0.001 no Series B Cumulative Preferred Stock – Redeemed in June 2021 In May 2021, the Company sold 440,000 0.001 25.00 10,655,000 Series B Preferred Stock was not convertible into our common stock, had no voting rights 9.50% 25.00 In June 2021, the Company redeemed all of the outstanding shares of the Series B Preferred Stock. The redemption price for the 440,000 25.00 11,127,000 472,000 Common Stock At each of December 31, 2022 and 2021, the Company had 50,000,000 0.001 Issuances During the Year Ended December 31, 2022 During the year ended December 31, 2022: ● the Company issued 53,594 125,000 2.40 36,014 35,392 295,000 ● the Company issued 306,347 373,847 2.08 ● the Company issued 4,054 15,995 7.07 11,941 ; ● the Company issued 15,625 55,000 15,625 3.50 ; ● the Company issued 132,100 587,000 132,100 1.70 8.40 ; ● 185,000 110,621 74,379 581,000 and ● 35,693 . Issuances During the Year Ended December 31, 2021 During the year ended December 31, 2021: ● the Company issued 311,369 406,539 1.79 3.75 ● the Company issued 25,480 65,000 25,480 1.70 4.29 ● the Company issued 715,871 1,050,000 334,129 2,760,000 ● the Company issued 100,168 157,500 57,332 468,000 ● 67,297 Stock Option Plan On September 17, 2007, the Company’s Board of Directors and stockholders adopted the Company’s 2007 Incentive Stock and Awards Plan, which was subsequently amended on November 5, 2008, February 26, 2012, July 18, 2012, May 2, 2013 and September 27, 2013 (as amended, the “2007 Plan”). The 2007 Plan reached its term in September 2017, and we can no longer issue additional awards under this plan, however, options previously issued under the 2007 Plan will remain outstanding until they are exercised, reach their maturity or are otherwise cancelled/forfeited. On June 13, 2017, the Company’s Board of Directors and stockholders adopted the Company’s 2017 Incentive Stock and Awards Plan which was subsequently amended on June 3, 2021 (as amended, the “2017 Plan” together with the 2007 Plan, the “Plans”). As of December 31, 2021, the 2017 Plan provides for the issuance of a maximum of 6,000,000 2,057,155 Stock Options A summary of stock option activity under the Plan for the year ended December 31, 2022 is as follows: SCHEDULE OF STOCK OPTION PLAN ACTIVITY Number of shares Weighted Avg. Exercise Price Weighted Avg. Remaining Contractual Life Aggregate Intrinsic Value Options outstanding – January 1, 2022 3,039,546 $ 5.52 Options granted 351,250 $ 7.71 Options exercised (288,720 ) $ 3.65 Options cancelled/forfeited (74,375 ) $ 7.46 Options outstanding – December 31, 2022 3,027,701 $ 5.90 4.48 $ 26,822,000 Options exercisable 2,457,769 $ 5.51 3.97 $ 22,731,000 Options vested and expected to vest 3,026,942 $ 5.90 4.48 $ 26,817,000 The aggregate intrinsic value in the table above represents the total pre-tax amount of the proceeds, net of exercise price, which would have been received by option holders if all option holders had exercised and immediately sold all options with an exercise price lower than the market price on December 31, 2022, based on the closing price of the Company’s common stock of $ 14.76 The intrinsic value of the options exercised in 2022 was $ 2,008,000 During the year ended December 31, 2022, the Company granted stock options to certain employees and a consultant. The stock options were granted with an exercise price equal to the current market price of the Company’s common stock, as reported by the securities exchange on which the common stock was then listed, at the grant date and have contractual terms of 10 Vesting terms for options granted to employees and consultants during the year ended December 31, 2022 generally included one of the following vesting schedules: 25% of the shares subject to the option vest and become exercisable on the first anniversary of the grant date and the remaining 75% of the shares subject to the option vest and become exercisable quarterly in equal installments thereafter over three years On July 31, 2015, the Company granted to its Chief Executive Officer, Mark Baum, an option (the “Baum Performance Option”) to purchase 600,000 7.87 9 15 5 1,876,000 five-year 70% 0.40% With the exception of the Baum Performance Option, the fair value of each option award is estimated on the date of grant using the Black-Scholes-Merton option pricing model. Beginning on April 1, 2019, the Company began calculating expected volatility based solely on the historical volatilities of the common stock of the Company. Prior to April 1, 2019, the expected volatility was based on the historical volatilities of the common stock of the Company and comparable publicly traded companies. The Company previously utilized this methodology based on its estimate that it had limited relevant historical data regarding the volatility of its stock price on which to base a meaningful estimate of expected volatility. The expected term of options granted was determined in accordance with the “simplified approach,” as the Company has limited, relevant, historical data on employee exercises and post-vesting employment termination behavior. The expected risk-free interest rate is based on the U.S. Treasury yield for a period consistent with the expected term of the option in effect at the time of the grant. The financial statement effect of forfeitures is estimated at the time of grant and revised, if necessary, if the actual effect differs from those estimates. For option grants to employees and directors, the Company assigns a forfeiture factor of 10% The table below illustrates the fair value per share determined using the Black-Scholes-Merton option pricing model with the following assumptions used for valuing options granted to employees: SCHEDULE OF FAIR VALUE ASSUMPTIONS 2022 2021 Weighted-average fair value of options granted $ 4.72 $ 4.97 Expected terms (in years) 6.11 5.00 6.11 Expected volatility 68 72% 69 74% Risk-free interest rate 1.54 3.70% 0.39 0.45% Dividend yield - - The following table summarizes information about stock options outstanding and exercisable at December 31, 2022: SCHEDULE OF STOCK OPTION OUTSTANDING AND EXERCISABLE Options Outstanding Options Exercisable Range of Exercise Prices Number Weighted Weighted Price Number Weighted Price $ 1.47 2.23 583,112 4.53 $ 1.97 583,112 $ 1.97 $ 2.40 3.50 33,443 4.92 $ 2.84 25,631 $ 2.64 $ 3.95 310,000 3.25 $ 3.95 310,000 $ 3.95 $ 4.08 6.30 550,850 5.11 $ 5.84 518,417 $ 5.90 $ 6.75 7.30 405,000 7.67 $ 7.18 257,625 $ 7.29 $ 7.37 7.79 269,623 5.53 $ 7.54 138,249 $ 7.47 $ 7.87 600,000 2.58 $ 7.87 400,000 $ 7.87 $ 7.89 8.98 68,173 6.84 $ 8.24 44,735 $ 8.27 $ 8.99 180,000 0.33 $ 8.99 180,000 $ 8.99 $ 12.38 27,500 9.84 $ 12.38 - $ - $ 1.47 12.38 3,027,701 4.48 $ 5.90 2,457,769 $ 5.51 As of December 31, 2022, there was approximately $ 1,560,000 4.88 1,130,000 1,636,000 Restricted Stock Units/Performance Stock Units RSU awards are granted subject to certain vesting requirements and other restrictions, including performance and market-based vesting criteria. The grant date fair value of the RSUs, which has been determined based upon the market value of the Company’s common stock on the grant date, is expensed over the vesting period of the RSUs. Grants During the Year Ended December 31, 2022 During the year ended December 31, 2022, the Company’s board of directors were granted 65,615 500,000 A summary of the Company’s RSU activity and related information for the year ended December 31, 2022 is as follows: SCHEDULE OF RESTRICTED STOCK UNITS ACTIVITY Number of RSUs Weighted Average Grant Date Fair Value RSUs unvested – January 1, 2022 2,233,202 $ 6.78 RSUs granted 65,615 $ 7.62 RSUs vested (237,098 ) $ 6.70 RSUs cancelled/forfeit - RSUs unvested at December 31, 2022 2,061,719 $ 6.82 As of December 31, 2022, the total unrecognized compensation expense related to unvested RSUs was approximately $ 4,205,000 0.60 6,844,000 4,022,000 Grants During the Year Ended December 31, 2021 During the year ended December 31, 2021, 300,000 2,670,000 During the year ended December 31, 2021, the Company’s board of directors were granted 38,576 400,000 During the year ended December 31, 2021, the Company granted 1,567,913 SCHEDULE OF SHARE BASED COMPENSATION PERFORMANCE STOCK UNITS AWARD ACTIVITY Tranche Number of Shares TSR Target Share Price* Tranche 1 223,988 50% or greater $ 11.70 Tranche 2 335,981 100% or greater $ 15.60 Tranche 3 447,975 150% or greater $ 19.50 Tranche 4 559,969 175% or greater $ 21.45 * Target Share Price assumes that no dividends or like distributions are made to shareholders of the Company. If such distributions are made, the Target Share Price would decrease accordingly, to the benefit of the employee, to account for the dividend/distribution as a part of TSR. The fair value of the 2021 PSUs was $ 10,113,000 five-year 75% 0.72% A summary of the Company’s RSU activity and related information for the year ended December 31, 2021 is as follows: Number of RSUs Weighted Average Grant Date Fair Value RSUs unvested - January 1, 2021 1,601,509 $ 3.14 RSUs granted 1,906,490 $ 6.91 RSUs vested (1,274,797 ) $ 2.40 RSUs cancelled/forfeit - RSUs unvested at December 31, 2021 2,233,202 $ 6.78 Subsidiary Stock-Based Transactions The Company recognized $ 0 87,000 The Company recorded stock-based compensation (including issuance of common stock for services and accrual for stock-based compensation) related to equity instruments granted to employees, directors and consultants as follows: SCHEDULE OF STOCK BASED COMPENSATION GRANTED TO EMPLOYEES DIRECTORS CONSULTANTS 2022 2021 For the Year Ended December 31, 2022 2021 Employees – selling, general and administrative $ 6,669,000 $ 4,800,000 Employees – R&D 689,000 527,000 Directors – selling, general and administrative 462,000 418,000 Consultants – selling, general and administrative 154,000 - Total $ 7,974,000 $ 5,745,000 Stock-based compensation $ 7,974,000 $ 5,745,000 Warrants From time to time, the Company has issued warrants to purchase shares of the Company’s common stock to investors, lenders, underwriters and other non-employees for services rendered or to be rendered in the future. A summary of warrant activity during the year ended December 31, 2022 is as follows: SCHEDULE OF WARRANTS ACTIVITY Number of Shares Subject to Warrants Outstanding Weighted Avg. Exercise Price Warrants outstanding - January 1, 2022 373,847 $ 2.08 Granted - Exercised (373,847 ) 2.08 Expired - - Warrants outstanding - December 31, 2022 - $ - |