Annual report pursuant to Section 13 and 15(d)

Stockholders' Equity

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Stockholders' Equity
12 Months Ended
Nov. 30, 2019
Equity [Abstract]  
Stockholders' Equity
NOTE 11—STOCKHOLDERS’ EQUITY.
Common Stock Issuances
During the year ended November 30, 2019, the Company issued 2,500 common shares to option holders who exercised options for $5,700. During the year ended November 30, 2018, the Company issued 63,750 common shares to option holders who exercised options for $170,925.
Employee Stock Incentive Plan
The Company maintains the 2006 Stock Incentive Plan (the “2006 Plan”) under which it has reserved 1,000,000 shares of the Company’s common stock for issuance pursuant to stock options, restricted stock, stock-appreciation rights (commonly referred to as “SARs”) and stock awards (i.e. performance options to purchase shares and performance units). As of November 30, 2019, and November 30, 2018, there were 325,000 and 380,000 options issued, but not yet exercised, under the 2006 Plan, respectively. As of November 30, 2019, there were 0 shares available for future issuance under the 2006 Plan.
The Company maintains the 2012 Equity Incentive Plan (the “2012 Plan”) which became effective December 1, 2011 as approved by the Board of Directors and approved by the stockholders at the 2012 Annual Meeting on July 10, 2012. The 2012 Plan originally reserved 1,500,000 shares of the Company’s common stock for issuance pursuant to stock options, restricted stock, SARs, and other stock awards (i.e. performance shares and performance units). In May 2012, the Board of Directors approved an amendment to the 2012 Plan to increase the number of shares of the Company’s common stock reserved for issuance to 2,500,000
shares. In October 2019, the Board of Directors approved amendments to the plan, subject to ratification by the stockholders, which occurred at the Company’s 2019 Annual Meeting of Stockholders on November 21, 2019. See the Company’s Proxy Statement filed with the Securities and Exchange Commission on October 29, 2019 in connection with the Company’s 2019 Annual Meeting (the “2019 Proxy Statement”). As of November 30, 2019, there
were 763,274 service-based options issued, 129,729 service-based restricted common shares granted, 530,851 performance-based and 116,218 market-based restricted common shares granted under the 2012 Plan. As of November 30, 2018, there were 621,365 service-based options issued, 129,729 service-based restricted common shares granted, 823,415 performance-based and 116,240 market-based restricted common shares granted under the 2012 Plan. As of November 30, 2019, there were 667,479 shares available for future issuance under the 2012 Plan.
The Company granted 1,500 options to an optionee during the second fiscal quarter of 2019 as approved by the Board of Directors. These options
were
not issued
under either
the 2006 or 2012 Plan.
As discussed in further detail in the 2019 Proxy Statement, on or about March 26, 2018, the Company received a letter from counsel for a purported stockholder. Among other things, the letter identified equity awards allegedly made in violation of the 2012 Plan. The Board formed a committee of directors (the “Demand Review Committee”) to (among other things) conduct an investigation of the allegations in that letter. After completing its investigation, the Demand Review Committee determined that 1,129,247 restricted stock performance based awards were granted in violation of the 2012 Plan and the Delaware General Corporation Law (“DGCL”). The Demand Review Committee also determined that 70,270, 75,000 and 77,500 stock option awards were granted in violation of the 2012 Plan, the 2006 Plan, the 2000 Stock Incentive Plan, respectively, as amended (the “2000 Plan”) and the DGCL. Annex II attached to the 2019 Proxy Statement describes each of these awards and the applicable Plan that the awards were purportedly granted under, and Annexes I and II of the 2019 Proxy Statement describe each defective award and defective stock issuance identified by the Demand Review Committee (the “Defective Awards and Issuances”).
Based on the recommendation of the Demand Review Committee, the Board of Directors approved that 776,798 restricted stock performance based awards be ratified that were in violation of the 2012 Plan and that 352,449 restricted stock performance based awards be surrendered for cash in the amount of $1,436,244 that were in violation of the 2012 Plan. The Board of Directors also approved the recommendation that 45,000 stock option awards not be ratified and 177,770 stock options be ratified under the 2012 Plan, the 2006 Plan and the 2000 Stock Incentive Plan. The proposed treatment of each award and issuance is listed on Annexes I and II in the manner identified in the column entitled “Recommended Disposition” in each of those Annexes and recommended to the Company’s stockholders that such awards and issuances be ratified as proposed by the Recommended Dispositions. On November 21, 2019, the Company held its Annual Meeting of Stockholders. At the 2019 Annual Meeting, the Company’s stockholders considered various matters presented to them, including the ratification of certain equity-based awards and stock issuances made pursuant to the Company’s incentive Plans, as well as the approval of certain amendments to those incentive Plans. All such matters presented to the stockholders were duly approved by the stockholders at the 2019 Annual Meeting. Accordingly, all references contained herein to the number of options or shares of common stock granted under the Company’s incentive Plans, the value thereof, and the number of securities that remain available for future issuance under the Company’s 2012 Plan for all periods presented in this Annual Report on Form
10-K
have been calculated and are being presented after taking into account the ratification and surrender of the Defective Awards and Issuances in accordance with the Recommended Disposition, as further described in the 2019 Proxy Statement.
Under the DGCL, any claim that the defective corporate acts, or the shares of stock or awards, listed as having been purportedly issued or granted on Annexes I and II, are void or voidable due to the failures of authorization listed on Annex III, or that the Delaware Court of Chancery should declare in its discretion that the ratification not be effective or be effective only on certain conditions, must be brought within 120 days from the date of the 2019 Annual Meeting, which was on November 21, 2019.
Service-based vesting condition options
The fair value of each option award is estimated on the date of the grant using the Black-Scholes valuation model that uses the assumptions noted in the following table. Expected volatility is based on the historical volatility of the Company’s stock over the most recent period commensurate with the expected life of the Company’s stock options. The Company uses historical data to estimate option exercise and employee termination within the valuation model. The risk-free rate for periods within the contractual life of the option is based on the U.S. Treasury yield curve in effect at the time of grant. The expected term of options granted to employees is based upon historical exercise data. Expected dividends are based on the historical trend of the Company not issuing dividends.
Variables used to determine the fair value of the options granted for the years ended November 30, 2019 and November 30, 2018 are as follows:
 
     2019     2018  
Weighted average values:
    
Expected dividends
     0%       0%  
Expected volatility
     64.02%       50.85%  
Risk free interest rate
     1.55%       2.67%  
Expected life
     8.4 years       5.0 years  
 
Stock option activity for options with only service-based vesting conditions for the year ended November 30, 2019, was as follows:
 
     Options      Weighted
Average
Exercise
Price
     Weighted
Average
Remaining
Contractual
Term (Years)
     Aggregate
Intrinsic
Value
 
Outstanding at November 30, 2018
     1,001,365      $ 2.77        3.97      $ 4,580,967  
Granted
     143,409        7.55                 4,851  
Exercised
     (2,500      2.28                 14,175  
Expired/forfeited
     (52,500      4.82                 143,450  
  
 
 
          
Outstanding at November 30, 2019
     1,089,774        3.30        3.91      $ 4,648,111  
  
 
 
          
 
 
 
Exercisable at November 30, 2019
     964,540        2.75        3.33      $ 4,644,277  
  
 
 
          
 
 
 
The weighted average grant date fair value of options granted during the years ended November 30, 2019 and November 30, 2018 was $5.02 and $3.23, respectively.
The aggregate intrinsic value represents the total value of the difference between the Company’s closing stock price on the last trading day of the period and the exercise price of the options, multiplied by the number of
in-the-money
stock options that would have been received by the option holders had all option holders exercised their options on either November 30, 2019 or November 30, 2018, as applicable. The intrinsic value of the Company’s stock options changes based on the closing price of the Company’s stock.
Significant option groups outstanding and exercisable at November 30, 2019 and related price and contractual life information are as follows:
 
     Outstanding      Exercisable  
            Weighted
Average
                      
            Remaining      Weighted             Weighted  
Range of Exercise Prices
   Outstanding      Contractual
Life (Years)
     Average
Exercise Price
     Outstanding      Average
Exercise Price
 
$1.01 to $2.00
     422,500        2.10      $ 1.73        422,500      $ 1.73  
$2.01 to $3.00
     265,000        2.11      $ 2.72        265,000      $ 2.72  
$3.01 to $4.00
     204,729        6.23      $ 3.14        204,729      $ 3.14  
$6.01 to $7.00
     2,500        4.65      $ 6.50        1,667      $ 6.50  
$7.01 to $8.00
     195,045        7.84      $ 7.63        70,644      $ 7.67  
  
 
 
       
 
 
    
 
 
    
     1,089,774        3.91      $ 3.30        964,540      $ 2.75  
  
 
 
       
 
 
    
 
 
    
A summary of the status of the Company’s
non-vested
options as of November 30, 2019, and changes during the fiscal year then ended, is presented below:
 
            Weighted Average  
            Grant-Date  
     Options      Fair Value  
Non-vested
at November 30, 2018
     40,254      $ 3.06  
Granted
     143,409        5.02  
Vested
     (58,429      4.36  
Forfeited
             
  
 
 
    
Non-vested
at November 30, 2019
     125,234      $ 4.70  
  
 
 
    
 
As of November 30, 2019, there was approximately $519,000 of total unrecognized compensation cost related to
non-vested
share-based compensation arrangements granted under the 2006 Plan and the 2012 Plan. The cost is expected to be recognized over a weighted-average period of 1.16 years as of November 30, 2019. The total fair value of options vested during the fiscal year ended November 30, 2019 was approximately $255,000.
During the second fiscal quarter of 2018, the Company entered into Amended and Restated Employment Agreements (“2018 Employment Agreements”) with each of the Company’s
Co-CEOs.
Per the Employment Agreements, each of the
Co-CEOs
is to receive base grant equity awards in the form of qualified stock options of the Company’s common stock. As of March 8, 2018, David Portnoy and Mark Portnoy were granted 23,636 and 20,000 stock options of the Company’s common stock, respectively. The options were issued under the Company’s 2012 Stock Plan and will vest 1/3 upon grant, 1/3 on December 1, 2018 and the remaining 1/3 on November 30, 2019. The fair value of the options that vested through the twelve months ended November 30, 2019 and November 30, 2018 was approximately $77,000 and $62,000, respectively, and is reflected as selling, general and administrative expenses in the accompanying consolidated statement of comprehensive income (loss).
During the second fiscal quarter of 2018, the Company entered into an Amendment Agreement (“CIO Agreement”) with the Company’s CIO. Per the CIO Agreement, the CIO is to receive a base grant equity award in the form of qualified stock options of the Company’s common stock. As of May 21, 2018, Oleg Mikulinsky was granted 8,000 stock options of the Company’s common stock. The options were issued under the Company’s 2012 Stock Plan and will vest 1/3 upon grant, 1/3 on December 1, 2018 and the remaining 1/3 on November 30, 2019. The fair value of the options that vested through the twelve months ended November 30, 2019 and November 30, 2018 was approximately $18,000 and $10,000, respectively, and is reflected as selling, general and administrative expenses in the accompanying consolidated statement of comprehensive income (loss).
Performance and market-based vesting condition options
Per the 2018 Employment Agreements, based upon certain performance criteria, the Company shall grant David Portnoy and Mark Portnoy a percentage of up to 47,273 and 40,000, respectively, of qualified stock options of the Company’s common stock. For market-based vesting condition options, accounting principles do not require that the market condition be met in order for the compensation cost to be recognized. Fair value of these options has been determined using a Monte Carlo valuation approach and is being recognized over the requisite service period, regardless if the market condition will be met. During fiscal 2019 and 2018, 15,756 and 13,332, respectively, of qualified stock options were forfeited as certain market conditions were not met by the end of the requisite service period. The fair value of these options as of November 30, 2019 and November 30, 2018 was approximately $182,00 and $144,300, respectively, and is reflected as selling, general and administrative expenses in the accompanying consolidated statement of comprehensive income (loss). For performance-based vesting condition options, the Company estimates the fair value of qualified stock options that met certain performance targets by the end of the fiscal 2018 requisite service period using a Black-Scholes valuation model. As of August 30, 2019, the Company granted David Portnoy and Mark Portnoy 26,243 and 22,222 of
non-qualified
stock options of the Company’s common stock based upon certain performance criteria met by the end of the fiscal 2018 service period and per the 2018 Employment Agreements. These options were issued under the Company’s 2012 Stock Plan and will vest 1/3 upon date of grant, 1/3 on December 1, 2019 and 1/3 on November 30, 2020. The fair value of these options as of November 30, 2019 was approximately $86,000 and is reflected as selling, general and administrative expenses in the accompanying consolidated statements of comprehensive income (loss). As of November 30, 2019, there was approximately $172,000 of total unrecognized compensation cost related to the
non-vested
options of common stock.
Per the Amendment Agreement, based upon certain performance criteria, the Company shall grant Oleg Mikulinsky a percentage of up to 8,000 of qualified stock options of the Company’s common stock. For market-based vesting condition options, accounting principles do not require that the market condition be met in order for the compensation cost to be recognized. Fair value of these options has been determined using a Monte Carlo valuation approach and is being recognized over the requisite service period, regardless if the market condition will be met. During fiscal 2019 and 2018, 2,666, respectively, of qualified stock options were forfeited as certain market conditions were not met by the end of the requisite service period. The fair value of these options as of November 30, 2019 and November 30, 2018 was approximately $19,200 and $13,500, and is reflected as selling, general and administrative expenses in the accompanying consolidated statement of comprehensive income (loss). For performance-based vesting condition options, the Company estimated the fair value of the qualified stock options that met certain performance targets by the end of the fiscal 2018 requisite service period using a Black-Scholes valuation model. As of September 4, 2019, the Company granted Oleg Mikulinsky 4,444 of qualified stock options of the Company’s common stock based upon certain performance criteria met by the end of the fiscal 2018 service period and the per the Amendment Agreement. These options were issued under the Company’s 2012 Stock Plan and will vest 1/3 upon date of grant, 1/3 on December 1, 2019 and 1/3 on November 30, 2020. The fair value of these options as of November 30, 2019 was approximately $8,000 and is reflected as selling, general and administrative expenses in the accompanying consolidated statements of comprehensive income (loss). As of November 30, 2019, there was approximately $15,000 of total unrecognized compensation cost related to the
non-vested
options of common stock.
Restricted common shares
Based upon performance measures being obtained during prior fiscal years, David Portnoy and Mark Portnoy earned 304,946 and 265,172 shares of common stock, respectively. Pursuant to the terms of the Employment Agreements, the
Co-CEOs
each opted to receive a lump sum cash payment in lieu of 30,000 shares of earned common stock which amounted to approximately $444,000 each
paid in
 fiscal 2018
. Per
the recommendation of the DCCL, as described above, David Portnoy and Mark Portnoy surrendered 157,472 and 134,977 commons shares, respectively, for cash which amounted to $534,917 and $457,327, respectively
 in 2019
.
Based upon performance measures being obtained during prior fiscal years, Oleg Mikulinsky was granted 34,349 shares of common stock.