LOSS PER SHARE

12 Months Ended

Dec. 31, 2022

NOTE 12. LOSS PER SHARE

Basic net loss per common share was determined by dividing net loss applicable to common stockholders by the weighted average common shares outstanding during the period. Basic and diluted net loss per share are the same because all outstanding common stock equivalents have been excluded, as they are anti-dilutive due to the Company’s losses.

The following potentially issuable common shares were not included in the computation of diluted net loss per share because they would have an anti-dilutive effect due to net losses at of the following at December 31 (in thousands):


	2022	2021	2020
Shares issuable upon the release of restricted stock units	4,355	2,090	526
Shares issuable upon exercise of stock options	5,409	7,193	8,045
Shares issuable upon the exercise of the Warrant	2,472	—	—
	12,236	9,283	8,571

As discussed in Note 10, Convertible Notes, as of December 31, 2022, $56.4 million aggregate principal amount of the Notes were outstanding and convertible pursuant to their original terms, none of which were converted prior to the Maturity Date.

In connection with the Notes, the Company entered into a prepaid forward stock repurchase transaction. The aggregate number of shares of the Company’s common stock underlying the Prepaid Forward was approximately 1,858,500. The shares purchased under the Prepaid Forward are treated as treasury stock and not outstanding for purposes of the calculation of basic and diluted earnings per share, but will remain outstanding for corporate law purposes, including for purposes of any future stockholders’ votes, until the Forward Counterparty delivers the shares underlying the Prepaid Forward to the Company. On March 24, 2023, 1,858,500 shares of Common Stock were returned to the Company pursuant to our agreement with the counterparty.

Potentially dilutive common shares would also include common shares that would be outstanding if Series A Preferred Stock were converted into common stock. Each share of Series A Preferred Stock is convertible, at the option of the holder, at any time into one share of the Company’s common stock. Additionally, each share of Series A Preferred Stock will automatically be converted into one share of the Company’s common stock immediately upon a sale of all outstanding stock of the Company or a merger of the Company into another corporation where the pre-merger Company’s stockholders cease to be the controlling stockholders of the post-merger corporation. The number of shares of common stock issuable upon conversion of the Series A Preferred Stock is 3,954,546 as of December 31, 2022.

As discussed in Note 19, Stockholders' Equity, the Company entered into a securities purchase agreement with the Schuler Trust for the issuance and sale by the Company of an aggregate of 2,439,024 shares of the Company’s common stock. The closing of the transaction is expected to occur in 2023, subject to the satisfaction of customary closing conditions and is considered an equity forward agreement. The shares to be issued from this agreement were not included in the computation of diluted net loss per share because they would have an anti-dilutive effect due to net losses.

As discussed in Note 11, Long-Term Debt Related-Party, the Company may, at its option, repay the Secured Note in (i) cash or (ii) in the form of common stock of the Company, in a number of shares that is obtained by dividing the total amount of such payment by $2.12. The number of shares of common stock issuable upon conversion of the Secured Note and accrued interest was approximately 16,478,066 and 312,812 shares respectively, as of December 31, 2022. The shares issuable in connection with a repayment of the Secured Note were not included in the computation of diluted net loss per share because they would have an anti-dilutive effect due to net losses. The amount of shares to repay the Secured Notes, shall not exceed an aggregate amount of 19.99% of the Company’s outstanding shares of common stock.