Purple Innovation, Inc. 10-Q

ITEM 1. FINANCIAL STATEMENTS PURPLE INNOVATION, INC. Condensed Consolidated Balance Sheets (unaudited – in thousands, except for par value) June 30, 2023 December 31, 2022 Assets Current assets: Cash, cash equivalents and restricted cash $ 26,949 $ 41,754 Accounts receivable, net 22,769 34,566 Inventories, net 78,402 73,197 Prepaid expenses 5,669 7,821 Other current assets 3,881 4,117 Total current assets 137,670 161,455 Property and equipment, net 131,493 136,673 Operating lease right-of-use assets 99,858 102,541 Goodwill 5,021 4,897 Intangible assets, net 23,688 26,221 Other long-term assets 2,958 1,546 Total assets $ 400,688 $ 433,333 Liabilities and Stockholders’ Equity Current liabilities: Accounts payable $ 48,742 $ 46,441 Accrued sales returns 4,197 5,107 Accrued compensation 4,190 6,691 Customer prepayments 5,477 4,452 Accrued sales and use tax 1,674 2,978 Accrued rebates and allowances 5,827 9,804 Operating lease obligations – current portion 14,390 13,708 Other current liabilities 7,359 8,130 Total current liabilities 91,856 97,311 Debt — 23,657 Operating lease obligations, net of current portion 113,549 115,599 Other long-term liabilities, net of current portion 17,717 17,876 Total liabilities 223,122 254,443 Commitments and contingencies (Note 14) Stockholders’ equity: Class A common stock; $ 0.0001 par value, 210,000 shares authorized; 105,323 issued and outstanding at June 30, 2023 and 91,380 issued and outstanding at December 31, 2022 11 9 Class B common stock; $ 0.0001 par value, 90,000 shares authorized; 428 issued and outstanding at June 30, 2023 and 448 issued and outstanding at December 31, 2022 — — Additional paid-in capital 589,145 529,466 Accumulated deficit ( 412,323 ) ( 351,514 ) Total stockholders’ equity attributable to Purple Innovation, Inc. 176,833 177,961 Noncontrolling interest 733 929 Total stockholders’ equity 177,566 178,890 Total liabilities and stockholders’ equity $ 400,688 $ 433,333 The accompanying notes are an integral part of these unaudited condensed consolidated financial statements. 1 PURPLE INNOVATION, INC. Condensed Consolidated Statements of Operations (unaudited – in thousands, except per share amounts) Three Months Ended June 30, Six Months Ended June 30, 2023 2022 2023 2022 Revenues, net $ 120,872 $ 144,109 $ 230,244 $ 287,288 Cost of revenues 82,408 95,297 148,557 186,850 Gross profit 38,464 48,812 81,687 100,438 Operating expenses: Marketing and sales 46,379 40,373 84,552 90,332 General and administrative 26,437 18,779 50,104 36,667 Research and development 2,925 1,748 6,297 3,891 Total operating expenses 75,741 60,900 140,953 130,890 Operating loss ( 37,277 ) ( 12,088 ) ( 59,266 ) ( 30,452 ) Other income (expense): Interest expense ( 352 ) ( 707 ) ( 554 ) ( 1,730 ) Other income (expense), net 37 ( 136 ) 110 ( 119 ) Change in fair value – warrant liabilities — 346 — 4,274 Loss on extinguishment of debt — — ( 1,217 ) — Total other income (expense), net ( 315 ) ( 497 ) ( 1,661 ) 2,425 Net loss before income taxes ( 37,592 ) ( 12,585 ) ( 60,927 ) ( 28,027 ) Income tax benefit (expense) ( 72 ) 4,175 ( 144 ) 5,986 Net loss ( 37,664 ) ( 8,410 ) ( 61,071 ) ( 22,041 ) Net loss attributable to noncontrolling interest ( 155 ) ( 70 ) ( 262 ) ( 199 ) Net loss attributable to Purple Innovation, Inc. $ ( 37,509 ) $ ( 8,340 ) $ ( 60,809 ) $ ( 21,842 ) Net loss per share: Basic $ ( 0.36 ) $ ( 0.10 ) $ ( 0.60 ) $ ( 0.29 ) Diluted $ ( 0.36 ) $ ( 0.10 ) $ ( 0.60 ) $ ( 0.29 ) Weighted average common shares outstanding: Basic 105,079 82,703 101,760 74,924 Diluted 105,079 83,151 101,760 75,372 The accompanying notes are an integral part of these unaudited condensed consolidated financial statements. 2 PURPLE INNOVATION, INC. Condensed Consolidated Statements of Stockholders’ Equity (unaudited – in thousands) Class A Class B Additional Total Common Stock Common Stock Paid-in Accumulated Stockholders’ Noncontrolling Total Shares Par Value Shares Par Value Capital Deficit Equity Interest Equity Balance - December 31, 2022 91,380 $ 9 448 $ — $ 529,466 $ ( 351,514 ) $ 177,961 $ 929 $ 178,890 Net loss — — — — — ( 23,300 ) ( 23,300 ) ( 107 ) ( 23,407 ) Stock-based compensation — — — — 1,192 — 1,192 — 1,192 Issuance of stock under equity compensation plans 265 — — — — — — — — Issuance of stock upon underwritten offering, net of costs 13,400 2 — — 57,198 — 57,200 — 57,200 Impact of transactions affecting NCI — — — — ( 103 ) — ( 103 ) 103 — Balance – March 31, 2023 105,045 $ 11 448 $ — $ 587,753 $ ( 374,814 ) $ 212,950 $ 925 $ 213,875 Net loss — — — — — ( 37,509 ) ( 37,509 ) ( 155 ) ( 37,664 ) Stock-based compensation — — — — 1,661 — 1,661 — 1,661 Exchange of stock 20 — ( 20 ) — — — — — — Proportional Representation Preferred Linked Stock redemption fee — — — — ( 105 ) — ( 105 ) — ( 105 ) Additional costs associated with underwritten public stock offering — — — — ( 201 ) — ( 201 ) — ( 201 ) Issuance of stock under equity compensation plans 258 — — — — — — — — Impact of transactions affecting NCI — — — — 37 — 37 ( 37 ) — Balance – June 30, 2023 105,323 $ 11 428 $ — $ 589,145 $ ( 412,323 ) $ 176,833 $ 733 $ 177,566 Class A Class B Additional Total Common Stock Common Stock Paid-in Accumulated Stockholders’ Noncontrolling Total Shares Par Value Shares Par Value Capital Deficit Equity Interest Equity Balance - December 31, 2021 66,493 $ 7 448 $ — $ 407,591 $ ( 261,825 ) $ 145,773 $ 768 $ 146,541 Net loss — — — — — ( 13,502 ) ( 13,502 ) ( 129 ) ( 13,631 ) Stock-based compensation — — — — 542 — 542 — 542 Exercise of stock options 20 — — — 166 — 166 — 166 Issuance of stock under equity compensation plans 25 — — — — — — — — Issuance of stock upon underwritten public offering, net of costs 16,100 1 — — 92,894 — 92,895 — 92,895 Accrued distributions — — — — ( 228 ) — ( 228 ) — ( 228 ) Impact of transactions affecting NCI — — — — ( 141 ) — ( 141 ) 141 — Balance – March 31, 2022 82,638 $ 8 448 $ — $ 500,824 $ ( 275,327 ) $ 225,505 $ 780 $ 226,285 Net loss — — — — — ( 8,340 ) ( 8,340 ) ( 70 ) ( 8,410 ) Stock-based compensation — — — — 1,275 — 1,275 — 1,275 Issuance of common stock under equity compensation plans 126 — — — — — — — — Additional costs associated with underwritten public stock offering — — — — ( 29 ) — ( 29 ) — ( 29 ) Impact of transactions affecting NCI — — — — ( 73 ) — ( 73 ) 73 — Balance – June 30, 2022 82,764 $ 8 448 $ — $ 501,997 $ ( 283,667 ) $ 218,338 $ 783 $ 219,121 The accompanying notes are an integral part of these unaudited condensed consolidated financial statements. 3 PURPLE INNOVATION, INC. Condensed Consolidated Statements of Cash Flows (unaudited – in thousands) Six Months Ended June 30, 2023 2022 Cash flows from operating activities: Net loss $ ( 61,071 ) $ ( 22,041 ) Adjustments to reconcile net loss to net cash used in operating activities: Depreciation and amortization 12,890 7,583 Non-cash interest 686 360 Loss on extinguishment of debt 1,217 — Change in fair value – warrant liabilities — ( 4,274 ) Stock-based compensation 2,853 1,817 Deferred income taxes — ( 6,161 ) Changes in operating assets and liabilities: Accounts receivable 11,467 ( 6,148 ) Inventories, net ( 5,061 ) 13,804 Prepaid expenses and other assets 2,952 3,481 Operating leases, net 1,315 4,178 Accounts payable 3,304 ( 37,027 ) Accrued sales returns ( 910 ) ( 2,005 ) Accrued compensation ( 2,709 ) 354 Customer prepayments 1,025 ( 5,722 ) Accrued rebates and allowances ( 3,977 ) ( 2,854 ) Other accrued liabilities ( 2,034 ) 1,851 Net cash used in operating activities ( 38,053 ) ( 52,804 ) Cash flows from investing activities: Purchase of property and equipment ( 5,443 ) ( 24,233 ) Investment in intangible assets ( 380 ) ( 1,822 ) Net cash used in investing activities ( 5,823 ) ( 26,055 ) Cash flows from financing activities: Payments on term loan ( 24,656 ) ( 2,531 ) Payments on revolving line of credit — ( 55,000 ) Payments for debt issuance costs ( 2,898 ) ( 1,242 ) Proceeds from stock offering 60,300 98,210 Payments for public offering costs ( 3,301 ) ( 5,344 ) Proportional Representation Preferred Linked Stock redemption fee ( 105 ) — Tax receivable agreement payments ( 269 ) ( 5,847 ) Proceeds from exercise of stock options — 166 Net cash provided by financing activities 29,071 28,412 Net decrease in cash, cash equivalents and restricted cash ( 14,805 ) ( 50,447 ) Cash, cash equivalents and restricted cash, beginning of the year 41,754 91,616 Cash, cash equivalents and restricted cash, end of the period $ 26,949 $ 41,169 Supplemental disclosures of cash flow information: Cash paid during the period for interest, net of amounts capitalized $ ( 226 ) $ 1,345 Cash paid during the period for income taxes $ 281 $ 219 Supplemental schedule of non-cash investing and financing activities: Property and equipment included in accounts payable $ 3,209 $ 3,648 Accrued distributions $ — $ 228 The accompanying notes are an integral part of these unaudited condensed consolidated financial statements. 4 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) 1. Organization Purple Innovation, Inc.’s mission is to help people feel and live better through innovative comfort solutions. Purple Innovation, Inc. collectively with its subsidiary (the “Company” or “Purple Inc.”) is an omni-channel Company that began as a digitally-native vertical brand founded on comfort product innovation with premium offerings. The Company designs and manufactures a variety of innovative, branded and premium comfort products, including mattresses, pillows, cushions, bases, sheets, and other products. The Company markets and sells its products through its e-commerce online channels, retail brick-and-mortar wholesale partners, Purple owned retail showrooms, and third-party online retailers. The Company was incorporated in Delaware on May 19, 2015 as a special purpose acquisition company under the name of Global Partnership Acquisition Corp (“GPAC”). On February 2, 2018, the Company consummated a transaction structured similar to a reverse recapitalization (the “Business Combination”) pursuant to which the Company acquired a portion of the equity of Purple Innovation, LLC (“Purple LLC”). At the closing of the Business Combination (the “Closing”), the Company became the sole managing member of Purple LLC, and GPAC was renamed Purple Innovation, Inc. As the sole managing member of Purple LLC, Purple Inc. through its officers and directors is responsible for all operational and administrative decision making and control of the day-to-day business affairs of Purple LLC without the approval of any other member. On August 31, 2022, the Company acquired all the issued and outstanding stock of Advanced Comfort Technologies, Inc., dba Intellibed (“Intellibed”) pursuant to an Agreement and Plan of Merger (the “Merger Agreement”), in which Gelato Merger Sub, Inc., a wholly owned subsidiary of Purple Inc., merged with and into Intellibed, with Intellibed continuing as a wholly owned subsidiary of Purple Inc. On October 3, 2022, Purple Inc. contributed 100 % of the membership interest in Intellibed to Purple LLC and Intellibed became a wholly owned subsidiary of Purple LLC. For further discussion see Note 4 — Acquisition. 2. Summary of Significant Accounting Policies Basis of Presentation and Principles of Consolidation The condensed consolidated financial statements include the accounts of Purple Inc., its controlled subsidiary Purple LLC, and Intellibed, Purple LLC’s wholly owned subsidiary, from the date of acquisition. All intercompany balances and transactions have been eliminated in consolidation. As of June 30, 2023, Purple Inc. held 99.6 % of the common units of Purple LLC and Purple LLC Class B Unit holders held 0.4 % of the common units in Purple LLC. The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with generally accepted accounting principles in the United States (“GAAP”) and applicable rules and regulations of the Securities and Exchange Commission (“SEC”) regarding interim financial reporting and reflect the financial position, results of operations and cash flows of the Company. Certain information and note disclosures normally included in financial statements prepared in accordance with GAAP have been condensed or omitted pursuant to such rules and regulations. As such, these unaudited condensed consolidated financial statements should be read in conjunction with the audited consolidated financial statements and accompanying notes included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022. The unaudited condensed consolidated financial statements were prepared on the same basis as the audited consolidated financial statements and, in the opinion of management, reflect all adjustments (all of which were considered of normal recurring nature) considered necessary to present fairly the Company’s financial results. The results of the three and six months ended June 30, 2023 are not necessarily indicative of the results to be expected for the fiscal year ending December 31, 2023 or for any other interim period or other future year. Variable Interest Entities Purple LLC is a variable interest entity. The Company determined that it is the primary beneficiary of Purple LLC as it is the sole managing member and has the power to direct the activities most significant to Purple LLC’s economic performance as well as the obligation to absorb losses and receive benefits that are potentially significant. At June 30, 2023, Purple Inc. had a 99.6 % economic interest in Purple LLC and consolidated 100 % of Purple LLC’s assets, liabilities and results of operations in the Company’s unaudited condensed consolidated financial statements contained herein. The holders of Purple LLC Class B Units (the “Class B Units”) held 0.4 % of the economic interest in Purple LLC as of June 30, 2023. For further discussion see Note 16 — Stockholders’ Equity. Use of Estimates The preparation of the unaudited condensed consolidated financial statements in conformity with GAAP requires the Company to establish accounting policies and to make estimates and judgments that affect the reported amounts of assets and liabilities and disclose contingent assets and liabilities as of the date of the unaudited condensed consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. The Company bases its estimates on historical experience and on various other assumptions believed to be reasonable, the results of which form the basis for making judgments about the carrying values of assets and liabilities. The Company regularly makes significant estimates and assumptions including, but not limited to, estimates that affect revenue recognition, accounts receivable and allowance for credit losses, valuation of inventories, sales returns, warranty returns, fair value of assets acquired and liabilities assumed in a business combination, warrant liabilities, stock based compensation, the recognition and measurement of loss contingencies, estimates of current and deferred income taxes, deferred income tax valuation allowances, and amounts associated with the Company’s tax receivable agreement with InnoHold, LLC (“InnoHold”). Predicting future events is inherently an imprecise activity and, as such, requires the use of judgment. Actual results could differ materially from those estimates. 5 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) Recent Accounting Pronouncements Measurement of Credit Losses In June 2016, the FASB issued ASU No. 2016-13, Financial Instruments - Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments (“ASU 2016-13”), which was further updated and clarified by the FASB through issuance of additional related ASUs. This guidance replaces the existing incurred loss impairment guidance and establishes a single allowance framework for financial assets carried at amortized cost based on expected credit losses. The estimate of expected credit losses requires the incorporation of historical information, current conditions, and reasonable and supportable forecasts. These updates are effective for public companies, excluding Smaller Reporting Companies (“SRC”), for annual periods beginning after December 15, 2019, including interim periods therein. The standard is effective for all other entities for annual periods beginning after December 15, 2022, including interim periods therein. The standard is effective for the Company’s interim and annual financial periods beginning January 1, 2023. This standard was adopted utilizing a modified retrospective approach. The adoption of this standard on January 1, 2023 did not have a material impact on the Company’s condensed consolidated financial statements and related disclosures. 3. Underwritten Offering of Class A Common Stock In February 2023, the Company completed an underwritten offering of 13.4 million shares of Class A common stock at a price of $ 4.50 per share. The underwriters did not exercise their over-allotment option. The aggregate net proceeds received by the Company from the offering, after deducting offering fees and expenses of $ 3.3 million, totaled $ 57.0 million. 4. Acquisition On August 31, 2022, pursuant to the Merger Agreement, the Company acquired Intellibed, a premium sleep and health wellness company, offering gel-based mattresses scientifically designed for maximum back support, spinal alignment and pressure point relief. The addition of Intellibed increased product offerings to customers, expanded market opportunities, capitalized on synergies of the combined companies, and increased opportunities for innovation. In addition, the acquisition allowed the Company to consolidate ownership of its intellectual property licensed to Intellibed and more fully capitalize on growing demand for products with gel technologies. The acquisition date fair value of the consideration transferred for Intellibed was $ 28.3 million, which consisted of the following (in thousands): Fair value of Class A common stock issued at closing $ 23,069 Fair value of Class A common stock held in escrow 1,467 Fair value of contingent consideration 1,471 Fair value of effective settlement of preexisting relationships 1,672 Transaction expenses paid on behalf of Intellibed 546 Due to seller 75 Fair value of total purchase consideration $ 28,300 The fair value of common stock issued at closing consisted of approximately 8.1 million shares of Class A common stock valued using the acquisition date closing price of $2.86. The fair value of common stock held in escrow consisted of 0.5 million shares of Class A common stock valued using the acquisition date closing price of $2.86. These shares are being held in escrow pending resolution of net working capital adjustments and certain indemnification matters, as described in the Merger Agreement. Contingent consideration represents the fair value of 1.5 million shares of Class A common stock issuable to Intellibed security holders if the closing price of the Company’s stock does not equal or exceed $ 5.00 for at least ten trading days over any period of 30 consecutive trading days during the period beginning on the six-month anniversary of the closing date and ending on the 18-month anniversary of the closing date. The contingent shares were valued using a Monte-Carlo simulation model. Because the contingent consideration is payable with a fixed number of shares of the Company’s Class A common stock, it is classified as equity and will not require remeasurement in subsequent periods. The fair value of effective settlement of preexisting relationships includes $ 1.4 million related to the fair value of a preexisting legal matter with Intellibed that was effectively settled on the acquisition date and $ 0.3 million related to the fair value of a preexisting royalty liability owed by Intellibed to the Company that was also effectively settled on the acquisition date. As a result of effectively settling the preexisting legal matter with Intellibed, the Company recorded a gain of $ 1.4 million as other income (expense), net in the consolidated statement of operations during the third quarter of 2022. As a result of effectively settling the preexisting royalty liability, the Company and Intellibed recorded a corresponding receivable and payable, respectively, for the same $ 0.3 million amount that was eliminated in consolidation. 6 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) The Company recorded the acquisition based on the fair value of the consideration transferred and then allocated the purchase price to the identifiable assets acquired and liabilities assumed based on their respective preliminary estimated fair values as of the acquisition date. Determining the fair value of assets acquired and liabilities assumed required management to use significant judgment and estimates including the selection of valuation methodologies, estimates of future revenues and cash flows, discount rates, and asset lives, among other items. While the Company used its best estimates and assumptions as a part of the purchase price allocation process to accurately value the assets acquired, including intangible assets, and the liabilities assumed at the acquisition date, the Company’s estimates are inherently uncertain and subject to refinement. Consequently, during the measurement period, which could be up to one year from the acquisition date, the Company may record adjustments to the fair values of the assets acquired and the liabilities assumed, with a corresponding offset to goodwill. Upon the conclusion of the measurement period or final determination of the values of assets acquired or the liabilities assumed, whichever comes first, any subsequent adjustments will be reflected in the Company’s consolidated statement of operations. During the second quarter of 2023, the Company updated the preliminary valuation of the fair value of tangible and intangible assets acquired and liabilities assumed, which required a measurement period adjustment of $ 0.1 million to increase goodwill. Based upon the purchase price allocation, the following table summarizes the preliminary fair value of the assets acquired and liabilities assumed in the acquisition as of the date of acquisition, the measurement period adjustments and the as adjusted as of June 30, 2023 (in thousands): Net tangible assets (liabilities): At date of acquisition Measurement period adjustments As adjusted June 30, 2023 Cash, cash equivalents and restricted cash $ 4,194 $ 12 $ 4,206 Accounts receivable 5,051 ( 357 ) 4,694 Inventory 4,182 ( 575 ) 3,607 Other current assets 126 200 326 Property and equipment 7,000 — 7,000 Operating lease right-of-use assets 5,491 — 5,491 Other long-term assets 68 — 68 Accounts payable ( 2,285 ) ( 460 ) ( 2,745 ) Other current liabilities ( 2,818 ) 545 ( 2,273 ) Operating lease obligations ( 4,373 ) — ( 4,373 ) Deferred tax liabilities ( 3,868 ) ( 374 ) ( 4,242 ) Net tangible assets (liabilities) 12,768 ( 1,009 ) 11,759 Goodwill 6,441 ( 1,420 ) 5,021 Customer relationships 8,476 2,400 10,876 Developed technology 615 29 644 Net assets acquired and liabilities assumed $ 28,300 $ — $ 28,300 Due to the close proximity of the acquisition date to the Company’s first reporting date after the transaction, the Company recorded the assets acquired and liabilities assumed at preliminary estimates of fair value. As a result, the Company had not finalized the determination of the working capital adjustments and the fair values allocated to various assets and liabilities, income tax provision, intangible assets and the residual amount allocated to goodwill. While the final determination of working capital adjustments was still pending at June 30, 2023, the table above reflects measurement period adjustments made to various assets acquired and liabilities assumed based on updated information, and revisions to reflect the final fair value analysis associated with the two intangible assets. The corresponding offsets for these measurement period adjustments was goodwill. The Company believes the amount of goodwill resulting from the purchase price allocation is primarily attributable to expected synergies from the assembled workforce, an increase in development capabilities, increased offerings to customers, expanded market opportunities, and enhanced opportunities for growth and innovation. Goodwill is not being amortized but instead is tested for impairment at least annually or more frequently if certain indicators of impairment are present. In the event that goodwill becomes impaired, the Company will record an expense for the amount impaired during the quarter in which the determination is made. The goodwill recorded is not deductible for income tax purposes. The two identified definite lived intangible assets, comprised of customer relationships and developed technology, are being amortized over their estimated useful lives of ten and two years , respectively. The customer relationships intangible asset represents the estimated fair value of the underlying relationships with Intellibed customers, valued utilizing the multi-period excess earnings method. The developed technology intangible represents the fair value of Intellibed industry-specific cloud and mobile software and related technologies, valued using the cost to recreate method. The cash, cash equivalents and restricted cash balance acquired included $ 1.7 million of cash deposited by Intellibed in a separate account pursuant to an escrow agreement with the Company that will end on August 31, 2023. The purpose of the escrow cash amount was to cover Intellibed’s estimated state income tax liabilities, sales tax liabilities and related filing expenses that existed prior to the acquisition date. If the actual liabilities are less than estimated, any excess cash will be returned to the previous shareholders of Intellibed. If payments for these items exceed the escrow balance, the Company will be required to pay the excess. The Company recorded the $ 1.7 million of cash on August 31, 2022 as an acquired restricted cash balance that is included in cash, cash equivalents and restricted cash in the condensed consolidated balance sheets as of June 30, 2023 and December 31, 2022. The Company also recorded on August 31, 2022, an assumed liability totaling $ 1.3 million for the sales and use tax and state and local income tax liabilities exposure that existed at the date of acquisition and was reflected in other current liabilities in the condensed consolidated balance sheet. 7 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) 5. Fair Value Measurements The Company uses the fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value. Fair value is the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date, essentially an exit price, based on the highest and best use of the asset or liability. The levels of the fair value hierarchy are: Level 1—Quoted market prices in active markets for identical assets or liabilities; Level 2—Significant other observable inputs (i.e., quoted prices for similar items in active markets, quoted prices for identical or similar items in markets that are not active, inputs other than quoted prices that are observable, such as interest rate and yield curves, and market-corroborated inputs); and Level 3—Unobservable inputs in which there is little or no market data, which require the reporting unit to develop its own assumptions. The classification of fair value measurements within the established three-level hierarchy is based upon the lowest level of input that is significant to the measurements. Financial instruments, although not recorded at fair value on a recurring basis include cash and cash equivalents, receivables, accounts payable and the Company’s debt obligations. The carrying amounts of cash and cash equivalents, receivables, accounts payable and accrued expenses approximate fair value because of the short-term nature of these accounts. The fair value of the Company’s debt instruments is estimated to be face value based on the contractual terms of the debt arrangements and market-based expectations. The sponsor warrant liabilities (see Note 12 — Warrant Liabilities for more information) are Level 3 instruments and use internal models to estimate fair value using certain significant unobservable inputs which required determination of relevant inputs and assumptions. Accordingly, changes in these unobservable inputs may have had a significant impact on fair value. Such inputs included risk free interest rate, expected average life, expected dividend yield, and expected volatility. These Level 3 liabilities generally decreased (increased) in value based upon an increase (decrease) in risk free interest rate and expected dividend yield. Conversely, the fair value of these Level 3 liabilities generally increased (decreased) in value if the expected average life or expected volatility were to increase (decrease). Unexercised sponsor warrants totaling 1.9 million expired in February 2023 and were cancelled pursuant to the terms of the warrant agreement. There were no sponsor warrants outstanding on June 30, 2023 and the 1.9 million sponsor warrants outstanding on December 31, 2022 had a negligible fair value. As a result, activity for the six months ended June 30, 2023 was de minimis. The following table summarizes the Company’s total Level 3 liability activity for the six months ended June 30, 2022. (In thousands) Sponsor Warrants Fair value as of December 31, 2021 $ 4,343 Fair value of warrants exercised — Change in valuation inputs (1) ( 4,274 ) Fair value as of June 30, 2022 $ 69 (1) Changes in valuation inputs are recognized as the change in fair value – warrant liabilities in the condensed consolidated statement of operations. 8 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) 6. Revenue from Contracts with Customers The Company markets and sells its products through e-commerce online channels, retail brick-and-mortar wholesale partners, Purple owned retail showrooms, and third-party online retailers. Revenue is recognized when the Company satisfies its performance obligations under the contract which involves transferring the promised products to the customer, subject to shipping terms. Disaggregated Revenue The Company classifies revenue into two sales categories: direct-to-consumer (“DTC”) and wholesale. The DTC category is comprised of the Company’s e-commerce channel that sells directly to consumers who purchase online and through our contact center, and the Purple owned retail showrooms channel that sells directly to consumers who purchase at a showroom location. The wholesale channel includes all product sales to our wholesale partners where consumers make purchases at their retail locations or through their online channels. The Company classifies products into two major types: sleep products and other. Sleep products include mattresses, platforms, adjustable bases, mattress protectors, pillows and sheets. Other products include cushions and various other products. The following tables present the Company’s net revenue disaggregated by sales category and product type (in thousands) : Three Months Ended June 30, Six Months Ended June 30, Sales Category 2023 2022 2023 2022 DTC $ 68,056 $ 81,628 $ 134,566 $ 167,164 Wholesale 52,816 62,481 95,678 120,124 Revenues, net $ 120,872 $ 144,109 $ 230,244 $ 287,288 Three Months Ended June 30, Six Months Ended June 30, Product Type 2023 2022 2023 2022 Sleep products $ 108,296 $ 131,738 $ 207,131 $ 260,704 Other 12,576 12,371 23,113 26,584 Revenues, net $ 120,872 $ 144,109 $ 230,244 $ 287,288 Contract Balances Payment for sale of products through the e-commerce online channel, third-party online retailers, Purple owned retail showrooms and contact center is collected at point of sale in advance of shipping the products. Amounts received for unshipped products are recorded as customer prepayments. Customer prepayments totaled $ 5.5 million and $ 4.5 million at June 30, 2023 and December 31, 2022, respectively. During the six months ended June 30, 2023 and 2022, the Company recognized all revenue that was deferred in customer prepayments at December 31, 2023 and 2022, respectively. 7. Inventories, Net Inventories, net consisted of the following (in thousands): June 30, December 31, 2023 2022 Raw materials $ 27,496 $ 31,803 Work-in-process 6,834 2,261 Finished goods 45,596 40,476 Inventory obsolescence reserve ( 1,524 ) ( 1,343 ) Inventories, net $ 78,402 $ 73,197 9 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) 8. Property and Equipment, Net Property and equipment, net consisted of the following (in thousands): June 30, December 31, 2023 2022 Equipment $ 71,409 $ 66,533 Equipment in progress 15,953 19,099 Leasehold improvements 57,969 56,114 Furniture and fixtures 26,939 26,290 Office equipment 3,884 4,393 Total property and equipment 176,154 172,429 Accumulated depreciation ( 44,661 ) ( 35,756 ) Property and equipment, net $ 131,493 $ 136,673 Equipment in progress reflects equipment, primarily related to mattress manufacturing, which is being constructed and was not in service at June 30, 2023 or December 31, 2022. Interest capitalized on borrowings during the active construction period of major capital projects totaled $ 0.1 million and $ 0.5 million during the three and six months ended June 30, 2023, respectively and totaled $ 0.2 million and $ 0.4 million during the three and six months ended June 30, 2022, respectively. Depreciation expense was $ 4.9 million and $ 9.7 million during the three and six months ended June 30, 2023, respectively, and totaled $ 3.6 million and $ 7.1 million during the three and six months ended June 30, 2022, respectively. 9. Leases The Company leases its manufacturing and distribution facilities, corporate offices, Purple owned retail showrooms and certain equipment under non-cancelable operating leases with various expiration dates through 2036. The Company’s office and manufacturing leases provide for initial lease terms up to 16 years, while Purple owned retail showrooms have initial lease terms of up to ten years . Certain leases may contain options to extend the term of the original lease. The exercise of lease renewal options is at the Company’s discretion. Any lease renewal options are included in the lease term if exercise is reasonably certain at lease commencement. The Company also leases vehicles and other equipment under both operating and finance leases with initial lease terms of three to five years . The right-of-use asset balances for finance leases, which totaled $ 0.9 million and $ 1.0 million at June 30, 2023 and December 31, 2022, respectively, were included with operating lease right-of-use assets on the condensed consolidated balance sheets. The following table presents the Company’s lease costs (in thousands): Three Months Ended June 30, Six Months Ended June 30, 2023 2022 2023 2022 Operating $ 4,620 $ 3,690 $ 9,505 $ 6,838 Variable 1,204 409 2,177 1,123 Short-term — — — 11 Total lease costs $ 5,824 $ 4,099 $ 11,682 $ 7,972 10 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) The table below reconciles the undiscounted cash flows for each of the first five years and total remaining years to the operating lease liabilities recorded on the condensed consolidated balance sheet at June 30, 2023 (in thousands): 2023 (excluding the six months ended June 30, 2023) (a) $ 9,760 2024 20,779 2025 20,378 2026 19,173 2027 19,384 Thereafter 71,049 Total operating lease payments 160,523 Less – lease payments representing interest ( 32,584 ) Present value of operating lease payments $ 127,939 (a) Amount consists of $ 10.5 million of undiscounted cash flows offset by $ 0.8 million of tenant improvement allowances which are expected to be fully utilized in fiscal 2023. As of June 30, 2023 and December 31, 2022, the weighted-average remaining term of operating leases was 8.4 years and 8.8 years, respectively, and the weighted-average discount rate of operating leases was 5.56 % and 5.51 %, respectively. The following table provides supplemental information related to the Company’s condensed consolidated statement of cash flows for the six months ended June 30, 2023 and 2022 (in thousands): Six Months Ended June 30, 2023 2022 Cash paid for amounts included in present value of operating lease liabilities (b) $ 6,691 $ 3,425 Right-of-use assets obtained in exchange for operating lease liabilities 3,518 25,029 (b) Operating cash flows paid for operating leases are included within the change in other assets and liabilities within the Condensed Consolidated Statement of Cash Flows offset by non-cash right-of-use asset amortization and lease liability accretion. 10. Other Current Liabilities Other current liabilities consisted of the following (in thousands): June 30, December 31, 2023 2022 Warranty accrual – current portion $ 4,624 $ 4,985 Insurance financing 1,086 1,010 Accrued sales tax liability assumed in acquisition 398 753 Accrued property taxes 408 28 Tax receivable agreement liability – current portion — 269 Other 843 1,085 Total other current liabilities $ 7,359 $ 8,130 11 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) 11. Debt Debt consisted of the following (in thousands): June 30, December 31, 2023 2022 Term loan $ — $ 24,656 Less: unamortized debt issuance costs — ( 999 ) Total debt $ — $ 23,657 Term Loan and Revolving Line of Credit On September 3, 2020, Purple LLC entered into a financing arrangement with KeyBank National Association and a group of financial institutions (the “2020 Credit Agreement”). The 2020 Credit Agreement provided for a $ 45.0 million term loan and a $ 55.0 million revolving line of credit. The term loan was to be repaid in accordance with a five-year amortization schedule or prepaid in whole or in part at any time without premium or penalty, subject to reimbursement of certain costs. The revolving credit facility had a term of five years and carried the same interest provisions as the term debt. A commitment fee was due quarterly based on the applicable margin applied to the unused total revolving commitment. (See Note 21— Subsequent Events for information on the new asset-based lending arrangement entered into by the Company on August 7, 2023) . Pursuant to a Pledge and Security Agreement between Purple LLC, KeyBank and the Company (the “Security Agreement”), the 2020 Credit Agreement was secured by a perfected first-priority security interest in the assets of Purple LLC and the Company, including a security interest in all intellectual property. Also, the Company agreed to an unconditional guaranty of the payment of all obligations and liabilities of Purple LLC under the 2020 Credit Agreement. The Security Agreement contained a pledge, as security for the Company’s guaranty, of all its ownership interest in Purple LLC. The 2020 Credit Agreement also provided for standard events of default, such as for non-payment and failure to perform or observe covenants, and contained standard indemnifications benefitting the lenders. The 2020 Credit Agreement included representations, warranties and certain covenants of Purple LLC and the Company. Under the 2020 Credit Agreement, Purple LLC was subject to several affirmative and negative covenants, including covenants regarding dispositions of property, investments, forming or acquiring subsidiaries, business combinations or acquisitions, incurrence of additional indebtedness, and transactions with affiliates, among other customary covenants, subject to certain exceptions. In particular, Purple LLC was (i) subject to annual capital expenditure limits that can be adjusted based on the Company achieving certain net leverage ratio thresholds as provided in the 2020 Credit Agreement, (ii) restricted from incurring additional debt up to certain amounts, subject to limited exceptions, as set forth in the 2020 Credit Agreement, and (iii) required to maintain minimum consolidated net leverage and fixed charge coverage ratio thresholds at certain measurement dates (as defined in the 2020 Credit Agreement). Purple LLC was also restricted from paying dividends or making other distributions or payments on its capital stock, subject to limited exceptions. If the Company or Purple LLC failed to perform their obligations under these and other covenants, or if any event of default had occurred, the revolving loan commitments under the 2020 Credit Agreement could have been terminated and any outstanding borrowings, together with accrued interest, could have been declared immediately due and payable. The Company’s operating and financial results for the year ended December 31, 2021 did not satisfy the financial and performance covenants required under the 2020 Credit Agreement. On February 28, 2022, prior to the covenant compliance certification date, the Company entered into the first amendment of the 2020 Credit Agreement to avoid a breach of these covenants and potential default. Pursuant to this amendment, the Company incurred fees and expenses of $ 0.8 million that were recorded as debt issuance costs in the condensed consolidated balance sheet and made a $ 2.5 million payment on the term loan to cover the four quarterly principal payments due in 2022. The Company accounted for this amendment as a modification of existing debt in accordance with ASC 470 – Debt . This amendment contained a covenant waiver period such that the net leverage ratio and fixed charge coverage ratio were not tested for the fiscal quarters ended December 31, 2021, March 31, 2022 and June 30, 2022. Other modifications in the amendment included revised leverage ratio and fixed charge coverage definitions and thresholds, the addition of minimum liquidity requirements with mandatory prepayments of the revolving loan if cash exceeded $ 25.0 million, new weekly and monthly reporting requirements, limits on the amount of capital expenditures, the addition of a lease incurrence test for opening additional showrooms, and additional negative covenants during a covenant amendment period that extends into 2023 until certain conditions are met. In addition, the interest rate on any outstanding borrowings under the 2020 Credit Agreement was changed from LIBOR with a floor of 0.5% plus an applicable margin (historically at 3.0%) to an initial rate of SOFR with a floor of 0.5% plus an applicable margin of 4.75%, for a total rate of 5.25% as long as the applicable liquidity threshold is met. If the Company did not meet this threshold, the interest rate would have increased to SOFR with a floor of 0.5% plus 9.00%. Once the Company achieved a consolidated leverage ratio that was below 3.00 to 1.00, the interest rate would have been based on SOFR with a floor of 0.5% plus a 3.00% to 3.75% margin depending on the consolidated leverage ratio. 12 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) On March 23, 2022, the Company entered into a second amendment to the 2020 Credit Agreement. This amendment modified the 2020 Credit Agreement to allow Coliseum Capital Management, LLC, on behalf of its funds, managed accounts and its investment affiliates (individually “CCM” and collectively “Coliseum”) to acquire 35 % or more of the combined voting power of all equity interests of the Company entitled to vote for the election of members of the Company’s board of directors (“Board”) without constituting an event of default. Coliseum is considered a related party of the Company in that Adam Gray, a member of our board of directors, serves as a managing partner of Coliseum . Pursuant to the second amendment of the 2020 Credit Agreement, the Company incurred fees and expenses of $ 0.4 million that were recorded as debt issuance costs in the condensed consolidated balance sheet. The Company accounted for this amendment as a modification of existing debt in accordance with ASC 470 – Debt . For further discussion see Note 15— Related Party Transactions — Coliseum Capital Management, LLC. On May 13, 2022 and September 9, 2022, the Company entered into third and fourth amendments, respectively, to the 2020 Credit Agreement. These amendments modified the permitted leases schedule to reflect a change in showroom locations and a new lease for an innovation building. The amendments did not meet the criteria for a modification of existing debt and minimal costs were recorded as general and administrative expense in the condensed consolidated statement of operations. On July 14, 2022, the Company received consent under the 2020 Credit Agreement that allowed the Company’s acquisition of Intellibed to constitute a permitted acquisition under the 2020 Credit Agreement. The Company incurred fees and expenses of $ 0.3 million that were recorded as general and administrative expense in the condensed consolidated statement of operations. In December 2022, the Company made a $ 15.0 million prepayment against the outstanding term loan balance without payment of a premium or penalty. On February 17, 2023, the Company entered into a fifth amendment to the 2020 Credit Agreement. As a condition of entering into the amendment, the Company repaid the $ 24.7 million outstanding balance on the term loan plus accrued interest. The amendment provided that the maximum leverage ratio covenant would not be tested for the first and second quarters of 2023, revised the ratio to 4.50 x for the third quarter of 2023, and revised the ratio to 3.00 x for all quarters thereafter. In addition, the minimum fixed charge coverage ratio covenant was not to be tested for the first and second quarters of 2023, was revised to 1.50 x for the third and fourth quarters of 2023, and was revised to 2.00 x for all quarters thereafter. The amendment also revised the lease incurrence test, which allowed the Company to incur ten new showroom leases for stores that would open in 2023 and six new leases for stores that would open in 2024. Moreover, beginning in the fourth quarter of 2023, we would have been allowed to begin entering into new leases for stores that would open in 2024, subject to leverage ratio requirements. The leverage ratio was to be less than 2.50 x to sign leases, with up to a maximum of six new leases per quarter, increasing to eight new leases per quarter if the leverage ratio is less than 2.00 x. The amendment further provided certain minimum consolidated EBITDA covenants for the first and second quarters of 2023 based on total unrestricted cash and unused revolver availability. The amendment also modified the definition of consolidated EBITDA to allow for nonrecurring / one-time and non-cash expenses and certain other expenses that are cash capped. In addition, for purposes of the definition of consolidated EBITDA, annual non-recurring and unusual out-of-pocket legal expenses were capped at $ 5.0 million for 2023 and $ 2.0 million per year thereafter. Moreover, the amendment (i) reduced the amount available under the revolving line of credit to $50.0 million, (ii) provided that the maturity date of the 2020 Credit Agreement would spring forward to June 30, 2024 if consolidated EBITDA was not greater than $15.0 million for 2023, (iii) reduced limits on maximum growth capital expenditures to $32.0 million for 2023 and $35.0 million for 2024 and 2025, and (iv) revised the current minimum liquidity covenant of $25.0 million to provide that it would increase to $30.0 million for each three-month period following the applicable fiscal quarter if the leverage ratio was greater than 3.00x for any fiscal quarter ending on or after the third quarter of 2023. Pursuant to this amendment, the Company incurred fees and expenses of $ 2.9 million that were recorded as debt issuance costs in the condensed consolidated balance sheet. The amendment was accounted for as an extinguishment of debt and $ 1.2 million of unamortized debt issuance costs related to the term loan were recorded as loss on extinguishment of debt in the condensed consolidated statement of operations. On April 26, 2023, the Company received consent under the 2020 Credit Agreement that allowed the Company’s redemption of Proportional Representation Preferred Linked Stock (“PRPLS”) issued by the Company on February 24, 2023, in an aggregate amount not to exceed $ 0.2 million as agreed by the Company in an April 19, 2023 Cooperation Agreement (the “Cooperation Agreement”) entered into with Coliseum in connection with a complaint filed by Coliseum against the Company, and a waiver of any possible default related to entering into that Cooperation Agreement prior to receiving such consent. (See Note 15— Related Party Transactions — Coliseum Capital Management, LLC for information regarding the complaint previously filed by Coliseum, for information regarding events leading up to the Company’s issuance of the PRPLS, and for information regarding terms of the Cooperation Agreement and redemption of the PRPLS.) On May 10, 2023, the Company entered into a sixth amendment to the 2020 Credit Agreement. This amendment clarified an ambiguity identified in the first sentence of Section 7.07(d), as amended by the fifth amendment, which provided that Minimum Consolidated EBITDA as of each of March 31, 2023 and June 30, 2023 pertained to Consolidated EBITDA for each such fiscal quarter rather than Consolidated EBITDA for the trailing twelve-month period. 13 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) Interest expense under the 2020 Credit Agreement totaled $ 0.5 million and $ 1.1 million for the three and six months ended June 30, 2023, respectively, and totaled $ 0.9 million and $ 2.0 million for the three and six months ended June 30, 2022, respectively. 12. Warrant Liabilities The Company issued 12.8 million sponsor warrants pursuant to a private placement conducted simultaneously with its initial public offering. Each of these warrants entitled the registered holder to purchase one-half of one share of the Company’s Class A common stock at a price of $5.75 per half share ($11.50 per full share), subject to adjustment pursuant to the terms of the warrant agreement. These sponsor warrants contained certain provisions that do not meet the criteria for equity classification and therefore were recorded as liabilities. The liability for these warrants was recorded at fair value on the date of the Business Combination and subsequently re-measured to fair value at each reporting date or exercise date with changes in the fair value included in earnings. Unexercised sponsor warrants totaling 1.9 million expired in February 2023 and were cancelled pursuant to the terms of the warrant agreement. These sponsor warrants had no fair value on the date of expiration. There were no sponsor warrants exercised during the six months ended June 30, 2022. The 1.9 million sponsor warrants outstanding at June 30, 2022 had a fair value of $ 0.1 million. The Company determined the fair value of the sponsor warrants using the Black Scholes model with the following assumptions: June 30, 2022 Trading price of common stock on measurement date $ 3.06 Exercise price $ 5.75 Risk free interest rate 2.51 % Warrant life in years 0.6 Expected volatility 98.78 % Expected dividend yield — During the three and six months ended June 30, 2022, the Company recognized gains of $ 0.3 million and $ 4.3 million, respectively, in its condensed consolidated statements of operations related to decreases in the fair value of the sponsor warrants outstanding at the end of the respective period. 13. Other Long-Term Liabilities Other long-term liabilities consist of the following (in thousands): June 30, December 31, 2023 2022 Warranty accrual $ 20,172 $ 20,744 Asset retirement obligations 2,163 2,098 Other 6 19 Total 22,341 22,861 Less – current portion of warranty accrual ( 4,624 ) ( 4,985 ) Other long-term liabilities, net of current portion $ 17,717 $ 17,876 14 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) 14. Commitments and Contingencies Warranty Liabilities The Company provides a limited warranty on most of the products it sells. The estimated warranty costs, which are expensed at the time of sale and included in cost of revenues, are based on the results of product testing, industry and historical trends and warranty claim rates incurred, and are adjusted for any current or expected trends as appropriate. Actual warranty claim costs could differ from these estimates. The Company regularly assesses and adjusts the estimate of accrued warranty claims by updating claims rates for actual trends and projected claim costs. The Company classifies estimated warranty costs expected to be paid beyond a year as a long-term liability. The Company had the following activity for warranty liabilities (in thousands) : Three Months Ended June 30, Six Months Ended June 30, 2023 2022 2023 2022 Balance at beginning of period $ 19,997 $ 16,368 $ 20,744 $ 15,013 Additions charged to expense for current period sales 1,471 2,173 2,167 4,336 Deduction from reserves for current period claims ( 1,296 ) ( 832 ) ( 2,739 ) ( 1,640 ) Balance at end of period $ 20,172 $ 17,709 $ 20,172 $ 17,709 Required Member Distributions Prior to the Business Combination and pursuant to the then applicable First Amended and Restated Limited Liability Company Agreement (the “First Purple LLC Agreement”), Purple LLC was required to distribute to its members an amount equal to 45 percent of Purple LLC’s net taxable income following the end of each fiscal year. The First Purple LLC Agreement was amended and replaced by the Second Amended and Restated Limited Liability Company Agreement (the “Second Purple LLC Agreement”) on February 2, 2018 as part of the Business Combination. The Second Purple LLC Agreement was amended and replaced by the Third Amended and Restated Limited Liability Company Agreement (the “Third Purple LLC Agreement”) on September 3, 2020. The Second Purple LLC Agreement and the Third Purple LLC Agreement do not include any mandatory distributions, other than tax distributions. There were no tax distributions paid during the six months ended June 30, 2023 and 2022. At June 30, 2023, the Company’s condensed consolidated balance sheet had $ 0.1 million of accrued tax distributions included in other current liabilities. Subscription Agreement and Preemptive Rights In February 2018, in connection with the Business Combination, the Company entered into a subscription agreement with Coliseum Capital Partners (“CCP”) and Blackwell Partners LLC – Series A (“Blackwell”), pursuant to which CCP and Blackwell agreed to purchase from the Company an aggregate of 4.0 million shares of Class A Stock at a purchase price of $ 10.00 per share (the “Coliseum Private Placement”). In connection with the Coliseum Private Placement, the Sponsor assigned (i) an aggregate of 1.3 million additional shares of Class A common stock to CCP and Blackwell and (ii) an aggregate of 3.3 million warrants to purchase 1.6 million shares of Class A common stock to CCP, Blackwell, and Coliseum Co-Invest Debt Fund, L.P. (“CDF”). The subscription agreement provides CCP and Blackwell with preemptive rights with respect to future sales of the Company’s securities. It also provides them with a right of first refusal with respect to certain debt and preferred equity financings by the Company. The Company also entered into a registration rights agreement with CCP, Blackwell, and CDF, providing for the registration of the shares of Class A common stock issued and assigned to CCP and Blackwell in the Coliseum Private Placement, as well as the shares of Class A common stock underlying the warrants received by CCP, Blackwell and CDF. The Company has filed a registration statement with respect to such securities. Rights of Securities Holders The holders of certain warrants exercisable into Class A common stock, including CCP, Blackwell and CDF, were entitled to registration rights pursuant to certain registration rights agreements of the Company as of the Business Combination date. In March 2018, the Company filed a registration statement registering these warrants (and any shares of Class A common stock issuable upon the exercise of the warrants), and certain unregistered shares of Class A common stock. The registration statement was declared effective on April 3, 2018. Under the Registration Rights Agreement dated February 2, 2018 between the Company and CCP, Blackwell, and CDF (the “Coliseum Investors”), the Coliseum Investors have the right to make written demands for up to three registrations of certain warrants and shares of Class A common stock held by them, including in underwritten offerings. In an underwritten offering of such warrants and shares of Class A common stock by the Coliseum Investors, the Company will pay underwriting discounts and commissions and certain expenses incurred by the Coliseum Investors. In May 2021, the Coliseum Investors exercised the first of their three written demands for registration in an underwritten offering. 15 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) Purple LLC Class B Unit Exchange Right On February 2, 2018, in connection with the closing of the Business Combination, the Company entered into an exchange agreement with Purple LLC and InnoHold and Class B Unit holders who become a party thereto (the “Exchange Agreement”), which provides for the exchange of Purple LLC Class B Units (the “Class B Units”) and shares of Class B common stock (together with an equal number of Class B Units, the “Paired Securities”) for, at the Company’s option, either (A) shares of Class A common stock at an initial exchange ratio equal to one Paired Security for one share of Class A common stock or (B) a cash payment equal to the product of the average of the volume-weighted closing price of one share of Class A common stock for the ten trading days immediately prior to the date InnoHold or other Class B Unit holders deliver a notice of exchange multiplied by the number of Paired Securities being exchanged. In December 2018, InnoHold distributed Paired Securities to Terry Pearce and Tony Pearce who agreed to become parties to the Exchange Agreement. In June 2019, InnoHold distributed Paired Securities to certain current and former employees who also agreed to become parties to the exchange agreement. Holders of Class B Units may elect to exchange all or any portion of their Paired Securities as described above by delivering a notice to Purple LLC. In certain cases, adjustments to the exchange ratio will occur in case of a split, reclassification, recapitalization, subdivision or similar transaction of or relating to the Class B Units or the shares of Class A common stock and Class B common stock or a transaction in which the Class A common stock is exchanged or converted into other securities or property. The exchange ratio will also adjust in certain circumstances when the Company acquires Class B Units other than through an exchange for its shares of Class A common stock. The right of a holder of Paired Securities to exchange may be limited by the Company if it reasonably determines in good faith that such restrictions are required by applicable law (including securities laws), such exchange would not be permitted under other agreements of such holder with the Company or its subsidiaries, including the Third Purple LLC Agreement, or if such exchange would cause Purple LLC to be treated as a “publicly traded partnership” under applicable tax laws. The Company and each holder of Paired Securities shall bear its own expense regarding the exchange except that the Company shall be responsible for transfer taxes, stamp taxes and similar duties. There were a de minimis number of Paired Securities exchanged for Class A common stock during the six months ended June 30, 2023. There were no Paired Securities exchanged for Class A common stock during the six months ended June 30, 2022. 16 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) Maintenance of One-to-One Ratios The Third Purple LLC Agreement includes provisions intended to ensure that the Company at all times maintains a one-to-one ratio between (a) (i) the number of outstanding shares of Class A common stock and (ii) the number of Class A Units owned by the Company (subject to certain exceptions for certain rights to purchase equity securities of the Company under a “poison pill” or similar stockholder rights plan, if any, certain convertible or exchangeable securities issued under the Company’s equity compensation plan and certain equity securities issued pursuant to the Company’s equity compensation plan (other than a stock option plan) that are restricted or have not vested thereunder) and (b) (i) the number of other outstanding equity securities of the Company (including the warrants exercisable for shares of Class A common stock) and (ii) the number of corresponding outstanding equity securities of Purple LLC. These provisions are intended to result in non-controlling interest holders having a voting interest in the Company that is identical to their economic interest in Purple LLC. Non-Income Related Taxes The Company complies with current law and collects and reports on sales tax and other taxes and required fees in all states in which it does business. The application of existing, new or revised taxes and fees on the Company’s business, in particular, sales taxes, VAT and similar taxes would likely increase the cost of doing business online and decrease the attractiveness of selling products over the internet. The application of these taxes and fees on the Company’s business could also create significant increases in internal costs necessary to capture data and collect and remit taxes and pay the fees. There have been, and will continue to be, substantial ongoing costs associated with complying with the various indirect tax requirements in the numerous markets in which the Company conducts or will conduct business. Legal Proceedings On September 20, 2020, Purple LLC filed a complaint in the U.S. Court of International Trade seeking to recover approximately $ 7.0 million of Section 301 duties paid at the time of importation on certain Chinese-origin goods. More than 4,000 other complaints have been filed by other companies seeking similar refunds. On March 12, 2021 the United States filed a master answer that applies to all the Section 301 cases, including Purple LLC’s. On July 6, 2021, the court granted a preliminary injunction against liquidation of any unliquidated entries. On April 1, 2022, the court issued an opinion that remanded the case back to the U.S. Trade Representative (“USTR”) to address certain procedural flaws in USTR’s process for determining whether certain products were subject to the Section 301 duties. On August 1, 2022, USTR issued its remand results. On September 14, 2022, the plaintiffs submitted comments on the remand results. USTR filed their response to these comments on November 4, 2022. The plaintiffs filed a reply on December 5, 2022 and the court held a hearing on February 7, 2023. On March 17, 2023, the court issued a final opinion and order upholding the remand results. On May 12, 2023, the opinion and order were appealed to the US Court of Appeals for the Federal Circuit. 17 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) On October 13, 2020, Purple LLC filed a lawsuit against Responsive Surface Technology, LLC and its parent company, PatienTech, LLC (collectively referred to as “ReST”) in the U.S. District Court for the District of Utah. The lawsuit arises from ReST’s multiple breaches of its obligations to Purple LLC, including infringing upon Purple LLC’s trademarks, patents, and trade dress, among other claims. Purple seeks monetary damages, injunctive relief, and declaratory judgment based on certain conduct by ReST (“Case I”). On October 21, 2020, shortly after the complaint was filed in Case I, ReST filed a retaliatory lawsuit against Purple LLC, and some of the Company’s board members, Gary DiCamillo, Adam Gray, Joseph Megibow, Terry Pearce, and Tony Pearce, also in the United States District Court for the District of Utah (“Case II”). Subsequently, the two cases were consolidated into one. Case II (now combined with Case I) involves many of the same facts and transactions as Case I. ReST subsequently filed a motion to compel arbitration of the claims in Case I. Purple LLC opposed the motion to compel arbitration, arguing that ReST waived any rights to arbitration and that all the claims in both cases should stay in the courts. However, the Court granted ReST’s motion to compel arbitration, and stayed the proceedings in the United States District Court for the District of Utah. Additionally, the Court ruled that ReST’s claims against the Company’s board members were not subject to arbitration, and the Court stayed ReST’s claims against those individuals. Pursuant to the Court’s order, Purple LLC filed a demand for arbitration with the American Arbitration Association (the “AAA”) on September 1, 2021. ReST filed its counterclaim with the AAA on September 21, 2021. The parties have completed the fact discovery and the expert discovery phases of the arbitration, and a two-week arbitration hearing began on July 31, 2023. ReST was sanctioned for improper litigation conduct, and certain defenses and claims were stricken and costs were ordered to be paid by ReST to Purple LLC. Purple LLC seeks over $ 4 million in damages from ReST, whereas at this time ReST has lowered its demand and claims that Purple LLC is liable to it for approximately $ 8 million. The outcome of this litigation cannot be predicted at this stage. However, Purple LLC intends to vigorously pursue its claims and defend against the claims made by ReST. On May 3, 2022, Purple LLC filed a complaint against Photon Interactive UK Limited (“Photon”) in the U.S. District Court for the District of Delaware regarding a Master Professional Services Agreement with Photon dated on or around November 1, 2019. Pursuant to the agreement, Photon was required to rebuild Purple Innovation LLC’s website architecture and checkout process. Purple LLC paid Photon $ 0.9 million under the Agreement. However, Photon failed to deliver any of the required deliverables as specified in the agreement. Purple LLC withheld payment of the final $ 0.1 million due pursuant to Photon’s invoices pending a resolution with Photon. Since resolution discussions with Photon failed, Purple LLC filed its complaint for breach of contract against Photon seeking, among other damages, reimbursement for all amounts paid to Photon under the agreement. Photon counter-sued, seeking payment for the $ 0.1 million withheld by Purple LLC, and also advancing a vague claim for tortious interference. On August 31, 2022, Purple LLC filed an amended complaint adding additional claims pertaining to Photon’s failure to deliver a point-of-sale system pursuant to the Master Professional Services Agreement. Purple LLC is seeking judgment against Photon in the amount of $ 4 million. The litigation is presently in its discovery phase. Purple LLC expects discovery to conclude in fall 2023. The Company intends to vigorously litigate its claims to resolution. On August 5, 2022, Purple LLC filed a complaint with the U.S. International Trade Commission (“ITC”) against numerous entities and individuals from the People’s Republic of China and South Korea (“Respondents”) that have been violating Purple LLC’s intellectual property rights related to pillow and seat cushion products. The complaint alleged that the Respondents have been violating 19 U.S.C. § 1337 by importing into the United States, selling for importation into the United States, and/or selling in the United States after importation pillow and seat cushion products that infringe Purple LLC’s trade dress rights or otherwise constitute unfair competition, infringe a certain Purple LLC design patent, infringe certain Purple LLC registered trademarks, and/or infringe certain Purple LLC utility patents, specifically including U.S. Patent No. 10,772,445. The complaint requested at least the following relief: (i) a General Exclusion Order excluding from entry into the United States all pillow and seat cushion products, regardless of the source of those products, that infringe Purple LLC’s asserted intellectual property right; (ii) Limited Exclusion Orders excluding from entry into the United States all pillow and cushion products of the Respondents named in the complaint that infringe any asserted intellectual property rights; and (iii) Cease and Desist Orders against the Respondents named in the complaint barring them from marketing, selling, advertising, or distributing infringing products in the United States, including via on-line retailers. On September 6, 2022, the ITC instituted Investigation No. 337-TA-1328 in response to Purple LLC’s complaint. Fact and expert discovery have been completed. Purple LLC has entered into settlement agreements with seven Respondents, and the ITC issued Consent Orders under which those seven Respondents agreed to no longer import infringing products into the United States. Purple LLC also has voluntarily terminated the Investigation as to a number of other Respondents. No actively litigating Respondents remain in the case. On July 13, 2023, the ITC Administrative Law Judge issued an Initial Determination (“ID”) in which she granted Purple LLC’s Motion for Summary Determination finding that the four remaining Respondents have violated Section 337. The ID also recommended that the ITC issue a General Exclusion Order excluding from entry into the United States all pillows that infringe certain asserted claims of the ‘445 patent, regardless of the source of those products, or, in the alternative, Limited Exclusion Orders directed specifically to the four remaining Respondents. The ID further recommended that the ITC issue Cease and Desist Orders directed specifically to the four remaining Respondents. The ITC’s target date for completion of the investigation is currently November 13, 2023. 18 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) On September 22, 2022, Purple LLC filed an action in the U.S. District Court for the District of Utah, currently styled Purple Innovation, LLC v. Foshan Dirani Design Furniture Co., Ltd. , No. 2:22-cv-00620-HCN-DAO, against numerous entities and individuals from the People’s Republic of China and South Korea (“Defendants”). Purple LLC subsequently entered into settlement agreements with seven Defendants and voluntarily dismissed without prejudice its claims against certain other Defendants. On March 7, 2023, Purple LLC filed a First Amended Complaint. The operative complaint alleges that the remaining Defendants have infringed certain Purple LLC registered trademarks, have infringed Purple LLC trademark rights and committed unfair competition under Lanham Act § 43(a), have infringed a certain Purple LLC design patent, have infringed certain Purple LLC utility patents, have violated Utah Unfair Competition Act, Utah Code § 13-5a-101 et seq. ; and/or have committed common law unfair competition. The operative complaint seeks injunctive relief, compensatory damages, disgorgement of profits, punitive and exemplary damages, and attorneys’ fees and costs. On June 13, 2023, the Court issued a Default Certificate entering default against all remaining Defendants. On June 15, 2023, Purple LLC filed a Motion for Preliminary Injunction, Asset Freeze, and Expedited Discovery, which currently remains pending, against all remaining Defendants. Purple LLC intends to vigorously litigate its claims to resolution. In December 2022, Terry and Tony Pearce, Purple’s founders, filed a complaint against Purple Inc. in the Fourth Judicial District Court in the State of Utah. The Pearces allege that they each entered into employment agreements with Purple LLC in February 2018. The Pearces contend that certain corporate transactions between May 2019 and June 2020 reduced their “ownership interest and voting power in Purple” and that, as a result, they should have continued to be paid a salary between August 2020, when they retired from Purple LLC, and December 2021. The Pearces calculate that they are each owed “no less than $ 500,000 ” in unpaid salary. Purple Inc. has moved to dismiss the Pearces’ claims in full, arguing that the Pearces’ legal theories are flawed and that the amended pleading reflects the Pearces’ inability to rehabilitate their claims. The Company maintains insurance to cover the costs of defending against claims of this nature and intends to continue to vigorously defend against these claims. On April 3, 2023, InnoHold, LLC, Terry Pearce, and Tony Pearce (collectively, the “InnoHold Parties”) filed a complaint against Purple LLC in the Delaware Court of Chancery, captioned InnoHold, LLC et al. v. Purple Innovation, LLC , Case No. 2023-0393-PAF (Del. Ch. Apr. 3, 2023). The complaint alleges that Purple LLC breached the Second Amended and Restated Limited Liability Company Agreement of Purple Innovation, LLC, dated as of February 2, 2018 (the “LLC Agreement”), and the implied covenant of good faith and fair dealing contained therein by failing to pay the full amount of tax distributions owed under the LLC Agreement. The complaint also asserts a claim for indemnification under the LLC Agreement. The InnoHold Parties seek damages of approximately $ 3.0 million in allegedly unpaid tax distributions as well as its legal fees and expenses incurred in connection with the litigation. On June 13, 2023, Purple LLC filed an answer to the complaint denying the InnoHold Parties’ allegations, setting forth its affirmative defenses, and requesting dismissal of all claims and entry of judgment in Purple LLC’s favor. The outcome of the litigation cannot be predicted at this early stage in the proceedings. Purple LLC intends to vigorously defend against these claims. On March 24, 2023, Purple LLC filed a complaint against Tempur Sealy International, Inc., Sealy Technology LLC and Sealy Mattress Manufacturing Co., LLC (collectively, “Sealy”) in the U.S. District Court for the Middle District of North Carolina for infringement of Purple LLC’s U.S. Patent No. 11,317,733 entitled “Mattress Including an Elastomeric Cushioning Element and a Pocketed Coil Layer and Related Methods.” On July 17, 2023, Purple LLC filed a First Amended Complaint further detailing Sealy’s infringement of the patent through Sealy’s direct and indirect infringement by making, using, offering for sale, and/or importing into the United States Sealy FlexGrid Hybrid Construction mattresses. Purple seeks judgment of willful infringement, trebled damages, a permanent injunction, prejudgment and post-judgment interest, costs, expenses, and attorneys’ fees. Sealy filed its response to Purple’s First Amended Complaint on July 31, 2023. Discovery has yet to commence; and no trial date has been set. Purple LLC intends to vigorously litigate its claims to resolution. On March 27, 2023, Sealy Technology, LLC (“Sealy Technology”) filed a Petition for Cancellation with the U.S. Patent and Trademark Office, Trademark Trial and Appeal Board (“TTAB”), seeking cancellation of Purple LLC’s Trademark Registration No. 5,416,146 for HYPER-ELASTIC POLYMER in Class 20 for “elastomeric polymer in pre-shamed form sold as an integral component of pillows” (the “Registration”). On June 6, 2023, Purple LLC filed a motion to dismiss (the “Motion”). On June 9, 2023, the TTAB suspended proceedings pending the resolution of the Motion. On June 18, 2023, Sealy Technology filed a response to the Motion, along with an Amended Petition. The Amended Petition seeks cancellation of the Registration on the basis that the term is generic. Purple LLC filed its reply in support of the Motion, thus completing the briefing, on July 10, 2023. The Motion remains pending, and the proceeding remains suspended pending its resolution. Purple LLC intends to vigorously defend Sealy Technology’s petition. The Company is from time to time involved in various other claims, legal proceedings and complaints arising in the ordinary course of business. The Company does not believe that adverse decisions in any such pending or threatened proceedings, or any amount that the Company might be required to pay by reason thereof, would have a material adverse effect on the financial condition or future results of the Company. 19 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) 15. Related Party Transactions The Company had various transactions with entities or individuals which are considered related parties. Coliseum Capital Management, LLC Immediately following the Business Combination, Adam Gray was appointed to the Company’s Board. Mr. Gray is a manager of Coliseum Capital, LLC, which is the general partner of CCP and CDF, and he is also a managing partner of CCM, which is the investment manager of Blackwell and also manages investment funds and accounts. Mr. Gray has voting and dispositive control over securities held by CCP, CDF and Blackwell which were also Lenders under the Amended and Restated Credit Agreement. See Note 14— Commitments and Contingencies — Subscription Agreement and Preemptive Rights for further discussion . On September 17, 2022, the Company received an unsolicited and non-binding proposal from Coliseum on behalf of certain investment funds and accounts to acquire the remaining outstanding common stock of the Company not already beneficially owned by Coliseum for $ 4.35 per share in cash. At the time of the offer, Coliseum beneficially owned approximately 44.7 % of the outstanding equity of the Company. On September 25, 2022, with the authorization of the Board, a special committee of independent and disinterested directors of the Company (the “Special Committee”) was formed to determine the necessary actions to evaluate the Coliseum proposal and determine the course of action that was in the best interests of all the Company’s shareholders. Initially, the Special Committee approved the adoption of a limited-duration stockholder rights agreement (the “Rights Agreement”) with an expiration date of September 25, 2023. The Special Committee adopted the Rights Agreement in response to Coliseum’s substantial increase in ownership of the Company’s shares over the last year and the Special Committee’s desire to have the time and flexibility necessary to evaluate the unsolicited and non-binding proposal from Coliseum to acquire the outstanding common stock of the Company not already beneficially owned by Coliseum. On January 12, 2023, the Company issued a press release stating the Special Committee had rejected Coliseum’s unsolicited proposal. Upon adopting the Rights Agreement, 300,000 shares of the Company’s authorized shares of preferred stock, par value $ 0.0001 per share, were designated as Series A Junior Participating Preferred Shares (the “Preferred Shares”). In accordance with the Rights Agreement, on September 25, 2022, the Special Committee authorized and declared a dividend of one preferred share purchase right (a “Right”) for each outstanding share of the Company’s Class A common stock and Class B common stock to stockholders of record at the close of business on October 6, 2022. The initial issuance of the Rights as a dividend had no financial accounting or reporting impact. The fair value of the Rights was nominal since the Rights were not exercisable when issued and no value was attributable to them. Additionally, the Rights did not meet the definition of a liability under GAAP and was therefore not accounted for as a long-term obligation. Accordingly, the Rights Agreement had no impact on the Company’s consolidated financial statements . On February 14, 2023, the Company declared a dividend of one new PRPLS for each 100 shares of its common stock owned by the Company’s shareholders. Each PRPLS would have voted together with the common stock in the election of directors, and related matters, and carried 10,000 votes each. Holders of PRPLS were entitled to allocate their votes among the nominees in director elections on a cumulative basis. PRPLS holders could have allocated all, none, or a portion of their votes to each director nominee up for election at the Company’s meetings of shareholders. On February 24, 2023, the Company issued 1.0 million PRPLS shares which traded with the common stock. While the PRPLS were outstanding, any new issuance of common stock would have automatically included a proportionate number of PRPLS. The PRPLS were redeemable at any time by an affirmative vote of two-thirds of the members of the Board. The PRPLS did not have any dividend rights and were entitled to only a limited payment upon any liquidation, dissolution or winding up in priority to any payments on the common stock but would not have otherwise participated in any liquidating distributions. On February 21, 2023, Coliseum filed a lawsuit against the Company and several members of its Board alleging that the Company and the named directors authorized an improper dividend of preferred stock in bad faith to impede stockholder voting rights and interfered with Coliseum’s nomination of a competing slate of director candidates ahead of our 2023 annual meeting of stockholders. On April 19, 2023, the Company entered into a Cooperation Agreement with Coliseum to resolve the litigation. The Cooperation Agreement, which became effective on April 27, 2023, resulted in the following: ● The size of the Board was increased from seven directors to eight directors. ● The Company amended and restated its Second Amended and Restated Bylaws to include references to the Lead Independent Director Charter. ● Board member and Coliseum managing partner Adam Gray was appointed Chairman of the Board. ● Board member Gary DiCamillo continued to serve as Lead Independent Director and was appointed chair of the Nomination and Governance Committee. 20 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) ● Paul Zepf and Pano Anthos resigned as directors of the Company. ● The Board appointed S. Hoby Darling, R. Carter Pate, and Erika Serow to fill the vacancies created by the increased the size of the board and the resignations of Mr. Zepf and Mr. Anthos. ● Scott Peterson, a stockholder and Board Observer since the Company’s acquisition of Intellibed, was included as a nominee on the Board’s slate of directors at the 2023 Annual Meeting in place of Dawn Zier, who had previously announced her decision not to stand for re-election. ● Other than as described above with respect to Dawn Zier, the Board nominated all incumbent directors for election at our annual meetings of stockholders to be held in 2023 and 2024. ● The Company amended its Corporate Governance Guidelines for Operation of the Board of Directors and adopted a Lead Independent Director Charter to provide for the responsibilities of the Lead Independent Director. ● The Company terminated the stockholder rights agreement adopted on September 25, 2022 and agreed not to adopt a new stockholder rights agreement prior to the termination of the Cooperation Agreement without Coliseum’s prior consent. As a result, all shares of preferred stock previously designated as Series A Junior Participating Preferred Stock were eliminated and returned to the status of authorized but unissued shares of preferred stock, without designation. ● The Company redeemed all outstanding shares of PRPLS and agreed not to issue any similar security or take any other action prior to the termination of the Cooperation Agreement that would change the stockholder voting standards from those in effect prior to the issuance of the PRPLS. As a result, all shares of preferred stock previously designated as PRPLS were eliminated and returned to the status of authorized but unissued shares of preferred stock, without designation. The Company made a $ 0.1 million payment to redeem the PRPLS based on a record date as of April 28, 2023. The PRPLS redemption payment was reflected in the Company’s consolidated balance sheet as a reduction to additional paid-in capital. ● The Company agreed to reimburse Coliseum for up to $ 4.0 million of out-of-pocket fees, costs, and expenses incurred in connection with the lawsuit. ● The Company terminated the Special Committee. ● Coliseum dismissed its litigation against the Company. ● At the 2023 and 2024 annual meetings of stockholders, Coliseum caused or will cause all of the common stock that Coliseum or any of its affiliates had the direct or indirect right to vote as of the applicable record date, to be present in person or by proxy for quorum purposes and to be voted (i) in favor of each of the candidates for election on the Company’s slate of nominees for election to the Board, (ii) against any stockholder nominations for any other directors, and (iii) against any proposals or resolutions to remove any member of the Board other than for cause. ● Coliseum agreed to be bound by customary standstill restrictions, including, among others, agreements not to acquire additional shares of the Company’s securities that would cause Coliseum’s ownership of Voting Securities to exceed 44.4 % of the total outstanding Common Stock (other than acquisitions directly from the Company), engage in proxy solicitations and related matters, form or join any “group” with respect to shares of the Company, encourage others to pursue a “contested solicitation,” or make any public proposals, subject to certain exceptions. ● Coliseum agreed to condition any proposal from it or any of its affiliates to acquire the Company or all or substantially all of the outstanding stock of the Company held by stockholders unaffiliated with Coliseum on (i) such transaction being negotiated by, and subject to the approval of, a special committee of directors of the Board who are independent with respect to Coliseum and disinterested under Delaware law and (ii) a nonwaivable condition that such transaction be approved by the affirmative vote of the holders of a majority of the Company’s outstanding common stock not beneficially owned by Coliseum or its affiliates or other parties with a material conflict of interest in such transaction. ● The Cooperation Agreement shall terminate on the day following the date on which the 2024 annual meeting of stockholders is held. 21 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) Purple Founder Entities TNT Holdings, LLC (herein “TNT Holdings”), EdiZONE, LLC, (herein EdiZONE an entity wholly owned by TNT Holdings) and InnoHold (collectively the “Purple Founder Entities”) were entities under common control with Purple LLC prior to the Business Combination. TNT Holdings and InnoHold are majority owned and controlled by Terry Pearce and Tony Pearce (the “Purple Founders”), who were appointed to the Company’s Board following the Business Combination. InnoHold was a majority shareholder of the Company until it sold a portion of its interests in a secondary public offering in May 2020 and the remainder of its interests in a secondary public offering in September 2020. The Purple Founders also resigned as employees of Purple LLC and retired from the Company’s Board in August 2020. TNT Holdings owned the Alpine facility Purple LLC has been leasing since 2010, and the Purple Founders informed Purple LLC that TNT Holdings recently transferred ownership to 123E LLC, an entity controlled by the Purple Founders. Effective as of October 31, 2017, Purple LLC entered into an Amended and Restated Lease Agreement with TNT Holdings. The Company determined that neither TNT Holdings nor 123E LLC are a VIE as neither the Company nor Purple LLC hold any explicit or implicit variable interest in TNT Holdings or 123E LLC and do not have a controlling financial interest in TNT Holdings or 123E LLC. Purple LLC incurred $ 0.3 million and $ 0.6 million in rent expense to 123E LLC or TNT Holdings for the building lease of the Alpine facility for the three and six months ended June 30, 2023, respectively, and $ 0.2 million and $ 0.4 million for the three and six months ended June 30, 2022, respectively. Purple LLC continues to lease the Alpine facility that was formerly the Company headquarters, for use in production, research and development and video production. In accordance with the terms of that lease, on September 3, 2021, Purple LLC gave notice to 123E LLC that it intended to exercise its right to an early termination of the lease to occur on September 30, 2022. On July 20, 2022, the Company entered into an amendment to its Alpine facility lease agreement with 123E LLC. The amendment rescinded the Company’s previous notice of termination that was scheduled to be effective September 30, 2022 and extended the term such that the lease will remain in effect until September 30, 2023. During the six months ended June 30, 2023, a former employee of Purple LLC who received distributions of Paired Securities from InnoHold exchanged a minimal number of Paired Securities for Class A common stock. There were no such exchanges during the six months ended June 30, 2022. 16. Stockholders’ Equity Class A Common Stock The Company has 210.0 million shares of Class A common stock authorized at a par value of $ 0.0001 per share. Holders of the Company’s Class A common stock are entitled to one vote for each share held on all matters to be voted on by the stockholders and participate in dividends, if declared by the Board, or receive any portion of any such assets in respect of their shares upon liquidation, dissolution, distribution of assets or winding-up of the Company in excess of the par value of such stock. Holders of Class A common stock and holders of Class B common stock voting together as a single class, have the exclusive right to vote for the election of directors and on all other matters properly submitted to a vote of the stockholders. Holders of Class A common stock and Class B common stock are entitled to one vote per share on matters to be voted on by stockholders. At June 30, 2023, 105.3 million shares of Class A common stock were outstanding. Class B Common Stock The Company has 90.0 million shares of Class B common stock authorized at a par value of $ 0.0001 per share. Holders of the Company’s Class B common stock will vote together as a single class with holders of the Company’s Class A common stock on all matters properly submitted to a vote of the stockholders. Shares of Class B common stock may be issued only to InnoHold, their respective successors and assigns, as well as any permitted transferees of InnoHold. A holder may transfer their shares of Class B common stock to any transferee (other than the Company) only if such holder also simultaneously transfers an equal number of such holder’s Purple LLC Class B Units to such transferee in compliance with the Third Purple LLC Agreement. The Class B common stock is not entitled to receive dividends, if declared by the Board, or to receive any portion of any such assets in respect of their shares upon liquidation, dissolution, distribution of assets or winding-up of the Company in excess of the par value of such stock. In connection with the Business Combination, approximately 44.1 million shares of Class B common stock were issued to InnoHold as part of the equity consideration. InnoHold subsequently transferred a portion of its shares to permitted transfers and exchanged its remaining shares for Class A common stock that it sold. All of the 0.4 million shares of Class B common stock outstanding at June 30, 2023 were held by other parties. 22 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) Preferred Stock The Company has 5.0 million shares of preferred stock authorized at a par value of $ 0.0001 per share. The preferred stock may be issued from time to time in one or more series. The directors are expressly authorized to provide for the issuance of shares of the preferred stock in one or more series and to establish from time to time the number of shares to be included in each such series and to fix the voting rights, designations and other special rights or restrictions. At June 30, 2023, there were no shares of preferred stock outstanding. On February 14, 2023, the Company declared a dividend of one new PRPLS for each 100 shares of its common stock owned by the Company’s shareholders. Each PRPLS had the right to vote together with the common stock in the election of directors, and related matters, and carried 10,000 votes each. Holders of PRPLS were entitled to allocate their votes among the nominees in director elections on a cumulative basis. PRPLS holders could have allocated all, none, or a portion of their votes to each director nominee up for election at the Company’s meetings of shareholders. On February 24, 2023, the Company issued 1.0 million PRPLS shares which traded with the common stock. While the PRPLS were outstanding, any new issuance of common stock would have automatically included a proportionate number of PRPLS. The PRPLS were redeemable at any time by an affirmative vote of two-thirds of the members of the Board. The PRPLS did not have any dividend rights and were entitled to only a limited payment upon any liquidation, dissolution or winding up in priority to any payments on the common stock but would not have otherwise participated in any liquidating distributions. As a result of the Cooperation Agreement, all shares of preferred stock previously designated as PRPLS were eliminated and returned to the status of authorized but unissued shares of preferred stock, without designation. The Company made a $ 0.1 million payment to redeem the PRPLS based on a record date as of April 28, 2023. The PRPLS redemption payment was reflected in the Company’s consolidated balance sheet as a reduction to additional paid-in capital. At June 30, 2023 there were no PRPLS issued or outstanding. See Note 15— Related Parties — Coliseum Capital Management, LLC for additional detail regarding redemption of the PRPLS. Sponsor Warrants There were 12.8 million sponsor warrants issued pursuant to a private placement simultaneously with the Company’s initial public offering. The 1.9 million sponsor warrants that remained outstanding at December 31, 2022 expired in February 2023 and were cancelled pursuant to the terms of the warrant agreement. These sponsor warrants had no fair value on the date of expiration. There were no sponsor warrants exercised during the six months ended June 30, 2022. Noncontrolling Interest Noncontrolling interest (“NCI”) is the membership interest in Purple LLC held by holders other than the Company. At June 30, 2023 and December 31, 2022, the combined NCI percentage in Purple LLC was 0.4 % and 0.5 %, respectively. The Company has consolidated the financial position and results of operations of Purple LLC and reflected the proportionate interest held by all such Purple LLC Class B Unit holders as NCI. 17. Income Taxes The Company’s sole material asset is Purple LLC, which is treated as a partnership for U.S. federal income tax purposes and for purposes of certain state and local income taxes. Purple LLC’s net taxable income and any related tax credits are passed through to its members and are included in the members’ tax returns, even though such net taxable income or tax credits may not have actually been distributed. While the Company consolidates Purple LLC for financial reporting purposes, the Company will be taxed on its share of earnings of Purple LLC not attributed to the noncontrolling interest holders, which will continue to bear their share of income tax on its allocable earnings of Purple LLC. The income tax burden on the earnings taxed to the noncontrolling interest holders is not reported by the Company in its consolidated financial statements under GAAP. 23 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) The Company reported income tax expense related to various state taxes of $ 0.1 million on a pretax loss of $ 60.9 million for the six months ended June 30, 2023 as compared to an income tax benefit of $ 6.0 million on a pretax loss of $ 28.0 million for the six months ended June 30, 2022. This resulted in an effective tax rate of ( 0.24 )% for the six months ended June 30, 2023 as compared to 21.4 % for the six months ended June 30, 2022. The Company’s effective tax rate for the six months ended June 30, 2023 differs from the statutory federal rate of 21 % primarily due to the impact of the full valuation allowance recorded against the Company’s deferred tax assets at June 30, 2023. In connection with the Business Combination, the Company entered into a tax receivable agreement with InnoHold, which provides for the payment by the Company to InnoHold of 80 % of the net cash savings, if any, in U.S. federal, state and local income tax that the Company actually realizes (or is deemed to realize in certain circumstances) in periods after the Closing as a result of (i) any tax basis increases in the assets of Purple LLC resulting from the distribution to InnoHold of the cash consideration, (ii) the tax basis increases in the assets of Purple LLC resulting from the redemption by Purple LLC or the exchange by the Company, as applicable, of Class B Paired Securities or cash, as applicable, and (iii) imputed interest deemed to be paid by the Company as a result of, and additional tax basis arising from, payments it makes under the agreement. As noncontrolling interest holders exercise their right to exchange or cause Purple LLC to redeem all or a portion of their Class B Units, a tax receivable agreement liability may be recorded based on 80 % of the estimated future cash tax savings that the Company may realize as a result of increases in the basis of the assets of Purple LLC attributed to the Company as a result of such exchange or redemption. The amount of the increase in asset basis, the related estimated cash tax savings and the attendant liability to be recorded will depend on the price of the Company’s Class A common stock at the time of the relevant redemption or exchange. The estimation of liability under the tax receivable agreement is by its nature imprecise and subject to significant assumptions regarding the amount and timing of future taxable income. As of June 30, 2023, the Company estimated that if all the remaining 0.4 million Class B units were redeemed for shares of its Class A common stock, the tax receivable agreement liability would be approximately $ 168.5  million. If the Company experiences a change of control (as defined under the tax receivable agreement, which includes certain mergers, asset sales and other forms of business combinations and change of control events), it could be required to make an immediate lump-sum payment under the terms of the tax receivable agreement. Management currently estimates the liability associated with this lump-sum payment (or “early termination payment”) would be approximately $ 110.7  million on a discounted basis. This potential early termination payment can be significantly impacted by the discounted interest rate at the time of termination. 24 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) The effects of uncertain tax positions are recognized in the consolidated financial statements if these positions meet a “more-likely-than-not” threshold. For those uncertain tax positions that are recognized in the consolidated financial statements, liabilities are established to reflect the portion of those positions it cannot conclude “more-likely-than-not” to be realized upon ultimate settlement. The Company’s policy is to recognize interest and penalties related to unrecognized tax benefits on the income tax expense line in the accompanying consolidated statement of operations. Accrued interest and penalties would be included on the related tax liability line in the consolidated balance sheet. As of June 30, 2023, no material uncertain tax positions were recognized as liabilities in the condensed consolidated financial statements. 18. Net Loss Per Common Share Basic net income (loss) per common share is calculated by dividing net income (loss) attributable to common stockholders by the weighted average number of shares of Class A stock outstanding during each period. Diluted net income (loss) per share reflects the weighted-average number of common shares outstanding during the period used in the basic net income (loss) computation plus the effect of common stock equivalents that are dilutive. The following table sets forth the calculation of basic and diluted weighted average shares outstanding and net loss per share for the periods presented (in thousands, except per share amounts): Three Months Ended June 30, Six Months Ended June 30, 2023 2022 2023 2022 Numerator: Net loss attributable to Purple Innovation, Inc. – basic $ ( 37,509 ) $ ( 8,340 ) $ ( 60,809 ) $ ( 21,842 ) Less – net loss attributed to noncontrolling interest — ( 70 ) — ( 199 ) Net loss attributable to Purple Innovation, Inc. – diluted $ ( 37,509 ) $ ( 8,410 ) $ ( 60,809 ) $ ( 22,041 ) Denominator: Weighted average shares—basic 105,079 82,703 101,760 74,924 Add – dilutive effect of Class B shares — 448 — 448 Weighted average shares—diluted 105,079 83,151 101,760 75,372 Net loss per common share: Basic $ ( 0.36 ) $ ( 0.10 ) $ ( 0.60 ) $ ( 0.29 ) Diluted $ ( 0.36 ) $ ( 0.10 ) $ ( 0.60 ) $ ( 0.29 ) For the three and six months ended June 30, 2023, the Company excluded 3.0 million and 3.4 million, respectively, of Paired Securities convertible into an equal number of Class A shares, stock options and restricted stock as the effect was anti-dilutive. For the three and six months ended June 30, 2022, the Company excluded 3.3 million and 3.5 million, respectively, of Class A common shares issuable upon conversion of certain warrants, stock options, restricted stock and Class A shares subject to vesting as the effect was anti-dilutive. 25 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) 19. Equity Compensation Plans 2017 Equity Incentive Plan The Purple Innovation, Inc. 2017 Equity Incentive Plan, as amended and restated (the “2017 Plan”), provides for grants of stock options, stock appreciation rights, restricted stock units and other stock-based awards. Directors, officers and other employees and subsidiaries and affiliates, as well as others performing consulting or advisory services for the Company and its subsidiaries, will be eligible for grants under the 2017 Plan. As of June 30, 2023, an aggregate of 2.6 million shares remain available for issuance or use under the 2017 Plan. Class A Stock Awards In June 2023, the Company granted stock awards under the 2017 Incentive Plan to non-executive directors on the Board. The stock awards vested immediately and the Company issued 0.2 million shares of Class A common stock and recognized $ 0.6 million in expense during the three months ended June 30, 2023, which represented the fair value of the stock awards on the grant date. Amended and Restated Grant Agreements On March 15, 2023, in accordance with the 2017 Incentive Plan, the Company entered into amended and restated grant agreements relating to stock options and restricted stock unit awards previously granted to the Company’s chief executive officer in March 2022 and June 2022. The amended agreements revised the vesting schedule of the awards included in each grant. Pursuant to these agreements, 0.3 million of restricted stock units and stock options fully vested on March 25, 2023, another 0.3 million of restricted stock units and stock options, which included conditionally granted awards that were approved by shareholders at the 2023 Annual Meeting, will vest on March 25, 2024, and the remaining 0.3 million of conditionally granted awards approved by shareholders at the 2023 Annual Meeting will vest in full on March 25, 2025. These amendments resulted in the acceleration of $ 0.8 million of stock-based compensation expense into the first quarter of 2023 compared to the expense that would have been recorded based on vesting under the original agreements. Employee Stock Options Following receipt of shareholder approval of certain amendments to the 2017 Plan at the 2023 Annual Meeting, the 0.3 million stock options granted to the Company’s chief executive officer in June 2023 have an exercise price of $ 6.82 per option and expire in four years and vest over a two-year period. The Company determined the fair value of this award to be $ 0.1 million on the effective date, which will be expensed on a straight-line basis over the vesting period. The Company determined the fair value of the options granted during the six months ended June 30, 2023 using the Black Scholes method with the following weighted average assumptions: Fair market value $ 0.22 Exercise price $ 6.82 Risk free interest rate 4.48 % Expected term in years 2.58 Expected volatility 44.98 % Expected dividend yield — The following table summarizes the Company’s total stock option activity for the six months ended June 30, 2023 : Options (in thousands) Weighted Average Exercise Price Weighted Average Remaining Contractual Term in Years Intrinsic Value (in thousands) Options outstanding as of January 1, 2023 819 $ 8.68 2.3 $ — Granted 295 6.82 — — Exercised — — — — Forfeited/cancelled ( 240 ) 7.26 — — Options outstanding as of June 30, 2023 874 $ 8.44 2.7 $ — 26 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) Outstanding and exercisable stock options as of June 30, 2023 are as follows : Options Outstanding Options Exercisable Exercise Prices Number of Options Outstanding (in thousands) Weighted Average Remaining Life (Years) Number of Options Exercisable (in thousands) Weighted Average Remaining Life (Years) Intrinsic Value (in thousands) $ 6.51 151 0.9 151 0.9 $ — 6.82 500 3.8 167 3.8 — 7.99 19 1.4 19 1.4 — 8.32 108 1.0 105 1.0 — 13.12 61 1.9 49 1.9 — 32.28 35 2.7 21 2.7 — The following table summarizes the Company’s unvested stock option activity for the six months ended June 30, 2023: Options (in thousands) Weighted Average Grant Date Fair Value Nonvested options as of January 1, 2023 307 $ 2.84 Granted 295 0.22 Vested ( 218 ) 2.35 Forfeited ( 22 ) 2.70 Nonvested options as of June 30, 2023 362 $ 0.95 The estimated fair value of Company stock options is amortized over the options vesting period on a straight-line basis. For the three and six months ended June 30, 2023, the Company recognized stock option expense of $ 0.1 million and $ 0.4 million, respectively. The Company recorded stock option expense of $ 0.2 million and $ 0.3 million during the three and six months ended June 30, 2022, respectively. As of June 30, 2023, outstanding stock options had $ 0.3 million of unrecognized stock compensation cost with a remaining recognition period of 1.7 years. 27 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) Employee Restricted Stock Units During the second quarter of 2023, the Company granted 2.4 million restricted stock units under the 2017 Incentive Plan to certain members of the Company’s management team. Approximately one-half of the restricted stock units granted included a market vesting condition. The restricted stock awards that did not have a market vesting condition had a weighted average grant date fair value of $ 2.75 per share. The estimated fair value of these awards is recognized on a straight-line basis over the vesting period. For those awards that include a market vesting condition, the estimated fair value of the restricted stock was measured on the grant date and incorporated the probability of vesting occurring. The estimated fair value is recognized over the derived service period (as determined by the valuation model), with such recognition occurring regardless of whether the market condition is met. The Company determined the weighted average grant date fair value of the awards with the market vesting condition to be $ 1.92 per share using a Monte Carlo Simulation of a Geometric Brownian Motion stock path model with the following weighted average assumptions: Trading price of common stock on measurement date $ 2.72 Risk free interest rate 4.29 % Expected life in years 2.7 Expected volatility 89.9 % Expected dividend yield — The following table summarizes the Company’s restricted stock unit activity for the six months ended June 30, 2023: Number Outstanding (in thousands) Weighted Average Grant Date Fair Value Nonvested restricted stock units as of January 1, 2023 1,235 $ 5.47 Granted 2,429 2.33 Vested ( 306 ) 6.24 Forfeited ( 165 ) 6.07 Nonvested restricted stock units as of June 30, 2023 3,193 $ 2.98 The Company recorded restricted stock unit expense of $ 0.9 million and $ 1.8 million during the three and six months ended June 30, 2023, respectively, and $ 0.5 million and $ 0.9 million during the three and six months ended June 30, 2022, respectively. As of June 30, 2023, outstanding restricted stock units had $ 7.7 million of unrecognized stock compensation cost with a remaining recognition period of 2.3 years. 28 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) Aggregate Non-Cash Stock-Based Compensation The Company has accounted for all stock-based compensation under the provisions of ASC 718 Compensation—Stock Compensation . This standard requires the Company to record a non-cash expense associated with the fair value of stock-based compensation over the requisite service period. The following table summarizes the aggregate non-cash stock-based compensation recognized in the statement of operations for stock awards, employee stock options and employee restricted stock units (in thousands): Three Months Ended June 30, Six Months Ended June 30, 2023 2022 2023 2022 Cost of revenues $ 23 $ 104 $ 98 $ 170 Marketing and sales 240 266 215 403 General and administrative 1,332 861 2,452 1,184 Research and development 66 44 88 60 Total non-cash stock-based compensation $ 1,661 $ 1,275 $ 2,853 $ 1,817 20. Employee Retirement Plan In July 2018 the Company established a 401(k) plan that qualifies as a deferred compensation arrangement under Section 401 of the IRS Code. All eligible employees over the age of 18 and with 4 months’ service are eligible to participate in the plan. The plan provides for Company matching of employee contributions up to 5% of eligible earnings. Company contributions immediately vest. The Company’s matching contribution expense was $ 0.9 million and $ 1.8 million for the three and six months ended June 30, 2023, respectively, and $ 0.9 million and $ 1.9 million for the three and six months ended June 30, 2022, respectively. 21. Subsequent Events New Credit Agreements On August 7, 2023, Purple LLC, Purple Inc. and Intellibed, (collectively the “Loan Parties”) entered into a term loan credit agreement (the “Term Loan Agreement”) with Callodine Commercial Finance, LLC and a group of financial institutions (the “Term Loan Lenders”). Also, on August 7, 2023, the Loan parties entered into a separate financing arrangement with the Bank of Montreal and a group of financial institutions (collectively the “ABL Lenders”) that provides for a revolving asset-based credit facility (the “ABL Agreement”). Pursuant to entering into these agreements, the Company incurred fees and expenses of $ 3.1 million that will be reflected as debt issuance costs in the third quarter of 2023. Term Loan Agreement and Term Loan Pledge and Security Agreement The Term Loan Agreement provides for up to $ 25.0 million of term loans, with up to $ 5.0 million of incremental term loans available, subject to certain conditions (collectively, the “Term Loans”). Proceeds from the Term Loans, which were fully drawn at closing, will be used for general corporate purposes. The borrowing rates under the Term Loan Agreement are based on SOFR, plus a credit spread adjustment of 0.15% per annum, plus 8.5% per annum, with a SOFR floor of 2.0% per annum. The Term Loans will be repaid at the earlier of (a) a three-year amortization schedule ending on August 7, 2026 or (b) the payment in full of the ABL Agreement. The Term Loans may be prepaid in whole or in part at any time, but subject to a prepayment premium. There may also be mandatory prepayment obligations based on certain asset dispositions, casualty events and extraordinary receipts. Once repaid, no portion of the Term Loans may be reborrowed. Pursuant to a pledge and security agreement, the Loan Parties’ obligations under the Term Loan Agreement are secured by a perfected second-priority security interest in the cash, inventory and accounts receivable of the Loan Parties, and a perfected first-priority security interest in substantially all other assets of the Loan Parties, including, without limitation, the intellectual property and equipment of the Loan Parties, subject to certain exceptions. The Term Loan Agreement provides for customary events of default such as for non-payment and failure to perform or observe covenants. The Term Loan Agreement contains customary indemnifications that benefit the Term Loan Lenders. The Term Loan Agreement also contains representations, warranties and certain covenants of the Loan Parties. While any amounts are outstanding under the Term Loan Agreement, the Loan Parties are subject to a number of affirmative and negative covenants, including covenants regarding dispositions of property, investments, forming or acquiring subsidiaries, business combinations or acquisitions, incurrence of additional indebtedness, and transactions with affiliates, among other customary covenants, each of which are subject to certain exceptions. In particular, the Loan Parties are (i) restricted from incurring additional debt up to certain amounts, subject to limited exceptions, as set forth in the Term Loan Agreement, and (ii) required to maintain a minimum revolving loan availability under the ABL Agreement. Each Loan Party is also restricted from paying dividends or making other distributions or payments on its respective capital stock, subject to limited exceptions. If the Loan Parties fail to perform their obligations under these and other covenants, or should any event of default occur, the Term Loans, together with accrued interest, could be declared immediately due and payable. 29 PURPLE INNOVATION, INC. Notes to Condensed Consolidated Financial Statements (unaudited) ABL Agreement and ABL Pledge and Security Agreement The ABL Agreement provides for up to $50.0 million of revolving loans subject to a borrowing base calculation (with sub-facilities for swing line loans and the issuance of letters of credit), with incremental increases available up to $20.0 million, subject to certain conditions (the “ABL Loans”). No funds were drawn under the ABL Agreement at closing. The Company anticipates that any funds drawn from under the ABL Agreement will be used to finance permitted acquisitions defined in the agreement and for working capital, capital expenditures and other general corporate purposes. Outstanding principal and accrued interest on the ABL Loans shall be repaid on August 7, 2026. The borrowing rates under the ABL Agreement will accrue on a three-tiered grid based on revolving availability, ranging from (i) SOFR, plus a credit spread adjustment of 0.10% per annum, plus 2.75% per annum to (ii) SOFR, plus a credit spread adjustment of 0.10% per annum, plus 3.25% per annum, with a SOFR floor of 0% per annum. The ABL Loans may be prepaid in whole or in part at any time without premium or penalty, subject to reimbursement of certain costs. There may be mandatory prepayment obligations based on certain asset dispositions, casualty events, equity issuances and extraordinary receipts. Pursuant to a pledge and security agreement, the Loan Parties’ obligations under the ABL Agreement are secured by a perfected first-priority security interest in the cash, inventory and accounts receivable of the Loan Parties, and a perfected second-priority security interest in substantially all of the other assets of the Loan Parties, subject to certain exceptions. The ABL Agreement provides for customary events of default such as non-payment and failure to perform or observe covenants. The ABL Agreement contains customary indemnifications that benefit the ABL Lenders. The ABL Agreement also contains representations, warranties and certain covenants of the Loan Parties. The Loan Parties are subject to affirmative and negative covenants, including covenants regarding dispositions of property, investments, forming or acquiring subsidiaries, business combinations or acquisitions, incurrence of additional indebtedness, and transactions with affiliates, among other customary covenants, in each case, subject to certain exceptions. In particular, the Loan Parties are (i) restricted from incurring additional debt up to certain amounts, subject to limited exceptions, as set forth in the ABL Agreement, and (ii) if revolving availability under the ABL Agreement is less than a specified amount, required to maintain a minimum Consolidated Fixed Charge Coverage Ratio (as defined in the ABL Agreement), and (iii) required to maintain a specified minimum revolving availability. Each Loan Party is also restricted from paying dividends or making other distributions or payments on its respective capital stock, subject to limited exceptions. If the Loan Parties fail to perform their obligations under these and other covenants, or should any event of default occur, the revolving loan commitments under the ABL Agreement may be terminated and any outstanding ABL Loans, together with accrued interest, could be declared immediately due and payable and any outstanding letters of credit may be required to be cash collateralized. Termination of 2020 Credit Agreement In connection with the Company’s execution of the Term Loan Agreement and ABL Credit Agreement, the Company terminated its 2020 Credit Agreement. The Company had no outstanding borrowings under the term loan or the revolving line of credit at the time of termination. 30