What changed in this filing

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Item 1A. Risk Factors

2024-08-05 compared with 2024-05-07 · 124 added, 40 removed, 13 unchanged (93% of the section changed)

Except as described below, there have been no material changes from

the risk factors previously disclosed in our 2023 Annual Report on Form 10-K filed with the SEC on March 12, 2024.The disclosure of risks

identified below does not imply that the risk has not already materialized.

as described below, there have been no material changes from the risk factors previously disclosed in our 2023 Annual Report on Form

10-K filed with the SEC on March 12, 2024.The disclosure of risks identified below does not imply that the risk has not already materialized.

Future use and amount of our Current NOLs

and other tax benefits is uncertain.

On June 27, 2024, our Board

approved the adoption of the NOL Rights Plan to protect stockholder value by attempting to safeguard our ability to use Current NOLs of

approximately $238 million to reduce potential future federal income tax obligations from becoming substantially limited by future ownership

of our Common Stock.

Pursuant to the NOL Rights Plan, the Board authorized and declared a dividend of one Right for each outstanding share

of Common Stock to stockholders of record at the close of business on July 26, 2024.

Upon a stockholder acquiring greater than a 4.9%

ownership percentage threshold (or, if a stockholder has beneficial ownership of in excess of 4.9%, then the ownership percentage that

is one-half of one percentage point greater than their current beneficial ownership percentage), the Rights will become exercisable to

significantly dilute any stockholder who violates the ownership limitations of the NOL Rights Plan.

In connection with the NOL Rights

Plan, the Board adopted, and recommended that our stockholders approve, the NOL Protective Charter Amendment that adds an additional layer

of protection to our Current NOLs until June 30, 2025 by voiding any transfer of Common Stock that results in a stockholder acquiring

beyond a 4.9% ownership percentage threshold (or, if a stockholder has current beneficial ownership of in excess of 4.9%, then the ownership

percentage that is one-half of one percentage point greater than their current beneficial ownership percentage).

Our use of our Current NOLs

and other tax benefits depends on our ability to generate taxable income in the future.

We cannot ensure whether we will have future taxable

income in any applicable period or, if we do, whether such income or our Current NOLs or other tax benefits at such time will exceed any

potential limitation under Code Section 382.

The IRS may challenge our Current NOLs and

other tax benefits .

As of June 30, 2024, the amount

of our Current NOLs has not been audited or otherwise validated by the Internal Revenue Service (the “IRS”).

The IRS could

challenge the amount of our Current NOLs, which could result in an increase in our future liability for income taxes.

In addition, determining

whether an ownership change under Code Section 382 has occurred is subject to uncertainty, both because of the complexity and ambiguity

of the provisions of Code Section 382 and because of limitations on the knowledge that any publicly traded company can have about the

ownership of, and transactions in, its securities on a timely basis.

Therefore, we cannot ensure that the IRS or another taxing authority

will not claim that we experienced an ownership change under Code Section 382 and attempt to reduce the benefit of our Current NOLs and

other tax benefits available to us at such time, even if the NOL Protective Charter Amendment is in place.

There is continued risk of ownership change

under Code Section 382 .

Although the NOL Protective

Charter Amendment and NOL Rights Plan are intended to reduce the likelihood of an ownership change under Code Section 382, we cannot ensure

that the NOL Protective Charter Amendment and the NOL Rights Plan will be effective.

The amount by which an ownership interest under Code

Section 382 may change in the future could, for example, be affected by purchases of our Common Stock by stockholders who are 5%-stockholders

(as defined under Code Section 382) or by purchases of stock or other interests in corporations, partnerships or other legal entities

that own 4.9% or more of our Common Stock, over which we have no control.

Further, while the NOL Protective Charter Amendment and the

NOL Rights Plan allow for the exercise of currently outstanding conversion rights, exchange rights, warrants or options or otherwise,

such exercises may result in an ownership change under Code Section 382.

It may also be in our best interests, taking into account all

relevant facts and circumstances at the time, to permit the acquisition of our Common Stock in excess of the specified limitations or

to issue new or redeem existing equity in the future, all of which may increase the likelihood of an ownership change under Code Section

The NOL Protective Charter Amendment and

the NOL Rights Plan may potentially adversely affect the market for, and negatively impact the value of, our Common Stock .

The NOL Protective Charter

Amendment and the NOL Rights Plan are intended to prohibit or deter a stockholder’s ability to acquire, directly, indirectly or

constructively, additional shares of our Common Stock in excess of the specified limitations.

As such, a stockholder’s ability to

dispose of our Common Stock may be limited by reducing the class of potential acquirers for such shares.

In addition, a stockholder’s

ownership of our Common Stock may become subject to the restrictions of the NOL Protective Charter Amendment, or may trigger applicable

thresholds under the NOL Rights Plan, upon actions taken by Persons (as such term is defined in the NOL Protective Charter Amendment or

the NOL Rights Plan, as applicable) related to, or affiliated with, such stockholder.

If the NOL Protective Charter

Amendment and the NOL Rights Plan are approved by our stockholders at the Special Meeting, our Board intends to include a legend reflecting

the transfer restrictions included in the NOL Protective Charter Amendment and the Rights issued pursuant to the NOL Rights Plan on certificates

representing newly issued or transferred shares of our Common Stock, to disclose such Rights and restrictions to Persons holding our Common

Stock in uncertificated form, and to disclose such restrictions to the public generally.

Because certain buyers, including Persons who

wish to acquire more than 4.9% of our Common Stock and certain institutional holders who may not be comfortable holding our Common Stock

with restrictive legends, may choose not to purchase our Common Stock, the NOL Protective Charter Amendment and the NOL Rights Plan could

have an adverse effect on the marketability and trading value of our Common Stock in an amount that could more than offset any value preserved

from protecting our Current NOLs.

The NOL Protective Charter Amendment and NOL Rights Plan could also have a negative impact on the trading

value of our Common Stock by deterring Persons or groups of Persons from acquiring our Common Stock, including in acquisitions that might

result in some or all of our stockholders receiving a premium above market value.

The NOL Protective Charter Amendment and

the NOL Rights Plan may have an anti-takeover effect .

While the NOL Protective Charter

Amendment is not intended to prevent, or even discourage, a proposal to acquire the Company, if approved by our stockholders at the Special

Meeting, the NOL Protective Charter Amendment may have a potential anti-takeover effect because, among other things, it will restrict

the ability of a Person, entity or group to accumulate more than 4.9% of our Common Stock and the ability of Persons, entities or groups

now owning more than 4.9% of our Common Stock to acquire any significant amount of additional shares of our Common Stock, in each case,

without the approval of our Board.

Similarly, while the NOL Rights Plan is not intended to prevent, or even discourage, a proposal to

acquire the Company, if ratified by our stockholders at the Special Meeting, the NOL Rights Plan may have a potential anti-takeover effect

because, among other things, an Acquiring Person (as such term is defined in the NOL Rights Plan) may have its ownership interest diluted

upon the occurrence of a triggering event.

Accordingly, the overall effects of the NOL Protective Charter Amendment and NOL Rights Plan,

if approved and ratified by our stockholders at the Special Meeting, may be to render more difficult or discourage a merger, tender offer,

proxy contest or assumption of control by a substantial holder of our Common Stock, and have an adverse effect on the marketability and

the trading value of our Common Stock.

However, the NOL Protective Charter Amendment and NOL Rights Plan should not interfere with any

merger or other business combination approved by the Board.

Future sales of our Common Stock in the

5 unchanged sentences

our business.

connection with the issuance of Warrants pursuant to the Amended and Restated Credit Agreement, on January 23, 2024, the Company entered

into an Amended and Restated Registration Rights Agreement (the “Registration Rights Agreement”) with CCP, Blackwell, Coliseum

Capital Co-Invest III, L.P.

(“C-3”), Harvest Master, Harvest Partners, and HSCP (the “Holders”), providing for

the registration under the Securities Act of the Warrants, the shares of Common Stock issuable upon the exercise of the Warrants and the

Class A Common Stock held by the Holders as of such date (the “Registrable Securities”), subject to customary terms and conditions.

The Registration Rights Agreement provides that on or prior to February 22, 2024, the Company was required to prepare and file with the

SEC pursuant to Rule 415 of the Securities Act a registration statement to register the resale of the Registrable Securities.

received an extension from the Holders to file the registration statement on or prior to March 22, 2024.

On March 21, 2024, the Company

filed the registration statement pursuant to the Registration Rights Agreement.

In connection with the issuance of Warrants pursuant to the Amended

and Restated Credit Agreement, on January 23, 2024, the Company entered into an Amended and Restated Registration Rights Agreement (the

“Registration Rights Agreement”) with CCP, Blackwell, Coliseum Capital Co-Invest III, L.P.

(“C-3”), Harvest Master,

Harvest Partners, and HSCP (the “Holders”), providing for the registration under the Securities Act of the Warrants, the shares

of Common Stock issuable upon the exercise of the Warrants and the Class A Common Stock held by the Holders as of such date (the “Registrable

Securities”), subject to customary terms and conditions.

The Registration Rights Agreement provides that on or prior to February

22, 2024, the Company was required to prepare and file with the SEC pursuant to Rule 415 of the Securities Act a registration statement

to register the resale of the Registrable Securities.

The Company received an extension from the Holders to file the registration statement

on or prior to March 22, 2024.

On March 21, 2024, the Company filed the registration statement pursuant to the Registration Rights Agreement

which became effective on June 4, 2024.

The market price of our Common

3 unchanged sentences

more difficult for us to sell equity securities at a time and price that we deem appropriate.

Our stockholders may experience substantial

dilution in the value of their investment or may otherwise have their interests impaired if we issue additional shares of our capital

stock, including as a result of the exercise of the Warrants.

Our stockholders

may experience substantial dilution in the value of their investment or may otherwise have their interests impaired if we issue additional

shares of our capital stock, including as a result of the exercise of the Warrants.

Our Second Amended and Restated Certificate of Incorporation allows

us to issue up to 300 million shares of our common stock, including 210 million shares of Common Stock and 90 million shares

of Class B Stock, and up to five million shares of undesignated preferred stock.

For example, in February 2023 we issued 13,400,000 shares

of Common Stock pursuant to an underwritten public offering.

To raise additional capital, we may in the future sell additional shares

of our Common Stock or other securities convertible into or exchangeable for our Common Stock at prices that are lower than the prices

paid by existing stockholders, and investors purchasing shares or other securities in the future could have rights superior to existing

stockholders, which could result in substantial dilution to the interests of existing stockholders.

For example, on January 23, 2024,

we issued to the Lenders under the Amended and Restated Credit Agreement Warrants to purchase 20,000,000 shares of our Common Stock (approximately

19% of our currently outstanding Class A Common Stock) at a price of $1.50 per share, subject to certain adjustments.

The Warrants will

expire on the 10-year anniversary of issuance or earlier upon redemption.

The exercise of the Warrants will dilute the value of the Common

Stock and stockholder voting power.

Pursuant to our Certificate

of Incorporation, our board of directors may authorize the issuance of up to five million shares of preferred stock at any time and from

time to time, with such terms and preferences as the board of directors determines and without any stockholder approval other than as

may be required by Nasdaq rules.

The issuance of such shares of preferred stock could dilute the interest of, or impair the voting power

of, our common stockholders.

The issuance of such preferred stock could also be used as a method of discouraging, delaying, or preventing

a change of control.

us to issue up to 300 million shares of our common stock, including 210 million shares of Class A common stock and 90 million

shares of Class B common stock, and up to five million shares of undesignated preferred stock.

For example, in February 2023 we issued

13.4 million shares of Class A common stock pursuant to an underwritten public offering.

To raise additional capital, we may in the future

sell additional shares of our Common Stock or other securities convertible into or exchangeable for our Common Stock at prices that are

lower than the prices paid by existing stockholders, and investors purchasing shares or other securities in the future could have rights

superior to existing stockholders, which could result in substantial dilution to the interests of existing stockholders.

on January 23, 2024, we issued to the Lenders under the Amended and Restated Credit Agreement Warrants to purchase 20.0 million Class

A common stock at a price of $1.50 per share, subject to certain adjustments.

The Warrants will expire on the 10-year anniversary of issuance

or earlier upon redemption.

The exercise of the Warrants will dilute the value of the Class A common stock and stockholder voting power.

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-Q

Item 1A. Risk Factors