What changed in this filing

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Item 1A. Risk Factors

2024-11-04 compared with 2024-08-05 · 139 added, 79 removed, 58 unchanged (79% of the section changed)

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.

The cost of the

Restructuring Plan may exceed our estimates and we may not otherwise realize the intended benefits of the Restructuring Plan, which could

adversely affect our results of operations and our financial condition.

costs of the Restructuring Plan may exceed our estimates, and we may not achieve the targeted financial benefits or generate additional

savings to invest in growth.

We may have trouble relocating equipment to Georgia and expanding our Georgia manufacturing workforce.

we replace experienced Utah manufacturing employees with inexperienced employees in Georgia, we may lose continuity and accumulated knowledge,

as well as experience a decline in productivity, which may negatively impact our production efficiency and quality.

We may experience

an increase in the cost of distribution due to manufacturing in only one region of the United States.

During the process of consolidation,

we could encounter disruptions with respect to inventory levels or raw material supply due to shifting plant volumes.

We may not be able

to timely sublease our Utah manufacturing facilities, which could adversely affect our financial condition.

The reduction in our workforce

and related restructuring, including the loss of jobs in Utah, could damage employee morale, our business reputation, and our ability

to attract and retain highly skilled employees, which could adversely affect our business.

Disruption of our manufacturing

operations has and could increase our costs of doing business or lead to delays in shipping our products and could materially adversely

affect our business, our results of operations, and our financial condition.

disruption of our manufacturing operations for a significant period of time, or even permanently, such as due to the Restructuring Plan

or a closure related to restructuring, a pandemic, natural disasters, the termination or expiration of a lease or mechanical failures

in our manufacturing equipment, would likely increase our costs of doing business and lead to delays in manufacturing and shipping our

products to customers and could adversely affect our business, results of operations and our financial condition including our cash flows.

In addition, the occurrence of workplace injuries or other industrial accidents at one or more of our manufacturing plants has required,

and may require in the future, that we suspend production or modify our operations, which could lead to delays in manufacturing and shipping

our products to customers.

Likewise, acts of workplace violence may require us to temporarily suspend production or modify our operations.

Such delays could adversely affect our customer satisfaction, results of operations, financial condition including our cash flows.

a result of the Restructuring Plan, we may be at increased risk of disruption to our manufacturing operations by any event affecting that

plant including but not limited to a regional economic downturn, hurricanes and other natural disasters, closure due to a pandemic, the

unavailability of utilities, or any other events that impacts our manufacturing and operating activities in Georgia, which could adversely

affect our business.

may delist our securities from its exchange, which could harm our business and limit our stockholders ’ liquidity.

Our Common Stock is currently

listed on NASDAQ, which has qualitative and quantitative listing criteria.

However, we cannot assure that our Common Stock will continue

to be listed on NASDAQ in the future.

In order to continue listing our Common Stock on NASDAQ, we must maintain certain governance, financial,

distribution and stock price levels.

Generally, we must maintain a minimum amount in stockholders’ equity, a minimum number of

holders of our Common Stock, and a $1.00 minimum per share bid price for our Common Stock.

If we fail to maintain a $1.00 minimum per

share bid price for a period of 30 consecutive business days, we have 180 calendar days to maintain our Common Stock at a $1.00 minimum

per share bid price for 10 consecutive trading days.

If we do not regain compliance within 180 calendar days, NASDAQ may grant a second

compliance period of 180 calendar days or it may make a determination to delist our Common Stock, at which point we would have an opportunity

to appeal the delisting determination to a hearings panel.

Our Common Stock has been trading below the $1.00 minimum per share bid price

since September 30, 2024.

If our common stock continues to close below the $1.00 minimum per share requirement, we would then be required

to file a Form 8-K reporting the receipt of a notice of delisting and failure to satisfy a continued listing rule or standard.

disclosure may lead to a limited amount of analyst coverage and have a negative effect on the price of our common stock.

If we are unable to comply

with the continued listing requirements, our Common Stock may be subject to delisting.

If NASDAQ delists our Common Stock from trading

on its exchange and we are not able to list our securities on another national securities exchange, we expect our securities could be

quoted on an over-the-counter market.

If this were to occur, we could face significant material adverse consequences, including:

a limited availability of market quotations for our securities;

reduced liquidity for our securities;

a determination that our Common Stock is a “penny stock” which will require brokers trading in our Common Stock to adhere to more stringent rules and possibly result in a reduced level of trading activity in the secondary trading market for our securities;

a limited amount of news and analyst coverage;

a decreased ability to issue additional securities or obtain additional financing in the future.

Future use and amount of our Current NOLs

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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).

At the Special Meeting, the Company’s stockholders ratified the NOL Rights Plan.

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).

At the Special Meeting, the Company’s stockholders approved the NOL Protective

Charter Amendment.

Our use of our Current NOLs

5 unchanged sentences

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.

As of September 30, 2024,

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

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

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

24 unchanged sentences

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

Because the NOL Protective

Charter Amendment and the NOL Rights Plan were approved by our stockholders at the Special Meeting, we have included 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.

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

Common Stock in uncertificated form, and 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

1 unchanged sentence

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.

Amendment is not intended to prevent, or even discourage, a proposal to acquire the Company, 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 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 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.

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.

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 required the Company 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.

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

6 unchanged sentences

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 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.

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 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.

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 20.0 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