0001104659-24-030010 S-8 POS 2 20240301 20240301 20240301 NETLIST INC 0001282631 3674 04 Manufacturing 954812784 DE 1230 S-8 POS 33 333-270235 24710481 111 ACADEMY, SUITE 100 IRVINE CA 92617 949-435-0025 111 ACADEMY, SUITE 100 IRVINE CA 92617 S-8 POS 1 tm247579d2_s8pos.htm S-8 POS


As filed with the Securities and Exchange Commission on March 1, 2024


Registration No. 333-270235





Washington, D.C. 20549



File No. 333-270235 







(Exact name of registrant as specified in its charter)


Delaware   95-4812784
(State or other jurisdiction of   (I.R.S. Employer
incorporation or organization)   Identification No.)


111 Academy, Suite 100 

Irvine, CA 92617 

(Address of Principal Executive Offices) (Zip Code)


Amended and Restated 2006 Equity Incentive Plan of Netlist, Inc. 

Employment Inducement Stock Option Agreement 

(Full title of the plan)


Chun K. Hong 

President, Chief Executive Officer and Sole Director 

111 Academy, Suite 100, Irvine, CA 92617 

(Name and address of agent for service)


(949) 435-0025 

(Telephone number, including area code, of agent for service)


Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.


Large accelerated filer x   Accelerated filer ¨   Non-accelerated filer ¨   Smaller reporting company ¨
            Emerging growth company ¨


If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.  ¨








Netlist, Inc. (the “Company” or “Registrant”) is filing this post-effective amendment (the “Post-Effective Amendment”) to the following Registration Statement on Form S-8 (“Registration Statement”), which has been previously filed with the Securities and Exchange Commission (the “SEC”), to deregister certain shares of the Company’s common stock, par value $0.001 per share (“Common Stock”), registered but unsold or otherwise unissued under the below Registration Statements as follows:


·Registration Statement on Form S-8 (No. 333-270235) filed with the SEC on March 2, 2023, pertaining to the registration of (i) 1,200,000 shares of Common Stock available for issuance under the Amended and Restated 2006 Equity Incentive Plan of the Company and (ii) 25,000 shares of Common Stock that may be issued upon vesting of the Inducement RSU Awards (the “September 2022 Inducement Award”) granted to one employee pursuant to a Restricted Stock Unit Agreement, dated as of September 1, 2022, by and between the Company and this employee (the “September 2022 Agreement”).


With respect to the Common Stock subject to the September 2022 Inducement Award, 25,000 shares of Common Stock included in this Registration Statement are no longer issuable pursuant to the September 2022 Agreement.


Therefore, in accordance with an undertaking made by the Company in the Registration Statement to remove from registration, by means of a post-effective amendment, the securities registered under the Registration Statement that have not been sold, the Company hereby amends the Registration Statements to deregister 25,000 shares of Common Stock registered and unsold under the Registration Statement on Form S-8 (No. 333-270235).







Pursuant to the requirements of the Securities Act of 1933, as amended (the “Securities Act”), the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused the Post-Effective Amendment to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Irvine, State of California, on March 1, 2024.


    By: /s/ Chun K. Hong
      Chun K. Hong
      President, Chief Executive Officer and Sole Director


Pursuant to the requirements of the Securities Act, the Post-Effective Amendment has been signed by the following persons in the capacities and on the dates indicated.


Signature   Title(s)   Date
/s/ Chun K. Hong   President, Chief Executive Officer and Sole Director   March 1, 2024
Chun K. Hong    (Principal Executive Officer)    
/s/ Gail Sasaki   Executive Vice President and Chief Financial Officer   March 1, 2024
Gail Sasaki   (Principal Financial and Accounting Officer)    







        Filed   Incorporated by Reference
Exhibit No.   Description   Herewith   Form   File No.   Exhibit   Filing Date
23.1   Consent of KMJ Corbin & Company LLP.   X                




EX-23.1 2 tm247579d2_ex23-1.htm EXHIBIT 23.1


Exhibit 23.1




We consent to the incorporation by reference in this Post-Effective Amendment No. 1 to Registration Statement on Form S-8 (333-270235) of Netlist, Inc. of our reports dated February 23, 2024, relating to the consolidated financial statements of Netlist, Inc. and subsidiaries as of December 30, 2023 and December 31, 2022, the related consolidated statements of operations, stockholders’ equity (deficit), and cash flows for each of the three years in the period ended December 30, 2023, and the related notes and financial statement schedule II, and the effectiveness of internal control over financial reporting as of December 30, 2023, which reports are included in the Annual Report on Form 10-K of Netlist, Inc. for the year ended December 30, 2023.


Our report dated February 23, 2024, on the effectiveness of internal control over financial reporting as of December 30, 2023, expresses our opinion that Netlist, Inc. and subsidiaries did not maintain effective internal control over financial reporting as of December 30, 2023 because of the effect of a material weakness on the achievement of the objectives of the control criteria and contains an explanatory paragraph that states the following material weakness has been identified:


·The Company’s sole member of the board of directors also serves in an executive management role at the Company. As a result, the Company has ineffective oversight of the financial reporting process due to the lack of an audit committee and the lack of an independent board of directors to ensure adequate monitoring and oversight of internal controls. Additionally, the Company did not have effective monitoring as it did not implement effective monitoring controls that were responsive to changes in the business.


/s/ KMJ Corbin & Company LLP


Irvine, California
March 1, 2024