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Table of Contents

]

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-Q

(Mark One)

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended October 1, 2022

or

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from _____ to _____

Commission file number: 001-33170

Graphic

NETLIST, INC.

(Exact name of registrant as specified in its charter)

Delaware

95-4812784

(State or other jurisdiction of incorporation or organization)

(I.R.S. Employer Identification No.)

111 Academy, Suite 100

Irvine, California

92617

(Address of principal executive offices)

(Zip Code)

(949) 435-0025

(Registrant’s telephone number, including area code)

Securities registered pursuant to Section 12(b) of the Act: None

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.  Yes     No 

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes     No 

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 

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 13(a) of the Exchange Act.

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).  Yes    No 

As of October 28, 2022, there were 232,096,236 outstanding shares of the registrant’s common stock.

Table of Contents

NETLIST, INC. AND SUBSIDIARIES

Form 10-Q

For the Quarter Ended October 1, 2022

TABLE OF CONTENTS

Page

PART I. — FINANCIAL INFORMATION

Item 1

Financial Statements

3

Item 2

Management’s Discussion and Analysis of Financial Condition and Results of Operations

20

Item 3

Quantitative and Qualitative Disclosures About Market Risk

26

Item 4

Controls and Procedures

26

PART II

Item 1

Legal Proceedings

28

Item 1A

Risk Factors

28

Item 6

Exhibits

55

SIGNATURES

56

2

Table of Contents

PART I. — FINANCIAL INFORMATION

Item 1.

Financial Statements

NETLIST, INC. AND SUBSIDIARIES

Condensed Consolidated Balance Sheets

(In thousands, except par value)

October 1,

January 1,

    

2022

    

2022

(unaudited)

ASSETS

Current Assets:

Cash and cash equivalents

$

23,342

$

47,679

Restricted cash

20,100

10,800

Accounts receivable, net of allowances of $166 (2022) and $283 (2021)

10,668

12,727

Inventories

18,391

15,670

Prepaid expenses and other current assets

868

1,126

Total current assets

73,369

88,002

Property and equipment, net

1,166

989

Operating lease right-of-use assets

2,207

1,891

Other assets

297

294

Total assets

$

77,039

$

91,176

LIABILITIES AND STOCKHOLDERS' EQUITY

Current Liabilities:

Accounts payable

$

24,112

$

25,887

Revolving line of credit

8,000

7,000

Accrued payroll and related liabilities

1,714

1,308

Accrued expenses and other current liabilities

2,374

632

Long-term debt due within one year

1

562

Total current liabilities

36,201

35,389

Operating lease liabilities

1,845

1,593

Other liabilities

317

152

Total liabilities

38,363

37,134

Commitments and contingencies

Stockholders' equity:

Preferred stock, $0.001 par value—10,000 shares authorized: Series A preferred stock, $0.001 par value; 1,000 shares authorized; none issued and outstanding

Common stock, $0.001 par value—450,000 shares authorized; 232,094 (2022) and 230,113 (2021) shares issued and outstanding

233

231

Additional paid-in capital

248,920

243,866

Accumulated deficit

(210,477)

(190,055)

Total stockholders' equity

38,676

54,042

Total liabilities and stockholders' equity

$

77,039

$

91,176

See accompanying Notes to Condensed Consolidated Financial Statements.

3

Table of Contents

NETLIST, INC. AND SUBSIDIARIES

Condensed Consolidated Statements of Operations (Unaudited)

(In thousands, except per share amounts)

Three Months Ended

Nine Months Ended

October 1,

October 2,

October 1,

October 2,

2022

    

2021

    

2022

    

2021

Net product sales

$

34,424

$

26,749

$

139,982

$

66,009

License fee

40,000

Net sales

34,424

26,749

139,982

106,009

Cost of sales

32,244

24,241

129,691

59,135

Gross profit

2,180

2,508

10,291

46,874

Operating expenses:

Research and development

2,550

2,038

7,679

5,222

Intellectual property legal fees

5,577

8,461

11,716

14,585

Selling, general and administrative

3,767

2,590

11,429

7,639

Total operating expenses

11,894

13,089

30,824

27,446

Operating (loss) income

(9,714)

(10,581)

(20,533)

19,428

Other income (expense), net:

Interest income (expense), net

34

(125)

38

(417)

Other income (expense), net

82

(2)

74

641

Total other income (expense), net

116

(127)

112

224

(Loss) income before provision for income taxes

(9,598)

(10,708)

(20,421)

19,652

Provision for income taxes

1

6,601

Net (loss) income

$

(9,598)

$

(10,708)

$

(20,422)

$

13,051

(Loss) earnings per share:

Basic

$

(0.04)

$

(0.05)

$

(0.09)

$

0.06

Diluted

$

(0.04)

$

(0.05)

$

(0.09)

$

0.06

Weighted-average common shares outstanding:

Basic

231,739

224,020

231,194

215,135

Diluted

231,739

224,020

231,194

235,862

See accompanying Notes to the Condensed Consolidated Statements.

4

Table of Contents

B

NETLIST, INC. AND SUBSIDIARIES

Condensed Consolidated Statements of Stockholders Equity (Unaudited)

(In thousands)

Additional

Total

Common Stock

Paid-in

Accumulated

Stockholders'

    

Shares

    

Amount

    

Capital

    

Deficit

    

Equity

Balance, January 1, 2022

230,113

$

231

$

243,866

$

(190,055)

$

54,042

Net loss

(5,872)

(5,872)

Issuance of common stock, net

303

1,767

1,767

Exercise of stock options

197

138

138

Stock-based compensation

682

682

Restricted stock units vested and distributed

533

1

(1)

Tax withholdings related to net share settlements of equity awards

(117)

(591)

(591)

Balance, April 2, 2022

231,029

232

245,861

(195,927)

50,166

Net loss

(4,952)

(4,952)

Issuance of common stock, net

354

1,973

1,973

Exercise of stock options

72

47

47

Stock-based compensation

790

790

Restricted stock units vested and distributed

50

Tax withholdings related to net share settlements of equity awards

(17)

(108)

(108)

Balance, July 2, 2022

231,488

232

248,563

(200,879)

47,916

Net loss

(9,598)

(9,598)

Exercise of stock options

135

96

96

Stock-based compensation

892

892

Restricted stock units vested and distributed

693

1

(1)

Tax withholdings related to net share settlements of equity awards

(222)

(630)

(630)

Balance, October 1, 2022

232,094

$

233

$

248,920

$

(210,477)

$

38,676

See accompanying Notes to the Condensed Consolidated Statements.

5

Table of Contents

NETLIST, INC. AND SUBSIDIARIES

Condensed Consolidated Statements of Stockholders Equity (Unaudited) (Continued)

(In thousands)

Additional

Total

Common Stock

Paid-in

Accumulated

Stockholders'

    

Shares

    

Amount

    

Capital

    

Deficit

    

Equity

Balance, January 2, 2021

195,978

$

195

$

192,071

$

(194,886)

$

(2,620)

Net loss

(4,017)

(4,017)

Issuance of common stock, net

11,700

12

9,349

9,361

Exercise of stock options

476

376

376

Exercise of warrants

6,508

7

3,975

3,982

Stock-based compensation

338

338

Restricted stock units vested and distributed

501

1

(1)

Tax withholdings related to net share settlements of equity awards

(150)

(276)

(276)

Balance, April 3, 2021

215,013

215

205,832

(198,903)

7,144

Net Income

27,776

27,776

Exercise of stock options

345

256

256

Exercise of warrants

588

1

375

376

Stock-based compensation

379

379

Restricted stock units vested and distributed

63

Tax withholdings related to net share settlements of equity awards

(22)

(47)

(47)

Balance, July 3, 2021

215,987

216

206,795

(171,127)

35,884

Net loss

(10,708)

(10,708)

Issuance of common stock, net

2,973

3

16,913

16,916

Exercise of stock options

1,909

2

3,178

3,180

Exercise of warrants

4,712

5

2,906

2,911

Stock-based compensation

445

445

Restricted stock units vested and distributed

521

Tax withholdings related to net share settlements of equity awards

(133)

(714)

(714)

Balance, October 2, 2021

225,969

$

226

$

229,523

$

(181,835)

$

47,914

See accompanying Notes to the Condensed Consolidated Statements.

6

Table of Contents

NETLIST, INC. AND SUBSIDIARIES

Condensed Consolidated Statements of Cash Flows (Unaudited)

(In thousands)

Nine Months Ended

October 1,

October 2,

    

2022

    

2021

Cash flows from operating activities:

Net income (loss)

$

(20,422)

$

13,051

Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities:

Depreciation and amortization

241

95

Interest accrued on convertible promissory notes

226

Amortization of debt discounts

158

Non-cash lease expense

476

288

Gain on extinguishment of debt

(643)

Stock-based compensation

2,364

1,162

Changes in operating assets and liabilities:

Accounts receivable

2,059

(78)

Inventories

(2,721)

(16,189)

Prepaid expenses and other assets

255

(439)

Accounts payable

(1,775)

22,837

Accrued payroll and related liabilities

406

310

Accrued expenses and other liabilities

1,422

(683)

Net cash provided by (used in) operating activities

(17,695)

20,095

Cash flows from investing activities:

Acquisition of property and equipment

(396)

(318)

Net cash used in investing activities

(396)

(318)

Cash flows from financing activities:

Net borrowings under line of credit

1,000

809

Principal repayments under finance lease

(77)

Payments on note payable

(561)

(251)

Proceeds from issuance of common stock, net

3,740

26,277

Proceeds from exercise of stock options and warrants

281

11,081

Payments for taxes related to net share settlement of equity awards

(1,329)

(1,037)

Net cash provided by financing activities

3,054

36,879

Net change in cash, cash equivalents and restricted cash

(15,037)

56,656

Cash, cash equivalents and restricted cash at beginning of period

58,479

16,526

Cash, cash equivalents and restricted cash at end of period

$

43,442

$

73,182

Reconciliation of cash, cash equivalents and restricted cash at end of period:

Cash and cash equivalents

$

23,342

$

62,282

Restricted cash

20,100

10,900

Cash, cash equivalents and restricted cash at end of period

$

43,442

$

73,182

See accompanying Notes to the Condensed Consolidated Statements.

7

Table of Contents

NETLIST, INC. AND SUBSIDIARIES

Notes to Condensed Consolidated Financial Statements (Unaudited)

Note 1—Description of Business

Netlist, Inc. and its wholly owned subsidiaries (collectively the “Company” or “Netlist”) provides high-performance solid-state drives and modular memory solutions to enterprise customers in diverse industries. The Company's non-volatile memory express solid-state drives (“NVMe SSDs”) in various capacities and form factors and the line of custom and specialty memory products bring industry-leading performance to server and storage appliance customers and cloud service providers. Netlist licenses its portfolio of intellectual property including patents, in server memory, hybrid memory and storage class memory, to companies that implement Netlist’s technology.

Note 2—Summary of Significant Accounting Policies

Basis of Presentation

The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”). Certain information and footnote disclosures normally included in the condensed consolidated financial statements prepared in accordance with U.S. GAAP have been condensed or omitted pursuant to the rules and regulations of the Securities and Exchange Commission (“SEC”). These condensed consolidated financial statements should be read in conjunction with the condensed consolidated financial statements and notes thereto as of and for the year ended January 1, 2022, included in the Company’s Annual Report on Form 10-K filed with the SEC on March 1, 2022 (the “2021 Annual Report”).

In the opinion of management, all adjustments for the fair presentation of the Company’s condensed consolidated financial statements have been made. The adjustments are of a normal recurring nature except as otherwise noted. The results of operations for the interim periods are not necessarily indicative of the results to be expected for other periods or the full fiscal year. The Company has evaluated events occurring subsequent to October 1, 2022 through the filing date of this Quarterly Report on Form 10-Q and concluded that there were no events that required recognition and disclosures other than those discussed elsewhere in the notes hereto.

Principles of Consolidation

The accompanying condensed consolidated financial statements include the accounts of Netlist, Inc. and its wholly owned subsidiaries. All intercompany balances and transactions have been eliminated in consolidation.

Fiscal Year

The Company’s fiscal year is the 52- or 53-week period that ends on the Saturday nearest to December 31. The Company’s fiscal year 2022 will include 52 weeks and ends on December 31, 2022. Each quarter of fiscal year 2022 will be comprised of 13 weeks. Unless otherwise stated, references to particular years, quarters, months and periods refer to the Company’s fiscal years ended in January and the associated quarters, months and periods of those fiscal years.

Use of Estimates

The preparation of the accompanying condensed consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the amounts reported. Actual results may differ materially from those estimates.

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Recently Adopted Accounting Guidance

In the first quarter of 2022, we adopted the Financial Accounting Standards Board (“FASB”) Accounting Standards Update (“ASU”) No. 2020-06, Debt—Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging—Contracts in Entity’s Own Equity (Subtopic 815-40): Accounting for Convertible Instruments and Contracts in an Entity’s Own Equity. This ASU amends the guidance on convertible instruments and the derivatives scope exception for contracts in an entity's own equity, and also improves and amends the related earnings per share guidance for both Subtopics. The adoption of this ASU did not have an impact on the Company’s condensed consolidated financial statements as the Company paid off its convertible debt in December 2021.

Note 3—Supplemental Financial Information

Inventories

Inventories consisted of the following (in thousands):

October 1,

January 1,

    

2022

    

2022

Raw materials

$

13,121

$

4,208

Work in process

202

154

Finished goods

5,068

11,308

$

18,391

$

15,670

(Loss) Earnings Per Share

The following table shows the computation of basic and diluted (loss) earnings per share of common stock (in thousands, except per share data):

Three Months Ended

Nine Months Ended

October 1,

October 2,

October 1,

October 2,

    

2022

    

2021

    

2022

    

2021

Numerator:

Net (loss) income

$

(9,598)

$

(10,708)

$

(20,422)

$

13,051

Denominator:

Weighted-average basic shares outstanding

231,739

224,020

231,194

215,135

Effect of dilutive securities

20,727

Weighted-average diluted shares

231,739

224,020

231,194

235,862

Basic (loss) earnings per share

$

(0.04)

$

(0.05)

$

(0.09)

$

0.06

Diluted (loss) earnings per share

$

(0.04)

$

(0.05)

$

(0.09)

$

0.06

The table below shows potentially dilutive weighted average common share equivalents, consisting of shares issuable upon the exercise of outstanding stock options and warrants using the treasury stock method, shares issuable upon conversion feature of a convertible note using the “if-converted” method, and the shares vesting of issuable upon the restricted stock awards (“RSAs”) and restricted stock units (“RSUs”). These potential weighted average common share equivalents have been excluded from the diluted net loss per share calculations above as their effect would be anti-dilutive (in thousands):

Three Months Ended

Nine Months Ended

October 1,

October 2,

October 1,

October 2,

    

2022

    

2021

    

2022

    

2021

Weighted average common share equivalents

4,323

21,158

5,451

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Disaggregation of Net Sales

The following table shows disaggregated net sales by major source (in thousands):

Three Months Ended

Nine Months Ended

October 1,

October 2,

October 1,

October 2,

2022

2021

    

2022

2021

Resales of third-party products

$

25,717

$

20,089

$

120,470

$

51,014

Sale of the Company's modular memory subsystems

8,707

6,660

19,512

14,995

License fee

40,000

Total net sales

$

34,424

$

26,749

$

139,982

$

106,009

Major Customers and Products

The Company’s net product sales have historically been concentrated in a small number of customers. The following table sets forth the percentage of net product sales made to customers that each comprise 10% or more of total product sales:

Three Months Ended

Nine Months Ended

October 1,

October 2,

October 1,

October 2,

2022

2021

2022

2021

Customer A

42%

25%

42%

15%

Customer B

*

13%

*

*

Customer C

15%

*

16%

*

Customer D

17%

*

*

*

*

Less than 10% of net sales during the period.

As of October 1, 2022, two customers represented 59% and 14% of aggregated gross receivables, respectively. As of January 1, 2022, four customers represented 26%, 16%, 13%, and 13% of aggregate gross receivables, respectively. The loss of a major customer or a reduction in sales to or difficulties collecting payments from these customers could significantly reduce the Company’s net sales and adversely affect its operating results. The Company mitigates risks associated with foreign and domestic receivables by purchasing comprehensive credit insurance.

The Company resells certain component products to end-customers that are not reached in the distribution models of the component manufacturers, including storage customers, appliance customers, system builders and cloud and datacenter customers. For the three and nine months ended October 1, 2022, resales of these products represented approximately 75% and 86% of net product sales, respectively. For the three and nine months ended October 2, 2021, resales of these products represented approximately 75% and 77% of net product sales, respectively.

Note 4—Credit Agreement

On October 31, 2009, the Company and Silicon Valley Bank (“SVB”) entered into a credit agreement, as the same may from time to time be amended, modified, supplemented or restated, (the “SVB Credit Agreement”), which provides for a revolving line of credit up to $10.0 million, as amended. The SVB Credit Agreement was most recently amended on April 29, 2022, and the borrowing base is limited to 85% of eligible accounts receivable, subject to certain adjustments, and 50% of eligible inventory. Borrowings accrue interest on advance at a per annum rate equal to the greater of 0.75% above the Wall Street Journal prime rate (“Prime Rate”) or 4.25%. The maturity date is April 28, 2023, as amended.     

The SVB Credit Agreement requires letters of credit to be secured by cash, which is classified as restricted cash in the accompanying condensed consolidated balance sheets. As of October 1, 2022 and January 1, 2022, (i) outstanding letters of credit were $20.1 million and $10.8 million, respectively, (ii) outstanding borrowings were $8.0 million and $7.0 million, respectively, and (iii) availability under the revolving line of credit was $0.2 million and none, respectively.

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The SVB Credit Agreement subjects the Company to certain affirmative and negative covenants, including financial covenants with respect to the Company’s liquidity and restrictions on the payment of dividends. As of October 1, 2022, the Company was in compliance with its covenants under the SVB Credit Agreement.

Note 5—Debt

The Company’s debt consisted of the following (in thousands):

October 1,

January 1,

    

2022

    

2022

Notes payable

1

562

Less: amounts due within one year

(1)

(562)

Long-term debt

$

$

Note 6—Leases

The Company has operating and finance leases primarily associated with office and manufacturing facilities and certain equipment. The determination of which discount rate to use when measuring the lease obligation was deemed a significant judgment.

Lease cost and supplemental condensed consolidated cash flow information related to operating and finance leases were as follows (in thousands):

Three Months Ended

Nine Months Ended

October 1,

October 2,

October 1,

October 2,

2022

2021

    

2022

    

2021

Lease cost:

Operating lease cost

$

195

$

85

$

591

$

325

Cash paid for amounts included in the measurement of lease liabilities:

Operating cash flows from operating leases

$

167

$

85

$

486

$

325

Right-of-use assets obtained in exchange for lease obligations:

Operating leases

$

$

$

588

$

Finance leases

$

$

20

$

372

$

20

Lease modification to increase operating lease assets

$

$

$

204

$

338

For the three and nine months ended October 1, 2022, and October 2, 2021, finance lease costs and cash flows from finance leases were immaterial.

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Supplemental condensed consolidated balance sheet information related to leases was as follows (in thousands):

October 1,

January 1,

2022

2022

Operating Leases

Operating lease right-of-use assets

$

2,207

$

1,891

Accrued expenses and other current liabilities

$

487

$

318

Operating lease liabilities

1,845

1,593

Total operating lease liabilities

$

2,332

$

1,911

Finance Leases

Property and equipment, at cost

$

488

$

116

Accumulated depreciation

(97)

(54)

Property and equipment, net

$

391

$

62

Accrued expenses and other current liabilities

$

209

$

24

Other liabilities

150

41

Total finance lease liabilities

$

359

$

65

The following table includes supplemental information:

October 1,

January 1,

2022

2022

Weighted Average Remaining Lease Term (in years)

Operating lease

4.0

4.8

Finance lease

1.8

2.9

Weighted Average Discount Rate

Operating lease

5.5%

5.5%

Finance lease

4.4%

5.2%

Maturities of lease liabilities as of October 1, 2022, were as follows (in thousands):

Operating

Finance

Fiscal Year

Leases

Leases

2022 (remainder of the year)

$

167

$

55

2023

559

221

2024

613

91

2025

624

5

2026

639

2

2027

24

Total lease payments

2,626

374

Less: imputed interest

(294)

(15)

Total

$

2,332

$

359

Note 7Commitments and Contingencies

Contingent Legal Expenses

We may retain the services of law firms that specialize in patent licensing and enforcement and patent law in connection with our licensing and enforcement activities. These law firms may be retained on a contingent fee basis whereby such law firms are paid on a scaled percentage of any negotiated fee, settlements or judgments awarded based on how and when the fees, settlements or judgments are obtained.

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Litigation and Patent Reexaminations

We own numerous patents and continue to seek to grow and strengthen our patent portfolio, which covers various aspects of our innovations and includes various claim scopes. We plan to pursue avenues to monetize our intellectual property portfolio, in which we would generate revenue by selling or licensing our technology, and we intend to vigorously enforce our patent rights against alleged infringers of such rights. We dedicate substantial resources to protecting and enforcing our intellectual property rights, including with patent infringement proceedings we file against third parties and defense of our patents against challenges made by way of reexamination and review proceedings at the U.S. Patent and Trademark Office (“USPTO”) Patent Trial and Appeal Board (“PTAB”). We expect these activities to continue for the foreseeable future, with no guarantee that any ongoing or future patent protection or litigation activities will be successful, or that we will be able to monetize our intellectual property portfolio. We are also subject to litigation based on claims that we have infringed on the intellectual property rights of others.

Any litigation, regardless of its outcome, is inherently uncertain, involves a significant dedication of resources, including time and capital, and diverts management’s attention from our other activities. As a result, any current or future infringement claims or patent challenges by or against third parties, whether eventually decided in our favor or settled, could materially adversely affect our business, financial condition and results of operations. Additionally, the outcome of pending or future litigation and related patent reviews and reexaminations, as well as any delay in their resolution, could affect our ability to continue to sell our products, protect against competition in the current and expected markets for our products or license or otherwise monetize our intellectual property rights in the future.

Google Litigations

On December 4, 2009, Netlist filed a patent infringement lawsuit against Google, Inc. (“Google”) in the U.S. District Court for the Northern District of California (the “NDCA”), seeking damages and injunctive relief based on Google’s alleged infringement of our U.S. Patent No. 7,619,912 (the “‘912 Patent”) which relates generally to technologies to implement rank multiplication. The NDCA case was stayed, pending challenges to the ‘912 Patent before the USPTO. Eventually, the United States Court of Appeals for the Federal Circuit confirmed the ‘912 Patent’s validity on June 15, 2020, and the NDCA case stay was lifted and the case proceeded before Senior Judge Armstrong, where the parties entered cross motions for summary judgment. Of the issues in play, the parties contested the application of the defense of intervening rights to the claims at issue in the case. Afterward, the NDCA case was re-assigned to Chief Judge Seeborg of the NDCA, and the hearing for the parties’ cross motions took place on March 3, 2022. On May 5, 2022, Chief Judge Seeborg entered an Order granting Netlist’s Motion for Summary Judgement that Claim 16 of the ‘912 Patent is not subject to Google’s pleaded defense of Intervening Rights. On July 13, 2022, Chief Judge Seeborg ordered – shortly before the planned July 14, 2022 case management conference – that the case be stayed for a 90-day period pending the outcome of an action initiated by Samsung Electronic Co., Ltd. (“Samsung”) in Delaware involving the ‘912 Patent. Samsung’s Delaware cause of action for the ‘912 Patent was dismissed by Judge Andrews there, and Netlist shortly thereafter brought a lawsuit against Samsung for their infringement of at least the ‘912 Patent in the U.S. District Court for the Eastern District of Texas (“EDTX”). In light of the pendency of the ‘912 Patent matter Netlist brought against Samsung in EDTX, Chief Judge Seeborg entered an order via stipulation on October 17, 2022 staying the Google case until the resolution of that EDTX action.

On July 26, 2022, Netlist filed a patent infringement lawsuit against Google Cloud EMEA Limited, Google Germany GmbH, Redtec Computing GmbH, and Google, Inc., seeking damages based on those defendants’ infringement of European Patents EP 2,454,735 (“EP735”) and EP 3,404,660 (“EP660”), which both generally relate to load reduced dual in line memory modules (“LRDIMM”) technologies. As of the reporting date, the Dusseldorf Court has set Google’s deadline for a statement of defense as December 30, 2022, with the date for a final oral hearing on the issues scheduled for November 9, 2023.

Micron Litigations

On April 28, 2021, Netlist filed a complaint for patent infringement against Micron Technology, Inc. (“Micron”) in the United States District Court for the Western District of Texas, Waco Division (“WDTX”) (Case No. 6:21-cv00431 & Case No. 6:21-cv-00430). These proceedings are based on the alleged infringement by Micron’s

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LRDIMM and Micron’s non-volatile dual in line memory modules (“NVDIMM”) enterprise memory modules under four U.S. patents – U.S. Patent Nos. 10,489,314, 9,824,035, 10,268,608, and 8,301,833. As of the reporting date, the case has been assigned to Hon. Judge Lee Yeakel, and the parties completed briefing on their claim construction arguments. On May 11, 2022, Judge Yeakel entered a stay of the case pending the resolution of Micron’s requested Inter Partes Review (“IPR”) proceedings against the four patents asserted by Netlist in this case (U.S. Patent Nos. 8,301,833, 9,854,035, 10,268,608, and 10,489,314). Following entry of that stay order on September 2, 2022, Micron moved the Court to “temporarily” lift the stay to add counterclaims for declaratory judgment of noninfringement of U.S. Patent Nos. 7,619,912 (the “’912 Patent”), 9,858,215 (the “’215 Patent”), 10,860,506 (the “’506 Patent”), 10,949,339 (the “’339 Patent”), 11,016,918 (the “’918 Patent”), 11,232,054 (the “’054 Patent”), and 11,093,417 (the “’417 Patent”). This addition would encompass four of the six patents asserted in Netlist’s initial EDTX filing against Micron (Case No. 2:22-cv-00203 – further details of this case below), and all three of the patents asserted in Netlist’s second EDTX filing against Micron (Case No. 2:22-cv-00294 – further details of this case below). On October 5, 2022, Judge Yeakel denied Micron’s motion and returned the action to a stayed state, asking only that the parties submit status reports within 10-days of any activity in the relevant underlying IPR proceedings.

As noted above, Micron filed requests to bring IPR proceedings against Netlist’s U.S. Patent Nos. 8,301,833, 9,854,035, 10,268,608, and 10,489,314. As of the reporting date, the PTAB granted Micron’s request for the ‘035 Patent and the ‘833 Patent, but denied its request for the ‘608 Patent. The PTAB further denied Micron’s request for rehearing on the ‘608 Patent’s institution denial. Netlist’s Patent Owner Preliminary Response to Micron’s requests to IPR the ‘314 Patent were filed August 3, 2022.

On March 31, 2022, Netlist filed a patent infringement lawsuit against Micron in Germany, seeking damages based on their infringement of EP735 and EP660. On June 24, 2022, Netlist filed an extension of its Complaint requesting injunctive relief. Micron filed its statement of defense, thus setting Netlist’s deadline for a response as December 1, 2022. Further, Micron initiated a nullity proceeding against the asserted EP patents in this action, making Netlist’s response to the same as November 19, 2022. The Dusseldorf Court set an oral hearing for the Micron case in Dusseldorf on May 4, 2023. As of the reporting date, that deadline remains unchanged.

On June 10, 2022, Netlist filed a complaint for patent infringement against Micron in the EDTX, Marshall Division (Case No. 2:22-cv-00203-JRG-RSP). These proceedings are based on the alleged infringement by Micron’s LRDIMM, Micron’s memory modules utilizing on-board power management modules (“PMIC”), and Micron’s high bandwidth memory (“HBM”) components, under six U.S. patents – U.S. Patent Nos. 8,787,060, 9,318,160, 10,860,506, 10,949,339, 11,016,918, and 11,232,054. On September 2, 2022, contemporaneously with its filing in the stayed WDTX action, Micron moved the Court to stay and sever aspects of this initial EDTX case. Following the denial of its parallel motion in the WDTX, Micron moved to withdraw its stay motion in this case, which Chief Judge Gilstrap entered on October 15, 2022. As of the reporting date, the case stands ready to proceed with a claim construction hearing set for July 19, 2023, and trial beginning on January 22, 2024.

On August 1, 2022, Netlist filed a complaint for patent infringement against Micron in the EDTX (Case No. 2:22-cv-00294) under the ‘912 patent, which relates generally to technologies to implement rank multiplication. On August 15, 2022, Netlist filed its first amended complaint, further addressing Micron’s infringement of the ‘215 Patent and the ‘417 Patent. On September 12, 2022, Micron moved to stay this second EDTX action in light of its parallel motions pending in both the WDTX and initial EDTX cases. Given the denial of Micron’s motion in the WDTX on October 5, 2022, Micron moved to withdraw its motion to stay in this action, which Chief Judge Gilstrap entered on October 13, 2022. On October 21, 2022, Chief Judge Gilstrap ordered that this Micron action and a parallel action by Netlist against Samsung on the same patents (22-cv-00293-JRG) be consolidated and set for a joint scheduling conference on November 17, 2022, further instructing that the Samsung action be considered the “LEAD CASE” and that any further filings from either action be submitted in that case for all pretrial matters.

Samsung Litigations

On May 28, 2020, Netlist filed a complaint against Samsung in the United States District Court for the Central District of California for Samsung’s breach of the parties’ Joint Development and License Agreement (“JDLA”). On July 22, 2020, Netlist amended its complaint to seek a Declaratory Judgment that it properly terminated the JDLA in

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light of Samsung’s material breaches. On October 14, 2021, the Court entered summary judgment in Netlist’s favor and confirmed Netlist properly terminated the JDLA as of July 15, 2020. On February 15, 2022, the Court entered a Final Judgment in favor of Netlist on each of its three claims and confirmed conclusively that all licenses granted under the JDLA were terminated. On February 25, 2022, Samsung filed a Notice of Appeal, and the Federal Court of Appeals for the Ninth Circuit issued a Time Schedule Order on February 28, 2022, setting Samsung’s deadline to file an opening appeal brief as June 6, 2022. As of the reporting date, Samsung filed its opening brief seeking an appeal of the lower Court’s decisions. Netlist filed its response to Samsung’s appeal and its own opening cross-appeal brief on August 4, 2022. Samsung responded as allowed on October 6, 2022 after seeking an extension of its deadline. Netlist now has an opportunity to enter a Reply in support of its cross-appeal, which is due for filing November 28, 2022.

On October 15, 2021, Samsung filed a declaratory judgement action against Netlist in the United States District Court for the District of Delaware (“DDE”), requesting in relevant part that the Delaware District Court declare that Samsung does not infringe Netlist’s U.S. Patent Nos. 7,619,912, 9,858,218, 10,217,523, 10,474,595, 10,860,506, 10,949,339, and 11,016,918. As of the reporting date, Samsung seeks leave to add the ‘054 Patent (issued Jan. 25, 2022) to the action. Netlist believes Samsung’s claims levied in the DDE action meritless, and the relief Samsung requests unjustified. Netlist filed a motion seeking dismissal of Samsung’s operative DDE complaint, and an opposition contesting the inclusion of the ‘054 Patent as part of Samsung’s proposed second amended complaint filing. On August 1, 2022, the Court entered an Order on the pending motions denying Samsung’s request to amend its operative complaint a second time to add a count against the ‘054 Patent, and granting-in-part Netlist’s motion that various causes of action be dismissed. Specifically, Judge Andrews dismissed all of Samsung’s counts related to Netlist’s U.S. Patent Nos. 7,619,912, 10,860,506, 10,949,339, and 11,016,918. Thus, on August 22, 2022, Netlist entered its Answer to Samsung’s remaining Counterclaims. On September 12, 2022, Netlist amended its Counterclaims to include counterclaims tying Google, LLC and Alphabet, Inc. to the action. As of the reporting date, Google, LLC and Alphabet, Inc.’s responses to the claims are set for November 3, 2022.

On November 19, 2021, Samsung filed IPR requests contesting the validity of U.S. Patent Nos. 9,858,218 (the “’218 Patent”), 10,474,595 (the “’595 Patent”), and 10,217,523 (the “’523 Patent”). Netlist filed its initial responses to Samsung’s petitions on February 18, 2022, contesting the institution of any IPR on the grounds propounded. As of the reporting date, the PTAB has granted Samsung’s IPR requests related to the ‘218, ‘523, and ‘595 patents. Netlist filed its Patent Owner’s Response for the ‘523 Patent IPR on August 4, 2022, and its Patent Owner Responses for the ‘218 and ’595 Patent IPRs on August 15, 2022.

On February 17, 2022, Samsung filed an IPR request contesting the validity of only claim 16 within the ‘912 Patent. Samsung then filed two additional IPR requests contesting the validity of the ‘506 and ‘339 Patents. Netlist filed its Patent Owner’s Preliminary Response for the ‘912 and ‘339 Patent IPRs on July 21, 2022, and for the ‘506 Patent IPR on July 28, 2022. On August 26, 2022, Samsung filed two additional IPR petitions contesting the validity of Netlist’s U.S. Patent Nos. 8,787,060 (the “’060 Patent”) and 9,318,160 (the “’106 Patent”). On October 19, 2022, the PTAB set Netlist’s deadline to file its preliminary responses in those proceedings as January 19, 2023. On the same day, the PTAB instituted IPR trials on both the ‘912 and ‘339 patents. The following day, the PTAB instituted an IPR trial on the ‘506 patent. Separately, Netlist has filed its Patent Owner Preliminary Responses to Samsung’s IPR petitions against the ‘918 and ‘054 Patents on September 9, 2022 and September 8, 2022, respectively.

On June 3, 2022, Netlist filed a patent infringement lawsuit against Samsung in Dusseldorf, Germany, seeking damages for Samsung’s infringement of Netlist’s Patents EP735 and EP660. The Dusseldorf Court set an Oral Hearing date for September 5, 2023. As of the reporting date, Netlist filed an extension of its Complaint requesting injunctive relief, which Samsung followed with a request for an extension of its deadline to provide a statement of defense and alternatively to stay the proceedings entirely. Micron initiated a parallel nullity action on both patents asserted in the Dusseldorf Court, setting Netlist’s deadline to provide its initial arguments against nullity on November 19, 2022.

On December 20, 2021, Netlist filed a complaint for patent infringement against Samsung Electronics Co., Ltd., Samsung Semiconductor, Inc., and Samsung Electronics America, Inc. in the EDTX (Case No. 2:21-cv-463) under the ‘506, ‘339, and ‘918 Patents. Samsung responded to Netlist’s complaint on April 12, 2022, and Judge Gilstrap ordered a scheduling conference be set. On May 3, 2022, Netlist entered a First Amended Complaint pursuant to the Federal Rules of Civil Procedure (“FRCP”) Rule 15, adding claims for infringement under three additional patents: the ‘060, ‘160, and

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‘054 Patents. On May 4, 2022, Netlist complied with the EDTX local patent rules and served its preliminary infringement contentions on Samsung. On May 27, 2022, Samsung moved to stay this action and sever the patents it sought to add to its Declaratory Judgement action in Delaware. On August 2, 2022, Samsung withdrew that first motion to stay in light of Judge Andrews’ order mandating dismissal of all Samsung’s claims related to the Texas Netlist patents the day before. On August 30, 2022 Samsung moved to stay the action a second time, this time in light of its IPR petitions, and its appeal of the Central District California Judgment at the 9th Circuit Court of Appeals. The matter was fully briefed as of October 17, 2022. In parallel, the parties completed substantive briefing on all claim construction issues and as of the reporting date have filed a joint claim construction statement for the Court’s consideration. The Court assigned claim construction to Magistrate Judge Roy Payne, who scheduled the claim construction hearing for November 4, 2022 in his Court. The Trial start remains set for May 1, 2023.

On August 1, 2022, Netlist filed a complaint for patent infringement against Samsung Electronics Co., Ltd., Samsung Semiconductor, Inc., and Samsung Electronics America, Inc. in the EDTX (Case No. 2:22-cv-00293) under the ‘912 Patent, which relates generally to technologies to implement rank multiplication. On August 15, 2022, Netlist filed its first amended complaint here, further addressing Samsung’s infringement of the ‘215 Patent and ‘417 Patent. On August 31, 2022, Samsung Semiconductor, Inc. and Samsung Electronics America, Inc. sought and received extensions of time to respond to Netlist’s first amended complaint until October 7, 2022. Before answering on September 20, 2022, Samsung collectively moved the Court to sever and transfer the ‘912 Patent from the action and stay the remaining portions of this proceeding in light of Samsung’s appeal before 9th Circuit Court of Appeals. The matter is fully briefed, but Samsung Electronics Co., Ltd.’s response deadline remains currently set for November 29, 2022. Apart from Samsung’s early motion practice and its remaining response deadline, on October 21, 2022, Chief Judge Gilstrap ordered that this action and a parallel action by Netlist against Micron on the same patents (22-cv-00294-JRG) be consolidated and set for a joint scheduling conference on November 17, 2022, further instructing that this Samsung action be considered the “LEAD CASE” and that any further filings from either action be submitted in therefor all pretrial matters.

Other Contingent Obligations

In the ordinary course of our business, we have made certain indemnities, commitments and guarantees pursuant to which we may be required to make payments in relation to certain transactions. These include, among others: (i) intellectual property indemnities to our customers and licensees in connection with the use, sale and/or license of our products; (ii) indemnities to vendors and service providers pertaining to claims based on our negligence or willful misconduct; (iii) indemnities involving the accuracy of representations and warranties in certain contracts; (iv) indemnities to our directors and officers to the maximum extent permitted under the laws of the State of Delaware; (v) indemnities to SVB pertaining to all obligations, demands, claims, and liabilities claimed or asserted by any other party in connection with transactions contemplated by the applicable investment or loan documents, as applicable; and (vi) indemnities or other claims related to certain real estate leases, under which we may be required to indemnify property owners for environmental and other liabilities or may face other claims arising from our use of the applicable premises. The duration of these indemnities, commitments and guarantees varies and, in certain cases, may be indefinite. The majority of these indemnities, commitments and guarantees do not provide for any limitation of the maximum potential for future payments we could be obligated to make. Historically, we have not been obligated to make significant payments as a result of these obligations, and no liabilities have been recorded for these indemnities, commitments and guarantees in the accompanying consolidated balance sheets.

Note 8—Stockholders’ Equity

Serial Preferred Stock

The Company’s authorized capital stock includes 10,000,000 shares of serial preferred stock, with a par value of $0.001 per share. No shares of preferred stock were outstanding as of October 1, 2022 or January 2, 2022.

On April 17, 2017, the Company entered into a rights agreement (as amended from time to time, the “Rights Agreement”) with Computershare Trust Company, N.A., as rights agent. In connection with the adoption of the Rights Agreement and pursuant to its terms, the Company’s board of directors authorized and declared a dividend of one right (each, a “Right”) for each outstanding share of the Company’s common stock to stockholders of record at the close of

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business on May 18, 2017 (the “Record Date”), and authorized the issuance of one Right for each share of the Company’s common stock issued by the Company (except as otherwise provided in the Rights Agreement) between the Record Date and the Distribution Date (as defined below).

Each Right entitles the registered holder, subject to the terms of the Rights Agreement, to purchase from the Company, when exercisable and subject to adjustment, one unit consisting of one one-thousandth of a share (a “Unit”) of Series A Preferred Stock of the Company (the “Preferred Stock”), at a purchase price of $6.56 per Unit, subject to adjustment. Subject to the provisions of the Rights Agreement, including certain exceptions specified therein, a distribution date for the Rights (the “Distribution Date”) will occur upon the earlier of (i) 10 business days following a public announcement that a person or group of affiliated or associated persons (an “Acquiring Person”) has acquired or otherwise obtained beneficial ownership of 15% or more of the then-outstanding shares of the Company’s common stock, and (ii) 10 business days (or such later date as may be determined by the Company’s board of directors) following the commencement of a tender offer or exchange offer that would result in a person or group becoming an Acquiring Person. The Rights are not exercisable until the Distribution Date and, unless earlier redeemed or exchanged by the Company pursuant to the terms of the Rights Agreement (as amended on April 16, 2018, April 16, 2019 and August 14, 2020) will expire on the close of business on April 17, 2024.

In connection with the adoption of the Rights Agreement, the Company’s board of directors approved a Certificate of Designation of the Series A Preferred Stock (the “Certificate of Designation”) designating 1,000,000 shares of its serial preferred stock as Series A Preferred Stock and setting forth the rights, preferences and limitations of the Preferred Stock. The Company filed the Certificate of Designation with the Secretary of State of the State of Delaware on April 17, 2017.

Common Stock

September 2021 Lincoln Park Purchase Agreement

On September 28, 2021, the Company entered into a purchase agreement (the “September 2021 Purchase Agreement”) with Lincoln Park, pursuant to which the Company has the right to sell to Lincoln Park up to an aggregate of $75 million in shares of its common stock subject to the conditions and limitations set forth in the September 2021 Purchase Agreement. Concurrent with the execution of the September 2021 Purchase Agreement, the Company also entered into a registration rights agreement with Lincoln Park relating to the Company’s common stock to be sold to Lincoln Park. As consideration for entering into the September 2021 Purchase Agreement, the Company issued to Lincoln Park 218,750 shares of its common stock as initial commitment shares in a noncash transaction on September 28, 2021 and will issue up to 143,750 additional shares of its common stock as additional commitment shares on a pro rata basis in connection with any additional purchases. The Company will not receive any cash proceeds from the issuance of these additional commitment shares.

Pursuant to the September 2021 Purchase Agreement, on any business day and as often as every other business day over the 36-month term of the September 2021 Purchase Agreement, the Company has the right, from time to time, at its sole discretion and subject to certain conditions, to direct Lincoln Park to purchase up to 750,000 shares of its common stock, provided Lincoln Park’s obligation under any single such purchase will not exceed $4.0 million, unless the Company and Lincoln Park mutually agree to increase the maximum amount of such single regular purchase. If the Company directs Lincoln Park to purchase the maximum number of shares of common stock, it then may sell in a regular purchase, then in addition to such regular purchase, and subject to certain conditions and limitations in the September 2021 Purchase Agreement, the Company may direct Lincoln Park to purchase an additional amount of common stock that may not exceed the lesser of (i) 300% of the number of shares purchased pursuant to the corresponding regular purchase or (ii) 30% of the total number of shares of its common stock traded during a specified period on the applicable purchase date as set forth in the September 2021 Purchase Agreement. Under certain circumstances and in accordance with the September 2021 Purchase Agreement, the Company may direct Lincoln Park to purchase shares in multiple accelerated purchases on the same trading day.

The Company controls the timing and amount of any sales of its common stock to Lincoln Park. There is no upper limit on the price per share that Lincoln Park must pay for the Company’s common stock under the September

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2021 Purchase Agreement, but in no event will shares be sold to Lincoln Park on a day the closing price is less than the floor price specified in the September 2021 Purchase Agreement. In all instances, the Company may not sell shares of its common stock to Lincoln Park under the September 2021 Purchase Agreement if that would result in Lincoln Park beneficially owning more than 9.99% of its common stock.

The September 2021 Purchase Agreement does not limit the Company’s ability to raise capital from other sources at the Company’s sole discretion, except that, subject to certain exceptions, the Company may not enter into any Variable Rate Transaction (as defined in the September 2021 Purchase Agreement, including the issuance of any floating conversion rate or variable priced equity-like securities) during the 36 months after the date of the September 2021 Purchase Agreement. The Company has the right to terminate the September 2021 Purchase Agreement at any time, at no cost to the Company.

During 2021, Lincoln Park purchased an aggregate of 1,550,000 shares of our common stock for a net purchase price of $10.9 million under the September 2021 Purchase Agreement. In connection with the purchases, we issued to Lincoln Park an aggregate of 20,809 shares of our common stock as additional commitment shares in noncash transactions. During the nine months ended October 1, 2022, Lincoln Park purchased an aggregate of 650,000 shares of our common stock for a net purchase price of $3.7 million under the September 2021 Purchase Agreement. In connection with the purchases, we issued to Lincoln Park an aggregate of 7,168 shares of our common stock as additional commitment shares in noncash transactions.

Note 9—Stock-Based Awards

As of October 1, 2022, the Company had 464,076 shares of common stock reserved for future issuance under its Amended and Restated 2006 Incentive Plan (“Amended 2006 Plan”). Stock options granted under the Amended 2006 Plan generally vest at a rate of at least 25% per year over four years and expire 10 years from the grant date. RSUs granted for employees and consultants generally vest in equal installments annually and fully vest over a four-year term from the grant date.

Stock Options

The following table summarizes the activity related to stock options during the nine months ended October 1, 2022:

Weighted-

Number of

Average

Shares

Exercise

(in thousands)

    

Price

Outstanding as of January 1, 2022

5,899

$

0.88

Granted

Exercised

(404)

0.69

Expired or forfeited

(605)

0.67

Outstanding as of October 1, 2022

4,890

$

0.92

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Restricted Stock Units

The following table summarizes the activity related to RSUs during the nine months ended October 1, 2022:

Weighted-

Average

Number of

Grant-Date

Shares

Fair Value

(in thousands)

per Share

Outstanding as of January 1, 2022

2,228

$

1.36

Granted

2,651

4.25

Vested

(1,276)

1.13

Forfeited

(266)

5.43

Outstanding as of October 1, 2022

3,337

$

3.42

Stock-Based Compensation

The following table summarizes the stock-based compensation expense by line item in the condensed consolidated statements of operations (in thousands):

Three Months Ended

    

Nine Months Ended

October 1,

October 2,

October 1,

October 2,

2022

2021

2022

2021

Cost of sales

$

22

$

2

$

41

$

9

Research and development

283

160

674

438

Selling, general and administrative

587

283

1,649

715

Total

$

892

$

445

$

2,364

$

1,162

As of October 1, 2022, the Company had approximately $9.7 million, net of estimated forfeitures, of unearned stock-based compensation, which it expects to recognize over a weighted-average period of approximately 3.2 years.

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Item 2.

Management’s Discussion and Analysis of Financial Condition and Results of Operations

Note Regarding Forward-Looking Statements

This Management’s Discussion and Analysis of Financial Condition and Results of Operations (“MD&A”) and other parts of this report include “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements are statements other than historical facts and often address future events or our future performance. Words such as "anticipate," "estimate," "expect," "project," "intend," "may," “will,” “might,” "plan," "predict," "believe," "should," “could” and similar words or expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words.

Forward-looking statements contained in this MD&A include statements about, among other things: 

specific and overall impacts of the COVID-19 pandemic on our financial condition and results of operations;
our beliefs regarding the market and demand for our products or the component products we resell;
our ability to develop and launch new products that are attractive to the market and stimulate customer demand for these products;
our plans relating to our intellectual property, including our goals of monetizing, licensing, expanding and defending our patent portfolio;
our expectations and strategies regarding outstanding legal proceedings and patent reexaminations relating to our intellectual property portfolio;
our expectations with respect to any strategic partnerships or other similar relationships we may pursue;
the competitive landscape of our industry;
general market, economic and political conditions;
our business strategies and objectives;
our expectations regarding our future operations and financial position, including revenues, costs and prospects, and our liquidity and capital resources, including cash flows, sufficiency of cash resources, efforts to reduce expenses and the potential for future financings;
our ability to remediate any material weakness, maintain effective internal control over financial reporting and satisfy the accelerated and enhanced disclosure obligations that will apply to us as we transition from a “smaller reporting company” to a “large accelerated filer” in 2022; and
the impact of the above factors and other future events on the market price and trading volume of our common stock.

All forward-looking statements reflect management’s present assumptions, expectations and beliefs regarding future events and are subject to known and unknown risks, uncertainties and other factors that could cause actual results to differ materially from those expressed in or implied by any forward-looking statements. These risks and uncertainties include those described under “Risk Factors” in Part II, Item 1A of this report. In light of these risks and uncertainties, our forward-looking statements should not be relied on as predictions of future events. Additionally, many of these risks and uncertainties are currently elevated by and may or will continue to be elevated by the COVID-19 pandemic. All forward-looking statements reflect our assumptions, expectations and beliefs only as of the date they are made, and except as required by law, we undertake no obligation to revise or update any forward-looking statements for any reason.

The following MD&A should be read in conjunction with our condensed consolidated financial statements and the related notes included in Part I, Item 1 of this report, as well as our Annual Report on Form 10-K for our fiscal year ended January 1, 2022 (the “2021 Annual Report”) filed with the SEC. All information presented herein is based on our fiscal calendar, and references to particular years, quarters, months or periods refer to our fiscal years ended in January or December and the associated quarters, months and periods of those fiscal years. Each of the terms the “Company,” “Netlist,” “we,” “us,” or “our” as used herein refers collectively to Netlist, Inc. and its consolidated subsidiaries, unless otherwise stated.

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Overview

Netlist provides high-performance solid-state drives and modular memory solutions to enterprise customers in diverse industries. Our NVMe SSDs in various capacities and form factors and the line of custom and specialty memory products bring industry-leading performance to server and storage appliance customers and cloud service providers. Netlist licenses its portfolio of intellectual property including patents, in server memory, hybrid memory and storage class memory, to companies that implement Netlist’s technology.

During the third quarter of 2022, we recorded net sales of $34.4 million, gross profit of $2.2 million and net loss of $9.6 million. We have historically financed our operations primarily with proceeds from issuances of equity and debt securities and cash receipts from revenues. We have also funded our operations with a revolving line of credit and term loans under a bank credit facility. See “Recent Developments” and “Liquidity and Capital Resources” below for more information.

Recent Developments

SK hynix Agreements

On April 5, 2021, we entered into a Strategic Product Supply and License Agreement (the “Strategic Agreement”) and Product Purchase and Supply Agreement (“Supply Agreement”) with SK hynix, Inc., a South Korean memory semiconductor supplier (“SK hynix”). Both agreements have a term of 5 years. Under the Strategic Agreement, (a) we have granted to SK hynix worldwide, non-exclusive, non-assignable licenses to certain of our patents covering memory technologies and (b) SK hynix has granted to us worldwide, non-exclusive, non-assignable licenses to its patent portfolio. In addition, the Strategic Agreement provided for the settlement of all intellectual property proceedings between us and SK hynix and a fee of $40 million paid to us by SK hynix. In addition, the parties have agreed to collaborate on certain technology development activities.

Amendment to SVB Credit Agreement

On October 31, 2009, we entered into the SVB Credit Agreement, which provides for a revolving line of credit of up to $10.0 million, as amended. The SVB Credit Agreement was most recently amended on April 29, 2022, and the borrowing base is limited to 85% of eligible accounts receivable, subject to certain adjustments, and 50% of eligible inventory. Borrowings accrue interest on advance at a per annum rate equal to the greater of 0.75% above the Prime Rate or 4.25%. The maturity date is April 28, 2023, as amended.

September 2021 Lincoln Park Purchase Agreement

On September 28, 2021, we entered into the September 2021 Purchase Agreement with Lincoln Park, pursuant to which we have the right to sell to Lincoln Park up to an aggregate of $75 million in shares of our common stock over the 36-month term of the September 2021 Purchase Agreement subject to the conditions and limitations set forth in the September 2021 Purchase Agreement.

During 2021, Lincoln Park purchased an aggregate of 1,550,000 shares of our common stock for a net purchase price of $10.9 million under the September 2021 Purchase Agreement. In connection with the purchases, we issued to Lincoln Park an aggregate of 20,809 shares of our common stock as additional commitment shares in noncash transactions. During the nine months ended October 1, 2022, Lincoln Park purchased an aggregate of 650,000 shares of our common stock for a net purchase price of $3.7 million under the September 2021 Purchase Agreement. In connection with the purchases, we issued to Lincoln Park an aggregate of 7,168 shares of our common stock as additional commitment shares in noncash transactions.

Economic Conditions, Challenges and Risks

Our performance, financial condition and prospects are affected by a number of factors and are exposed to a number of risks and uncertainties. We operate in a competitive and rapidly evolving industry in which new risks emerge

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from time to time, and it is not possible for us to predict all of the risks we may face, nor can we assess the impact of all factors on our business or the extent to which any factor or combination of factors could cause actual results to differ from our expectations. See the discussion of certain risks that we face under “Risk Factors” in Part II, Item 1A of this report.

Impact of COVID-19 on our Business

The impact of the coronavirus disease (“COVID-19”) pandemic will have on our consolidated results of operations is uncertain. Although we initially observed demand increases in our products, we anticipate that the global health crisis caused by COVID-19 may negatively impact business activity across the globe. We will continue to actively monitor the situation and may take further actions altering our business operations that we determine are in the best interests of our employees, customers, suppliers, and stakeholders, or as required by federal, state, or local authorities. It is not clear what the potential effects of such alterations or modifications may have on our business, consolidated results of operations, financial condition, and liquidity.

Results of Operations

Net Sales and Gross Profit

Net sales and gross profit for the three and nine months ended October 1, 2022, and October 2, 2021 were as follows (dollars in thousands):

Three Months Ended

Nine Months Ended

October 1,

October 2,

%

October 1,

October 2,

%

    

2022

    

2021

    

Change

 

2022

    

2021

    

Change

Net product sales

$

34,424

$

26,749

29%

$

139,982

$

66,009

112%

License fee

0%

40,000

(100%)

Net sales

34,424

26,749

29%

139,982

106,009

32%

Gross profit - product sales

$

2,180

$

2,508

(13%)

$

10,291

$

6,874

50%

Gross margin percentage - product sales

6%

9%

7%

10%

Gross profit

$

2,180

$

2,508

(13%)

$

10,291

$

46,874

(78%)

Gross margin percentage

6%

9%

7%

44%

Net Sales

Net sales include (i) resales of component products including DIMMs, SSDs, and dynamic random-access memory (“DRAM ICS” or DRAM) products, and sales of our high-performance memory subsystems and (ii) an upfront non-refundable fee pursuant to the Strategic Agreement with SK hynix entered into on April 5, 2021.

Net product sales increased by approximately $7.7 million during the third quarter of 2022 compared to the same quarter of 2021, primarily as a result of a $12.4 million increase in re-sale of SK hynix products and a $4.9 million increase in sale of Netlist’s flash and SSD products, offset by a $9.6 million decrease in sales of low-profile memory subsystem products.

Net product sales increased by approximately $74.0 million during the first nine months of 2022 compared to the same period in 2021, primarily as a result of a $84.0 million increase in re-sale of SK hynix products and a $8.1 million increase in sale of Netlist’s flash and SSD products, offset by a $18.0 million decrease in sales of low-profile memory subsystem products.

Gross Profit and Gross Margin

Product gross profit decreased by $0.3 million during the third quarter of 2022 compared to the same quarter of 2021 primarily as a result of softer pricing environment and product sales mix. Product gross profit increased during the first nine months of 2022 compared to the same period of 2021 due primarily to higher sales across all product groups.

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Product gross margin percentage decreased between the periods as a result of the change in our product mix and increased component product resales as a percentage of revenue.

Operating Expenses

Operating expenses for the three and nine months ended October 1, 2022, and October 2, 2021, were as follows (dollars in thousands):

Three Months Ended

Nine Months Ended

October 1,

October 2,

%

October 1,

October 2,

%

    

2022

    

2021

    

Change

2022

    

2021

    

Change

Research and development

$

2,550

$

2,038

25%

$

7,679

$

5,222

47%

Percentage of net product sales

7%

8%

5%

8%

Intellectual property legal fees

$

5,577

$

8,461

(34%)

$

11,716

$

14,585

(20%)

Percentage of net product sales

16%

32%

8%

22%

Selling, general and administrative

$

3,767

$

2,590

45%

$

11,429

$

7,639

50%

Percentage of net product sales

11%

10%

8%

12%

Research and Development

Research and development expenses increased during the third quarter and the first nine months of 2022 compared to the same periods of 2021 due primarily to an increase in employee headcount, related overhead and new product research.

Intellectual Property Legal Fees

Intellectual property legal fees consist of legal fees incurred for patent filings, protection and enforcement. Although we expect intellectual property legal fees to generally increase over time as we continue to protect, defend and enforce and seek to expand our patent portfolio, these increases may not be linear but may occur in lump sums depending on the due dates of patent filings and their associated fees and the arrangements we may make with our legal advisors in connection with enforcement proceedings, which may include fee arrangements or contingent fee arrangements in which we would pay these legal advisors on a scaled percentage of any negotiated fees, settlements or judgments awarded to us based on if, how and when the fees, settlements or judgments are obtained. See Note 7 to the condensed consolidated financial statements included in Part I, Item 1 of this report for further discussion.

Intellectual property legal fees decreased during the third quarter and the first nine months of 2022 compared to the same periods of 2021 due primarily to lower legal expenses incurred to defend our patent portfolio internationally.

Selling, General and Administrative

Selling, general and administrative expenses increased during the third quarter and the first nine months of 2022 compared to the same periods of 2021 due primarily to an increase in employee headcount and overhead and outside services. As a result of the significant increase in the value of our non-affiliate public float in recent periods, we are a “large accelerated filer” as of the end of fiscal year ended January 2, 2022 which means that we need to file our quarterly and annual reports on an accelerated basis and that we are required to have our independent registered public accounting firm audit and attest to our internal control over financial reporting. Complying with these requirements requires us to invest a material amount in enhancing our financial reporting infrastructure that will cause our selling, general and administrative expenses to increase in future periods.

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Other Income (Expense), Net

Other income (expense), net for the three and nine months ended October 1, 2022, and October 2, 2021 was as follows (dollars in thousands):

Three Months Ended

Nine Months Ended

October 1,

October 2,

%

October 1,

October 2,

%

    

2022

    

2021

    

Change

2022

    

2021

    

Change

Interest income (expense), net

$

34

$

(125)

$

38

$

(417)

Other income (expense), net

82

(2)

74

641

Total other income (expense), net

$

116

$

(127)

191%

$

112

$

224

50%

Interest expense, net, in 2021 consisted primarily of interest expense on the $15 million secured convertible note issued to Samsung Venture Investment Co. (“SVIC Note”) in November 2015 and a revolving line of credit under the SVB Credit Agreement, along with the accretion of debt discounts and amortization of debt issuance costs on the SVIC Note. The SVIC Note was paid off in the fourth quarter of 2021 resulting in a decrease in interest expense for the third quarter and the first nine months of 2022 compared to the same periods of 2021.

Other income, net increased during the third quarter of 2022 compared to the same quarter of 2021 primarily as a result of a one-time gain from a sanction judgment. During the first nine months of 2021, other income, net included the gain on forgiveness of the Paycheck Protection Program Loan of $0.6 million. This gain was recognized during the second quarter of 2021 resulting in a decrease in other income for the first nine months of 2022 compared to the same period of 2021.

Liquidity and Capital Resources

Our primary sources of cash are historically proceeds from issuances of equity and debt securities and receipts from revenues. In addition, we have received proceeds from non-recurring engineering and licensing of our patent portfolio, including as a result of our entry into the SK hynix Strategic Agreement, which we use to support our operations. We have also funded our operations with a revolving line of credit under a bank credit facility, and to a lesser extent, equipment leasing arrangements.

The following tables present selected financial information as of October 1, 2022, and January 1, 2022 and for the first nine months of 2022 and 2021 (in thousands):

October 1,

January 1,

    

2022

    

2022

Cash, cash equivalents and restricted cash

$

43,442

$

58,479

Convertible promissory note and accrued interest, net

1

562

Working capital

37,168