What changed in this filing

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Item 9A. Controls and Procedures

2023-02-28 compared with 2022-03-01 · 102 added, 126 removed, 405 unchanged (36% of the section changed)

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Our management conducted an evaluation, with the participation of our principal executive officer and principal financial officer, of the effectiveness of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) promulgated under the Exchange Act) as of the end of the period covered by this report.

Based on this evaluation, due to the material weaknesses in our internal control over financial reporting described below, our principal executive officer and our principal financial officer concluded that our disclosure controls and procedures were not effective as of January 1, 2022.

Management’s Annual Report on Internal Control Over Financial Reporting

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Our management conducted an evaluation, with the participation of our principal executive officer and principal financial officer, of the effectiveness of our internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) promulgated under the Exchange Act) as of the end of the period covered by this report.

Based on this evaluation, due to (i) the lack of an independent board and audit committee and ineffective risk assessment and monitoring controls and (ii) ineffective design and maintenance of controls over user access and program change management related to certain information technology (IT) systems that support our financial reporting processes, our principal executive officer and our principal financial officer concluded that our internal control over financial reporting was not effective as of January 1, 2022.

Notwithstanding the material weaknesses in our internal control over financial reporting, we have concluded that the consolidated financial statements included in this Form 10-K fairly present, in all material respects, our financial position, results of operations and cash flows for the periods presented in conformity with accounting principles generally accepted in the United States of America (“U.S.

The effectiveness of our internal control over financial reporting as of January 1, 2022 has been audited by KMJ Corbin & Company LLP, an independent registered public accounting firm, as stated in their report, which is included in Part II, Item 8, of this Form 10-K.

In making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) in Internal Control-Integrated Framework.

Based on this evaluation, due to the lack of an independent board and audit committee and ineffective oversight of the financial reporting process to ensure adequate monitoring and oversight of internal controls, our principal executive officer and our principal financial officer concluded that our internal control over financial reporting was not effective as of December 31, 2022 based on the criteria set forth by COSO.

Notwithstanding the material weakness in our internal control over financial reporting, we have concluded that the consolidated financial statements included in this Form 10-K fairly present, in all material respects, our financial position, results of operations and cash flows for the periods presented in conformity with U.S.

The effectiveness of our internal control over financial reporting as of December 31, 2022 has been audited by KMJ Corbin & Company LLP, an independent registered public accounting firm, as stated in their report, which is included in Part II, Item 8, of this Form 10-K.

Changes in Internal Control Over Financial Reporting

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Remediation Initiatives

In an effort to remediate the identified material weaknesses and enhance our internal controls related to our lack of an independent board and audit committee, we continue to maintain our financial reporting process we followed to prepare consolidated financial statements in accordance with U.S.

In an effort to address the identified material weakness and enhance our internal controls related to our lack of an independent board and audit committee, we continue to maintain our financial reporting process we followed to prepare consolidated financial statements in accordance with U.S.

GAAP for audit committee meetings on a quarterly and annual basis.

We engage all departments groups to identify risks to the achievement of our goals as a basis for determining how the risks should be managed.

In an effort to remediate the identified material weakness related to our ineffective design and maintenance of controls over user access and program change management related to certain IT systems, we have hired a full-time Senior Director of IT in the fourth quarter of 2021 with a primary mandate to focus on SOX compliance and mitigation plans for 2022.

Our Chief Executive Officer and sole director will oversee the process to ensure all required disclosures are made in our consolidated financial statements on a quarterly and annual basis.

Our CEO and sole director will oversee the process to ensure all required disclosures are made in our consolidated financial statements on a quarterly and annual basis.

Other Information

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Each member of the Board is elected annually at a meeting of our stockholders and serves for a one-year term until the next annual meeting of our stockholders and until his or her successor is elected and qualified, or until an earlier resignation or removal.

Each of our executive officers is appointed by, and serves at the direction of, our Board, subject to the terms of our employment agreement with our President and Chief Executive Officer, which is described under “Employment Agreements” in Item 11 of this Form 10-K, and which establishes, among other things, such executive officer’s term of office.

Each of our executive officers is appointed by, and serves at the direction of, our Board, subject to the terms of our employment agreement with our President and CEO, which is described under “Employment Agreements” in Item 11 of this Form 10-K, and which establishes, among other things, such executive officer’s term of office.

The table and narrative below provide, for our current director and executive officers, each such individual’s name;

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Executive Vice President, Chief Financial Officer and Secretary

Hong is one of the founders of Netlist and has been our President and Chief Executive Officer and a director since our inception in June 2000.

Hong assumed the title of Chairman of the Board of Directors in January 2004.

Hong is one of the founders of Netlist and has been our President and CEO and a director since our inception in June 2000.

Hong assumed the title of Chairman of the Board of Directors in January 2004 and became a sole member of the Board of Directors in August 2020.

Prior to his tenure at Netlist, Mr.

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Hong brings to the Board extensive knowledge of our organization and our market.

Gail Sasaki has been our Executive Vice President and Chief Financial Officer since July 2021 and our Secretary since August 2007.

From January 2008 to July 2021, Ms.

Sasaki served as our Vice President and Chief Financial Officer, and from 2006 to January 2008, Ms.

Sasaki served as our Vice President of Finance.

Gail Sasaki is our Executive Vice President and Chief Financial Officer (“CFO”).

Sasaki has been our Secretary since August 2007.

Sasaki joined us in 2006 as Vice President of Finance and subsequently assumed the role of CFO in January 2008.

Prior to her tenure at Netlist, Ms.

Sasaki served in various senior financial roles, including Chief Financial Officer of eMaiMai, Inc., a commercial technology company based in Hong Kong and mainland China;

Chief Financial Officer, Senior Vice President of Finance, Secretary and Treasurer of eMotion, Inc.

(a Kodak subsidiary and formerly Cinebase Software), a developer of business-to-business media management software and services, and Chief Financial Officer of MicroNet Technology, Inc., a leader in storage technology.

Sasaki served in various senior financial roles, including CFO of eMaiMai, Inc., a commercial technology company based in Hong Kong and mainland China;

CFO, Senior Vice President of Finance, Secretary and Treasurer of eMotion, Inc.

(a Kodak subsidiary and formerly Cinebase Software), a developer of business-to-business media management software and services, and CFO of MicroNet Technology, Inc., a leader in storage technology.

Sasaki also spent seven years in public accounting leaving as an audit manager with Arthur Young (now known as Ernst &Young LLP).

Sasaki earned a Bachelor’s degree from the University of California at Los Angeles, and a Master of Business Administration degree from the University of Southern California.

Sasaki earned a Bachelor’s degree from the University of California at Los Angeles, and also earned a Master of Business Administration degree from the University of Southern California.

Code of Business Conduct and Ethics

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The actual amount and form of compensation and the compensation programs that we adopt may differ materially from current or planned programs as summarized in this discussion .

The following discussion and analysis relates to the compensation arrangements for 2021 of (i) our principal executive officer, (ii) our principal financial officer and (iii) the most highly compensated person, other than our principal executive officer and principal financial officer, who was serving as an executive officer at the end of our fiscal year ended January 1, 2022 (our “named executive officers”).

We had no other executive officers serving at the end of our fiscal year ended January 1, 2022.

The following discussion and analysis relates to the compensation arrangements for 2022 of (i) our principal executive officer, (ii) our principal financial officer and (iii) the most highly compensated person, other than our principal executive officer and principal financial officer, who was serving as an executive officer at the end of our fiscal year ended December 31, 2022 (our “named executive officers”).

We had no other executive officers serving at the end of our fiscal year ended December 31, 2022.

Our named executive officers for fiscal year 2022 were:

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We recognize that the goals of employee attraction, retention and motivation must be balanced against the necessity of controlling compensation expense, with the ultimate objective of building shareholder value.

With respect to the compensation of our named executive officers, our President, Chief Executive Officer and Sole Director, who has the responsibility to design a compensation program and set levels of compensation that attempt to achieve the optimal balance between employee attraction, retention and motivation, adjusted the executive officers’ compensation for 2021.

With respect to the compensation of our named executive officers, our President, CEO and Sole Director, who has the responsibility to design a compensation program and set levels of compensation that attempt to achieve the optimal balance between employee attraction, retention and motivation, adjusted the executive officers’ compensation for 2022.

Key Factors in Determining Executive Compensation

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Our sole Director has from time to time engaged the services of outside consultants to assist in making decisions regarding the establishment of Netlist’s compensation philosophy and programs.

Most recently the Company engaged Mercer to provide guidelines for executive compensation programs for 2022.

Role of Executive Officers in Compensation Decisions

Our sole Director has overall responsibility for the compensation of our Chief Executive Officer and Chief Financial Officer.

Our sole Director considered the executive officers’ responsibilities, performance, compensation, and

the compensation program’s ability to attract, retain and motivate executive talent.

These considerations reflected compensation levels that our sole Director believed were qualitatively commensurate with executive officers’ individual qualifications, experience, responsibility level, functional role, knowledge, skills and individual performance, as well as Netlist’s performance.

Our sole Director has overall responsibility for the compensation of our CEO and CFO.

Our sole Director considered the executive officers’ responsibilities, performance, compensation, and the compensation program’s ability to attract, retain and motivate executive talent.

These considerations reflected compensation levels that our sole Director

believed were qualitatively commensurate with executive officers’ individual qualifications, experience, responsibility level, functional role, knowledge, skills and individual performance, as well as Netlist’s performance.

Role of Stockholder Say-on-Pay Votes

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In 2022, our full-year accomplishments under our executive leadership included the following:

● Total revenues of $142.4 million, representing an increase of $95.1 million compared to the prior year;

● Net income of $4.8 million and gross margin of 34%, representing favorable changes of $12.1 million and 20.1%, respectively, compared to the prior year;

● Year-end cash and cash equivalent balance of $47.7 million, representing an increase of $34.4 million from the end of prior year;

● Favorable settlement of SK hynix litigation and signing of SK hynix $40 million licensing and $600 million supply agreement

● Total net product sales of $161.6 million, representing an increase of $59.3 million compared to the prior year;

● Total product gross profit of $11.9 million, representing an increase of $3.0 million compared to the prior year.

The following table sets forth information regarding the annualized base salary rates at the end of 2022 for our named executive officers:

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Our equity-based incentives have historically been granted in the form of options to purchase shares of our common stock and restricted stock unit awards that are settled in shares of our common stock upon vesting, and we have granted to both our named executive officers awards that vest over a long-term period subject to continued service.

We believe that equity awards more closely align the interests of our named executive officers with our stockholders,

provide our named executive officers with incentives linked to long-term performance, and create an ownership culture.

We believe that equity awards more closely align the interests of our named executive officers with our stockholders, provide our named executive officers with incentives linked to long-term performance, and create an ownership culture.

In addition, the vesting features of our equity awards contribute to executive retention because these features provide an incentive to our named executive officers to remain in our employment during the scheduled vesting periods or until the achievement of the applicable performance milestones, which are expected to be achieved over the medium- to long-term.

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instead, the Board or our sole Director exercises judgment and discretion.

The sole Director considers, among other things, the role and responsibility of the named executive officer, competitive factors, the amount of stock-based equity compensation already held by the named executive officer, and the cash-based compensation received by the named executive officer, to determine the level and types of equity awards that it approves.

Our bonuses are formula-based and weighted towards our financial growth and closely aligning the achievement of bonuses with our financial performance.

The sole Director considers, among other things, the role and responsibility

of the named executive officer, competitive factors, the amount of stock-based equity compensation already held by the named executive officer, and the cash-based compensation received by the named executive officer, to determine the level and types of equity awards that it approves.

Our bonuses are discretionary with substantial weight given to financial performance during the year and the enhancement of long-term stockholder value.

Generally, we do not provide any perquisites or other personal benefits to our named executive officers except in certain limited circumstances and as provided in employment agreements.

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● a health savings account.

Employment Agreements – Chief Executive Officer

In September 2006, we entered into an employment agreement with our President and Chief Executive Officer, Mr.

This agreement provides for an initial base salary of $323,000 plus other specified benefits, including the reimbursement of professional fees and expenses incurred in connection with income and estate tax planning and preparation, income tax audits and the defense of income tax claims;

Employment Agreements – CEO

In September 2006, we entered into an employment agreement with our President and CEO, Mr.

This agreement provides for a base salary plus other specified benefits, including the reimbursement of professional fees and expenses incurred in connection with income and estate tax planning and preparation, income tax audits and the defense of income tax claims;

the reimbursement of membership fees and expenses for professional organizations and one country club;

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Hong would immediately become fully vested and exercisable as of the effective date of the termination or resignation.

Hong’s employment is

terminated due to death or disability, he or his estate would receive a lump-sum payment equal to half of his annual base salary and any stock options held by Mr.

Hong’s employment is terminated due to death or disability, he or his estate would receive a lump-sum payment equal to half of his annual base salary and any stock options held by Mr.

Hong would vest to the same extent as they would have vested one year thereafter.

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Hong, without his consent, of duties inconsistent with his position so as to constitute a diminution of status with our Company, including an assignment of Mr.

Hong to a position other than President and Chief Executive Officer of our Company, (ii) our reduction of Mr.

Hong to a position other than President and CEO of our Company, (ii) our reduction of Mr.

Hong’s base salary as in effect at any time without Mr.

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For 2022, 2021 and 2020, Ms.

Sasaki received an annualized base salary of $275,000, $285,577 and $200,000.

Sasaki received an annualized base salary of $275,000, $275,000 and $285,577, respectively.

If the employment of Ms.

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Executive Vice President, Chief Financial Officer and Secretary

(1) Represents the grant date fair value of the restricted stock units (“RSUs”) granted during the year calculated in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 718, Compensation—Stock Compensation (“ASC 718”).

(1) Represents the grant date fair value of the RSUs granted during the year calculated in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 718, Compensation—Stock Compensation (“ASC 718”).

The grant date fair value was determined using the fair value of the underlying shares of our common stock.

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Hong’s behalf and (b) for Ms.

Sasaki, the amount is for a health club membership.

For 2020, the amount consists of (a) for Mr.

Hong, $10,936 for automobile rental payments, $7,509 for other vehicle-related costs, $24,600 for a country club membership, $14,769 for a health club membership, and $4,278 for income tax and estate planning costs incurred on Mr.

Hong’s behalf, and (b) for Ms.

Sasaki, the amount is for weekly fitness training.

For 2019, the amount consists of $10,936 for automobile rental payments, $8,694 for other vehicle-related costs, $22,052 for a country club membership, $4,532 for a health club membership, and $5,272 for income tax and estate planning costs incurred on Mr.

Hong’s behalf.

Hong received no additional compensation for his service as a director.

CEO Pay Ratio – 2022

The 2021 annual total compensation of our CEO was $1,800,275, the 2021 annual total compensation of our median compensated employee was $56,160, and the ratio of these amounts is 32 to 1.

We determined our median compensated employee by using base salary, bonuses, and grant date fair value of equity awards granted to employees in 2021 as our consistently applied compensation measure.

We applied this measure to our employee population as of January 1, 2022, the last day of our 2021 fiscal year, and annualized base salaries for permanent full-time and part-time employees that did not work the full year.

Once we determined our median compensated employee using these measures, we calculated the employee’s 2021 annual total compensation using the same methodology that is used to calculate our CEO’s annual total compensation in the table entitled “Summary Compensation Table.”

We compared the 2022 annual total compensation of our CEO of $3,204,888 and the 2022 annual total compensation of our median global compensated employee of $77,099.

The result of this calculation was a CEO Pay Ratio of 42 to 1.

We determined the median global compensated employee’s total compensation by using the same methodology used to calculate our CEO’s annual total compensation (see the table entitled “Summary Compensation Table”).

We then applied this measure to our global employee population as of December 31, 2022 (the last day of our 2022 fiscal year).

For the calculation, approximately 56% of the global employee population was based in the United States and 44% was based in our Suzhou, China factory.

Retirement Benefits

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All of these employee contributions are fully vested upon contribution.

addition, we may make matching contributions on the contributions of our employees on a discretionary basis.

In 2021, we made matching contributions of $105,161.

In 2020 and 2019, we did not make matching contributions.

In addition, we may make matching contributions on the contributions of our employees on a discretionary basis.

In 2022 and 2021, we made matching contributions of $135,411 and $105,161, respectively.

In 2020, we did not make matching contributions.

Grants of Plan-Based Awards – 2022

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Cash Incentive

Stock Options(2)

Time-Based RSUs(2)

Cash Incentive

Time-Based RSUs(2)

(1) Relates to the cash bonus granted as a result of a favorable settlement of SK hynix lawsuit during 2021.

(1) The amounts shown in these columns represent the threshold, target, and maximum payout levels.

The actual bonus amount paid to each named executive officer is reported under the "Bonus"

column of the Summary Compensation Table.

The material terms of each stock option award granted in 2022 are described below under “Outstanding Equity Awards at Fiscal Year End.”

(2) The material terms of each RSU award granted in 2022 are described below under “Outstanding Equity Awards at Fiscal Year End.”

(4) During the first quarter of 2022, Mr.

Sasaki were granted 800,000 and 200,000 RSUs with aggregated fair values of $2,696,000 and $674,000, respectively, due to the significant increase in net sales and gross profit and net income recorded for the first time since 2006.

The awards granted were within the reasonable range as provided in the 2021 third party compensation consultants’ report from Mercer LLC.

Outstanding Equity Awards at Fiscal Year End

The following table shows information about the equity awards held by our named executive officers as of January 1, 2022:

The following table shows information about the equity awards held by our named executive officers as of December 31, 2022:

Option Awards

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Represents stock option awards granted under the Netlist, Inc.

Amended and Restated 2006 Equity Incentive Plan (the “Equity Plan”).

These stock option awards that are not fully exercisable vest in 16 equal quarterly installments, subject to

continued service on each vesting date, subject to accelerated vesting in certain circumstances as described under “Employment Agreements” above.

Amended 2006 Plan.

These stock option awards that are not fully exercisable vest in 16 equal quarterly installments, subject to continued service on each vesting date, subject to accelerated vesting in certain circumstances as described under “Employment Agreements” above.

Represents RSUs granted under the Equity Plan.

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(1) All ownership percentages are based on 235,523,847 shares of our common stock outstanding as of the Table Date.

(2) Represents (i) 1,942,813 shares of common stock issuable upon the exercise of stock options that are or will be vested and exercisable within 60 days after the Table Date and (ii) 5,052,034 outstanding shares of common stock, of which 4,611,177

shares are held by Mr.

(2) Represents (i) 1,992,812 shares of common stock issuable upon the exercise of stock options that are or will be vested and exercisable within 60 days after the Table Date and (ii) 5,633,015 outstanding shares of common stock, of which 4,611,177 shares are held by Mr.

Hong and his wife, Won K.

Cha, as co-trustees of the Hong-Cha Community Property Trust.

Cha possess shared voting and investment power over the shares of common stock held by the Hong-Cha Community Property Trust, and each disclaims beneficial ownership of such shares except to the extent of his or her pecuniary interest therein.

Cha possess shared voting and investment power over the shares of common stock held by the Hong-Cha

Community Property Trust, and each disclaims beneficial ownership of such shares except to the extent of his or her pecuniary interest therein.

(3) Represents 85,843 shares of common stock from restricted stock that will vest within 60 days after the Table date and 131,502 shares of common stock outstanding.

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Securities Authorized for Issuance under Equity Compensation Plans

The following table provides information as of January 1, 2022 about compensation plans under which our equity securities are authorized for issuance:

The following table provides information as of December 31, 2022 about compensation plans under which our equity securities are authorized for issuance:

Equity Compensation Plan Information

Plan Category

Number of securities to be issued

(a) Number of securities to be issued

upon exercise of

outstanding options, warrants and rights

Weighted-average exercise price of

(b) Weighted-average exercise price of

outstanding options,

warrants and rights($)(1)

Number of securities remaining

available for future equity

compensation plans

compensation plans (excluding securities reflected in column (a))

Equity compensation plans approved by security holders

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4,866,239 shares subject to outstanding stock options and 2,657,128 shares subject to outstanding RSUs.

(3) Subject to certain adjustments, as of January 1, 2022, we were authorized to issue a maximum of 17,405,566 shares of our common stock pursuant to awards granted under the Equity Plan.

(4) Consists of 450,000 stock option awards outstanding as of January 1, 2022.

(3) Subject to certain adjustments, as of December 31, 2022, we were authorized to issue a maximum of 17,405,566 shares of our common stock pursuant to awards granted under the Equity Plan.

(4) Consists of 784,833 RSUs outstanding as of December 31, 2022.

Certain Relationships and Related Transactions, and Director Independenc e

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Hong, is the brother of Chun K.

Hong, our President, Chief Executive Officer and Sole Director.

Hong, our President, CEO and Sole Director.

For 2022, Mr.

Hong earned cash salary of $182,500, received $34,067 for weekly fitness training, and was granted 200,000 shares of restricted stock units with the grant-date fair value of $674,000 measured in accordance with ASC 718.

The grant-date fair value was determined using the fair value of the underlying shares of our common stock.

For 2021, Mr.

Hong earned cash salary of $250,000 and cash bonus of $175,000 and received $19,098 for weekly fitness training.

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Director Independence

Due to the dissolution of all committees of the Board and reduction of the number of directors to one director, our President and Chief Executive Officer, Mr.

Due to the dissolution of all committees of the Board and reduction of the number of directors to one director, our President and CEO, Mr.

Hong, in August 2020, we currently do not have an independent director.

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All Other Fees (2)

Audit fees consist of fees billed to us for professional services rendered for the audit of our annual consolidated financial statements and the review of our interim condensed consolidated financial statements included in our quarterly reports.

Audit fees consist of fees billed to us for professional services rendered for the audit of our annual consolidated financial statements, the review of our interim condensed consolidated financial statements included in our quarterly reports and the audit of our internal control over financial reporting as required by Section 404 of SOX.

These fees also include fees billed to us for professional services that are normally provided in connection with statutory and regulatory filings or engagements, including the review of our registration statements on Form S-3 and Form S-8 and certain other related matters, such as the delivery of comfort letters and consents in connection with these registration statements.

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Pre-Approval Policies and Procedures

Prior to its dissolution in August 2020, our Audit Committee’s charter required our Audit Committee to pre-approve all audit and permissible non-audit services to be performed for us by our independent registered public accounting firm, except for certain “de minimus” non-audit services that may be ratified by the Audit Committee in accordance with applicable SEC rules.

Our Audit Committee pre-approved all services performed by KMJ in 2020.

All services performed by KMJ in 2021 were pre-approved by our Sole Director.

Our Sole Director pre-approves all audit and permissible non-audit services to be performed for us by our independent registered public accounting firm, except for certain “de minimus” non-audit services that may be ratified by Sole Director.

Our Sole Director pre-approved all services performed by KMJ in 2022.

Exhibits and Financial Statement Schedule s

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Balance at End of Year

December 28, 2019

January 2, 2021

January 1, 2022

December 31, 2022

All other financial statement schedules have been omitted, as they are not required, not applicable, or the required information is otherwise included.

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March 10, 2020

Form of Warrant issued pursuant to the Securities Purchase Agreement, dated July 17, 2013

July 18, 2013

Senior Secured Convertible Promissory Note, dated November 18, 2015, issued by Netlist, Inc.

28 New Technology Business Investment LLP

November 19, 2015

Incorporated by Reference

Filed Herewith

Stock Purchase Warrant, dated November 18, 2015, issued by Netlist, Inc.

28 New Technology Business Investment LLP

November 19, 2015

Stock Purchase Warrant, dated November 18, 2015, issued by Netlist, Inc.

March 31, 2017

Rights Agreement, dated as of April 17, 2017, by and between Netlist, Inc.

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April 17, 2017

Incorporated by Reference

Filed Herewith

Amendment No.

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November 2, 2009

Incorporated by Reference

Filed Herewith

Intellectual Property Security Agreement, dated October 31, 2009, between Silicon Valley Bank and Netlist, Inc.

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August 12, 2010

Incorporated by Reference

Filed Herewith

Amendment to Loan Documents, dated September 30, 2010, between Silicon Valley Bank and Netlist, Inc.

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August 15, 2017

Incorporated by Reference

Filed Herewith

Amendment to Loan and Security Agreement, dated March 20, 2018, by and between Netlist, Inc.

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March 22, 2019

Incorporated by Reference

Filed Herewith

Amendment to Loan and Security Agreement, dated February 27, 2020, by and between Netlist, Inc.

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and Silicon Valley Bank

Investment Agreement, dated May 3, 2017, by and between Netlist, Inc.

and TR Global Funding V, LLC

August 15, 2017

Security Agreement, dated May 3, 2017, by and between Netlist, Inc.

and TR Global Funding V, LLC

August 15, 2017

Intercreditor Agreement, dated May 3, 2017, by and between SVIC No.

28 New Technology Business Investment L.L.P.

and TR Global Funding V, LLC and consented and agreed to by Netlist, Inc.

August 15, 2017

Intercreditor Agreement, dated May 3, 2017, by and between Silicon Valley Bank and TR Global Funding V, LLC and consented and agreed to by Netlist, Inc.

August 15, 2017

Amended and Restated Intercreditor Agreement, dated April 20, 2017, by and between SVIC No.

28 New Technology Business Investment L.L.P and Silicon Valley Bank and consented and agreed to by Netlist, Inc.

August 15, 2017

Purchase Agreement, dated June 24, 2019, between Netlist, Inc.

Amendment to Loan and Security Agreement, dated April 29, 2022, by and between Netlist, Inc.

and Silicon Valley Bank

Purchase Agreement, dated June 24, 2019, by and between Netlist, Inc.

and Lincoln Park Capital Fund, LLC

June 24, 2019

Purchase Agreement, dated March 5, 2020, between Netlist, Inc.

Purchase Agreement, dated March 5, 2020, by and between Netlist, Inc.

and Lincoln Park Capital Fund, LLC

March 10, 2020

Purchase Agreement dated July 12, 2021, between Netlist, Inc.

Purchase Agreement dated July 12, 2021, by and between Netlist, Inc.

and Lincoln Park Capital Fund, LLC

July 12, 2021

Registration Rights Agreement, dated July 12, 2021 between Netlist, Inc.

Registration Rights Agreement, dated July 12, 2021, by and between Netlist, Inc.

and Lincoln Park Capital Fund, LLC

July 12, 2021

Incorporated by Reference

Filed Herewith

Purchase Agreement, dated September 28, 2021 between Netlist, Inc.

Purchase Agreement, dated September 28, 2021, by and between Netlist, Inc.

and Lincoln Park Capital, LLC

September 28, 2021

Registration Rights Agreement, dated September 28, 2021, between Netlist, Inc.

Registration Rights Agreement, dated September 28, 2021, by and between Netlist, Inc.

and Lincoln Park Capital Fund, LLC.

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Subsidiaries of Netlist, Inc.

March 1, 2022

Consent of KMJ Corbin & Company LLP

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Section 1350 Certifications of Chief Executive Officer and Chief Financial Officer

XBRL Instance Document

XBRL Taxonomy Extension Schema Document

XBRL Taxonomy Extension Calculation Linkbase Document

XBRL Taxonomy Extension Label Linkbase Document

XBRL Taxonomy Extension Presentation Linkbase Document

XBRL Taxonomy Extension Definition Linkbase Document

Inline XBRL Instance Document

Inline XBRL Taxonomy Extension Schema Document

Inline XBRL Taxonomy Extension Calculation Linkbase Document

Inline XBRL Taxonomy Extension Label Linkbase Document

Inline XBRL Taxonomy Extension Presentation Linkbase Document

Incorporated by Reference

Filed Herewith

Inline XBRL Taxonomy Extension Definition Linkbase Document

The cover page from the Company’s Annual

Report on Form 10-K for the fiscal year ended January 1, 2022 (formatted as inline XBRL and contained in Exhibit 101)

Report on Form 10-K for the fiscal year ended December 31, 2022 (formatted as inline XBRL and contained in Exhibit 101)

Furnished herewith.

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Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

March 1, 2022

February 28, 2023

Netlist, Inc.

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(Principal Executive Officer)

March 1, 2022

February 28, 2023

/s/ Gail Sasaki

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(Principal Financial and Accounting Officer)

March 1, 2022

February 28, 2023

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-K

Item 9A. Controls and Procedures