NETLIST INC 10-Q

Item 5. Other Information ​ 2023 SVB Credit Agreement ​ On November 7, 2023, we entered into the 2023 SVB Credit Agreement with Silicon Valley Bank, a division of First-Citizen Bank & Trust Company, which provides for a revolving line of credit up to $10.0 million. The borrowing base is limited to 85% of eligible accounts receivable, subject to certain adjustments. Borrowings accrue interest on advance at a per annum rate equal to the greater of 8.50% and the Prime Rate. The maturity date is November 7, 2025. ​ The 2023 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 November 9, 2023, outstanding borrowings were $0, and availability under the revolving line of credit was $10.0 million. ​ The 2023 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 November 9, 2023, the Company was in compliance with its covenants under the 2023 SVB Credit Agreement. ​ Insider Trading Arrangements ​ During the fiscal quarter ended September 30, 2023, none of our directors or officers (as defined in Rule 16a-1 under the Exchange Act) adopted, modified or terminated a "Rule 10b5-1 trading arrangement" or "non-Rule 105b-1 trading arrangement" (as those terms are defined in Item 408 of Regulation S-K), except as follows: ​ On September 6, 2023 , Gail Sasaki , the Company’s Executive Vice President and Chief Financial Officer , terminated a trading arrangement (the “Prior 10b5-1 Sales Plan”), with respect to the sale of up to 170,526 shares of the Company’s common stock held by Ms. Sasaki plus the net number of shares of the Company’s common stock after the withholding of shares to satisfy tax obligations upon the vesting of 145,218 restricted stock units (“RSUs”). The Prior 10b5-1 Sales Plan was adopted on December 16, 2022 and had a term that expires on December 1, 2023 . As of the date of termination of the Prior 10b5-1 Sales Plan, Ms. Sasaki had sold 224,737 shares of common stock under its terms. On September 12, 2023 , Ms. Sasaki adopted a trading arrangement (the “Sasaki 10b5-1 Sales Plan”) that is intended to satisfy the affirmative defense in Rule 10b5 - 1 (c) under the Exchange Act. The Sasaki 10b5-1 Sales Plan, which has a term that expires on December 31, 2024 , provides for the sale of the net shares of the Company’s common stock (not currently determinable) that will be received by Ms. Sasaki after the withholding of shares to satisfy tax obligations upon the vesting of 109,375 RSUs pursuant to the terms of the Sasaki 10b5-1 Sales Plan. ​ On September 14, 2023 , Chun K. Hong , the Company’s President, Chief Executive Officer and Sole Director , adopted a trading arrangement on behalf of Mr. Hong and the Chun Ki Hong Won Kyung Cha Community Property Trust dated 8/16/2004 (the “Trust”) (the “Hong 10b5-1 Sales Plan”) that is intended to satisfy the affirmative defense in Rule 10b5 - 1 (c) under the Exchange Act. The Hong 10b5-1 Sales Plan, which has a term that expires on December 31, 2024 , provides for the sale, pursuant to the terms of the Hong 10b5-1 Sales Plan, of up to 936,270 shares of the Company’s common stock held by the Trust and the net shares of the Company’s common stock (not currently determinable) that will be received by Mr. Hong after the withholding of shares to satisfy tax obligations upon the vesting of 124,750 RSUs. ​ ​ 56 Table of Contents Item 6. Exhibits ​ ​ ​ ​ ​ Filed ​ Incorporated by Reference Exhibit No. Exhibit Description Herewith Form File No. Filing Date 3.1 ​ Restated Certificate of Incorporation of Netlist, Inc. ​ ​ ​ 10-Q ​ 001-33170 ​ August 15, 2017 3.1.1 ​ Certificate of Amendment to the Restated Certificate of Incorporation of Netlist, Inc. ​ ​ ​ 10-Q ​ 001-33170 ​ August 15, 2017 3.1.2 ​ Certificate of Amendment of the Restated Certificate of Incorporation of Netlist, Inc. ​ ​ ​ 8-K ​ 001-33170 ​ August 17, 2018 3.1.3 ​ Certificate of Amendment to the Restated Certificate of Incorporation of Netlist, Inc. ​ ​ ​ 8-K ​ 001-33170 ​ August 10, 2020 3.1.4 ​ Certificate of Designation of the Series A Preferred Stock of Netlist, Inc. ​ ​ ​ 10-Q ​ 001-33170 ​ August 15, 2017 3.2 ​ Amended and Restated Bylaws of Netlist, Inc. ​ ​ ​ 8-K ​ 001-33170 ​ December 20, 2012 3.2.1 ​ Certificate of Amendment to Amended and Restated Bylaws of Netlist, Inc. ​ ​ ​ 8-K ​ 001-33170 ​ December 29, 2017 3.2.2 ​ Amendment to Amended and Restated Bylaws of Netlist, Inc. ​ ​ ​ 8-K ​ 001-33170 ​ August 10, 2020 4.1 ​ Form of Warrant ​ ​ ​ 8-K ​ 001-33170 ​ August 15, 2023 10.1˄ ​ Form of Securities Purchase Agreement, dated August 14, 2023, by and among Netlist, Inc. and the purchasers identified therein ​ ​ ​ 8-K ​ 001-33170 ​ August 15, 2023 10.2˄ ​ Placement Agency Agreement, dated August 14, 2023, by and between Netlist, Inc. and Roth Capital Partners, LLC. ​ ​ ​ 8-K ​ 001-33170 ​ August 15, 2023 10.3 ​ Form of Lock-Up Agreement ​ ​ ​ 8-K ​ 001-33170 ​ August 15, 2023 10.4 ​ Loan and Security Agreement, dated November 7, 2023, between Silicon Valley Bank, a division of First-Citizens Bank & Trust Company and Netlist, Inc. ​ X ​ ​ ​ ​ ​ ​ 31.1 ​ Rule 13a-14(a) / 15d-14(a) Certification of Chief Executive Officer ​ X ​ ​ ​ ​ ​ ​ 31.2 ​ Rule 13a-14(a) / 15d-14(a) Certification of Chief Financial Officer ​ X ​ ​ ​ ​ ​ ​ 32+ ​ Section 1350 Certifications of Chief Executive Officer and Chief Financial Officer ​ X ​ ​ ​ ​ ​ ​ 101.INS ​ Inline XBRL Instance Document ​ X ​ ​ ​ ​ ​ ​ 101.SCH ​ Inline XBRL Taxonomy Extension Schema Document ​ X ​ ​ ​ ​ ​ ​ 101.CAL ​ Inline XBRL Taxonomy Extension Calculation Linkbase Document ​ X ​ ​ ​ ​ ​ ​ 101.LAB ​ Inline XBRL Taxonomy Extension Label Linkbase Document ​ X ​ ​ ​ ​ ​ ​ 101.PRE ​ Inline XBRL Taxonomy Extension Presentation Linkbase Document ​ X ​ ​ ​ ​ ​ ​ 101.DEF ​ Inline XBRL Taxonomy Extension Definition Linkbase Document ​ X ​ ​ ​ ​ ​ ​ 104 ​ Cover Page Interactive Data File (embedded within the Inline XBRL document) ​ ​ ​ ​ ​ ​ ​ ​ + Furnished herewith. ˄ Certain exhibits and schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company hereby undertakes to furnish supplementally a copy of any omitted exhibit or schedule upon request by the SEC. ​ ​ 57 Table of Contents SIGNATURES ​ Pursuant to the requirements 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. ​ ​ ​ ​ Date: November 9, 2023 Netlist, Inc. ​ ​ ​ ​ ​ ​ ​ By: /s/ Chun K. Hong ​ ​ Chun K. Hong ​ ​ President, Chief Executive Officer and Sole Director ​ ​ (Principal Executive Officer) ​ ​ ​ ​ By: /s/ Gail Sasaki ​ ​ Gail Sasaki ​ ​ Executive Vice President and Chief Financial Officer ​ ​ (Principal Financial and Accounting Officer) ​ ​ ​ ​ ​ ​ 58