Item 1.01 Entry Into a Material Definitive Agreement.
Common Stock Offering
On September 15, 2016, Netlist, Inc. (the
Company
) entered into an underwriting agreement (the
Underwriting Agreement
) with B. Riley & Co., LLC, as representative of the several underwriters named in the Underwriting Agreement (the
Underwriters
), in connection with a registered firm commitment underwritten public offering (the
Offering
) of 8,000,000 shares of the Companys common stock, par value $0.001 per share (
Common Stock
). Subject to the terms and conditions of the Underwriting Agreement, the Company has agreed to sell to the Underwriters, and the Underwriters have agreed to purchase from the Company, an aggregate of 8,000,000 shares of Common Stock. Pursuant to the Underwriting Agreement, the Company also granted the Underwriters a 30-day option to purchase up to an additional 1,200,000 shares of its Common Stock to cover over-allotments, if any.
On September 21, 2016, the Company completed the Offering. The Company estimates net proceeds from the Offering to be approximately $9.3 million (assuming no exercise of the Underwriters option to purchase additional shares of Common Stock), after deducting underwriting discounts and commissions and before deducting Offering expenses.
The shares of Common Stock have been registered pursuant to the Registration Statement on Form S-3 (Registration Statement No. 333-199446) (the
Registration Statement
) previously filed with the Securities and Exchange Commission (the
SEC
) on August 19, 2016 and declared effective by the SEC on September 2, 2016, including the preliminary prospectus supplement dated September 7, 2016 and a prospectus supplement dated September 15, 2016, to the prospectus contained in the Registration Statement dated August 19, 2016.
The Underwriting Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing, indemnification obligations of the Company and the Underwriters, including for liabilities under the Securities Act of 1933, as amended, other obligations of the parties and termination provisions. The representations, warranties and covenants contained in the Underwriting Agreement were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties.
Pursuant to the terms of the Underwriting Agreement and related lock-up agreements, the Company and all of its directors and executive officers also agreed not to sell or transfer any Common Stock held by them for 90 days after September 15, 2016 without first obtaining the written consent of B. Riley & Co., LLC, subject to certain exceptions, extensions and terms as set forth in the Underwriting Agreement.
A copy of the Underwriting Agreement is filed as Exhibit 1.1 to this Current Report and is incorporated herein by reference, and the description of the terms of the Underwriting Agreement is qualified in its entirety by reference to such exhibit. The Underwriting Agreement is also filed with reference to, and is hereby incorporated by reference into, the Registration Statement.
Attached as Exhibit 5.1 to this Current Report and incorporated herein by reference is a copy of the opinion of Morrison & Foerster LLP relating to the validity of the shares of Common Stock that may be sold in the Offering (the
Legal Opinion
). The Legal Opinion is also filed with reference to, and is hereby incorporated by reference into, the Registration Statement.