As filed with the Securities and Exchange Commission on April 21, 2011

Registration No. 333-             

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

 

REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

 

NETLIST, INC.

(Exact name of registrant as specified in its charter)

 

Delaware

 

95-4812784

(State or other jurisdiction of

 

(I.R.S. Employer

incorporation or organization)

 

Identification No.)

 

51 Discovery, Suite 150

Irvine, CA 92618

(Address of Principal Executive Offices) (Zip Code)

 

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

 (Full title of the plans)

 

Chun K. Hong

President, Chief Executive Officer and Chairman of the Board

51 Discovery, Suite 150 Irvine, CA 92618

(949) 435-0025

(Address, including zip code and telephone number,

including area code, of agent for service)

 

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

 

Large accelerated filer  o

 

Accelerated filer  o

 

Non-accelerated filer  o

 

Smaller reporting company  x

 

 

 

 

(Do not check if a smaller reporting
company)

 

 

 

CALCULATION OF REGISTRATION FEE

 

Title of
securities to be
registered

 

Amount
to be
Registered

 

Proposed
Maximum
Offering Price
Per Share

 

Proposed
Maximum
Aggregate
Offering Price

 

Amount of
Registration
Fee

 

Common Stock, par value $0.001 per share

 

1,200,000

(1)

$

2.37

(2)

$

2,844,000

 

$

330.19

 

(1)

In accordance with Rule 416(a) of the Securities Act of 1933, as amended, this registration statement shall also cover any additional shares of common stock which become issuable under the Amended and Restated 2006 Equity Incentive Plan (the “Plan”) by reason of any stock dividend, stock split, recapitalization or similar transaction.

 

 

(2)

Represents 1,200,000 additional shares of Common Stock authorized to be issued under the Plan. Shares available for issuance under the Plan were initially registered on a Registration Statement on Form S-8 filed with the Securities and Exchange Commission on December 18, 2006 (Registration No. 333-139435). Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(h), based on the average of the high and low sales prices of the Registrant’s Common Stock on the Nasdaq Global Market on April 18, 2011.

 

 

 


 

EXPLANATORY NOTE

 

This Registration Statement on Form S-8 relates solely to the registration of an additional 1,200,000 shares of Common Stock, par value $0.001 per share (“Common Stock”), of Netlist, Inc. (the “Company”) that may be offered and sold under the Amended and Restated 2006 Equity Incentive Plan of Netlist, Inc. (the “Plan”).  The terms of the Plan provide that the number of shares of Common Stock issuable pursuant to the Plan automatically increase on the first day of each calendar year by the number of shares equal to the lesser of (i) 5.0% of the issued and outstanding shares of Common Stock as of January 1 of each year and (ii) 1,200,000 shares.

 

This Registration Statement registers additional securities of the same class as other securities for which registration statements filed on this form relating to the same employee benefit plan are effective.  Pursuant to General Instruction E to Form S-8, the contents of the Company’s previously filed Registration Statements on Form S-8 relating to the Plan (Registration Nos. 333-139435, 333-146141, 333-151644, 333-161832, 333-165916 and 333-168330) filed with the Securities and Exchange Commission (the “Commission”) on December 18, 2006, September 18, 2007, June 13, 2008, September 10, 2009, April 6, 2010 and July 27, 2010, respectively, are hereby incorporated by reference herein to the extent not otherwise amended or superseded by the contents hereof.

 

Item 8.  Exhibits.

 

Reference is made to the Exhibit Index.

 

2


 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Irvine, State of California, on this 21 st  day of April, 2011.

 

 

NETLIST, INC.

 

 

 

 

 

 

By:

/s/ Chun K. Hong

 

 

Chun K. Hong

 

 

President, Chief Executive Officer and Chairman of the

 

 

Board

 

3


 

POWER OF ATTORNEY

 

We, the undersigned officers and directors of Netlist, Inc., hereby severally constitute and appoint Chun K. Hong and Gail Sasaki, each of them singly, our true and lawful attorneys-in-fact and agents with full power and authority to sign any and all amendments (including post-effective amendments) and supplements to this Registration Statement, and any additional registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, for the same offering contemplated by this Registration Statement, and to file the same, with exhibits and any and all other documents and instruments filed with respect thereto, with the Securities and Exchange Commission (or any other governmental or regulatory authority), granting unto said attorneys-in-fact and agents, and each of them, full power and authority in the name and on behalf of each of the undersigned to do and to perform each and every act and thing requisite and necessary or advisable to be done in order to effectuate the same as fully as to all intents and purposes as he might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, and/or any of them or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title(s)

 

Date

 

 

 

 

 

/s/ Chun K. Hong

 

President, Chief Executive Officer and

 

April 21, 2011

Chun K. Hong

 

Chairman of the Board (Principal Executive Officer)

 

 

 

 

 

 

 

/s/ Gail Sasaki

 

Vice President and Chief Financial Officer

 

April 21, 2011

Gail Sasaki

 

(Principal Financial Officer and Principal Accounting Officer)

 

 

 

 

 

 

 

/s/ Richard J. Char

 

Director

 

April 21, 2011

Richard J. Char

 

 

 

 

 

 

 

 

 

/s/ Nam Ki Hong

 

Director

 

April 21, 2011

Nam Ki Hong

 

 

 

 

 

 

 

 

 

/s/ Thomas F. Lagatta

 

Director

 

April 21, 2011

Thomas F. Lagatta

 

 

 

 

 

 

 

 

 

/s/ Alan H. Portnoy

 

Director

 

April 21, 2011

Alan H. Portnoy

 

 

 

 

 

4


 

INDEX TO EXHIBITS

 

4.1

 

Restated Certificate of Incorporation of Netlist, Inc. (Incorporated by reference to the Company’s registration statement on Form S-1 (No. 333-136735) filed with the Securities and Exchange Commission on October 23, 2006).

 

 

 

4.2

 

Amended and Restated Bylaws of Netlist, Inc. (Incorporated by reference to the Company’s registration statement on Form S-1 (No. 333-136735) filed with the Securities and Exchange Commission on October 23, 2006).

 

 

 

4.3

 

Amended and Restated 2006 Equity Incentive Plan of Netlist, Inc. (Incorporated by reference to exhibit 10.1 of the quarterly report on Form 10-Q of the registrant filed with the Securities and Exchange Commission on August 12, 2010).

 

 

 

*5.1

 

Opinion of Morrison & Foerster LLP.

 

 

 

*23.1

 

Consent of KMJ Corbin & Company LLP.

 

 

 

*23.2

 

Consent of Morrison & Foerster LLP (included in Exhibit 5.1).

 

 

 

*24.1

 

Power of Attorney (included on signature page hereto).

 

* Filed herewith

 

5

Exhibit 5.1

 

12531 HIGH BLUFF DRIVE
SAN DIEGO
CALIFORNIA 92130

TELEPHONE: 858-720-5100
FACSIMILE: 858-720-5125

WWW.MOFO.COM

MORRISON & FOERSTER LLP

NEW YORK, SAN FRANCISCO,
LOS ANGELES, PALO ALTO,
SAN DIEGO, WASHINGTON, D.C.

NORTHERN VIRGINIA, DENVER,
SACRAMENTO, WALNUT CREEK

TOKYO, LONDON, BEIJING,
SHANGHAI, HONG KONG,
BRUSSELS

 

April 21, 2011

 

Netlist, Inc.

51 Discovery, Suite 150

Irvine, CA 92618

 

Re:           Netlist, Inc. Amended and Restated 2006 Equity Incentive Plan

 

Ladies and Gentlemen:

 

At your request, we have examined the Registration Statement on Form S-8 (the “ Registration Statement ”) of Netlist, Inc. (the “ Company ”) to be filed with the Securities and Exchange Commission in connection with the registration under the Securities Act of 1933, as amended, (the “ Securities Act ”) of an aggregate of 1,200,000 shares (the “ Shares ”) of your common stock, $0.001 par value, which will be issuable under the Netlist, Inc. Amended and Restated 2006 Equity Incentive Plan (the “ Plan ”).

 

We have examined the originals, or photostatic or certified copies, of such records of the Company and certificates of officers of the Company and of public officials and such other documents as we have deemed relevant and necessary as the basis for the opinion set forth below. In our examination, we have assumed the genuineness of all signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as copies.  For the purpose of the opinion rendered below, we have assumed that in connection with the issuance of the Shares under the Plan, the Company will receive the consideration for such Shares required by the terms of the Plan.

 

Based upon the foregoing examination and in reliance thereon, and subject to the qualifications, assumptions and limitations stated herein and in reliance on the statements of fact contained in the documents that we have examined, we are of the opinion that the Shares, when issued and sold in accordance with the terms set forth in the Plan, will be validly issued, fully paid and non-assessable.

 

We consent to the use of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.

 

Very truly yours,

/s/ Morrison & Foerster LLP

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 3, 2011, relating to the consolidated financial statements of Netlist, Inc. and subsidiaries as of January 1, 2011 and January 2, 2010 and for each of the years then ended, which report is included in Netlist, Inc.’s Annual Report on Form 10-K for the year ended January 1, 2011.

 

 

 

/s/ KMJ Corbin & Company LLP

 

KMJ Corbin & Company LLP

 

Costa Mesa, California

April 21, 2011