NETLIST,INC. (NASDAQ:NLST) Files An 8-K Entry into a Material Definitive Agreement
Item 1.01 Entry Into a Material Definitive Agreement.

On September12, 2018, Netlist,Inc. (the “Company”) entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain investors (the “Purchasers”), to which the Company has agreed to issue and sell to the Purchasers in a registered offering (the “Offering”) an aggregate of 22,222,220 shares (the “Shares”) of the Company’s common stock and warrants to purchase up to an aggregate of 11,111,110 shares of the Company’s common stock (the “Warrants,” and the shares issuable upon exercise of the Warrants, the “Warrant Shares”) at a per share purchase price of $0.45 per share, for aggregate gross proceeds of approximately $10 million and expected net proceeds, after deducting placement agent fees and offering costs, of approximately $9.1 million. The Company expects that the Offering will close on or about September14, 2018, subject to the satisfaction of customary closing conditions. The Company intends to use the net proceeds from the Offering for general corporate purposes.

to the terms of the Purchase Agreement, at the closing of the Offering, the Company will issue to each Purchaser a Warrant to purchase up to the number of Warrant Shares equal to 50% of the number of Shares issued and sold to such Purchaser in the Offering. Each Warrant will become exercisable 181 days following the date of its issuance, will have a term of five years commencing on the date when it first becomes exercisable, and will have an exercise price of $0.655 per share. The exercise price and the number of Warrant Shares issuable upon exercise of each Warrant are subject to adjustment in the event of, among other things, certain transactions affecting the Company’s common stock (including without limitation stock splits and stock dividends), and certain fundamental transactions (including without limitation a merger or other sale-of-company transaction).

The issuance and sale of the Shares, Warrants, and Warrant Shares (collectively, the “Securities”) is registered under the Securities Act of 1933 (the “Securities Act”) to the Company’s Registration Statement on FormS-3 (No.333-199446), which was declared effective by the Securities and Exchange Commission (the “SEC”) on September2, 2016 and an additional registration on Form S-3 filed to Rule 462(b) (No. 333-227291) which became effective when filed, each as supplemented by a prospectus supplement dated September14, 2018 and filed with the SEC to Rule424(b)(5)under the Securities Act. The Securities may only be offered by means of a prospectus. Copies of the prospectus and prospectus supplement can be obtained directly from the Company and at the SEC’s website at www.sec.gov or by request at Roth Capital Partners, LLC by calling (800) 678-9147. No statement in this document or the attached exhibits is an offer to purchase or a solicitation of an offer to sell securities. No offer, solicitation or sale will be made in any jurisdiction in which such offer, solicitation or sale is unlawful.

On September12, 2018 the Company entered a Placement Agency Agreement (the “Placement Agreement”) with Roth Capital Partners, LLC (“Roth”), to which Roth has agreed to act as the Company’s placement agent in connection with the Offering. to the terms of the Placement Agreement, in consideration for its placement agent services the Company has agreed to pay Roth a cash fee equal to 7.0% of the aggregate gross proceeds received by the Company in the Offering, in addition to reimbursement of Roth’s non-accountable expenses of $57,500.

A copy of the opinion of Mintz Levin Cohn Ferris Glovsky and Popeo PC relating to the legality of the issuance and sale of the Securities in the Offering is attached as Exhibit5.1 hereto. The form of Warrant, the Purchase Agreement, and the Placement Agreement are filed as Exhibits 4.1, 10.1 and 10.2 hereto, respectively, and are incorporated herein by reference. The foregoing description of such documents and the transactions contemplated thereby is qualified in its entirety by reference to such exhibits.

Item 9.01 Financial Statements and Exhibits.

(d)Exhibits.