NETLIST INC, 10-Q filed on 11/10/2020
Quarterly Report
v3.20.2
Document And Entity Information - shares
9 Months Ended
Sep. 26, 2020
Nov. 05, 2020
Document And Entity Information [Abstract]    
Entity Registrant Name NETLIST INC  
Entity Central Index Key 0001282631  
Document Type 10-Q  
Document Period End Date Sep. 26, 2020  
Amendment Flag false  
Document Fiscal Year Focus 2020  
Document Fiscal Period Focus Q3  
Entity Current Reporting Status Yes  
Current Fiscal Year End Date --01-02  
Entity Interactive Data Current Yes  
Entity Filer Category Non-accelerated Filer  
Entity Small Business true  
Entity Emerging Growth Company false  
Entity Shell Company false  
Entity Common Stock, Shares Outstanding   195,951,317
v3.20.2
Consolidated Balance Sheets - USD ($)
$ in Thousands
Sep. 26, 2020
Dec. 28, 2019
ASSETS    
Cash and cash equivalents $ 14,287 $ 8,966
Restricted cash 3,200 2,750
Accounts receivable, net of allowances of $255 (2020) and $61 (2019) 4,203 3,672
Inventories 4,521 3,496
Prepaid expenses and other current assets 297 627
Total current assets 26,508 19,511
Property and equipment, net 199 286
Operating lease right-of-use assets 218 968
Other assets 1,377 1,376
Total assets 28,302 22,141
LIABILITIES AND STOCKHOLDERS' DEFICIT    
Accounts payable 8,053 9,134
Revolving line of credit 3,388 2,990
Accrued payroll and related liabilities 665 740
Accrued expenses and other current liabilities 454 793
Current portion of long-term debt and note payable 389 412
Total current liabilities 12,949 14,069
Long-term debt 16,426 15,793
Operating lease liabilities   498
Other liabilities 111 144
Total liabilities 29,486 30,504
Commitments and contingencies
Stockholders' deficit:    
Preferred stock, $0.001 par value—10,000 shares authorized: Series A preferred stock, $0.001 par value; 1,000 shares authorized; none issued and outstanding
Common stock, $0.001 par value—450,000 shares authorized; 195,951 (2020) and 169,539 (2019) shares issued and outstanding 195 169
Additional paid-in capital 191,741 179,086
Accumulated deficit (193,120) (187,618)
Total stockholders' deficit (1,184) (8,363)
Total liabilities and stockholders' deficit $ 28,302 $ 22,141
v3.20.2
Condensed Consolidated Balance Sheets (Parenthetical) - USD ($)
$ in Thousands
Sep. 26, 2020
Dec. 28, 2019
Accounts receivable, allowance for doubtful accounts $ 255 $ 61
Preferred stock, par value $ 0.001 $ 0.001
Preferred stock, shares authorized 10,000,000 10,000,000
Preferred stock, shares issued 0 0
Preferred stock, shares outstanding 0 0
Common stock, par value $ 0.001 $ 0.001
Common stock, shares authorized 450,000,000 450,000,000
Common stock, shares issued 195,951,000 169,539,000
Common stock, shares outstanding 195,951,000 169,539,000
Series A Preferred Stock    
Preferred stock, par value $ 0.001 $ 0.001
Preferred stock, shares authorized 1,000,000 1,000,000
v3.20.2
Condensed Consolidated Statements of Operations - USD ($)
shares in Thousands, $ in Thousands
3 Months Ended 9 Months Ended
Sep. 26, 2020
Sep. 28, 2019
Sep. 26, 2020
Sep. 28, 2019
Condensed Consolidated Statements Of Operations        
Net sales $ 10,212 $ 6,116 $ 35,749 $ 16,733
Cost of sales 8,875 5,666 30,477 15,600
Gross profit 1,337 450 5,272 1,133
Operating expenses:        
Research and development 731 583 2,083 1,738
Intellectual property legal fees 784 979 2,257 3,567
Selling, general and administrative 1,816 1,747 5,994 5,724
Total operating expenses 3,331 3,309 10,334 11,029
Operating loss (1,994) (2,859) (5,062) (9,896)
Other expense, net:        
Interest expense, net (139) (245) (437) (775)
Other expense, net 3 (4) (2) (5)
Total other expense, net (136) (249) (439) (780)
Loss before provision for income taxes (2,130) (3,108) (5,501) (10,676)
Provision for income taxes     1 1
Net loss $ (2,130) $ (3,108) $ (5,502) $ (10,677)
Net loss per common share:        
Basic and diluted $ (0.01) $ (0.02) $ (0.03) $ (0.07)
Weighted-average common shares outstanding:        
Basic and diluted 192,257 148,058 179,154 142,624
v3.20.2
Condensed Consolidated Statements of Stockholders' Deficit - USD ($)
shares in Thousands, $ in Thousands
Common Stock
Additional Paid-In Capital
Accumulated Deficit
Total
Balance at Dec. 29, 2018 $ 139 $ 169,355 $ (175,166) $ (5,672)
Balance, shares at Dec. 29, 2018 139,283      
Stock-based compensation   342   342
Exercise of stock options   16   16
Exercise of stock options, shares 43      
Restricted stock units vested and distributed, shares 340      
Common stock issued on conversion of Iliad Note $ 1 374   375
Common stock issued on conversion of Iliad Note (in shares) 1,042      
Net loss     (4,050) (4,050)
Balance at Mar. 30, 2019 $ 140 170,087 (179,216) (8,989)
Balance, shares at Mar. 30, 2019 140,708      
Balance at Dec. 29, 2018 $ 139 169,355 (175,166) (5,672)
Balance, shares at Dec. 29, 2018 139,283      
Net loss       (10,677)
Balance at Sep. 28, 2019 $ 154 173,979 (185,843) (11,710)
Balance, shares at Sep. 28, 2019 154,097      
Balance at Dec. 29, 2018 $ 139 169,355 (175,166) (5,672)
Balance, shares at Dec. 29, 2018 139,283      
Net loss       12,500
Balance at Dec. 28, 2019 $ 169 179,086 (187,618) (8,363)
Balance, shares at Dec. 28, 2019 169,539      
Balance at Mar. 30, 2019 $ 140 170,087 (179,216) (8,989)
Balance, shares at Mar. 30, 2019 140,708      
Stock-based compensation   197   197
Exercise of stock options   6   6
Exercise of stock options, shares 19      
Tax withholdings related to net share settlements of equity awards (in shares) (92)      
Issuance of commitment shares $ 1 (1)    
Issuance of commitment shares (in shares) 818      
Common stock issued on conversion of Iliad Note $ 1 224   225
Common stock issued on conversion of Iliad Note (in shares) 724      
Net loss     (3,519) (3,519)
Balance at Jun. 29, 2019 $ 142 170,513 (182,735) (12,080)
Balance, shares at Jun. 29, 2019 142,177      
Stock-based compensation   243   243
Restricted stock units vested and distributed, shares 409      
Tax withholdings related to net share settlements of equity awards   (39)   (39)
Tax withholdings related to net share settlements of equity awards (in shares) (130)      
Issuance of commitment shares $ 8 2,449   2,457
Issuance of commitment shares (in shares) 8,394      
Common stock issued on conversion of Iliad Note $ 4 813   817
Common stock issued on conversion of Iliad Note (in shares) 3,247      
Net loss     (3,108) (3,108)
Balance at Sep. 28, 2019 $ 154 173,979 (185,843) (11,710)
Balance, shares at Sep. 28, 2019 154,097      
Balance at Dec. 28, 2019 $ 169 179,086 (187,618) (8,363)
Balance, shares at Dec. 28, 2019 169,539      
Stock-based compensation   206   206
Restricted stock units vested and distributed, shares 362      
Tax withholdings related to net share settlements of equity awards   (32)   (32)
Tax withholdings related to net share settlements of equity awards (in shares) (135)      
Common stock issued on conversion of Iliad Note $ 2 (2)    
Common stock issued on conversion of Iliad Note (in shares) 1,529      
Net loss     (1,542) (1,542)
Balance at Mar. 28, 2020 $ 171 179,258 (189,160) (9,731)
Balance, shares at Mar. 28, 2020 171,295      
Balance at Dec. 28, 2019 $ 169 179,086 (187,618) $ (8,363)
Balance, shares at Dec. 28, 2019 169,539      
Exercise of stock options, shares       200
Net loss       $ (5,502)
Balance at Sep. 26, 2020 $ 195 191,741 (193,120) (1,184)
Balance, shares at Sep. 26, 2020 195,951      
Balance at Mar. 28, 2020 $ 171 179,258 (189,160) (9,731)
Balance, shares at Mar. 28, 2020 171,295      
Stock-based compensation   164   164
Tax withholdings related to net share settlements of equity awards   (10)   (10)
Tax withholdings related to net share settlements of equity awards (in shares) (63)      
Issuance of commitment shares $ 10 2,751   2,761
Issuance of commitment shares (in shares) 9,781      
Net loss     (1,830) (1,830)
Balance at Jun. 27, 2020 $ 181 182,163 (190,990) (8,646)
Balance, shares at Jun. 27, 2020 181,013      
Stock-based compensation   212   212
Exercise of warrants 256      
Exercise of stock options   28   28
Exercise of stock options, shares 200      
Restricted stock units vested and distributed, shares 438      
Tax withholdings related to net share settlements of equity awards   (61)   (61)
Tax withholdings related to net share settlements of equity awards (in shares) (136)      
Issuance of commitment shares $ 14 9,399   9,413
Issuance of commitment shares (in shares) 14,180      
Net loss     (2,130) (2,130)
Balance at Sep. 26, 2020 $ 195 $ 191,741 $ (193,120) $ (1,184)
Balance, shares at Sep. 26, 2020 195,951      
v3.20.2
Condensed Consolidated Statements Of Cash Flows - USD ($)
$ in Thousands
9 Months Ended
Sep. 26, 2020
Sep. 28, 2019
Cash flows from operating activities:    
Net loss $ (5,502) $ (10,677)
Adjustments to reconcile net loss to net cash used in operating activities:    
Depreciation and amortization 112 132
Interest accrued on convertible promissory notes 227 332
Amortization of debt discounts 159 401
Non-cash lease expense 385 417
Stock-based compensation 582 782
Changes in operating assets and liabilities:    
Accounts receivable (531) 429
Inventories (1,025) 548
Prepaid expenses and other current assets 340 (7)
Accounts payable (1,081) (977)
Accrued payroll and related liabilities (75) (129)
Accrued expenses and other current liabilities (505) (483)
Net cash used in operating activities (6,914) (9,232)
Cash flows from investing activities:    
Acquisition of property and equipment (25) (70)
Net cash used in investing activities (25) (70)
Cash flows from financing activities:    
Net borrowings (repayments) under line of credit 398 (778)
Proceeds from issuance of long-term debt 637  
Payments on note payable (424) (376)
Proceeds from issuance of common stock, net 12,174 2,457
Proceeds from exercise of stock options 28 22
Payments for taxes related to net share settlement of equity awards (103) (39)
Net cash provided by (used in) financing activities 12,710 1,286
Net change in cash, cash equivalents and restricted cash 5,771 (8,016)
Cash, cash equivalents and restricted cash at beginning of period 11,716 16,652
Cash, cash equivalents and restricted cash at end of period $ 17,487 $ 8,636
v3.20.2
Condensed Consolidated Statements Of Cash Flows (Parenthetical) - USD ($)
$ in Thousands
Sep. 26, 2020
Sep. 28, 2019
Reconciliation of cash, cash equivalents and restricted cash at end of period:    
Cash and cash equivalents $ 14,287 $ 6,386
Restricted cash 3,200 2,250
Cash, cash equivalents and restricted cash at end of period $ 17,487 $ 8,636
v3.20.2
Description of Business
9 Months Ended
Sep. 26, 2020
Description of Business  
Description of Business

Note 1—Description of Business

 

Netlist, Inc. and its wholly-owned subsidiaries (collectively the “Company” or “Netlist”) provides high-performance modular memory subsystems to customers in diverse industries that require enterprise and storage class memory solutions to empower critical business decisions. The Company has a history of introducing disruptive new products, such as one of the first load-reduced dual in-line memory modules (“LRDIMM”) based on its distributed buffer architecture, which has been adopted by the industry for DDR4 LRDIMM. The Company was also one of the first to bring NAND flash memory (“NAND flash”) to the memory channel with its NVvault non-volatile dual in-line memory modules (“NVDIMM”) using software-intensive controllers and merging dynamic random access memory integrated circuits (“DRAM ICs” or “DRAM”) and NAND flash to solve data bottleneck and data retention challenges encountered in high-performance computing environments. The Company has introduced a new generation of storage class memory products called HybriDIMM to address the growing need for real-time analytics in Big Data applications, in-memory databases, high performance computing and advanced data storage solutions. The Company also resells NAND flash, DRAM products and other component products to end-customers that are not reached in the distribution models of the component manufacturers, including storage customers, appliance customers, system builders and cloud and datacenter customers.

 

Due to the ground-breaking product development of its engineering teams, Netlist has built a robust portfolio of over 130 issued and pending U.S. and foreign patents, many seminal, in the areas of hybrid memory, storage class memory, rank multiplication and load reduction. Since its inception, the Company has dedicated substantial resources to the development, protection and enforcement of technology innovations it believes are essential to its business. The Company’s early pioneering work in these areas has been broadly adopted in industry-standard registered dual in-line memory module (“RDIMM”), LRDIMM and NVDIMM. Netlist’s objective is to continue to innovate in its field and invest further in its intellectual property portfolio, with the goal of monetizing its intellectual property through a combination of product sales and licensing, royalty or other revenue-producing arrangements, which may result from joint development or similar partnerships or defense of the Company’s patents through enforcement actions against parties it believes are infringing them.

 

Netlist was incorporated in June 2000 and is headquartered in Irvine, California. The Company has established a manufacturing facility in the People’s Republic of China (“PRC”), which became operational in July 2007. The Company operates in one reportable segment, which is the design and manufacture of high-performance memory subsystems for the server, high-performance computing and communications markets.    

 

Liquidity

 

The Company incurred net loss of $2.1 million and $5.5 million for the three and nine months ended September 26, 2020 and $12.5 million and $17.1 million for the fiscal years ended December 28, 2019 and December 29, 2018, respectively. The Company has historically financed its operations primarily with revenues generated from operations, including product sales, and proceeds from issuances of debt and equity securities (see Notes 5 and 8). The Company has also funded its operations with a revolving line of credit under a bank credit facility, and a funding arrangement for costs associated with certain of its legal proceedings (see Notes 4, 5 and 7).

 

On June 24, 2019, the Company entered into a purchase agreement (the “2019 Purchase Agreement”) with Lincoln Park Capital Fund, LLC (“Lincoln Park”), pursuant to which the Company has the right to sell to Lincoln Park up to an aggregate of $10 million in shares of its common stock over the 36-month term of the 2019 Purchase Agreement subject to the conditions and limitations set forth in the 2019 Purchase Agreement (see Note 8).

 

On March 5, 2020, the Company entered into another purchase agreement (the “2020 Purchase Agreement”) with Lincoln Park, pursuant to which the Company has the right to sell to Lincoln Park up to an aggregate of $20 million in shares of its common stock over the 36-month term of the 2020 Purchase Agreement subject to the conditions and limitations set forth in the 2020 Purchase Agreement (see Note 8).

 

On April 23, 2020, the Company entered into an unsecured promissory note with a principal amount of $0.6 million through Hanmi Bank under the Paycheck Protection Program (“PPP”) (“PPP Loan”) administered by the Small Business Administration (“SBA”) and established as part of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) (see Note 5).

 

Inadequate working capital would have a material adverse effect on the Company’s business and operations and could cause the Company to fail to execute its business plan, fail to take advantage of future opportunities or fail to respond to competitive pressures or customer requirements. A lack of sufficient funding may also require the Company to significantly modify its business model and/or reduce or cease its operations, which could include implementing cost-cutting measures or delaying, scaling back or eliminating some or all of its ongoing and planned investments in corporate infrastructure, research and development projects, business development initiatives and sales and marketing activities, among other activities. While the Company’s estimates of its operating revenues and expenses and working capital requirements could be incorrect and the Company may use its cash resources faster than it anticipates, management believes the Company’s existing cash balance together with cash receipts from revenues, borrowing availability under a bank credit facility (see Note 4), funds available to be raised from the Lincoln Park arrangements (see Note 8) and funds raised through the debt and equity offerings, will be sufficient to meet the Company’s anticipated cash needs for at least the next 12 months.

v3.20.2
Summary of Significant Accounting Policies
9 Months Ended
Sep. 26, 2020
Summary of Significant Accounting Policies  
Summary of Significant Accounting Policies

Note 2—Summary of Significant Accounting Policies

 

Basis of Presentation

 

The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”). Certain information and footnote disclosures normally included in the consolidated financial statements prepared in accordance with U.S. GAAP have been condensed or omitted pursuant to the rules and regulations of the Securities and Exchange Commission (“SEC”). These condensed consolidated financial statements should be read in conjunction with the consolidated financial statements and notes thereto as of and for the year ended December 28, 2019, included in the Company’s Annual Report on Form 10-K filed with the SEC on March 10, 2020 (the “2019 Annual Report”).

 

In the opinion of management, all adjustments for the fair presentation of the Company’s condensed consolidated financial statements have been made. The adjustments are of a normal recurring nature except as otherwise noted. The results of operations for the interim periods are not necessarily indicative of the results to be expected for other periods or the full fiscal year. The Company has evaluated events occurring subsequent to September 26, 2020, through the filing date of this Quarterly Report on Form 10-Q and concluded that there were no events that required recognition and disclosures, other than those discussed elsewhere in the notes hereto.

 

Principles of Consolidation

 

The accompanying condensed consolidated financial statements include the accounts of Netlist, Inc. and its wholly-owned subsidiaries. All intercompany balances and transactions have been eliminated in consolidation.

 

Fiscal Year

 

The Company’s fiscal year is the 52- or 53-week period that ends on the Saturday nearest to December 31. The Company’s fiscal year 2020 will include 53 weeks and ends on January 2, 2021 and its fiscal year 2019 included 52 weeks and ended on December 28, 2019. The first three quarters of fiscal year 2020 each includes 13 weeks and the fourth quarter includes 14 weeks. The four quarters of fiscal year 2019 each included 13 weeks. Unless otherwise stated, references to particular years, quarters, months and periods refer to the Company’s fiscal years ended in January or December and the associated quarters, months and periods of those fiscal years.

 

Use of Estimates

 

The preparation of the accompanying condensed consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the amounts reported. Actual results may differ materially from those estimates.

 

Recently Adopted Accounting Guidance

 

In the first quarter of 2020, the Company adopted the Financial Accounting Standards Board (“FASB”) Accounting Standards Update (“ASU”) No. 2018-15, Intangibles - Goodwill and Other - Internal-Use Software (Subtopic 350-40): Customer's Accounting for Implementation Costs Incurred in a Cloud Computing Arrangement That Is a Service Contract (a consensus of the FASB Emerging Issues Task Force) (“ASU 2018-15”), which amends the accounting for implementation, setup, and other upfront costs in a hosting arrangement that is a service contract. The adoption of ASU 2018-15 did not have an impact on the Company’s condensed consolidated financial statements.

 

In the first quarter of 2020, the Company adopted FASB ASU No. 2018-13, Fair Value Measurement (Topic 820): Disclosure Framework - Changes to the Disclosure Requirements for Fair Value Measurement (“ASU 2018-13”), which removes, modifies, and adds various disclosure requirements on fair value measurements in Topic 820. The adoption of ASU 2018-13 did not have an impact on the Company’s condensed consolidated financial statements.

 

Recently Issued Accounting Guidance

 

In December 2019, the FASB issued ASU No. 2019-12, Income Taxes (Topic 740) Simplifying the Accounting for Income Taxes, which eliminates certain exceptions related to the approach for intraperiod tax allocation, the methodology for calculating income taxes in an interim period and the recognition of deferred tax liabilities for outside basis differences. This ASU also clarifies and simplifies other aspects of the accounting for income taxes. The ASU will be effective for fiscal years beginning after December 15, 2020 and interim periods within those fiscal years and early adoption is permitted. Certain amendments of this ASU may be adopted on a retrospective basis, modified retrospective basis or prospective basis. The Company is currently evaluating the impact this guidance will have on its condensed consolidated financial statements.

 

In August 2020, the FASB issued ASU No. 2020-06, Debt—Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging—Contracts in Entity’s Own Equity (Subtopic 815-40): Accounting for Convertible Instruments and Contracts in an Entity’s Own Equity. This ASU amends the guidance on convertible instruments and the derivatives scope exception for contracts in an entity's own equity, and also improves and amends the related earnings per share guidance for both Subtopics. The ASU will be effective for fiscal years beginning after December 15, 2023, including interim periods within those fiscal years and early adoption is permitted. The Company is currently evaluating the impact this guidance will have on its condensed consolidated financial statements.

 

Fair Value Measurements

 

The hierarchy below lists three levels of fair value based on the extent to which inputs used in measuring fair value are observable in the market. The Company categorizes each of its fair value measurements in one of those three levels based on the lowest level input that is significant to the fair value measurement in its entirety.

 

·

Level 1 – inputs are based on unadjusted quoted prices in active markets for identical assets or liabilities that the Company has the ability to access. An active market is defined as a market in which transactions for the assets or liabilities occur with sufficient frequency and volume to provide pricing information on an ongoing basis.

·

Level 2 – inputs are based on quoted prices of similar instruments in active markets, quoted prices for identical or similar instruments in market that are not active, and model-based valuation techniques for which all significant assumptions are observable in the market or can be corroborated by observable market data for substantially the full term of the assets or liabilities.

·

Level 3 – inputs are generally unobservable inputs for the asset or liability, which are typically based on management’s estimates of assumptions that market participants would use in pricing the assets and liabilities. The fair values are therefore determined using model-based techniques, including option pricing models and discounted cash flow models.

 

The Company’s financial instruments consist principally of cash and cash equivalents, restricted cash, a revolving line of credit, PPP Loan and convertible promissory notes. Cash equivalents consist of short-term investments with original maturities of three months or less and restricted cash consists of cash to secure standby letters of credit (see Note 4). The carrying value of these instruments approximates their fair value due to their short-term nature. The fair value of the revolving line of credit, the PPP Loan and convertible promissory note is estimated by using current applicable rates for similar instruments as of the balance sheet date and an assessment of the credit rating. The carrying value of the revolving line of credit as of September 26, 2020 and December 28, 2019 and the PPP Loan as of September 26, 2020 approximates fair value because the interest rate yield is near current market rates for comparable debt instruments. The fair value of the convertible promissory note is estimated by using a discounted cash flow analysis using borrowing rates available to the Company for debt instruments with similar terms and maturities and is classified in Level 2 of the valuation hierarchy. The carrying value and estimated fair value of the secured convertible promissory note as of September 26, 2020 were $14.7 million and $12.2 million, respectively. The carrying value and estimated fair value of the secured convertible promissory note as of December 28, 2019 were $14.6 million and $11.7 million, respectively.    

 

Other Significant Accounting Policies

 

The Company’s other significant accounting policies were reported in the 2019 Annual Report and have not changed materially from the policies previously reported.

v3.20.2
Supplemental Financial Information
9 Months Ended
Sep. 26, 2020
Supplemental Financial Information  
Supplemental Financial Information

Note 3—Supplemental Financial Information

 

Inventories

 

Inventories consisted of the following (in thousands):

 

 

 

 

 

 

 

 

 

 

September 26,

 

December 28,

 

   

2020

 

2019

Raw materials

 

$

911

 

$

1,052

Work in process

 

 

20

 

 

25

Finished goods

 

 

3,590

 

 

2,419

 

 

$

4,521

 

$

3,496

 

Net Loss Per Share

 

The following table shows the computation of basic and diluted net loss per share of common stock (in thousands, except per share data):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

Nine Months Ended

 

 

September 26,

 

September 28,

 

September 26,

 

September 28,

 

   

2020

 

2019

  

2020

  

2019

Numerator: Net loss

 

$

(2,130)

 

$

(3,108)

 

$

(5,502)

 

$

(10,677)

Denominator: Weighted-average common shares outstanding—basic and diluted

 

 

192,257

 

 

148,058

 

 

179,154

 

 

142,624

Net loss per share—basic and diluted

 

$

(0.01)

 

$

(0.02)

 

$

(0.03)

 

$

(0.07)

 

The table below shows potentially dilutive weighted average common share equivalents, consisting of shares issuable upon the exercise of outstanding stock options and warrants using the treasury stock method, shares issuable upon conversion of the SVIC Note and the Iliad Note (see Note 5) using the “if-converted” method, and the vesting of restricted stock awards (“RSAs”) and restricted stock units (“RSUs”). These potential weighted average common share equivalents have been excluded from the diluted net loss per share calculations above as their effect would be anti-dilutive (in thousands):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

Nine Months Ended

 

 

September 26,

 

September 28,

 

September 26,

 

September 28,

 

    

2020

    

2019

    

2020

    

2019

Weighted average common share equivalents

 

 

14,278

 

 

16,120

 

 

13,526

 

 

16,212

 

Disaggregation of Net Sales

 

The following table shows disaggregated net sales by major source (in thousands):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

Nine Months Ended

 

 

September 26,

 

September 28,

 

September 26,

 

September 28,

 

    

2020

 

2019

    

2020

 

2019

Resales of third-party products

 

$

6,883

 

$

5,180

 

$

24,146

 

$

13,725

Sale of the Company's modular memory subsystems

 

 

3,329

 

 

936

 

 

11,603

 

 

3,008

Total net sales

 

$

10,212

 

$

6,116

 

$

35,749

 

$

16,733

 

Major Customers and Products

 

The Company’s net sales have historically been concentrated in a small number of customers. The following table sets forth the percentage of net sales made to customers that each comprise 10% or more of total net sales:

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

Nine Months Ended

 

 

September 26,

 

September 28,

 

September 26,

 

September 28,

 

 

2020

 

2019

 

2020

 

2019

Customer A

 

14%

 

*

 

15%

 

*

Customer B

 

21%

 

13%

 

*

 

11%

Customer C

 

*

 

10%

 

*

 

*

*Less than 10% of net sales during the period.

 

As of September 26, 2020, four customers represented 27%,  19%,  11% and 10% of aggregate gross receivables, respectively. As of December 28, 2019, one customer represented approximately 25% of aggregate gross receivables. The loss of the significant customers or a reduction in sales to or difficulties collecting payments from these customers could significantly reduce the Company’s net sales and adversely affect its operating results. The Company mitigates risks associated with foreign receivables by purchasing comprehensive foreign credit insurance.

 

The Company resells certain component products to end-customers that are not reached in the distribution models of the component manufacturers, including storage customers, appliance customers, system builders and cloud and datacenter customers. For the three and nine months ended September 26, 2020, resales of these products represented approximately 67% and 68% of net sales, respectively. For the three and nine months ended September 28, 2019, they represented approximately 85% and 82% of net sales, respectively.

 

Cash Flow Information

 

The following table sets forth supplemental disclosure of non-cash financing activities:

 

 

 

 

 

 

 

 

 

Nine Months Ended

 

 

September 26,

 

September 28,

 

    

2020

    

2019

Common stock issued on conversion of convertible note payable and accrued interest

 

$

 —

 

$

1,417

 

v3.20.2
Credit Agreements
9 Months Ended
Sep. 26, 2020
Credit Agreements  
Credit Agreements

Note 4—Credit Agreement

 

On October 31, 2009, the Company and Silicon Valley Bank (“SVB”) entered into a credit agreement (as the same may from time to time be amended, modified, supplemented or restated, the “SVB Credit Agreement”), which provides for a revolving line of credit up to $5.0 million. The borrowing base is limited to 85% of the eligible accounts receivable, subject to certain adjustments. As of September 26, 2020, the borrowings under the SVB Credit Agreement bear interest based on the Wall Street Journal “prime rate” plus 2.75% and mature on April 30, 2021. The 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 September 26, 2020 and December 28, 2019, (i) outstanding letters of credit were $3.2 million and $2.8 million, respectively, (ii) outstanding borrowings were $3.4 million and $3.0 million, respectively, and (iii) availability under the revolving line of credit was $0.1 million and $0.2 million, respectively.

 

On April 12, 2017, the Company and SVB entered into an amendment to the SVB Credit Agreement to, among other things, obtain SVB’s consent in connection with the Company’s rights agreement with Computershare Trust Company, N.A., as rights agent (see Note 8), and make certain administrative changes in connection with the Company’s funding arrangement with TR Global Funding V, LLC, an affiliate of TRGP Capital Management, LLC (“TRGP”) (see Note 7).

 

For all periods before April 20, 2017, all obligations under the SVB Credit Agreement were secured by a first priority security interest in the Company’s tangible and intangible assets, other than its patent portfolio, which was subject to a first priority security interest held by Samsung Venture Investment Co.(“SVIC”) (see Note 5). Certain of these lien priorities were modified in April and May 2017 in connection with the Company’s establishment of a funding arrangement with TRGP for certain of the Company’s litigation expenses in connection with certain of its legal proceedings against SK hynix, Inc, a South Korean memory semiconductor supplier (“SK hynix”). On May 3, 2017, TRGP entered into an intercreditor agreement with each of SVIC and SVB, and on April 20, 2017, SVIC and SVB entered into an intercreditor agreement with each other (such intercreditor agreements, collectively, the “Intercreditor Agreements”). Pursuant to the terms of the Intercreditor Agreements, SVB’s security interests in the Company’s assets have been modified as follows: SVB has a first priority security interest in all of the Company’s tangible and intangible assets other than its patent portfolio and its claims underlying and any proceeds it may receive from the SK hynix proceedings; a second priority security interest in the Company’s patent portfolio other than the patents that are the subject of the SK hynix proceedings; and a third priority security interest in the Company’s patents that are the subject of the SK hynix proceedings (see Note 7).

 

The 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 September 26, 2020, the Company was in compliance with its covenants under the SVB Credit Agreement.

v3.20.2
Debt
9 Months Ended
Sep. 26, 2020
Debt  
Debt

Note 5—Debt

 

The Company’s debt consisted of the following (in thousands):

 

 

 

 

 

 

 

 

 

 

September 26,

 

December 28,

 

    

2020

    

2019

Secured convertible note, due December 2021, including accrued interest of $1,457 (2020) and $1,233 (2019), respectively

 

$

16,457

 

$

16,233

Paycheck protection program loan, due April 2022, including accrued interest of $2

 

 

639

 

 

 —

Notes payable

 

 

 —

 

 

412

Unamortized debt discounts and issuance costs

 

 

(281)

 

 

(440)

 

 

 

16,815

 

 

16,205

Less: current portion

 

 

(389)

 

 

(412)

 

 

$

16,426

 

$

15,793

 

Secured Convertible Note

 

On November 18, 2015, in connection with entering into the JDLA with Samsung, the Company issued to SVIC a secured convertible note (“SVIC Note”) and stock purchase warrant (“SVIC Warrant”). The SVIC Note has an original principal amount of $15.0 million, accrues interest at a rate of 2.0% per year, is due and payable in full on December 31, 2021, and is convertible into shares of the Company’s common stock at a conversion price of $1.25 per share, subject to certain adjustments, on the maturity date of the SVIC Note. Upon a change of control of the Company prior to the maturity date of the SVIC Note, the SVIC Note may, at the Company’s option, be assumed by the surviving entity or be redeemed upon the consummation of such change of control for the principal and accrued but unpaid interest as of the redemption date. The SVIC Warrant grants SVIC a right to purchase 2,000,000 shares of the Company’s common stock at an exercise price of $0.30 per share, subject to certain adjustments, is only exercisable in the event the Company exercises its right to redeem the SVIC Note prior to its maturity date, and expires on December 31, 2025.

 

The SVIC Warrant was valued at $1.2 million, based on its relative fair value, and was recorded as a debt discount. The Company also recorded $0.2 million of debt issuance costs as a debt discount for professional services fees rendered in connection with the transaction. These amounts are being amortized to interest expense over the term of the SVIC Note using the interest method. For the three and nine months ended September 26, 2020, interest expense related to the amortization of the issuance costs associated with the liability component was not material. The effective interest rate, including accretion of the SVIC Note to par and amortization of debt issuance costs, was approximately 3.4%. As of September 26, 2020, the outstanding principal and accrued interest on the SVIC Note was $16.5 million, and the outstanding SVIC Note balance, net of unamortized debt discounts and issuance costs, was $16.2 million.

 

In connection with the SVIC Note, SVIC was granted a first priority security interest in the Company’s patent portfolio and a second priority security interest in all of the Company’s other tangible and intangible assets. Upon issuance of the SVIC Note, the Company, SVB and SVIC entered into an Intercreditor Agreement pursuant to which SVB and SVIC agreed to their relative security interests in the Company’s assets. In May 2017, SVIC, SVB and TRGP entered into additional Intercreditor Agreements to modify certain of these lien priorities (see Note 7). Additionally, upon issuance of the SVIC Note and the SVIC Warrant, the Company and SVIC entered into a Registration Rights Agreement pursuant to which the Company is obligated to register with the Securities and Exchange Commission, upon demand by SVIC, the shares of the Company’s common stock issuable upon conversion of the SVIC Note or upon exercise of the SVIC Warrant.

 

The SVIC Note subjects the Company to certain affirmative and negative operating covenants. As of September 26, 2020, the Company was in compliance with its covenants under the SVIC Note.

 

Unsecured Convertible Note

 

On August 27, 2018, the Company entered into a Securities Purchase Agreement with Iliad Research and Trading, L.P. (“Iliad”) (the “Iliad Purchase Agreement”), pursuant to which the Company issued a convertible promissory note in the principal amount of $2.3 million (“Iliad Note”) with an original issue discount of $0.2 million. The Iliad Note bore interest at an annual rate of 8% and would mature on August 27, 2020, unless earlier repurchased, redeemed or converted in accordance with its terms.

 

During the year ended December 28, 2019, Iliad fully-converted the outstanding principal and accrued interest on the Iliad Note to shares of the Company’s common stock as follows: (1) $1.9 million of the outstanding principal and accrued interest on the Iliad Note to 7,778,270 shares of the Company’s common stock at the Redemption Conversion Price and (2) $0.5 million of the outstanding principal and accrued interest on the Iliad Note to 1,388,890 shares of the Company’s common stock at the Lender Conversion Price. As a result of these conversions, as of December 28, 2019, there were no outstanding principal and accrued interest on the Iliad Note.

 

Paycheck Protection Program Loan

 

On April 23, 2020, the Company entered into the PPP Loan with a principal amount of $0.6 million through Hanmi Bank under the PPP administered by the SBA and established as part of the CARES Act. The PPP Loan bears interest at 1.0% per annum and matures on April 23, 2022 with the first six months of interest and principal payments deferred. The amount borrowed under the PPP Loan is guaranteed by the SBA and is eligible for forgiveness in an amount equal to the sum of the eligible costs, including payroll, benefits, rent and utilities, incurred by the Company during the 24-week period beginning on the date the Company received the proceeds. The PPP Loan contains customary events of default, and the occurrence of an event of default may result in a claim for the immediate repayment of all amounts outstanding under the PPP Loan.

v3.20.2
Leases
9 Months Ended
Sep. 26, 2020
Leases  
Leases

Note 6—Leases

 

The Company has operating and finance leases primarily associated with office and manufacturing facilities and certain equipment. The determination of which discount rate to use when measuring the lease obligation was deemed a significant judgment.

 

Lease cost and supplemental cash flow information related to operating leases was as follows (in thousands):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

Nine Months Ended

 

 

September 26,

 

September 28,

 

September 26,

 

September 28,

 

    

2020

 

2019

    

2020

    

2019

Lease cost

 

 

 

 

 

 

 

 

 

 

 

 

Operating lease cost

 

$

141

 

$

158

 

$

446

 

$

476

Cash paid for amounts included in the measurement of lease liabilities

 

 

 

 

 

 

 

 

 

 

 

 

Operating cash flows from operating leases

 

 

141

 

 

155

 

 

442

 

 

450

Right-of-use assets obtained in exchange for lease obligations

 

 

 

 

 

 

 

 

 

 

 

 

Finance leases

 

 

 —

 

 

 —

 

 

 —

 

 

96

Lease modification to decrease ROU assets

 

 

 —

 

 

 —

 

 

365

 

 

 —

 

For the three and nine months ended September 26, 2020 and September 28, 2019, finance lease costs and cash flows from finance lease were immaterial.

 

Supplemental balance sheet information related to leases was as follows:

 

 

 

 

 

 

 

 

 

 

September 26,

 

December 28,

(in thousands)

 

2020

 

2019

Operating Leases

 

 

 

 

 

 

Operating lease right-of-use assets

 

$

218

 

$

968

Accrued expenses and other current liabilities

 

$

235

 

$

511

Operating lease liabilities

 

 

 —

 

 

498

Total operating lease liabilities

 

$

235

 

$

1,009

 

 

 

 

 

 

 

Finance Leases

 

 

 

 

 

 

Property and equipment, at cost

 

$

96

 

$

96

Accumulated depreciation

 

 

(29)

 

 

(14)

Property and equipment, net

 

$

67

 

$

82

Accrued expenses and other current liabilities

 

$

19

 

$

18

Other long-term liabilities

 

 

51

 

 

65

Total finance lease liabilities

 

$

70

 

$

83

 

 

 

 

 

 

 

 

Weighted Average Remaining Lease Term (in years)

 

 

 

 

 

 

Operating lease

 

 

0.6

 

 

2.1

Finance lease

 

 

3.5

 

 

4.3

 

 

 

 

 

 

 

Weighted Average Discount Rate

 

 

 

 

 

 

Operating lease

 

 

6.1%

 

 

7.9%

Finance lease

 

 

5.1%

 

 

5.1%

 

Maturities of lease liabilities as of September 26, 2020 were as follows (in thousands):

 

 

 

 

 

 

 

 

Fiscal Year

 

Operating Leases

 

Finance Leases

2020 (remaining 3 months)

 

$

120

 

$

 6

2021

 

 

120

 

 

22

2022

 

 

 —

 

 

22

2023

 

 

 —

 

 

22

2024

 

 

 —

 

 

 5

Total lease payments

 

 

240

 

 

77

Less: imputed interest

 

 

(5)

 

 

(7)

Total

 

$

235

 

$

70

 

v3.20.2
Commitments and Contingencies
9 Months Ended
Sep. 26, 2020
Commitments and Contingencies  
Commitments and Contingencies

Note 7—Commitments and Contingencies

 

TRGP Agreement and Related Intercreditor Agreements

 

On May 3, 2017, the Company and TRGP entered into an investment agreement (the “TRGP Agreement”), which generally provided that TRGP directly fund the costs incurred by or on behalf of the Company in connection with the Company’s first action in the U.S. International Trade Commission (“ITC”) and its U.S. district court proceedings, but excluding all other proceedings (all such funded costs, collectively, the “Funded Costs”). In exchange for such funding, the Company agreed that, if the Company recovered any proceeds in connection with the funded SK hynix proceedings relating to certain patents, it would pay to TRGP the amount of the Funded Costs paid by TRGP plus an escalating premium based on when any such proceeds are recovered. In addition, pursuant to the terms of a separate security agreement between the Company and TRGP dated May 3, 2017 (the “Security Agreement”), the Company granted to TRGP (i) a first priority lien on, and security in, the claims underlying the funded SK hynix proceedings and any proceeds that may be received by the Company in connection with these proceedings, and (ii) a second priority lien on, and security in, the Company’s patents that are the subject of the funded SK hynix proceedings. The TRGP Agreement and its amendment do not impose financial covenants on the Company. On January 23, 2020, the Company and TRGP entered into an amendment to the TRGP Agreement to alter the recovery sharing formula related to claims against SK hynix for alleged infringement of the Company’s patents.

 

In connection with the TRGP Agreement, in May 2017, TRGP, SVIC and SVB entered into the Intercreditor Agreements. Pursuant to the terms of the Intercreditor Agreements, TRGP, SVB and SVIC have agreed to their relative security interest priorities in the Company’s assets, such that: (i) TRGP has a first priority security interest in the Company’s claims underlying the funded SK hynix proceedings and any proceeds that may be received by the Company in connection with these proceedings relating to certain patents, and a second priority security interest in the Company’s patents that are the subject of the funded SK hynix proceedings, (ii) SVIC has a first priority security interest in the Company’s complete patent portfolio and a second priority security interest in all of the Company’s other tangible and intangible assets (other than the Company’s claims underlying and any proceeds it may receive from the SK hynix proceedings funded under the TRGP Agreement), and (iii) SVB has a first priority security interest in all of the Company’s tangible and intangible assets other than its patent portfolio and its claims underlying and any proceeds it may receive from the SK hynix proceedings funded under the TRGP Agreement, a second priority security interest in the Company’s patent portfolio other than the patents that are the subject of the SK hynix proceedings funded under the TRGP Agreement, and a third priority security interest in the Company’s patents that are the subject of the SK hynix proceedings funded under the TRGP Agreement. The Company consented and agreed to the terms of each of the Intercreditor Agreements.

 

Legal expenses incurred by the Company but paid by TRGP pursuant to the terms of the TRGP Agreement are excluded from the condensed consolidated financial statements. During the years ended December 29, 2018 and December 30, 2017, the Company excluded legal expenses of $1.8 million and $10.2 million, respectively, as a result of TRGP’s payment of these expenses under the TRGP Agreement. No further legal expenses will be paid by TRGP under this agreement. Any settlement or other cash proceeds the Company may recover in the future in connection with the funded SK hynix proceedings may be reduced by the aggregate amount of legal expenses excluded by the Company as a result of TRGP’s payment of these expenses under the TRGP Agreement, plus the premium amount due to TRGP under the terms of the amended TRGP Agreement at the time of any such recovery. 

 

Litigation and Patent Reexaminations

 

The Company owns numerous patents and continues to seek to grow and strengthen its patent portfolio, which covers various aspects of the Company’s innovations and includes various claim scopes. The Company plans to pursue avenues to monetize its intellectual property portfolio, in which it would generate revenue by selling or licensing its technology, and it intends to vigorously enforce its patent rights against alleged infringers of such rights. The Company dedicates substantial resources to protecting and enforcing its intellectual property rights, including with patent infringement proceedings it files against third parties and defense of its patents against challenges made by way of reexamination and review proceedings at the U.S. Patent and Trademark Office (“USPTO”) and Patent Trial and Appeal Board (“PTAB”). The Company expects these activities to continue for the foreseeable future, with no guarantee that any ongoing or future patent protection or litigation activities will be successful, or that the Company will be able to monetize its intellectual property portfolio. The Company is also subject to litigation based on claims that it has infringed on the intellectual property rights of others.

 

Any litigation, regardless of its outcome, is inherently uncertain, involves a significant dedication of resources, including time and capital, and diverts management’s attention from other activities of the Company. As a result, any current or future infringement claims or patent challenges by or against third parties, whether or not eventually decided in the Company’s favor or settled, could materially adversely affect the Company’s business, financial condition and results of operations. Additionally, the outcome of pending or future litigation and related patent reviews and reexaminations, as well as any delay in their resolution, could affect the Company’s ability to continue to sell its products, protect against competition in the current and expected markets for its products or license or otherwise monetize its intellectual property rights in the future.

 

Google Litigation

 

On December 4, 2009, the Company filed a patent infringement lawsuit against Google, Inc. (“Google”) in the U.S. District Court for the Northern District of California (the “Northern District Court”), seeking damages and injunctive relief based on Google’s alleged infringement of the Company’s U.S. Patent No. 7,619,912 (the “‘912 patent”), which relates generally to technologies to implement rank multiplication. In February 2010, Google answered the Company’s complaint and asserted counterclaims against the Company seeking a declaration that the patent is invalid and not infringed, and claiming that the Company committed fraud, negligent misrepresentation and breach of contract based on the Company’s activities in the Joint Electron Device Engineering Council (“JEDEC”) standard-setting organization. The counterclaim seeks unspecified compensatory damages. Accruals have not been recorded for loss contingencies related to Google’s counterclaim because it is not probable that a loss has been incurred and the amount of any such loss cannot be reasonably estimated. In October 2010, Google requested and was later granted an Inter Partes Reexamination of the ‘912 patent by the USPTO. The reexamination proceedings are described below. In connection with the reexamination request, the Northern District Court granted the Company’s and Google’s joint request to stay the ‘912 patent infringement lawsuit against Google until the completion of the reexamination proceedings. On January 31, 2019, the PTAB, in response to Google’s rehearing request, denied rehearing of the PTAB’s previous decision upholding the validity of claims in Netlist’s ‘912 patent. On April 16, 2019, Google filed an appeal to this decision. On June 15, 2020, the United States Court of Appeals for the Federal Circuit affirmed the PTAB’s previous decision upholding the validity of claims in Netlist’s ‘912 patent.

 

Inphi Litigation

 

On September 22, 2009, the Company filed a patent infringement lawsuit against Inphi Corporation (“Inphi”) in the U.S. District Court for the Central District of California (the “Central District Court”). The complaint, as amended, alleges that Inphi is contributorily infringing and actively inducing the infringement of U.S. patents owned by the Company, including the ‘912 patent, U.S. Patent No. 7,532,537 (the “‘537 patent”), which relates generally to memory modules with load isolation and memory domain translation capabilities, and U.S. Patent No. 7,636,274 (the “‘274 patent”), which is related to the ‘537 patent and relates generally to load isolation and memory domain translation technologies. The Company is seeking damages and injunctive relief based on Inphi’s use of the Company’s patented technology. Inphi denied infringement and claimed that the three patents are invalid. In June 2010, Inphi requested and was later granted Inter Partes Reexaminations of the ‘912, ‘537 and ‘274 patents by the USPTO. The reexamination proceedings are described below (except for the reexamination proceeding related to the ‘537 patent, which have concluded with the confirmation of all of the claims of such patent). In connection with the reexamination requests, Inphi filed a motion to stay the patent infringement lawsuit with the Central District Court until completion of the reexamination proceedings, which was granted. On April 16, 2019, Inphi filed an appeal to the PTAB’s January 31, 2019 decision upholding the validity of claims in Netlist’s ‘912 patent. On June 15, 2020, the United States Court of Appeals for the Federal Circuit affirmed the PTAB’s previous decision upholding the validity of claims in Netlist’s ‘912 patent.

 

‘912 Patent Reexamination

 

As noted above, in April 2010, June 2010 and October 2010, Google and Inphi submitted requests for an Inter Partes Reexamination of the ‘912 patent by the USPTO, claiming that the ‘912 patent is invalid and requesting that the USPTO reject the patent’s claims and cancel the patent. Additionally, in October 2010, Smart Modular, Inc. (“Smart Modular”) submitted another such reexamination request. On January 18, 2011, the USPTO granted such reexamination requests, and in February 2011, the USPTO merged the Inphi, Google and Smart Modular ‘912 patent reexaminations into a single proceeding. On March 21, 2014, the USPTO issued an Action Closing Prosecution (“ACP”), an office action that states the USPTO examiner’s position on patentability and closes further prosecution, and on June 18, 2014 the USPTO issued a Right of Appeal Notice (“RAN”), a notice that triggers the rights of the involved parties to file a notice of appeal to the ACP, each of which confirmed the patentability of 92 of the ‘912 patent’s claims and rejected the patent’s 11 other claims. The parties involved filed various notices of appeal, responses and requests, and on November 24, 2015, the PTAB held a hearing on such appeals. On May 31, 2016, the PTAB issued a decision affirming certain of the examiner’s decisions and reversing others. On February 9, 2017, the PTAB granted the Company’s request to reopen prosecution before the USPTO examiner and remanded the consolidated proceeding to the examiner to consider the patentability of certain of the pending claims in view of the PTAB’s May 31, 2016 decision and comments from the parties. On October 3, 2017, the examiner issued a determination as to the patentability of certain of the pending claims, which were found to be unpatentable. On June 1, 2018, the PTAB reversed the Examiner and found the pending amended claims to be patentable. On July 2, 2018, Google requested rehearing of the PTAB’s decision. On January 31, 2019 the PTAB, in response to Google’s rehearing request, denied rehearing of the PTAB’s previous decision upholding the validity of claims in Netlist’s ‘912 patent. On April 16, 2019, Inphi and Google filed an appeal to the ‘912 patent decision. On June 15, 2020, the United States Court of Appeals for the Federal Circuit affirmed the PTAB’s previous decision upholding the validity of claims in Netlist’s ‘912 patent. Accruals have not been recorded for loss contingencies related to the ‘912 patent reexamination proceedings because it is not probable that a loss has been incurred and the amount of any such loss cannot be reasonably estimated.

 

SK hynix Litigation

 

On September 1, 2016, the Company filed legal proceedings for patent infringement against SK hynix in the ITC (the “First ITC Action”) and the Central District Court. These proceedings are based on the alleged infringement by SK hynix’s RDIMM and LRDIMM enterprise memory products of six of the Company’s U.S. patents. On October 31, 2017, the Company filed additional legal proceedings for patent infringement against SK hynix in the ITC (the “Second ITC Action”) based on the alleged infringement by SK hynix’s RDIMM and LRDIMM products of two additional U.S. patents owned by the Company. In all of the ITC proceedings, the Company has requested exclusion orders that direct U.S. Customs and Border Protection to stop allegedly infringing SK hynix RDIMM and LRDIMM products from entering the United States. In the Central District Court proceedings, the Company is primarily seeking damages. The First and Second ITC Actions are no longer pending and the parallel Central District Court infringement proceedings are currently proceedings pending further order of the court.

 

On March 17, 2020, Netlist filed legal proceedings alleging patent infringement against SK hynix in the U.S. District Court for the Western District of Texas based on the infringement of Netlist U.S. Patent No. 9,858,218 and U.S. Patent No. 10,474,595 by SK hynix RDIMM and LRDIMM memory products. The case has been assigned to the Hon. Alan D. Albright and is Case No. 6:20-cv-00194-ADA. The Markman hearing in this case is scheduled for March 2021 and the trial is scheduled for December 2021.

 

On June 15, 2020, Netlist filed a second round of legal proceedings alleging patent infringement against SK hynix in the U.S. District Court for the Western District of Texas based on the infringement of Netlist U.S. Patent No. 10,217,523 by SK hynix LRDIMM memory products. The case has been assigned to the Hon. Alan D. Albright and is Case No. 6:20-cv-00525-ADA. The Markman hearing in this case is scheduled for March 2021 and the trial is scheduled for December 2021.

   

Other Contingent Obligations

 

In the ordinary course of its business, the Company has made certain indemnities, commitments and guarantees pursuant to which it may be required to make payments in relation to certain transactions. These include, among others: (i) intellectual property indemnities to the Company’s customers and licensees in connection with the use, sale and/or license of Company products; (ii) indemnities to vendors and service providers pertaining to claims based on the Company’s negligence or willful misconduct; (iii) indemnities involving the accuracy of representations and warranties in certain contracts; (iv) indemnities to directors and officers of the Company to the maximum extent permitted under the laws of the State of Delaware; (v) indemnities to TRGP, SVIC, SVB and Iliad pertaining to all obligations, demands, claims, and liabilities claimed or asserted by any other party in connection with transactions contemplated by the applicable investment or loan documents, as applicable; and (vi) indemnities or other claims related to certain real estate leases, under which the Company may be required to indemnify property owners for environmental and other liabilities or may face other claims arising from the Company’s use of the applicable premises. The duration of these indemnities, commitments and guarantees varies and, in certain cases, may be indefinite. The majority of these indemnities, commitments and guarantees do not provide for any limitation of the maximum potential for future payments the Company could be obligated to make. Historically, the Company has not been obligated to make significant payments as a result of these obligations, and no liabilities have been recorded for these indemnities, commitments and guarantees in the accompanying condensed consolidated balance sheets.

v3.20.2
Stockholders' Equity
9 Months Ended
Sep. 26, 2020
Stockholders' Equity  
Stockholders' Equity

Note 8—Stockholders’ Equity

 

Serial Preferred Stock

 

The Company’s authorized capital stock includes 10,000,000 shares of serial preferred stock, with a par value of $0.001 per share. No shares of preferred stock were outstanding as of September 26, 2020 or December 28, 2019.

 

On April 17, 2017, the Company entered into a rights agreement (as amended from time to time, the “Rights Agreement”) with Computershare Trust Company, N.A., as rights agent. In connection with the adoption of the Rights Agreement and pursuant to its terms, the Company’s board of directors authorized and declared a dividend of one right (each, a “Right”) for each outstanding share of the Company’s common stock to stockholders of record at the close of business on May 18, 2017 (the “Record Date”), and authorized the issuance of one Right for each share of the Company’s common stock issued by the Company (except as otherwise provided in the Rights Agreement) between the Record Date and the Distribution Date (as defined below).  

 

Each Right entitles the registered holder, subject to the terms of the Rights Agreement, to purchase from the Company, when exercisable and subject to adjustment, one unit consisting of one one-thousandth of a share (a “Unit”) of Series A Preferred Stock of the Company (the “Preferred Stock”), at a purchase price of $6.56 per Unit, subject to adjustment. Subject to the provisions of the Rights Agreement, including certain exceptions specified therein, a distribution date for the Rights (the “Distribution Date”) will occur upon the earlier of (i) 10 business days following a public announcement that a person or group of affiliated or associated persons (an “Acquiring Person”) has acquired or otherwise obtained beneficial ownership of 15% or more of the then‑outstanding shares of the Company’s common stock, and (ii) 10 business days (or such later date as may be determined by the Company’s board of directors) following the commencement of a tender offer or exchange offer that would result in a person or group becoming an Acquiring Person. The Rights are not exercisable until the Distribution Date and, unless earlier redeemed or exchanged by the Company pursuant to the terms of the Rights Agreement (as amended on April 16, 2018, April 16, 2019 and August 14, 2020) will expire on the close of business on April 17, 2024.

 

In connection with the adoption of the Rights Agreement, the Company’s board of directors approved a Certificate of Designation of the Series A Preferred Stock (the “Certificate of Designation”) designating 1,000,000 shares of its serial preferred stock as Series A Preferred Stock and setting forth the rights, preferences and limitations of the Preferred Stock. The Company filed the Certificate of Designation with the Secretary of State of the State of Delaware on April 17, 2017.

 

Common Stock

 

The Company has one class of common stock with a par value of $0.001 per share. On August 7, 2020, the Company’s stockholders approved an amendment to the Restated Certificate of Incorporation to increase the number of shares of the common stock authorized for issuance from 300,000,000 to 450,000,000.

 

2019 Lincoln Park Purchase Agreement

 

On June 24, 2019, the Company entered into the 2019 Purchase Agreement with Lincoln Park, pursuant to which the Company has the right to sell to Lincoln Park up to an aggregate of $10 million in shares of its common stock subject to the conditions and limitations set forth in the 2019 Purchase Agreement. As consideration for entering into the 2019 Purchase Agreement, the Company issued to Lincoln Park 818,420 shares of its common stock as initial commitment shares in a noncash transaction on June 24, 2019 and will issue up to 818,420 additional shares of its common stock as additional commitment shares on a pro rata basis in connection with any additional purchases. The Company will not receive any cash proceeds from the issuance of these additional commitment shares.

 

Pursuant to the 2019 Purchase Agreement, on any business day and as often as every other business day over the 36-month term of the 2019 Purchase Agreement, the Company has the right, from time to time, at its sole discretion and subject to certain conditions, to direct Lincoln Park to purchase up to 400,000 shares of its common stock, with such amount increasing as the closing sale price of its common stock increases; provided Lincoln Park’s obligation under any single such purchase will not exceed $1.0 million, unless the Company and Lincoln Park mutually agree to increase the maximum amount of such single regular purchase. If the Company directs Lincoln Park to purchase the maximum number of shares of common stock it then may sell in a regular purchase, then in addition to such regular purchase, and subject to certain conditions and limitations in the 2019 Purchase Agreement, the Company may direct Lincoln Park to purchase an additional amount of common stock that may not exceed the lesser of (i) 300% of the number of shares purchased pursuant to the corresponding regular purchase or (ii) 30% of the total number of shares of its common stock traded during a specified period on the applicable purchase date as set forth in the 2019 Purchase Agreement. Under certain circumstances and in accordance with the 2019 Purchase Agreement, the Company may direct Lincoln Park to purchase shares in multiple accelerated purchases on the same trading day.

 

During the nine months ended September 26, 2020, Lincoln Park did not purchase shares of the Company’s common stock under the 2019 Purchase Agreement.

 

The Company controls the timing and amount of any sales of its common stock to Lincoln Park. There is no upper limit on the price per share that Lincoln Park must pay for the Company’s common stock under the 2019 Purchase Agreement, but in no event will shares be sold to Lincoln Park on a day the closing price is less than the floor price specified in the 2019 Purchase Agreement. In all instances, the Company may not sell shares of its common stock to Lincoln Park under the 2019 Purchase Agreement if that would result in Lincoln Park beneficially owning more than 9.99% of its common stock.

 

The 2019 Purchase Agreement does not limit the Company’s ability to raise capital from other sources at the Company’s sole discretion, except that, subject to certain exceptions, the Company may not enter into any Variable Rate Transaction (as defined in the Purchase Agreement, including the issuance of any floating conversion rate or variable priced equity-like securities) during the 36 months after the date of the 2019 Purchase Agreement. The Company has the right to terminate the 2019 Purchase Agreement at any time, at no cost to the Company.

 

2020 Lincoln Park Purchase Agreement

 

On March 5, 2020, the Company entered into the 2020 Purchase Agreement with Lincoln Park, pursuant to which the Company has the right to sell to Lincoln Park up to an aggregate of $20 million in shares of its common stock over the 36-month term of the 2020 Purchase Agreement subject to the conditions and limitations set forth in the 2020 Purchase Agreement. As consideration for entering into the 2020 Purchase Agreement, the Company issued to Lincoln Park 1,529,052 shares of its common stock as initial commitment shares in a noncash transaction on March 6, 2020 and will issue up to 917,431 additional shares of its common stock as additional commitment shares on a pro rata basis in connection with any additional purchases. The Company will not receive any cash proceeds from the issuance of these additional commitment shares.

 

Pursuant to the 2020 Purchase Agreement, on any business day and as often as every other business day over the 36-month term of the 2020 Purchase Agreement, the Company has the right, from time to time, at its sole discretion and subject to certain conditions, to direct Lincoln Park to purchase up to 400,000 shares of its common stock, with such amount increasing as the closing sale price of its common stock increases; provided Lincoln Park’s obligation under any single such purchase will not exceed $1.0 million, unless the Company and Lincoln Park mutually agree to increase the maximum amount of such single regular purchase. If the Company directs Lincoln Park to purchase the maximum number of shares of common stock it then may sell in a regular purchase, then in addition to such regular purchase, and subject to certain conditions and limitations in the 2020 Purchase Agreement, the Company may direct Lincoln Park to purchase an additional amount of common stock that may not exceed the lesser of (i) 300% of the number of shares purchased pursuant to the corresponding regular purchase or (ii) 30% of the total number of shares of its common stock traded during a specified period on the applicable purchase date as set forth in the 2020 Purchase Agreement. Under certain circumstances and in accordance with the 2020 Purchase Agreement, the Company may direct Lincoln Park to purchase shares in multiple accelerated purchases on the same trading day.

 

During the three and nine months ended September 26, 2020, Lincoln Park purchased an aggregate of 13,748,158 shares and 23,400,122 shares of the Company’s common stock for a net purchase price of $9.4 million and $12.2 million, respectively, under the 2020 Purchase Agreement. In connection with the purchases, during the three and nine months ended September 26, 2020, the Company issued to Lincoln Park an aggregate of 431,798 shares and 560,588 shares of its common stock, respectively, as additional commitment shares in noncash transactions.

 

The Company controls the timing and amount of any sales of its common stock to Lincoln Park. There is no upper limit on the price per share that Lincoln Park must pay for the Company’s common stock under the 2020 Purchase Agreement, but in no event will shares be sold to Lincoln Park on a day the closing price is less than the floor price specified in the 2020 Purchase Agreement. In all instances, the Company may not sell shares of its common stock to Lincoln Park under the 2020 Purchase Agreement if that will result in Lincoln Park beneficially owning more than 9.99% of its common stock.

 

The 2020 Purchase Agreement does not limit the Company’s ability to raise capital from other sources at the Company’s sole discretion, except that, subject to certain exceptions, the Company may not enter into any Variable Rate Transaction (as defined in the 2020 Purchase Agreement, including the issuance of any floating conversion rate or variable priced equity-like securities) during the 36 months after the date of the 2020 Purchase Agreement. The Company has the right to terminate the 2020 Purchase Agreement at any time, at no cost to the Company.

 

Warrants

 

Warrant activity for the nine months ended September 26, 2020 is as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted

 

 

Number of

 

Average

 

 

Shares

 

Exercise

 

    

(in thousands)

    

Price

Outstanding as of December 28, 2019

 

 

15,010

 

$

0.62

 Granted

 

 

175

 

 

0.20

 Exercised

 

 

(300)

 

 

0.11

 Expired

 

 

(1,099)

 

 

1.00

Outstanding as of September 26, 2020

 

 

13,786

 

 

0.59

 

During the nine months ended September 26, 2020, the Company issued 255,813 shares of its common stock upon the cashless exercise of 300,000 of its warrants.

 

v3.20.2
Stock-Based Awards
9 Months Ended
Sep. 26, 2020
Stock-Based Awards  
Stock-Based Awards

 

Note 9—Stock-Based Awards

 

As of September 26, 2020, the Company had 1,794,072 shares of common stock reserved for future issuance under its Amended and Restated 2006 Incentive Plan (“Amended 2006 Plan”). Stock options granted under the Amended 2006 Plan generally vest at a rate of at least 25% per year over four years and expire 10 years from the grant date. RSAs granted under the 2006 Plan vest annually on each anniversary of the grant date over a two-year term. RSUs granted for employees and consultants generally vest semi-annually from the grant date over a four-year term, and RSUs granted for independent directors fully-vest on the grant date.

 

Stock Options

 

The following table summarizes the activity related to stock options during the nine months ended September 26, 2020:

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted-

 

 

Number of

 

Average

 

 

Shares

 

Exercise

 

 

(in thousands)

    

Price

Outstanding as of December 28, 2019

 

 

7,357

 

$

1.17

 Granted

 

 

600

 

 

0.47

 Exercised

 

 

(200)

 

 

0.14

 Expired or forfeited

 

 

(853)

 

 

0.80

Outstanding as of September 26, 2020

 

 

6,904

 

 

1.18

 

Restricted Stock Awards and Restricted Stock Units

 

The following table summarizes the activity related to RSAs and RSUs during the nine months ended September 26, 2020:

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted-

 

 

 

 

 

Average

 

 

Number of

 

Grant-Date

 

 

Shares

 

Fair Value

 

 

(in thousands)

 

per Share

Outstanding as of December 28, 2019

 

 

3,066

 

$

0.52

 Granted

 

 

625

 

 

0.47

 Vested

 

 

(1,064)

 

 

0.47

 Forfeited

 

 

(90)

 

 

0.42

Outstanding as of September 26, 2020

 

 

2,537

 

 

0.53

 

Stock-Based Compensation

 

The following table summarizes the stock-based compensation expense by line item in the condensed consolidated statements of operations (in thousands):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

    

Nine Months Ended

 

 

September 26,

 

September 28,

 

September 26,

 

September 28,

 

 

2020

 

2019

 

2020

 

2019

Cost of sales

 

$

 1

 

$

 6

 

$

 8

 

$

20

Research and development

 

 

63

 

 

67

 

 

154

 

 

163

Selling, general and administrative

 

 

148

 

 

170

 

 

420

 

 

599

Total

 

$

212

 

$

243

 

$

582

 

$

782

 

As of September 26, 2020, the Company had approximately $1.6 million, net of estimated forfeitures, of unearned stock-based compensation, which it expects to recognize over a weighted-average period of approximately 2.4 years.

v3.20.2
Summary of Significant Accounting Policies (Policies)
9 Months Ended
Sep. 26, 2020
Summary of Significant Accounting Policies  
Basis of Presentation

 

Basis of Presentation

 

The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”). Certain information and footnote disclosures normally included in the consolidated financial statements prepared in accordance with U.S. GAAP have been condensed or omitted pursuant to the rules and regulations of the Securities and Exchange Commission (“SEC”). These condensed consolidated financial statements should be read in conjunction with the consolidated financial statements and notes thereto as of and for the year ended December 28, 2019, included in the Company’s Annual Report on Form 10-K filed with the SEC on March 10, 2020 (the “2019 Annual Report”).

 

In the opinion of management, all adjustments for the fair presentation of the Company’s condensed consolidated financial statements have been made. The adjustments are of a normal recurring nature except as otherwise noted. The results of operations for the interim periods are not necessarily indicative of the results to be expected for other periods or the full fiscal year. The Company has evaluated events occurring subsequent to September 26, 2020, through the filing date of this Quarterly Report on Form 10-Q and concluded that there were no events that required recognition and disclosures, other than those discussed elsewhere in the notes hereto.

Principles of Consolidation

 

Principles of Consolidation

 

The accompanying condensed consolidated financial statements include the accounts of Netlist, Inc. and its wholly-owned subsidiaries. All intercompany balances and transactions have been eliminated in consolidation.

 

Fiscal Year

Fiscal Year

 

The Company’s fiscal year is the 52- or 53-week period that ends on the Saturday nearest to December 31. The Company’s fiscal year 2020 will include 53 weeks and ends on January 2, 2021 and its fiscal year 2019 included 52 weeks and ended on December 28, 2019. The first three quarters of fiscal year 2020 each includes 13 weeks and the fourth quarter includes 14 weeks. The four quarters of fiscal year 2019 each included 13 weeks. Unless otherwise stated, references to particular years, quarters, months and periods refer to the Company’s fiscal years ended in January or December and the associated quarters, months and periods of those fiscal years.

Use of Estimates

Use of Estimates

 

The preparation of the accompanying condensed consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the amounts reported. Actual results may differ materially from those estimates.

Recently Adopted Accounting Guidance

Recently Adopted Accounting Guidance

 

In the first quarter of 2020, the Company adopted the Financial Accounting Standards Board (“FASB”) Accounting Standards Update (“ASU”) No. 2018-15, Intangibles - Goodwill and Other - Internal-Use Software (Subtopic 350-40): Customer's Accounting for Implementation Costs Incurred in a Cloud Computing Arrangement That Is a Service Contract (a consensus of the FASB Emerging Issues Task Force) (“ASU 2018-15”), which amends the accounting for implementation, setup, and other upfront costs in a hosting arrangement that is a service contract. The adoption of ASU 2018-15 did not have an impact on the Company’s condensed consolidated financial statements.

 

In the first quarter of 2020, the Company adopted FASB ASU No. 2018-13, Fair Value Measurement (Topic 820): Disclosure Framework - Changes to the Disclosure Requirements for Fair Value Measurement (“ASU 2018-13”), which removes, modifies, and adds various disclosure requirements on fair value measurements in Topic 820. The adoption of ASU 2018-13 did not have an impact on the Company’s condensed consolidated financial statements.

Recent Accounting Pronouncements

Recently Issued Accounting Guidance

 

In December 2019, the FASB issued ASU No. 2019-12, Income Taxes (Topic 740) Simplifying the Accounting for Income Taxes, which eliminates certain exceptions related to the approach for intraperiod tax allocation, the methodology for calculating income taxes in an interim period and the recognition of deferred tax liabilities for outside basis differences. This ASU also clarifies and simplifies other aspects of the accounting for income taxes. The ASU will be effective for fiscal years beginning after December 15, 2020 and interim periods within those fiscal years and early adoption is permitted. Certain amendments of this ASU may be adopted on a retrospective basis, modified retrospective basis or prospective basis. The Company is currently evaluating the impact this guidance will have on its condensed consolidated financial statements.

 

In August 2020, the FASB issued ASU No. 2020-06, Debt—Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging—Contracts in Entity’s Own Equity (Subtopic 815-40): Accounting for Convertible Instruments and Contracts in an Entity’s Own Equity. This ASU amends the guidance on convertible instruments and the derivatives scope exception for contracts in an entity's own equity, and also improves and amends the related earnings per share guidance for both Subtopics. The ASU will be effective for fiscal years beginning after December 15, 2023, including interim periods within those fiscal years and early adoption is permitted. The Company is currently evaluating the impact this guidance will have on its condensed consolidated financial statements.

Fair Value Measurements

Fair Value Measurements

 

The hierarchy below lists three levels of fair value based on the extent to which inputs used in measuring fair value are observable in the market. The Company categorizes each of its fair value measurements in one of those three levels based on the lowest level input that is significant to the fair value measurement in its entirety.

 

·

Level 1 – inputs are based on unadjusted quoted prices in active markets for identical assets or liabilities that the Company has the ability to access. An active market is defined as a market in which transactions for the assets or liabilities occur with sufficient frequency and volume to provide pricing information on an ongoing basis.

·

Level 2 – inputs are based on quoted prices of similar instruments in active markets, quoted prices for identical or similar instruments in market that are not active, and model-based valuation techniques for which all significant assumptions are observable in the market or can be corroborated by observable market data for substantially the full term of the assets or liabilities.

·

Level 3 – inputs are generally unobservable inputs for the asset or liability, which are typically based on management’s estimates of assumptions that market participants would use in pricing the assets and liabilities. The fair values are therefore determined using model-based techniques, including option pricing models and discounted cash flow models.

 

The Company’s financial instruments consist principally of cash and cash equivalents, restricted cash, a revolving line of credit, PPP Loan and convertible promissory notes. Cash equivalents consist of short-term investments with original maturities of three months or less and restricted cash consists of cash to secure standby letters of credit (see Note 4). The carrying value of these instruments approximates their fair value due to their short-term nature. The fair value of the revolving line of credit, the PPP Loan and convertible promissory note is estimated by using current applicable rates for similar instruments as of the balance sheet date and an assessment of the credit rating. The carrying value of the revolving line of credit as of September 26, 2020 and December 28, 2019 and the PPP Loan as of September 26, 2020 approximates fair value because the interest rate yield is near current market rates for comparable debt instruments. The fair value of the convertible promissory note is estimated by using a discounted cash flow analysis using borrowing rates available to the Company for debt instruments with similar terms and maturities and is classified in Level 2 of the valuation hierarchy. The carrying value and estimated fair value of the secured convertible promissory note as of September 26, 2020 were $14.7 million and $12.2 million, respectively. The carrying value and estimated fair value of the secured convertible promissory note as of December 28, 2019 were $14.6 million and $11.7 million, respectively.

Other Significant Accounting Policies

 

 

Other Significant Accounting Policies

 

The Company’s other significant accounting policies were reported in the 2019 Annual Report and have not changed materially from the policies previously reported.

v3.20.2
Supplemental Financial Information (Tables)
9 Months Ended
Sep. 26, 2020
Supplemental Financial Information  
Schedule Of Inventories

 

 

 

 

 

 

 

 

 

September 26,

 

December 28,

 

   

2020

 

2019

Raw materials

 

$

911

 

$

1,052

Work in process

 

 

20

 

 

25

Finished goods

 

 

3,590

 

 

2,419

 

 

$

4,521

 

$

3,496

 

Schedule Of Computation Of Net Loss Per Share

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

Nine Months Ended

 

 

September 26,

 

September 28,

 

September 26,

 

September 28,

 

   

2020

 

2019

  

2020

  

2019

Numerator: Net loss

 

$

(2,130)

 

$

(3,108)

 

$

(5,502)

 

$

(10,677)

Denominator: Weighted-average common shares outstanding—basic and diluted

 

 

192,257

 

 

148,058

 

 

179,154

 

 

142,624

Net loss per share—basic and diluted

 

$

(0.01)

 

$

(0.02)

 

$

(0.03)

 

$

(0.07)

 

Schedule Of Potential Common Shares Excluded From The Diluted Net Loss Per Share Calculations

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

Nine Months Ended

 

 

September 26,

 

September 28,

 

September 26,

 

September 28,

 

    

2020

    

2019

    

2020

    

2019

Weighted average common share equivalents

 

 

14,278

 

 

16,120

 

 

13,526

 

 

16,212

 

Schedule of Disaggregation of Sales by Major Source

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

Nine Months Ended

 

 

September 26,

 

September 28,

 

September 26,

 

September 28,

 

    

2020

 

2019

    

2020

 

2019

Resales of third-party products

 

$

6,883

 

$

5,180

 

$

24,146

 

$

13,725

Sale of the Company's modular memory subsystems

 

 

3,329

 

 

936

 

 

11,603

 

 

3,008

Total net sales

 

$

10,212

 

$

6,116

 

$

35,749

 

$

16,733

 

Sales from external customers

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

Nine Months Ended

 

 

September 26,

 

September 28,

 

September 26,

 

September 28,

 

 

2020

 

2019

 

2020

 

2019

Customer A

 

14%

 

*

 

15%

 

*

Customer B

 

21%

 

13%

 

*

 

11%

Customer C

 

*

 

10%

 

*

 

*

*Less than 10% of net sales during the period.

Schedule Of Supplemental Disclosures Of Cash Flow Information And Non-Cash Financing Activities

 

 

 

 

 

 

 

 

 

Nine Months Ended

 

 

September 26,

 

September 28,

 

    

2020

    

2019

Common stock issued on conversion of convertible note payable and accrued interest

 

$

 —

 

$

1,417

 

v3.20.2
Debt (Tables)
9 Months Ended
Sep. 26, 2020
Debt  
Schedule Of Long-Term Debt

 

 

 

 

 

 

 

 

 

September 26,

 

December 28,

 

    

2020

    

2019

Secured convertible note, due December 2021, including accrued interest of $1,457 (2020) and $1,233 (2019), respectively

 

$

16,457

 

$

16,233

Paycheck protection program loan, due April 2022, including accrued interest of $2

 

 

639

 

 

 —

Notes payable

 

 

 —

 

 

412

Unamortized debt discounts and issuance costs

 

 

(281)

 

 

(440)

 

 

 

16,815

 

 

16,205

Less: current portion

 

 

(389)

 

 

(412)

 

 

$

16,426