[S-8] NETLIST INC Employee Benefit Plan Registration

Rhea-AI Filing Summary

Netlist, Inc. filed a Form S-8 to register securities for its employee benefit plan and incorporates by reference its Annual Report on Form 10-K for the fiscal year ended December 28, 2024, Quarterly Reports on Form 10-Q for the quarters ended March 29, 2025 and June 28, 2025, and multiple Form 8-Ks filed between March and September 2025. The filing includes exhibits such as the Netlist, Inc. 2025 Equity Incentive Plan (Exhibit 10.1), amended charter and bylaws, legal opinions and auditor consents, and a filing fee table. The document is signed by the CEO and CFO on September 26, 2025.

Positive

• 2025 Equity Incentive Plan included (Exhibit 10.1) filed September 11, 2025
• Incorporation by reference of recent 10-K, 10-Qs, and multiple 8-Ks provides updated disclosure
• Required legal and audit consents (opinions and auditor consents) are included as exhibits

Negative

• None.

As filed with the Securities and Exchange Commission on September 26, 2025

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.)

111 Academy, Suite 100 

Irvine, CA 92617 

(Address of Principal Executive Offices) (Zip Code)

Netlist, Inc. 2025 Equity Incentive Plan 

(Full title of the plan)

Chun K. Hong 

President, Chief Executive Officer and Director 

111 Academy, Suite 100 Irvine, CA 92617 

(Name and address of agent for service)

(949) 435-0025 

(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, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer ¨		Accelerated filer ¨
Non-accelerated filer x		Smaller reporting company x
		Emerging growth company ¨

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨

EXPLANATORY NOTE

This registration statement on Form S-8 registers an aggregate of 7,221,706 shares of common stock, par value $0.001 per share (“Common Stock”), of Netlist, Inc. (the “Company”) reserved for issuance pursuant to the Netlist, Inc. 2025 Equity Incentive Plan (the “Plan”), consisting of (i) 2,500,000 shares of Common Stock and (ii) up to 4,721,706 shares of Common Stock that may be added to the Plan attributable to awards granted under the Company’s Amended and Restated 2006 Equity Incentive Plan that are forfeited, expire or are cancelled without delivery of shares of Common Stock or which result in the forfeiture of shares of Common Stock back to the Company on or after September 9, 2025. The Plan was approved by the Company’s stockholders on September 9, 2025 and became effective on September 9, 2025.

PART I

INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS

The documents containing the information specified in this Part I of Form S-8 (plan information and registrant information) will be sent or given to the participants in the Plan as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (as amended, the “Securities Act”). In accordance with the note to Part I of Form S-8, such documents will not be filed with the U.S. Securities and Exchange Commission (the “Commission”) either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference pursuant to Item 3 of Part II of this registration statement, taken together, constitute the prospectus as required by Section 10(a) of the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The following documents filed with the Commission are incorporated herein by reference as of their respective dates of filing, except for the portions thereof that are “furnished” rather than “filed” with the Commission:

· Annual Report on Form 10-K for the fiscal year ended December 28, 2024 filed with the Commission on March 28, 2025;

· Quarterly Reports on Form 10-Q for the fiscal quarters ended March 29, 2025 and June 28, 2025 filed with the Commission on May 13, 2025 and August 12, 2025, respectively;

· Current Reports on Form 8-K filed with the Commission on March 14, 2025, March 27, 2025, June 24, 2025, June 26, 2025, August 7, 2025, September 11, 2025 and September 25, 2025; and

· the description of the Common Stock contained in the Company’s registration statement on Form 8-A filed with the Commission on August 14, 2020, including any amendments or reports filed for the purpose of updating such description.

All documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (“Exchange Act”) (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items), after the date of this registration statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent a statement contained in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement.

Item 4. Description of Securities.

Not applicable.

Item 5. Interests of Named Experts and Counsel.

Not applicable.

Item 6. Indemnification of Directors and Officers.

The Company is incorporated under the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law (the “DGCL”) provides that a corporation may indemnify any persons who were, are or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful.

Section 145 of the DGCL further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against him or her and incurred by him or her in any such capacity, arising out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify him or her under Section 145 of the DGCL.

Pursuant to the Company’s Restated Certificate of Incorporation, as amended, a director shall not be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by the DGCL. In addition, the Company’s Amended and Restated Bylaws, as amended, provide for indemnification of directors, officers, employees and agents by the Company as the indemnitor of first resort and to the fullest extent permitted by Delaware law, and authorize the Company to purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Company or another business entity against any expense, liability or loss, regardless of whether the Company would have the power to indemnify such person under its bylaws or Delaware law.

The Company has entered into indemnification agreements with each of its directors and executive officers. These agreements will require the Company to indemnify these individuals to the fullest extent permitted under Delaware law against liabilities that may arise by reason of their service to the Company, and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified. The Company also intends to enter into indemnification agreements with its future directors and executive officers.

Item 7. Exemption from Registration Claimed.

Not applicable.

Item 8. Exhibits.

				Filed		Incorporated by Reference
Exhibit No.		Description		Herewith		Form		File No.		Exhibit		Filing Date
4.1		Restated Certificate of Incorporation of Netlist, Inc.				10-Q		001-33170		3.1		August 15, 2017
4.1.1		Certificate of Amendment to the Restated Certificate of Incorporation of Netlist, Inc.				10-Q		001-33170		3.1.1		August 15, 2017
4.1.2		Certificate of Amendment to the Restated Certificate of Incorporation of Netlist, Inc.				8-K		001-33170		3.1		August 17, 2018
4.1.3		Certificate of Amendment to the Restated Certificate of Incorporation of Netlist, Inc.				8-K		001-33170		3.1		August 10, 2020
4.1.4		Certificate of Designation of the Series A Preferred Stock of Netlist, Inc.				10-Q		001-33170		3.1.2		August 15, 2017
4.1.5		Certificate of Amendment to the Restated Certificate of Incorporation of Netlist, Inc.				8-K/A		001-33170		3.1		September 25, 2025
4.2		Second Amended and Restated Bylaws of Netlist, Inc.				10-Q		001-33170		3.2		November 7, 2024
5.1		Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.		X
23.1		Consent of Macias Gini & O’Connell LLP		X
23.2		Consent of KMJ Corbin & Company LLP		X
23.3		Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in Exhibit 5.1).		X
24.1		Power of Attorney (included on signature page hereto).		X
99.1		Netlist, Inc. 2025 Equity Incentive Plan				8-K		001-33170		10.1		September 11, 2025
107		Filing Fee Table		X

Item 9. Undertakings.

(a) The undersigned registrant hereby undertakes:

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

(i) to include any prospectus required by Section 10(a)(3) of the Securities Act;

(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

(iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.

(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

SIGNATURES

Pursuant to the requirements of the Securities Act, the registrant 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 September 26, 2025.

		NETLIST, INC.
		By:	/s/ Chun K. Hong
			Chun K. Hong
			President and Chief Executive Officer

POWER OF ATTORNEY

We, the undersigned officers and director 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 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 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		Date
/s/ Chun K. Hong		President, Chief Executive Officer and Director		September 26, 2025
Chun K. Hong		(Principal Executive Officer)
/s/ Gail Sasaki		Executive Vice President and Chief Financial Officer		September 26, 2025
Gail Sasaki		(Principal Financial and Accounting Officer)
/s/ Blake Welcher		Director		September 26, 2025
Blake Welcher
/s/ Jun Cho		Director		September 26, 2025
Jun Cho

FAQ

What does NLST's Form S-8 register?

The filing registers securities for the Netlist, Inc. 2025 Equity Incentive Plan (Exhibit 10.1).

Which recent reports are incorporated by reference into this S-8 for NLST?

It incorporates the Form 10-K for fiscal year ended December 28, 2024 and Form 10-Qs for quarters ended March 29, 2025 and June 28, 2025, plus multiple Form 8-Ks filed March–September 2025.

Are there legal and auditor consents included in the NLST filing?

Yes. The filing includes an opinion of Mintz Levin and consents from Macias Gini & O’Connell LLP and KMJ Corbin & Company LLP (Exhibit entries).

When were the principal officers signing this filing for NLST?

The document is signed by Chun K. Hong (President & CEO) and Gail Sasaki (EVP & CFO) on September 26, 2025.

Does the filing include amended charter or bylaws for Netlist?

Yes. Exhibits reference amendments to the Restated Certificate of Incorporation and the Second Amended and Restated Bylaws.