UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
(Mark One)
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the quarterly period ended
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission File Number
(Exact name of Registrant as specified in its Charter)
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(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
(Address of principal executive offices including zip code)
Registrant’s telephone number, including area code: (
Securities registered pursuant to Section 12(b) of the Act:
Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
Indicate by check mark whether the Registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. ☒ NO ☐
Indicate by check mark whether the Registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the Registrant was required to submit such files). ☒ NO ☐
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 | ☐ | |
☒ | Smaller reporting company | |||
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 13(a) of the Exchange Act. | ☐ |
Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). YES
The number of shares of the Registrant’s Common Stock outstanding as of November 8, 2022, was
Table of Contents
In this Quarterly Report on Form 10-Q, “we,” “our,” “us,” “Everspin Technologies,” and “the Company” refer to Everspin Technologies, Inc. The Everspin logo and other trade names, trademarks or service marks of Everspin Technologies are the property of Everspin Technologies, Inc. This report contains references to our trademarks and to trademarks belonging to other entities. Trade names, trademarks and service marks of other companies appearing in this report are the property of their respective holders. We do not intend our use or display of other companies’ trade names or trademarks to imply a relationship with, or endorsement or sponsorship of us by, any other companies.
2
PART I—FINANCIAL INFORMATION
Item 1. Financial Statements
EVERSPIN TECHNOLOGIES, INC.
Condensed Balance Sheets
(In thousands, except share and per share amounts)
(Unaudited)
September 30, | December 31, | |||||
2022 | 2021 | |||||
Assets |
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Current assets: |
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Cash and cash equivalents | $ | | $ | | ||
Accounts receivable, net |
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Inventory |
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Prepaid expenses and other current assets |
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Total current assets |
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Property and equipment, net |
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Right-of-use assets | |
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Other assets |
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Total assets | $ | | $ | | ||
Liabilities and Stockholders’ Equity |
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Current liabilities: |
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Accounts payable | $ | | $ | | ||
Accrued liabilities |
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Deferred revenue | | | ||||
Current portion of long-term debt |
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Lease liabilities | | | ||||
Other liabilities | | | ||||
Total current liabilities |
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Long-term debt, net of current portion |
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Lease liabilities, net of current portion | | | ||||
Long-term income tax liability | | | ||||
Total liabilities | $ | | $ | | ||
Commitments and contingencies |
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Stockholders’ equity: |
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Preferred stock, $ | ||||||
Common stock, $ |
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Additional paid-in capital |
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Accumulated deficit |
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Total stockholders’ equity |
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Total liabilities and stockholders’ equity | $ | | $ | | ||
The accompanying notes are an integral part of these condensed financial statements.
3
EVERSPIN TECHNOLOGIES, INC.
Condensed Statements of Income and Comprehensive Income
(In thousands, except share and per share amounts)
(Unaudited)
Three Months Ended September 30, | Nine Months Ended September 30, | |||||||||||
| 2022 |
| 2021 |
| 2022 |
| 2021 | |||||
Product sales | $ | | $ | | $ | | $ | | ||||
Licensing, royalty, patent, and other revenue | | | |
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Total revenue |
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Cost of product sales | | | | | ||||||||
Cost of licensing, royalty, patent, and other revenue | | | | | ||||||||
Total cost of sales |
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Gross profit |
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Operating expenses:1 |
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Research and development |
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General and administrative |
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Sales and marketing |
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Total operating expenses |
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Income from operations |
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Interest expense |
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Other income (expense), net | | ( |
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Net income before income taxes | | | | | ||||||||
Income tax expense | — | ( | — | ( | ||||||||
Net income and comprehensive income | $ | | $ | | $ | | $ | | ||||
Net income per common share: | ||||||||||||
Basic | $ | | $ | | $ | | $ | | ||||
Diluted | $ | | $ | | $ | | $ | | ||||
Weighted average shares of common stock outstanding: | ||||||||||||
Basic |
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Diluted |
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1Operating expenses include stock-based compensation as follows: | ||||||||||||
Research and development | $ | | $ | | $ | | $ | | ||||
General and administrative | | | | | ||||||||
Sales and marketing | | | | | ||||||||
Total stock-based compensation | $ | | $ | | $ | | $ | | ||||
The accompanying notes are an integral part of these condensed financial statements.
4
EVERSPIN TECHNOLOGIES, INC.
Condensed Statements of Stockholders’ Equity
(In thousands, except share and per share amounts)
(Unaudited)
Nine Months Ended September 30, 2022 | ||||||||||||||
Additional | Total | |||||||||||||
Common Stock | Paid-In | Accumulated | Stockholders’ | |||||||||||
| Shares |
| Amount |
| Capital |
| Deficit |
| Equity | |||||
Balance at December 31, 2021 | | $ | | $ | | $ | ( | $ | | |||||
Exercise of stock options | | — | | — | | |||||||||
Issuance of common stock under stock incentive plans | | — | — | — | — | |||||||||
Stock-based compensation expense | — | — | | — | | |||||||||
Net income | — | — | — | | | |||||||||
Balance at March 31, 2022 | | $ | | $ | | $ | ( | $ | | |||||
Exercise of stock options | | — | | — | | |||||||||
Issuance of common stock under stock incentive plans | | — | | — | | |||||||||
Stock-based compensation expense | — | — | | — | | |||||||||
Net income | — | — | — | | | |||||||||
Balance at June 30, 2022 | | $ | | $ | | $ | ( | $ | | |||||
Exercise of stock options | | — | | — | | |||||||||
Issuance of common stock under stock incentive plans | | — | — | — | — | |||||||||
Stock-based compensation expense | — | — | | — | | |||||||||
Net income | — | — | — | | | |||||||||
Balance at September 30, 2022 | | $ | | $ | | $ | ( | $ | | |||||
Nine Months Ended September 30, 2021 | ||||||||||||||
Additional | Total | |||||||||||||
Common Stock | Paid-In | Accumulated | Stockholders’ | |||||||||||
| Shares |
| Amount |
| Capital |
| Deficit |
| Equity | |||||
Balance at December 31, 2020 | | $ | | $ | | $ | ( | $ | | |||||
Exercise of stock options | | — | | — | | |||||||||
Issuance of common stock under stock incentive plans | | — | | — | | |||||||||
Stock-based compensation expense | — | — | | — | | |||||||||
Net loss | — | — | — | ( | ( | |||||||||
Balance at March 31, 2021 | | $ | | $ | | $ | ( | $ | | |||||
Exercise of stock options | | — | | — | | |||||||||
Issuance of common stock under stock incentive plans | | — | | — | | |||||||||
Stock-based compensation expense | — | — | | — | | |||||||||
Net income | — | — | — | | | |||||||||
Balance at June 30, 2021 | | $ | | $ | | $ | ( | $ | | |||||
Exercise of stock options | | — | | — | | |||||||||
Issuance of common stock under stock incentive plans | | — | — | — | — | |||||||||
Stock-based compensation expense | — | — | | — | | |||||||||
Exercise of warrants | | — | — | — | — | |||||||||
Net income | — | — | — | | | |||||||||
Balance at September 30, 2021 | | $ | | $ | | $ | ( | $ | | |||||
The accompanying notes are an integral part of these condensed financial statements.
5
EVERSPIN TECHNOLOGIES, INC.
Condensed Statement of Cash Flows
(In thousands)
(Unaudited)
Nine Months Ended September 30, | ||||||
| 2022 |
| 2021 | |||
Cash flows from operating activities |
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Net income | $ | | $ | | ||
Adjustments to reconcile net income to net cash provided by operating activities: |
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Depreciation and amortization |
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Gain on sale of property and equipment |
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Stock-based compensation |
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Non-cash warrant revaluation | ( | | ||||
Non-cash interest expense |
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Changes in operating assets and liabilities: |
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Accounts receivable |
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Inventory |
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Prepaid expenses and other current assets |
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Other assets |
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Accounts payable |
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Accrued liabilities |
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Deferred revenue | ( | | ||||
Lease liabilities | | ( | ||||
Net cash provided by operating activities |
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Cash flows from investing activities |
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Purchases of property and equipment |
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Proceeds received from sale of property and equipment | | — | ||||
Net cash used in investing activities |
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Cash flows from financing activities |
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Payments on long-term debt |
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Payments of debt issuance costs |
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Proceeds from exercise of stock options and purchase of shares in employee stock purchase plan |
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Net cash used in financing activities |
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Net increase (decrease) in cash and cash equivalents |
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Cash and cash equivalents at beginning of period |
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Cash and cash equivalents at end of period | $ | | $ | | ||
Supplementary cash flow information: |
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Interest paid | $ | | $ | | ||
Operating cash flows paid for operating leases | $ | | $ | | ||
Financing cash flows paid for finance leases | $ | | $ | — | ||
Non-cash investing and financing activities: |
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Right-of-use assets obtained in exchange for operating lease liabilities | $ | | $ | — | ||
Right-of-use assets obtained in exchange for finance lease liabilities | $ | | $ | — | ||
Purchases of property and equipment in accounts payable and accrued liabilities | $ | | $ | — | ||
Bonus settled in shares of common stock | $ | — | $ | | ||
The accompanying notes are an integral part of these condensed financial statements.
6
EVERSPIN TECHNOLOGIES, INC.
Notes to Unaudited Condensed Financial Statements
1. Organization and Nature of Business
Everspin Technologies, Inc. (the Company) was incorporated in Delaware on May 16, 2008. The Company’s magnetoresistive random-access memory (MRAM) solutions offer the persistence of non-volatile memory with the speed and endurance of random-access memory (RAM) and enable the protection of mission critical data particularly in the event of power interruption or failure. The Company’s MRAM solutions allow its customers in key markets, such as industrial, medical, automotive/transportation, aerospace and data center markets to design high performance, power efficient and reliable systems without the need for bulky batteries or capacitors.
2. Summary of Significant Accounting Policies
Basis of Presentation
The accompanying unaudited condensed financial statements have been prepared in accordance with generally accepted accounting principles in the United States of America (GAAP) and applicable rules and regulations of the Securities and Exchange Commission (SEC) regarding interim financial reporting. As permitted under those rules, certain footnotes or other financial information that are normally required by GAAP have been condensed or omitted, and accordingly the balance sheet as of December 31, 2021, has been derived from the audited financial statements at that date but does not include all of the information required by GAAP for complete financial statements. These unaudited interim condensed financial statements have been prepared on the same basis as the Company’s annual financial statements and, in the opinion of management, reflect all adjustments (consisting only of normal recurring adjustments) that are necessary for a fair statement of the Company’s financial information. The results of operations for the three and nine months ended September 30, 2022, are not necessarily indicative of the results to be expected for the year ending December 31, 2022 or for any other interim period or for any other future year.
The accompanying condensed financial statements and related financial information should be read in conjunction with the audited financial statements and the related notes thereto for the year ended December 31, 2021, included in the Company’s Annual Report on Form 10-K filed with the SEC.
Use of Estimates
The preparation of the condensed financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities as of the date of the condensed financial statements and the reported amounts of revenues and expenses during the reporting period. On an ongoing basis, management evaluates its estimates, including those related to revenue recognition, fair value of assets and liabilities, inventory reserves, product return reserves, deferred tax assets and related valuation allowances, and stock-based compensation. The Company believes its estimates and assumptions are reasonable; however, actual results may differ from the Company’s estimates.
Accounts receivable, net
The Company establishes an allowance for product returns. The Company analyzes historical returns, current economic trends and changes in customer demand and acceptance of products when evaluating the adequacy of sales returns. Returns are processed as credits on future purchases and, as a result, the allowance is recorded against the balance of trade accounts receivable. In addition, the Company, from time to time, may establish an allowance for estimated price adjustments related to its distributor agreements. The Company estimates credits to distributors based on the historical rate of credits provided to distributors relative to sales and evaluation of current market conditions.
7
Accounts receivable, net consisted of the following (in thousands):
September 30, | December 31, | |||||
2022 | 2021 | |||||
Trade accounts receivable | $ | | $ | | ||
Unbilled accounts receivable | | | ||||
Allowance for product returns and price adjustments | ( | ( | ||||
Accounts receivable, net | $ | | $ | | ||
Concentration of Credit Risk
Financial instruments that potentially expose the Company to a concentration of credit risk consist principally of cash and cash equivalents that are held by a financial institution in the United States and accounts receivable. Amounts on deposit with a financial institution may at times exceed federally insured limits. The Company maintains its cash accounts with high credit quality financial institutions and, accordingly, minimal credit risk exists with respect to the financial institutions.
Significant customers are those which represent more than 10% of the Company’s total revenue or net accounts receivable balance at each respective balance sheet date. For the purposes of this disclosure, the Company defines “customer” as the entity that is purchasing the products or licenses directly from the Company, which includes the distributors of the Company’s products in addition to end customers that the Company sells to directly. For each significant customer, revenue as a percentage of total revenue and accounts receivable as a percentage of total accounts receivable, net are as follows:
Revenue | Accounts Receivable, net |
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Three Months Ended | Nine Months Ended | As of |
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September 30, | September 30, | September 30, | December 31, | ||||||||||||
Customers |
| 2022 |
| 2021 |
| 2022 |
| 2021 |
| 2022 |
| 2021 |
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Customer A | | % | | % | |||||||||||
Customer B |
| | % | | % | | % | | % | | % | | % | ||
Customer C |
| | % | | % | | % | ||||||||
Customer D | | % | |||||||||||||
* | Less than 10% |
Fair Value of Financial Instruments
Fair value is defined as an exit price, representing the amount that would be received to sell an asset, or paid to transfer a liability, in an orderly transaction between market participants. The framework for measuring fair value provides a three-tier hierarchy prioritizing inputs to valuation techniques used in measuring fair value as follows:
Level 1— Observable inputs such as quoted prices for identical assets or liabilities in active markets;
Level 2— Inputs, other than quoted prices for identical assets or liabilities in active markets, which are observable either directly or indirectly; and
Level 3— Unobservable inputs in which there is little or no market data requiring the reporting entity to develop its own assumptions.
As of September 30, 2022, based on Level 2 inputs and the borrowing rates available to the Company for loans with similar terms and consideration of the Company’s credit risk, the carrying value of the Company’s variable interest rate debt, excluding unamortized debt issuance costs, approximates fair value. The Company’s financial instruments consist of Level 1 assets and a Level 3 liability. Level 1 assets consist of highly liquid money market funds that are included in cash equivalents. The Company’s Level 3 liability consists of warrants issued in connection with the Company’s current credit facility (Note 6).
8
The following tables sets forth the fair value of the Company’s financial assets and liabilities measured at fair value on a recurring basis (in thousands):
September 30, 2022 | ||||||||||||
| Level 1 |
| Level 2 |
| Level 3 |
| Total | |||||
Assets: |
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Money market funds | $ | |
| $ | — |
| $ | — |
| $ | | |
Total assets measured at fair value | $ | |
| $ | — |
| $ | — |
| $ | | |
Liabilities: |
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Warrant liability | $ | — |
| $ | — |
| $ | |
| $ | | |
Total liabilities measured at fair value | $ | — |
| $ | — |
| $ | |
| $ | | |
December 31, 2021 | ||||||||||||
| Level 1 |
| Level 2 |
| Level 3 |
| Total | |||||
Assets: |
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Money market funds | $ | |
| $ | — |
| $ | — |
| $ | | |
Total assets measured at fair value | $ | |
| $ | — |
| $ | — |
| $ | | |
Liabilities: |
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Warrant liability | $ | — |
| $ | — |
| $ | |
| $ | | |
Total liabilities measured at fair value | $ | — |
| $ | — |
| $ | |
| $ | | |
Recently Issued Pronouncements
In June 2016, the Financial Accounting Standards Board (FASB) issued Accounting Standards Update (ASU) No. 2016-13, Financial Instruments-Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments, which amends the incurred loss impairment methodology in current GAAP with a methodology that reflects expected credit losses and requires consideration of a broader range of reasonable and supportable information to inform credit loss estimates. As the Company is a smaller reporting company, ASU 2016-13 is effective for the Company’s annual reporting periods, and interim periods within those years, beginning after December 15, 2022, and requires a cumulative effect adjustment to the balance sheet as of the beginning of the first reporting period in which the guidance is effective. In April 2019, the FASB issued ASU 2019-04, Codification Improvements Financial Instruments-Credit Losses (Topic 326). ASU 2019-04 provides narrow-scope amendments to help apply ASU 2016-13, and is effective with the adoption of ASU 2016-13. The Company is evaluating the impact of the adoption of ASU 2016-13 and ASU 2019-04 on its condensed financial statements.
The Company reviewed all other recently issued accounting pronouncements and concluded that they were either not applicable or not expected to have a significant impact to the condensed financial statements.
3. Revenue
The Company sells products to its distributors and original equipment manufacturers (OEMs). The Company also recognized revenue under licensing, patent, and royalty agreements with some customers.
The following table presents the Company’s revenues disaggregated by sales channel (in thousands):
Three Months Ended September 30, | Nine Months Ended September 30, | |||||||||||
| 2022 |
| 2021 |
| 2022 |
| 2021 | |||||
Distributor | $ | | $ | | $ | | | |||||
Non-distributor | | | | | ||||||||
Total revenue | $ | | $ | | $ | | $ | | ||||
9
The following table presents the Company’s revenues disaggregated by timing of recognition (in thousands):
Three Months Ended September 30, | Nine Months Ended September 30, | |||||||||||
| 2022 |
| 2021 |
| 2022 |
| 2021 | |||||
Point in time | $ | | $ | | $ | | | |||||
Over time | | | | | ||||||||
Total revenue | $ | | $ | | $ | | $ | | ||||
The following table presents the Company’s revenues disaggregated by type (in thousands):
Three Months Ended September 30, | Nine Months Ended September 30, | |||||||||||
| 2022 |
| 2021 |
| 2022 |
| 2021 | |||||
Product sales | $ | | $ | | $ | | $ | | ||||
Licensing | | | | | ||||||||
Royalties | | | | | ||||||||
Other revenue | | | | | ||||||||
Total revenue | $ | | $ | | $ | | $ | | ||||
The Company recognizes revenue in
Three Months Ended September 30, | Nine Months Ended September 30, | |||||||||||
| 2022 |
| 2021 |
| 2022 |
| 2021 | |||||
APAC | $ | | $ | | $ | | $ | | ||||
North America | | | | | ||||||||
EMEA | | | | | ||||||||
Total revenue | $ | | $ | | $ | | $ | | ||||
4. Balance Sheet Components
Inventory
Inventory consisted of the following (in thousands):
September 30, | December 31, | |||||
| 2022 |
| 2021 | |||
Raw materials | $ | | $ | | ||
Work-in-process |
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Finished goods |
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Total inventory | $ | | $ | | ||
Accrued Liabilities
Accrued liabilities consisted of the following (in thousands):
September 30, | December 31, | |||||
| 2022 |
| 2021 | |||
Payroll-related expenses | $ | | $ | | ||
Inventory | | | ||||
Other |
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Total accrued liabilities | $ | | $ | | ||
10
Deferred Revenue
During the year ended December 31, 2021, the Company executed contractual arrangements with a customer for the development of a RAD-Hard product, consisting of a technology license, design license agreement and development subcontract. The Company does not share in the rights to future revenues or royalties. The total arrangements are for $
The Company concluded these contractual arrangements represent one arrangement and evaluated its promises to the customer and whether the performance obligations granted under the arrangement were distinct. The licenses provided to the customer are not transferable, are of limited value without the promised development services, and the customer cannot benefit from the license agreements without the specific obligated services in the development subcontract, as there is strong interdependency between the licenses and the development subcontract. Accordingly, the Company determined the licenses were not distinct within the context of the contract and combined the license with other performance obligations. The total transaction price of $
The Company recognizes revenue related to the performance obligations over time using the input method based on costs incurred to date relative to the total expected costs of the contract and began recognizing revenue in the second quarter of 2021 over the performance obligation period. This method depicts performance under the contract and requires the Company to make estimates about the future costs expected to be incurred to perform under the contact, including labor and material costs.
As of September 30, 2022, the Company has billed $
5. Leases
Operating leases consist primarily of office space expiring at various dates through 2029. Finance leases relate to a server lease expiring in January 2025. The Company’s lease agreements do not contain any material residual value guarantees or material restrictive covenants.
The undiscounted future non-cancellable lease payments under the Company’s operating and finance leases were as follows (in thousands):
As of September 30, 2022 |
| Amount | |
2022 | $ | | |
2023 | | ||
2024 | | ||
2025 | | ||
2026 | | ||
Thereafter | | ||
Total lease payments | | ||
Less: imputed interest | ( | ||
Total lease liabilities | | ||
Less: current portion of lease liabilities | ( | ||
Total lease liabilities, net of current portion | $ | | |
11
Other information related to the Company’s operating lease liabilities was as follows:
September 30, | December 31, | |||||
| 2022 |
| 2021 | |||
Weighted-average remaining lease term (years) |
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Weighted-average discount rate | % | % | ||||
Other information related to the Company’s finance lease liabilities was as follows:
September 30, | December 31, | |||||
| 2022 |
| 2021 | |||
Weighted-average remaining lease term (years) |
| — |
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Weighted-average discount rate | % | — | % | |||
6. Debt
2019 Credit Facility
In August 2019, the Company executed an Amended and Restated Loan and Security Agreement (2019 Credit Facility), which amended and restated the Company’s prior loan and security agreement (2017 Credit Facility), providing for a formula revolving line of credit (Line of Credit) and a term loan (2019 Term Loan) with Silicon Valley Bank (SVB).
In July 2020, the Company executed the first amendment to the 2019 Credit Facility with SVB. The amendment, among other things, extended the initial
The Line of Credit required a commitment fee of
In July 2021, the Company executed the second amendment to the 2019 Credit Facility with SVB. The amended Line of Credit allows for a maximum draw of $
The amended 2019 Term Loan provides for a $
In conjunction with entering into the 2019 Credit Facility, on August 5, 2019, the Company and SVB amended and restated the warrant issued to SVB in connection with the first amendment to the 2017 Credit Facility, which was a warrant to purchase
12
SVB exercises a portion of the warrant. The warrant expires on July 6, 2023. The warrant is classified as a liability and recorded at fair value within other liabilities in the Company’s condensed balance sheet. Due to the put right, the warrant is subject to fair value remeasurement at each subsequent reporting date until the exercise or expiration of the warrant. Any resulting change in the fair value of the warrant will be recorded as other (expense) income, net in the Company’s statements of income and comprehensive income. The other (expense) income recognized for the three and nine months ended September 30, 2022 and 2021 related to the change in fair value of the warrant has been minimal and immaterial to the condensed financial statements.
Collateral for the 2019 Credit Facility includes all of the Company’s assets except for intellectual property. The Company is required to comply with certain covenants under the 2019 Credit Facility, including requirements to maintain a minimum cash balance and availability under the Line of Credit, and restrictions on certain actions without the consent of the lender, such as limitations on its ability to engage in mergers or acquisitions, sell assets, incur indebtedness, or grant liens or negative pledges on its assets, make loans or make other investments. Under these covenants, the Company is prohibited from paying cash dividends with respect to its capital stock. The Company was in compliance with all covenants as of September 30, 2022. The 2019 Credit Facility contains a material adverse effect clause which provides that an event of default will occur if, among other triggers, an event occurs that could reasonably be expected to result in a material adverse effect on the Company’s business, operations, or condition, or on the Company’s ability to perform its obligations under the 2019 Term Loan. As of September 30, 2022, management does not believe that it is probable that the clause will be triggered within the next 12 months.
The amortization of the debt issuance costs and accretion of the debt discount is included in interest expense within the statements of income and comprehensive income and included in non-cash interest expense within the statement of cash flows.
The carrying value of the Company’s 2019 Credit Facility at September 30, 2022, was as follows (in thousands):
| Current |
| Long-Term |
| |||||
Portion | Debt | Total | |||||||
Credit Facility | $ | | $ | — | $ | | |||
Unamortized debt discounts |
| ( |
| — |
| ( | |||
Net carrying value | $ | | $ | — | $ | | |||
The carrying value of the Company’s 2019 Credit Facility as of December 31, 2021 was as follows (in thousands):
| Current |
| Long-Term |
| |||||
Portion | Debt | Total | |||||||
Credit Facility | $ | | $ | | $ | | |||
Unamortized debt discounts | ( |
| ( |
| ( | ||||
Net carrying value | $ | | $ | | $ | | |||
The table below includes the principal repayments due under the 2019 Credit Facility (in thousands):
| Principal Repayment as of September 30, 2022 | ||
2022 | | ||
2023 | | ||
Total principal repayments | $ | | |
Of
13
7. Stock-Based Compensation
Summary of Stock Option Activity
The following table summarizes the stock option and award activity for the nine months ended September 30, 2022:
Options Outstanding | ||||||||||||
Weighted- | Weighted- | |||||||||||
Options and | Average | Average | Aggregate | |||||||||
Awards | Exercise | Remaining | Intrinsic | |||||||||
Available for | Number of | Price Per | Contractual | Value | ||||||||
Grant |
| Options |
| Share |
| Life (years) |
| (In thousands) | ||||
Balance—December 31, 2021 |
| | | $ | | $ | | |||||
Authorized |
| | ||||||||||
RSUs granted | ( | |||||||||||
RSUs cancelled/forfeited | | |||||||||||
Options granted | ( | | $ | | ||||||||
Options exercised |
| ( | $ | | $ | | ||||||
Options cancelled/forfeited |
| | ( | $ | | |||||||
Balance—September 30, 2022 |
| |
| | $ | | $ | | ||||
Options exercisable—September 30, 2022 |
|
| | $ | | $ | | |||||
The total grant date fair value of options vested was $
No options were granted during the three months ended September 30, 2022. The weighted-average grant date fair value of options granted was $
Of the
2016 Employee Stock Purchase Plan
In January 2022, there was an increase of
14
Restricted Stock Units
The following table summarizes restricted stock units (RSUs) activity for the nine months ended September 30, 2022:
RSUs Outstanding | |||||
| Weighted- | ||||
| Average | ||||
Number of |
| Grant Date | |||
Restricted Stock |
| Fair Value Per | |||
| Units |
| Share | ||
Balance—December 31, 2021 | | $ | | ||
Granted |
| | $ | | |
Vested | ( | $ | | ||
Cancelled/forfeited | ( | $ | | ||
Balance—September 30, 2022 |
| |
| $ | |
The fair value of RSUs is determined on the date of grant based on the market price of the Company’s common stock on that date.
Stock-based Compensation Expense
As of September 30, 2022, there was $
8. Significant Agreements
GLOBALFOUNDRIES, Inc. Joint Development Agreement
Since October 17, 2014, the Company has participated in a joint development agreement (JDA) with GLOBALFOUNDRIES Inc. (GF), a semiconductor foundry, for the joint development of Spin-transfer Torque MRAM (STT-MRAM), technology to produce a family of discrete and embedded MRAM technologies. The term of the agreement is until the completion, termination, or expiration of the last statement of work entered into pursuant to the joint development agreement. The Company entered into a Statement of Work (SOW) and an Amendment to the SOW, under the JDA with GF effective August 2016 and June 2018, respectively. The agreement was extended on December 31, 2019 to include a new phase of support for 12nm MRAM development.
Under the current JDA extension terms, each party licenses its relevant intellectual property to the other party. For certain jointly developed works, the parties have agreed to follow an invention allocation procedure to determine ownership. In addition, GF possesses the exclusive right to manufacture the Company’s discrete and embedded STT-MRAM devices developed pursuant to the agreement until the earlier of
Generally, unless otherwise specified in the agreement or a statement of work, the Company and GF share project costs, which do not include personnel or production qualification costs, under the JDA. If GF manufactures, sells or transfers to customers wafers containing production quantified STT-MRAM devices that utilize certain design information, GF will be required to pay the Company a royalty.
15
Silterra Malaysia Sdn. Bhd. Joint Collaboration Agreement
In September 2018, the Company entered into a Joint Collaboration Agreement (JCA) with Silterra Malaysia Sdn. Bhd., and another third party. The JCA will create additional manufacturing capacity for the Company’s Toggle MRAM products. The Company had previously anticipated initial production starting in 2020. However, as a result of recent delays, the Company now anticipates initial production to start some time in 2022. Under the JCA, the Company is required to pay non-recurring engineering costs of $
9. Net Income Per Common Share
Basic net income per common share is calculated by dividing the net income by the weighted-average number of shares of common stock outstanding for the period less shares subject to repurchase, without consideration of potentially dilutive securities. Diluted earnings per share is calculated using the treasury stock method by dividing net income by the total weighted average shares of common stock outstanding in addition to the potential impact of dilutive securities including restricted stock units, warrants, and options. In periods with a net loss, potentially dilutive securities are excluded from the Company’s calculation of earning per share as their inclusion would have an antidilutive effect.
The following tables set forth the computation of basic and diluted net income per share attributable to common stockholders (in thousands, except share and per share amounts):
Basic EPS
Three Months Ended September 30, | Nine Months Ended September 30, | |||||||||||
| 2022 |
| 2021 |
| 2022 |
| 2021 | |||||
Numerator: |
|
|
|
|
|
|
|
| ||||
Net income | $ | | $ | | $ | | $ | | ||||
Denominator: |
|
|
|
|
|
|
|
| ||||
Weighted-average shares of common stock outstanding, basic |
| |
| |
| |
| | ||||
Net income per common share, basic | $ | | $ | | $ | | $ | | ||||
Diluted EPS
Three Months Ended September 30, | Nine Months Ended September 30, | |||||||||||
| 2022 |
| 2021 |
| 2022 |
| 2021 | |||||
Numerator: |
|
|
|
|
|
|
|
| ||||
Net income | $ | | $ | | $ | | $ | | ||||
Less: warrant liability fair value gain recognized | — | — | ( | — | ||||||||
Net income attributable to common stockholders, diluted | | | $ | | $ | | ||||||
Denominator: |
|
|
|
|
|
|
|
| ||||
Weighted-average shares of common stock outstanding, basic |
| |
| |
| |
| | ||||
Dilutive effect of stock options and RSUs | | | | | ||||||||
Weighted-average shares of common stock outstanding, diluted |
| |
| |
| |
| | ||||
Net income per common share, diluted | $ | | $ | | $ | | $ | | ||||
16
Potentially dilutive securities representing
17
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations.
You should read the following discussion and analysis of our financial condition and results of operations together with our condensed financial statements and related notes included in Part I, Item 1 of this report and with our audited financial statements and related notes thereto included as part of our Annual Report on Form 10-K for the year ended December 31, 2021.
Forward-Looking Statements
This discussion contains certain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (Securities Act), and Section 21E of the Securities Exchange Act of 1934, as amended (Exchange Act). Forward-looking statements are identified by words such as “believe,” “will,” “may,” “estimate,” “continue,” “anticipate,” “intend,” “should,” “plan,” “expect,” “predict,” “could,” “potentially” or the negative of these terms or similar expressions. You should read these statements carefully because they discuss future expectations, contain projections of future results of operations or financial condition, or state other “forward-looking” information. These statements relate to, among other things, our industry, business, future plans, strategies, objectives, expectations, intentions and financial performance, as well as anticipated impacts from, and our responses to, the COVID-19 pandemic and our expectations regarding current supply constraints, and the assumptions that underlie these statements. These forward-looking statements are subject to certain risks and uncertainties that could cause actual results to differ materially from those anticipated in the forward-looking statements. Factors that might cause such a difference include, but are not limited to, those discussed in this report in Part II, Item 1A — “Risk Factors,” and elsewhere in this report, as well as in our other filings with the Securities and Exchange Commission (SEC). Forward-looking statements are based on our management’s beliefs and assumptions and on information currently available to our management. These statements, like all statements in this report, speak only as of their date, and we undertake no obligation to update or revise these statements in light of future developments. In addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based on information available to us as of the date of this Quarterly Report on Form 10-Q. While we believe that information provides a reasonable basis for these statements, that information may be limited or incomplete. Our statements should not be read to indicate that we have conducted an exhaustive inquiry into or review of, all relevant information. These statements are inherently uncertain and investors are cautioned not to unduly rely on these statements. We caution investors that our business and financial performance are subject to substantial risks and uncertainties.
Overview
Everspin is a pioneer in the successful commercialization of Magnetoresistive Random Access Memory (MRAM) technology. Our portfolio of MRAM technologies, including Toggle MRAM and Spin-transfer Torque MRAM (STT-MRAM), is delivering superior performance, persistence and reliability in non-volatile memories that transform how mission-critical data is protected against power loss. With over 10 years of MRAM technology and manufacturing leadership, our memory solutions deliver significant value to our customers in key markets such as industrial, medical, automotive/transportation, aerospace and data center. We are the leading supplier of discrete MRAM components and a successful licensor of our broad portfolio of related technology intellectual property.
We sell our products directly and through our established distribution channels to industry-leading OEMs and original design manufacturers (ODMs).
We manufacture our MRAM products using both captive and third-party manufacturing capabilities. We purchase industry-standard complementary metal-oxide semiconductor (CMOS) wafers from semiconductor foundries and perform back end of line (BEOL) processing that includes our magnetic-bit technology at our 200mm fabrication facility in Chandler, Arizona. We also manufacture full-flow 300mm CMOS wafers with our STT-MRAM magnetic-bit technology integrated in BEOL as part of our strategic relationship with GLOBALFOUNDRIES.
Key Metrics
We monitor a variety of key financial metrics to help us evaluate trends, establish budgets, measure the effectiveness of our business strategies and assess operational efficiencies. These financial metrics include revenue, gross margin, operating expenses and operating income determined in accordance with GAAP. Additionally, we monitor and project cash flow to determine our sources and uses for working capital to fund our operations. We also monitor Adjusted
18
EBITDA, a non-GAAP financial measure, and design wins. We define Adjusted EBITDA as net income or loss adjusted for interest expense, taxes, depreciation and amortization, stock-based compensation expense, and restructuring costs, if any.
Adjusted EBITDA. Our management and board of directors use Adjusted EBITDA to understand and evaluate our operating performance and trends, to prepare and approve our annual budget and to develop short-term and long-term operating and financing plans. Accordingly, we believe that Adjusted EBITDA provides useful information for investors in understanding and evaluating our operating results in the same manner as our management and our board of directors. Adjusted EBITDA is a non-GAAP financial measure and should be considered in addition to, not as superior to, or as a substitute for, net income reported in accordance with GAAP. The following table presents a reconciliation of net income, the most directly comparable GAAP measure, to Adjusted EBITDA for the periods indicated:
Three Months Ended September 30, | Nine Months Ended September 30, | |||||||||||
| 2022 |
| 2021 |
| 2022 |
| 2021 | |||||
Adjusted EBITDA reconciliation: |
|
|
|
|
|
|
|
| ||||
Net income | $ | 1,907 | $ | 880 | $ | 5,513 | $ | 676 | ||||
Depreciation and amortization |
| 242 |
| 361 |
| 704 |
| 1,117 | ||||
Stock-based compensation expense |
| 1,152 |
| 1,027 |
| 3,287 |
| 2,474 | ||||
Interest expense |
| 73 |
| 165 |
| 218 |
| 461 | ||||
Income tax expense | — | 22 | — | 75 | ||||||||
Adjusted EBITDA | $ | 3,374 | $ | 2,455 | $ | 9,722 | $ | 4,803 | ||||
Effect of the COVID-19 Pandemic on our Business
The COVID-19 outbreak has resulted in government authorities around the world implementing numerous measures to try to reduce the spread of COVID-19, such as travel bans and restrictions, quarantines, “shelter-in-place,” “stay-at-home,” total lock-down orders, business limitations or shutdowns and similar orders. More recently, new variants of COVID-19, such as the Omicron variant and its subvariants, that are significantly more contagious than previous strains have emerged. The spread of these new strains have caused many government authorities and businesses to reimplement the aforementioned measures to try to reduce the spread that had become less prevalent. While some of these restrictions have been lifted, the lingering impact of the COVID pandemic continues to create significant volatility throughout the global economy, including supply chain constraints, labor supply issues and higher inflation. Accordingly, it is unclear at this point the full impact COVID-19 and its variants will have on the global economy and on our company.
Overall, our business remains operational in the midst of the pandemic. However, as a result of the ongoing COVID-19 pandemic and the related responses from government authorities, our business, results of operations and financial condition have been, and continue to be, adversely impacted. For example, we have experienced electronics supply chain and demand disruptions from extended factory shutdowns, particularly in some Asian countries, which created unusual order patterns, and subsequently slowed Toggle MRAM demand, particularly from our industrial customers. We continue to see an impact as reflected in reduced demand from some customers and distributors. While we are working closely with our manufacturing partners and suppliers to support demand for our products, the full impact on our demand from customers remains unknown. Management is thus planning for a broad range of possible demand outcomes in an effort to ensure the success of our business under a variety of end market conditions.
The emergence of new variants of COVID-19, and the prevalence of cases of infection globally adds additional uncertainty and could result in further impacts to our business and operations, including those discussed above and in “Risk Factors” in Part II, Item 1A of this report.
We will continue to monitor the situation and take additional actions as warranted. These actions may include further altering our operations in order to protect the best interests of our employees, customers and suppliers, and to comply with government requirements, while also planning and executing our business to best support our customers, suppliers, and partners.
The ultimate extent of the impact of the COVID-19 pandemic on our business, results of operations and financial condition will depend on future developments, which are highly uncertain, continuously evolving and cannot be
19
predicted, including, but not limited to, the duration and spread of the COVID-19 outbreak, its severity, the emergence and severity of its variants, the actions to contain the virus or treat its impact, such as the availability and efficacy of vaccines (particularly with respect to emerging strains of the virus) and potential hesitancy to use them, general economic factors, such as increased inflation, supply chain restraints, labor supply issues, and how quickly and to what extent normal economic and operating conditions can resume. Accordingly, our current results and financial condition discussed herein may not be indicative of future operating results and trends. See “Risk Factors” in Part II, Item 1A of this report for additional risks we face due to the COVID-19 pandemic.
Results of Operations
The following table sets forth our results of operations for the periods indicated:
Three Months Ended September 30, | ||||||||||||||
| 2022 |
| 2021 |
| 2022 |
| 2021 |
| ||||||
(In thousands) | (As a percentage of revenue) | |||||||||||||
Product sales | $ | 14,571 | $ | 12,037 | 96 | % | 81 | % | ||||||
Licensing, royalty, patent, and other revenue |
| 670 |
| 2,758 |
| 4 |
| 19 | ||||||
Total revenue |
| 15,241 |
| 14,795 |
| 100 |
| 100 | ||||||
Cost of product sales | 6,122 | 6,043 | 40 | 41 | ||||||||||
Cost of licensing, royalty, patent, and other revenue | 155 | 304 | 1 | 2 | ||||||||||
Total cost of sales |
| 6,277 |
| 6,347 |
| 41 |
| 43 | ||||||
Gross profit |
| 8,964 |
| 8,448 |
| 59 |
| 57 | ||||||
Operating expenses: |
|
|
|
|
|
|
|
| ||||||
Research and development |
| 2,879 |
| 3,105 |
| 19 |
| 21 | ||||||
General and administrative |
| 2,971 |
| 2,996 |
| 19 |
| 20 | ||||||
Sales and marketing |
| 1,203 |
| 1,272 |
| 8 |
| 9 | ||||||
Total operating expenses |
| 7,053 |
| 7,373 |
| 46 |
| 50 | ||||||
Income from operations |
| 1,911 |
| 1,075 |
| 13 |
| 7 | ||||||
Interest expense |
| (73) |
| (165) |
| — |
| (1) | ||||||
Other income (expense), net |
| 69 |
| (8) |
| — |
| — | ||||||
Net income before income taxes | 1,907 |
| 902 |
| 13 |
| 6 | |||||||
Income tax expense | — |
| (22) |
| — |
| — | |||||||
Net income and comprehensive income | $ | 1,907 | $ | 880 | 13 | % | 6 | % | ||||||
20
Nine Months Ended September 30, | |||||||||||||
September 30, | September 30, | ||||||||||||
2022 |
| 2021 |
| 2022 |
| 2021 | |||||||
(In thousands) | (As a percentage of revenue) | ||||||||||||
Product sales | $ | 40,465 | $ | 31,292 | 91 | % | 85 | % | |||||
Licensing, royalty, patent, and other revenue |
| 3,830 |
| 5,631 |
| 9 |
| 15 | |||||
Total revenue |
| 44,295 |
| 36,923 |
| 100 |
| 100 | |||||
Cost of product sales | 17,667 | 14,629 | 40 | 40 | |||||||||
Cost of licensing, royalty, patent, and other revenue | 750 | 665 | 2 | 2 | |||||||||
Total cost of sales |
| 18,417 |
| 15,294 |
| 42 |
| 41 | |||||
Gross profit |
| 25,878 |
| 21,629 |
| 58 |
| 59 | |||||
Operating expenses: |
|
|
|
|
|
|
|
| |||||
Research and development |
| 8,014 |
| 8,901 |
| 18 |
| 24 | |||||
General and administrative |
| 8,560 |
| 8,177 |
| 19 |
| 22 | |||||
Sales and marketing |
| 3,629 |
| 3,304 |
| 8 |
| 9 | |||||
Total operating expenses |
| 20,203 |
| 20,382 |
| 45 |
| 55 | |||||
Income from operations |
| 5,675 |
| 1,247 |
| 13 |
| 4 | |||||
Interest expense |
| (218) |
| (461) |
| (1) |
| (2) | |||||
Other expense, net |
| 56 |
| (35) |
| — |
| — | |||||
Net income before income taxes |
| 5,513 |
| 751 |
| 12 |
| 2 | |||||
Income tax expense |
| — |
| (75) |
| — |
| — | |||||
Net income and comprehensive income | $ | 5,513 | $ | 676 | 12 | % | 2 | % | |||||
Comparison of the three months ended September 30, 2022 and 2021
Revenue
We generated 92% and 62% of our revenue from products sold to distributors for the three months ended September 30, 2022 and 2021, respectively.
In addition to selling our products to our distributors, we maintain a direct selling relationship, for strategic purposes, with several key customer accounts. We have organized our sales team and representatives into three primary regions: North America; Europe, Middle East and Africa (EMEA); and Asia-Pacific (APAC). We recognize revenue by geography based on the region in which our customer is located and to which our products are sold, and not to where the end products in which they are assembled are shipped. Our revenue by region and by type of revenue for the periods indicated were as follows (in thousands):
Three Months Ended September 30, | ||||||
2022 |
| 2021 | ||||
APAC | $ | 10,030 | $ | 8,523 | ||
North America | 2,980 | 4,197 | ||||
EMEA | 2,231 | 2,075 | ||||
Total revenue | $ | 15,241 | $ | 14,795 | ||
Three Months Ended |
| |||||||||||
September 30, | Change |
| ||||||||||
| 2022 |
| 2021 |
| Amount |
| % |
| ||||
(Dollars in thousands) |
| |||||||||||
Product sales | $ | 14,571 | $ | 12,037 | $ | 2,534 |
| 21.1 | % | |||
Licensing, royalty, patent, and other revenue |
| 670 |
| 2,758 |
| (2,088) |
| (75.7) | % | |||
Total revenue | $ | 15,241 | $ | 14,795 | $ | 446 |
| 3.0 | % | |||
Total revenue increased by $0.4 million, or 3.0%, from $14.8 million during the three months ended September 30, 2021 to $15.2 million during the three months ended September 30, 2022. The increase was primarily due to an increase
21
of product sales by $2.5 million, or 21.1%, from $12.0 million to $14.6 million driven by a higher volume of units produced and sold, along with average sales price increases to offset supplier price increases.
Licensing, royalty, patent, and other revenue is a highly variable revenue item characterized by a small number of transactions annually with revenue based on size and terms of each transaction. Our best estimate of royalty revenue earned is made through the year, with an annual adjustment recognized for actual sales in the first quarter of each fiscal year. Licensing, royalty, patent, and other revenue decreased by $2.1 million, or 75.7%, from $2.8 million during the three months ended September 30, 2021 to $0.7 million during the three months ended September 30, 2022. The decrease was driven by a decrease in licensing revenues from a contractual agreement with a customer for the development of a RAD-Hard product, consisting of a technology license, a design license agreement, and development contract that was entered into in the second quarter of 2021, along with a patent sale in the third quarter of 2021 resulting in approximately $1.3 million in revenue. There were no patent sales in the third quarter of 2022.
Cost of Sales and Gross Margin
Three Months Ended |
| |||||||||||
September 30, | Change |
| ||||||||||
| 2022 |
| 2021 |
| Amount | % |
| |||||
(Dollars in thousands) |
| |||||||||||
Cost of product sales | $ | 6,122 | $ | 6,043 | $ | 79 | 1.3 | % | ||||
Cost of licensing, royalty, patent, and other revenue | 155 | 304 | (149) | (49.0) | % | |||||||
Total cost of sales | $ | 6,277 | $ | 6,347 | $ | (70) |
| (1.1) | % | |||
Gross margin |
| 58.8 | % |
| 60.7 | % |
|
|
|
| ||
Cost of product sales increased by $0.1 million, or 1.3%, from $6.0 million during the three months ended September 30, 2021, to $6.1 million during the three months ended September 30, 2022. The increase was due to an increase in product sales and price increases from suppliers, offset by increased yields on toggle products.
Cost of licensing, royalty, patent, and other revenue decreased by $0.1 million, or 49% from $0.3 million during the three months ended September 30, 2021, to $0.2 million during the three months ended September 30, 2022. The decrease was due to a decline in licensing costs.
Gross margin decreased from 60.7% during the three months ended September 30, 2021, to 58.8% during the three months ended September 30, 2022. The decrease in gross margin was primarily due to price increases from suppliers and lower licensing, royalty, patent, and other revenue.
Operating Expenses
Our operating expenses consist of research and development, general and administrative and sales and marketing expenses. Personnel-related expenses, including salaries, benefits, bonuses and stock-based compensation, are among the most significant component of each of our operating expense categories.
Three Months Ended |
| |||||||||||
September 30, | Change |
| ||||||||||
| 2022 |
| 2021 |
| Amount |
| % |
| ||||
(Dollars in thousands) |
| |||||||||||
Research and development | $ | 2,879 | $ | 3,105 | $ | (226) |
| (7.3) | % | |||
Research and development as a % of revenue | 19 | % | 21 | % | ||||||||
Research and Development Expenses. Research and development expenses decreased by $0.2 million, or 7.3%, from $3.1 million during the three months ended September 30, 2021, to $2.9 million during the three months ended
22
September 30, 2022. The decrease is primarily due to reduced development expenses related to the new 28nm product, that has started producing samples in 2022.
Three Months Ended |
| |||||||||||
September 30, | Change |
| ||||||||||
| 2022 |
| 2021 |
| Amount |
| % |
| ||||
(Dollars in thousands) |
| |||||||||||
General and administrative | $ | 2,971 | $ | 2,996 | $ | (25) |
| (0.8) | % | |||
General and administrative as a % of revenue | 19 | % | 20 | % | ||||||||
General and Administrative Expenses. General and administrative expenses remained relatively consistent at $3.0 million during the three months ended September 30, 2022 and 2021, respectively.
Three Months Ended |
| |||||||||||
September 30, | Change |
| ||||||||||
| 2022 |
| 2021 |
| Amount |
| % |
| ||||
(Dollars in thousands) |
| |||||||||||
Sales and marketing | $ | 1,203 | $ | 1,272 | $ | (69) |
| (5.4) | % | |||
Sales and marketing as a % of revenue | 8 | % | 9 | % | ||||||||
Sales and Marketing Expenses. Sales and marketing expenses decreased by $0.1 million, or 5.4%, from $1.3 million during the three months ended September 30, 2021, to $1.2 million during the three months ended September 30, 2022. The decrease was primarily due to a decrease in variable compensation.
Interest Expense
Three Months Ended |
| |||||||||||
September 30, | Change |
| ||||||||||
| 2022 |
| 2021 |
| Amount |
| % |
| ||||
(Dollars in thousands) |
| |||||||||||
Interest expense | $ | 73 | $ | 165 | $ | (92) |
| (55.8) | % | |||
Interest expense decreased by $92,000, or 55.8%, from $165,000 during the three months ended September 30, 2021, to $73,000 during the three months ended September 30, 2022. The decrease was due to lower outstanding balances under the credit facility during the three months ended September 30, 2022, resulting in less interest incurred.
Other Income (Expense), Net
Three Months Ended | ||||||||||||
September 30, | Change | |||||||||||
| 2022 |
| 2021 |
| Amount |
| % | |||||
(Dollars in thousands) | ||||||||||||
Other income (expense), net | $ | 69 | $ | (8) | $ | 77 |
| 962.5 | % | |||
Other income (expense), net changed from a $8,000 expense to income of $69,000 from the three months ended September 30, 2021 to the three months ended September 30, 2022. The increase was primarily due to interest income earned on the money market cash account.
Comparison of the nine months ended September 30, 2022 and 2021
Revenue
We generated 85% and 67% of our revenue from products sold through distributors for the nine months ended September 30, 2022 and 2021, respectively.
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Our revenue by region and by type for the periods indicated were as follows (in thousands):
Nine Months Ended September 30, | ||||||
2022 |
| 2021 | ||||
APAC | $ | 27,634 | $ | 23,474 | ||
North America | 9,865 | 8,623 | ||||
EMEA | 6,796 | 4,826 | ||||
Total revenue | $ | 44,295 | $ | 36,923 | ||
Nine Months Ended |
| |||||||||||
September 30, | Change |
| ||||||||||
| 2022 |
| 2021 |
| Amount |
| % |
| ||||
(Dollars in thousands) |
| |||||||||||
Product sales | $ | 40,465 | $ | 31,292 | $ | 9,173 |
| 29.3 | % | |||
Licensing, royalty, patent, and other revenue |
| 3,830 |
| 5,631 |
| (1,801) |
| (32.0) | % | |||
Total revenue | $ | 44,295 | $ | 36,923 | $ | 7,372 |
| 20.0 | % | |||
Total revenue increased by $7.4 million, or 20.0%, from $36.9 million during the nine months ended September 30, 2021 to $44.3 million during the nine months ended September 30, 2022. The increase was primarily due to an increase of product sales by $9.2 million, or 29.3%, from $31.3 million to $40.5 million driven by a higher volume of units produced and sold, along with average sales price increases to offset supplier price increases.
Licensing, royalty, patent, and other revenue is a highly variable revenue item characterized by a small number of transactions annually with revenue based on size and terms of each transaction. Our best estimate of royalty revenue earned is made through the year, with an annual adjustment recognized for actual sales in the first quarter of each fiscal year. Licensing, royalty, patent, and other revenue decreased by $1.8 million, or 32.0%, from $5.6 million during the nine months ended September 30, 2021 to $3.8 million during the nine months ended September 30, 2022. The decrease was driven by higher licensing revenues during the nine months ended September 30, 2021, from a contractual agreement with a customer for the development of a RAD-Hard product, consisting of a technology license, a design license agreement, and development contract that was entered into in the second quarter of 2021, along with a patent sale in the third quarter of 2021 resulting in approximately $1.3 million in revenue. There were no patent sales in the nine months ended September 30, 2022.
Cost of Sales and Gross Margin
Nine Months Ended |
| |||||||||||
September 30, | Change |
| ||||||||||
| 2022 |
| 2021 |
| Amount |
| % |
| ||||
(Dollars in thousands) |
| |||||||||||
Cost of product sales | $ | 17,667 | $ | 14,629 | $ | 3,038 | 20.8 | % | ||||
Cost of licensing, royalty, patent, and other revenue | 750 | 665 | 85 | 12.8 | % | |||||||
Total cost of sales | $ | 18,417 | $ | 15,294 | $ | 3,123 | 20.4 | % | ||||
Gross margin |
| 58.4 | % |
| 58.6 | % |
| |||||
Cost of product sales increased by $3.0 million, or 20.8%, from $14.6 million during the nine months ended September 30, 2021, to $17.6 million during the nine months ended September 30, 2022. The increase was due to an increase in product sales, along with price increases from suppliers.
Cost of licensing, royalty, patent, and other revenue increased by $0.1 million from $0.7 million during the nine months ended September 30, 2021, to $0.8 million during the nine months ended September 30, 2022. The increase was primarily due to increases in foundry activities.
Gross margin decreased from 58.6% during the nine months ended September 30, 2021, to 58.4% during the nine months ended September 30, 2022. The decrease in gross margin was primarily due to price increases from suppliers and lower licensing, royalty, patent, and other revenue.
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Operating Expenses
Our operating expenses consist of research and development, general and administrative and sales and marketing expenses. Personnel-related expenses, including salaries, benefits, bonuses and stock-based compensation, are among the most significant component of each of our operating expense categories.
Nine Months Ended |
| |||||||||||
September 30, | Change |
| ||||||||||
| 2022 |
| 2021 |
| Amount |
| % |
| ||||
(Dollars in thousands) |
| |||||||||||
Research and development | $ | 8,014 | $ | 8,901 | $ | (887) |
| (10.0) | % | |||
Research and development as a % of revenue | 18 | % | 24 | % | ||||||||
Research and Development Expenses. Research and development expenses decreased by $0.9 million, or 10.0%, from $8.9 million during the nine months ended September 30, 2021 to $8.0 million during the nine months ended September 30, 2022. The decrease is primarily due to reduced development expenses related to the new 28nm product that has started producing samples in 2022.
Nine Months Ended |
| |||||||||||
September 30, | Change |
| ||||||||||
| 2022 |
| 2021 |
| Amount |
| % |
| ||||
(Dollars in thousands) |
| |||||||||||
General and administrative | $ | 8,560 | $ | 8,177 | $ | 383 |
| 4.7 | % | |||
General and administrative as a % of revenue | 19 | % | 22 | % | ||||||||
General and Administrative Expenses. General and administrative expenses increased by $0.4 million, or 4.7%, from $8.2 million during the nine months ended September 30, 2021, to $8.6 million during the nine months ended September 30, 2022. The increase is primarily due to increased stock-based compensation expense offset by a gain on the sale of property and equipment.
Nine Months Ended |
| |||||||||||
September 30, | Change |
| ||||||||||
| 2022 |
| 2021 |
| Amount |
| % |
| ||||
(Dollars in thousands) |
| |||||||||||
Sales and marketing | $ | 3,629 | $ | 3,304 | $ | 325 |
| 9.8 | % | |||
Sales and marketing as a % of revenue | 8 | % | 9 | % | ||||||||
Sales and Marketing Expenses. Sales and marketing expenses increased by $0.3 million, or 9.8%, from $3.3 million during the nine months ended September 30, 2021, to $3.6 million during the nine months ended September 30, 2022. The increase was primarily due to an increase in variable compensation.
Interest Expense
Nine Months Ended |
| |||||||||||
September 30, | Change |
| ||||||||||
| 2022 |
| 2021 |
| Amount |
| % |
| ||||
(Dollars in thousands) |
| |||||||||||
Interest expense | $ | 218 | $ | 461 | $ | (243) |
| (52.7) | % | |||
Interest expense decreased by $243,000, or 52.7%, from $461,000 during the nine months ended September 30, 2021, to $218,000 during the nine months ended September 30, 2022. The decrease was due to lower outstanding balances under the credit facility during the nine months ended September 30, 2022, resulting in less interest incurred.
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Other Income (Expense), Net
Nine Months Ended | ||||||||||||
September 30, | Change | |||||||||||
| 2022 |
| 2021 |
| Amount |
| % | |||||
(Dollars in thousands) | ||||||||||||
Other income (expense), net | $ | 56 | $ | (35) | $ | 91 |
| (260.0) | % | |||
Other income (expense) changed from $35,000 in expense to $56,000 in income from the nine months ended September 30, 2021 to the nine months ended September 30, 2022. The increase was primarily due to interest income earned on the money market cash account.
Liquidity and Capital Resources
As of September 30, 2022, we had $23.4 million of cash and cash equivalents, compared to $21.4 million as of December 31, 2021. We believe our cash and cash equivalents are sufficient to meet our anticipated capital requirements. Our future capital requirements will depend on many factors, including, among other things, our growth rate, the timing and extent of our spending to support research and development activities, the timing and cost of establishing additional sales and marketing capabilities, and the introduction of new products.
For additional information about the 2019 Credit Facility, see Note 6 to our condensed financial statements in Part I, Item 1 of this report.
Cash Flows
The following table summarizes our cash flows for the periods indicated (in thousands):
Nine Months Ended | ||||||
September 30, | ||||||
| 2022 |
| 2021 | |||
(In thousands) | ||||||
Cash provided by operating activities | $ | 4,258 | $ | 2,938 | ||
Cash used in investing activities |
| (1,118) |
| (578) | ||
Cash used in financing activities |
| (1,107) |
| (2,401) | ||
Cash Flows From Operating Activities
During the nine months ended September 30, 2022, cash provided by operating activities was $4.3 million, which consisted of net income of $5.5 million, cash provided by non-cash charges of $3.9 million and changes of net operating assets and liabilities of $5.2 million. The non-cash charges primarily consisted of stock-based compensation of $3.3 million, and depreciation and amortization of $0.7 million. The use of cash due to the change in our net operating assets and liabilities was primarily due to an increase in accounts receivable of $4.4 million due to timing of cash receipts for outstanding balances, an increase in inventory of $1.5 million, and a decrease in accrued liabilities of $1.1 million primarily due to timing of variable compensation costs. These uses were partially offset by a decrease in prepaid and other current assets of $0.5 million and an increase in accounts payable of $1.2 million.
During the nine months ended September 30, 2021, cash provided by operating activities was $2.9 million, which consisted of net income of $0.7 million, cash provided by non-cash charges of $3.9 million and changes of net operating assets and liabilities of $1.6 million. The non-cash charges primarily consisted of stock-based compensation of $2.5 million, depreciation and amortization of $1.1 million, and interest expense related to the amortization of debt issuance costs of $0.3 million. The use of cash due to the change in our net operating assets and liabilities was primarily due to an increase in accounts receivable of $3.0 million due to timing of cash receipts for outstanding balances, an increase of $0.9 million in inventory due to increased inventory levels, and an increase of $0.1 million in prepaid expenses and other current assets. These uses were partially offset by an increase in deferred revenue of $1.4 million, an increase of $0.7 million in accrued liabilities due to the timing of payments, and an increase in accounts payable of $0.7 million.
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Cash Flows From Investing Activities
Cash used in investing activities during the nine months ended September 30, 2022, was $1.1 million, reflecting $1.3 million for the purchase of manufacturing equipment partially offset by $0.2 million in proceeds received on the sale of property and equipment.
Cash used in investing activities during the nine months ended September 30, 2021, was $0.6 million for the purchase of manufacturing and computer equipment.
Cash Flows From Financing Activities
Cash used in financing activities during the nine months ended September 30, 2022, was $1.1 million, consisting mainly of $1.8 million of payments of term loan installments partially offset by $0.7 million in proceeds from the exercise of employee stock options.
Cash used in financing activities during the nine months ended September 30, 2021 was $2.4 million, consisting of $2.8 million of payments of term loan installments, partially offset by $0.4 million in proceeds from stock option exercises.
Critical Accounting Policies and Significant Judgements and Estimates
Our condensed financial statements have been prepared in accordance with GAAP. The preparation of these condensed financial statements requires us to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements, as well as the reported revenue generated, and expenses incurred during the reporting periods. We base our estimates on our historical experience and on various other factors that we believe are reasonable under the circumstances, the results of which form the basis for making judgments about the carrying value of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions.
There have been no changes to our critical accounting policies and estimates described in the Annual Report on Form 10-K for the year ended December 31, 2021, filed with the SEC on March 9, 2022, that have had a material impact on our condensed financial statements and related notes.
Item 3. Quantitative and Qualitative Disclosures about Market Risk
Not required for a smaller reporting company.
Item 4. Controls and Procedures
Evaluation of disclosure controls and procedures.
Our management, including our Chief Executive Officer (CEO) and Chief Financial Officer (CFO), evaluated the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act), as of September 30, 2022, the end of the period covered by this quarterly report on Form 10-Q.
Based on this evaluation, our CEO and CFO concluded that our disclosure controls and procedures were not effective at the reasonable assurance level as of September 30, 2022, based on the material weakness discussed below.
Material weakness in internal control over financial reporting.
A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) such that there is a reasonable possibility that a material misstatement of the annual or interim financial statements will not be prevented or detected on a timely basis. In connection with the preparation of our audited annual financial statements for the year ended December 31, 2021, we determined our controls around inventory, including unit level cost allocations and communication protocols between
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operations and accounting were not sufficiently designed to prevent and detect a material misstatement. We have established a plan to remediate this material weakness outlined below.
Management’s steps taken to remediate the material weakness.
To remediate this material weakness, we have taken the following actions:
| ● | We are establishing multi-discipline processes to actively manage and make decisions regarding our inventory to support our business objectives. |
| ● | We are establishing reconciliations by product family based on unit cost at each stage of the wafer manufacturing process. |
| ● | We are taking steps to identify unit pricing variances between each stage of the wafer manufacturing process to ensure cost allocation amounts are appropriately reflected at both the unit and product family level. |
| ● | We are providing additional training to our teams and updating procedures with our third-party Assembly Houses. |
| ● | We hired additional qualified personnel to assist management with its financial statement close process and provide oversight of our financial reporting and inventory costing processes. |
We will continue to monitor stability of the platform and further enhance the business controls around inventory management. We continue to assess our accounting policies and internal controls documentation to ensure they are effective in helping us manage the business and to prevent and detect material misstatements. Our management has concluded that the financial statements included elsewhere in this Quarterly Report on Form 10-Q present fairly, in all material respects, our financial position, results of operations and cash flows in conformity with GAAP.
Changes in internal control over financial reporting.
Except with respect to the remediation actions described above, there have been no changes in our internal control over financial reporting that occurred during the nine months ended September 30, 2022, that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Inherent limitation on the effectiveness of internal control.
The effectiveness of any system of internal control over financial reporting, including ours, is subject to inherent limitations, including the exercise of judgment in designing, implementing, operating, and evaluating the controls and procedures, and the inability to eliminate misconduct completely. Accordingly, any system of internal control over financial reporting, including ours, no matter how well designed and operated, can only provide reasonable, not absolute assurances. In addition, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate. We intend to continue to monitor and upgrade our internal controls as necessary or appropriate for our business, but cannot assure you that such improvements will be sufficient to provide us with effective internal control over financial reporting.
PART II – OTHER INFORMATION
ITEM 1. Legal Proceedings
We are not party to any material legal proceedings at this time. From time to time, we may become involved in various legal proceedings that arise in the ordinary course of our business.
ITEM 1A. Risk Factors
The following are important factors that could cause actual results or events to differ materially from those contained in any forward-looking statements made by us or on our behalf. The risks and uncertainties described below
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are not the only ones we face. Additional risks and uncertainties not presently known to us or that we deem immaterial also may impair our business operations. If any of the following risks or such other risks actually occurs, our business, financial condition, results of operations and cash flows could be harmed. In addition, many of the following risks and uncertainties may be exacerbated by the ongoing COVID-19 pandemic, including any new variants that may become predominant, and any worsening of the global business and economic environment as a result.
Risk Factor Summary
We are subject to a variety of risks and uncertainties, including risks related to our financial condition and our indebtedness, risks related to our business and our industry, risks related to our intellectual property and technology, risks related to regulatory matters and compliance, risks related to our common stock and certain general risks, which could have a material adverse effect on our business, financial condition, results of operations and cash flows. These risks include, but are not limited to, the following principal risks:
| ● | We may need additional funding and may be unable to raise capital when needed, which could force us to delay, reduce, or eliminate planned activities. |
| ● | We cannot be certain that we will sustain profitability. |
| ● | Provisions of our credit facility may restrict our ability to pursue our business strategies. |
| ● | The ongoing COVID-19 global pandemic has adversely affected, and is expected to continue to adversely affect, our business, results of operations and financial condition. The widespread outbreak of any other illnesses or communicable diseases could also adversely affect our business, results of operations and financial condition. |
| ● | The limited history of STT-MRAM adoption makes it difficult to evaluate our current business and future prospects. |
| ● | We may be unable to match production with customer demand for a variety of reasons including our inability to accurately forecast customer demand or the capacity constraints of our suppliers, which could adversely affect our operating results. |
| ● | As we expand into new potential markets, we expect to face intense competition, including from our customers and potential customers, and may not be able to compete effectively, which could harm our business. |
| ● | We rely on third parties to distribute, manufacture, package, assemble and test our products, which exposes us to a number of risks, including reduced control over manufacturing and delivery timing and potential exposure to price fluctuations, which could result in a loss of revenue or reduced profitability. |
| ● | Disruptions in our supply chain and increased costs of components used in our products may adversely impact our business, results of operations and financial condition, including our ability to fulfill customer demand. |
| ● | Our joint development agreement and strategic relationships involve numerous risks. |
| ● | We must continuously develop new and enhanced products, and if we are unable to successfully market our new and enhanced products for which we incur significant expenses to develop, our results of operations and financial condition will be materially adversely affected. |
| ● | Our success and future revenue depend on our ability to secure design wins and on our customers’ ability to successfully sell the products that incorporate our solutions. Securing design wins is a lengthy, expensive, and competitive process, and may not result in actual orders and sales, which could cause our revenue to decline. |
| ● | The loss of one or several of our customers or reduced orders or pricing from existing customers may have a significant adverse effect on our operations and financial results. |
| ● | We face competition and expect competition to increase in the future. If we fail to compete effectively, our revenue growth and results of operations will be materially and adversely affected. |
| ● | Our costs may increase substantially if we or our third-party manufacturing contractors do not achieve satisfactory product yields or quality. |
| ● | The complexity of our products may lead to defects, which could negatively impact our reputation with customers and result in liability. |
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| ● | We may experience difficulties in transitioning to new wafer fabrication process technologies or in achieving higher levels of design integration, which may result in reduced manufacturing yields, delays in product deliveries and increased expenses. |
| ● | Changes to industry standards and technical requirements relevant to our products and markets could adversely affect our business, results of operations and prospects. |
| ● | Our success depends on our ability to attract and retain key employees, and our failure to do so could harm our ability to grow our business and execute our business strategies. |
| ● | We currently maintain, and are seeking to expand, operations outside of the United States which exposes us to significant risks. |
For a more complete discussion of the material risk factors applicable to us, see below.
Risk Factors Related to Our Financial Condition and Our Indebtedness
We may need additional funding and may be unable to raise capital when needed, which could force us to delay, reduce, or eliminate planned activities.
Our total revenue was approximately $44.3 million for the nine months ended September 30, 2022, and $55.1 million for the year ended December 31, 2021. As of September 30, 2022, we had cash and cash equivalents of approximately $23.4 million. Based on our current operating plan, we believe our existing cash and cash equivalents, coupled with availability under our credit facility and our anticipated growth and sales levels, will be sufficient to meet our anticipated cash requirements for at least the next 12 months. However, our existing capital may be insufficient to meet our long-term requirements. We have no committed sources of funding other than our revolving line of credit facility and there is no assurance that additional funding will be available to us in the future or be secured on acceptable terms. If adequate funding is not available when needed, we may be forced to curtail operations, including our commercial activities and research and development programs, or cease operations altogether, file for bankruptcy, or undertake any combination of the foregoing. In such event, our stockholders may lose their entire investment in our company.
Further, we may need to raise additional funds through financings or borrowings in order to accomplish our long-term planned objectives. If we raise additional funds through issuances of equity, convertible debt securities or other securities convertible into equity, our existing stockholders could suffer significant dilution in their percentage ownership of our company, and any new equity securities we issue could have rights, preferences and privileges senior to those of holders of our common stock.
In addition, if we do not meet our payment obligations to third parties as they become due, we may be subject to litigation claims and our creditworthiness would be adversely affected. Even if we are successful in defending against these claims, litigation could result in substantial costs and would be a distraction to management and may have other unfavorable results that could further adversely impact our financial condition. Stockholders should not rely on our balance sheet as an indication of the amount of proceeds that would be available to satisfy claims of creditors, and potentially be available for distribution to stockholders, in the event of liquidation.
We cannot be certain that we will sustain profitability.
While our products offer unique benefits over other industry memory technologies, the rate of adoption of our products and our ability to capture market share from legacy technologies is uncertain. Our revenue may also be adversely impacted by a number of other possible reasons, many of which are outside our control, including business conditions that adversely affect the semiconductor memory industry resulting in a decline in end market demand for our products, adverse impacts resulting from the COVID-19 pandemic, increased competition, ongoing supply chain constraints, or our failure to capitalize on growth opportunities. We also rely on achieving specific cost reduction targets that have uncertainty in their timing and magnitude. We may also incur unforeseen expenses in the ongoing operation of our business that cause us to exceed our operational spending plan. As a result, our ability to generate sufficient revenue growth and/or controlling expenses to transition to profitability and generate consistent positive cash flows is uncertain.
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Provisions of our credit facility may restrict our ability to pursue our business strategies.
Borrowings under our existing credit facility are secured by substantially all of our assets, except for intellectual property. Additionally, the operating restrictions and covenants relating to our existing credit facility restrict, and any future financing agreements that we may enter into may further restrict, our ability to finance our operations, engage in business activities or expand or fully pursue our business strategies. For example, our existing credit facility prohibits our ability to, among other things:
● dispose of or sell assets;
● consolidate or merge with other entities;
● incur additional indebtedness;
● create liens on our assets;
● pay dividends;
● make investments;
● enter into transactions with affiliates; and
● redeem subordinated indebtedness.
These restrictions are subject to certain exceptions. In addition, our existing credit facility requires that we meet certain operating covenants, such as maintaining insurance on the collateral and meeting certain financial covenants, such as maintaining a minimum cash balance and availability under our revolving line of credit facility. Our ability to comply with these covenants may be affected by events beyond our control, and we may not be able to meet those covenants. A breach of any of these covenants could result in an event of default under the credit facility. We are required to make mandatory prepayments of the outstanding loan upon the acceleration by lender following the occurrence of an event of default, along with a payment of the end of term fee, the prepayment fee and any other obligations that are due and payable at the time of prepayment. In the event of default, the interest rate in effect will increase by 5.0% per annum.
Risk Factors Related to Our Business and Our Industry
The ongoing COVID-19 global pandemic has adversely affected, and is expected to continue to adversely affect, our business, results of operations and financial condition. The widespread outbreak of any other illnesses or communicable diseases could also adversely affect our business, results of operations and financial condition.
We could be negatively impacted by the widespread outbreak of an illness, any other communicable disease or any other public health crisis that results in economic and trade disruptions, including the disruption of global supply chains. More recently, new variants of COVID-19, that are significantly more contagious than previous strains, have emerged. The spread of these new strains have caused many government authorities and businesses to implement measures to try to reduce the spread that had become less prevalent. While some of these restrictions have begun to be lifted, the lingering impact of the COVID-19 pandemic continues to create significant volatility throughout the global economy, including supply chain constraints, labor supply issues and higher inflation. Accordingly, it is unclear at this point the full impact COVID-19 and its variants will have on the global economy and on our Company.
As a result of the COVID-19 pandemic and the related responses from government authorities, our business, results of operations and financial condition have been adversely impacted. For example, we have experienced electronics supply chain and demand disruptions from extended factory shutdowns, particularly in some Asian countries, which created unusual order patterns, and subsequently slowed Toggle MRAM demand, particularly from our industrial customers. Further, in an effort to protect the health and safety of our employees, we took the following actions: transitioned most of our office and support employees and contractors to working from home; suspended all non-essential business travel; and implemented social distancing guidelines for our employees and contractors who must work in our manufacturing and laboratory locations.
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Additionally, our business, results of operations and financial condition have been and may be further impacted in several ways, including, but not limited to, the following:
| ● | further disruptions to our operations, including due to additional facility closures, restrictions on our operations and sales, marketing and distribution efforts and/or interruptions to our research and development activities, product development and other important business activities; |
| ● | further reduced demand for our products, particularly due to disruptions to the businesses and operations of our customers; |
| ● | interruptions, availability or delays in global shipping to transport our products; |
| ● | further slowdowns, stoppages or other limitations in the supply chain for our products, in addition to higher costs, such as due to suppliers raising prices; |
| ● | limitations on employee resources and availability, including due to sickness, government restrictions, labor supply shortages, and the desire of employees to avoid contact with large groups of people or mass transit disruptions; |
| ● | a continuation or worsening of general economic conditions, including increased inflation; |
| ● | greater difficulty in collecting customer receivables; |
| ● | a fluctuation in foreign currency exchange rates or interest rates could result from market uncertainties; and |
| ● | an increase in the cost or the difficulty to obtain debt or equity financing could affect our financial condition or our ability to fund operations or future investment opportunities. |
Additionally, COVID-19 could impact our internal controls over financial reporting as a portion of our workforce is required to work from home and therefore new processes, procedures, and controls could be required to respond to changes in our business environment. Further, should any key employees become ill from COVID-19 and unable to work, the attention of the management team could be diverted.
The emergence of different variants of COVID-19 and the prevalence of breakthrough cases of infection among fully vaccinated people adds additional uncertainty and could result in further impacts to our business and operations, including those discussed above.
Although we will continue to monitor the situation and take further actions, which may include further altering our operations, in order to protect the best interests of our employees, customers and suppliers and comply with government requirements, there is no certainty that such measures will be enough to mitigate the risks posed by the virus, and our ability to perform critical functions could be harmed.
Any of the foregoing could adversely affect our business, results of operations and financial condition. The potential effects of COVID-19 may also impact many of our other risk factors discussed in this “Risk Factors” section. The ultimate extent of the impact of the COVID-19 pandemic on our business, results of operations and financial condition will depend on future developments, which are highly uncertain, continuously evolving and cannot be predicted, including, but not limited to the duration and spread of the COVID-19 outbreak and its severity; the emergence and severity of its variants; the actions to contain the virus or treat its impact, such as the availability and efficacy of vaccines (particularly with respect to emerging strains of the virus) and potential hesitancy to use them; general economic factors, such as increased inflation; supply chain restraints; labor supply issues; and how quickly and to what extent normal economic and operating conditions can resume.
The limited history of STT-MRAM adoption makes it difficult to evaluate our current business and future prospects.
We have been in existence as a stand-alone company since 2008, when Freescale Semiconductor, Inc. (subsequently acquired by NXP Semiconductor) spun-out its MRAM business as Everspin. We have been shipping magnetoresistive random-access memory (MRAM) products since our incorporation in 2008. However, we only began to manufacture and ship our Spin Transfer Torque MRAM (STT-MRAM) products in the fourth quarter of 2017.
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Our limited experience selling our STT-MRAM products, combined with the rapidly evolving and competitive nature of our market, makes it difficult to evaluate our current business and future prospects. In addition, we have limited insight into emerging trends that may adversely affect our business, financial condition, results of operations and prospects. We have encountered and will continue to encounter risks and difficulties frequently experienced by growing companies in rapidly changing industries, including unpredictable and volatile revenue and increased expenses as we continue to grow our business. The viability and demand for our products may be affected by many factors outside of our control, such as the factors affecting the growth of the industrial, automotive, transportation, and data center market segments and changes in macroeconomic conditions. If we do not manage these risks and overcome these difficulties successfully, our business will suffer.
We may be unable to match production with customer demand for a variety of reasons including our inability to accurately forecast customer demand, supply chain constraints, or the capacity constraints of our suppliers, which could adversely affect our operating results.
We make planning and spending decisions, including determining production levels, production schedules, component procurement commitments, personnel needs, and other resource requirements, based on our estimates of product demand and customer requirements. Our products are typically purchased pursuant to individual purchase orders. While our customers may provide us with their demand forecasts, they are not contractually committed to buy any quantity of products beyond purchase orders. Furthermore, many of our customers may increase, decrease, cancel, or delay purchase orders already in place without significant penalty. The short-term nature of commitments by our customers and the possibility of unexpected changes in demand for their products reduce our ability to accurately estimate future customer requirements. On occasion, customers may require rapid increases in production, which can strain our resources, necessitate more onerous procurement commitments, and reduce our gross margin. If we overestimate customer demand, we may purchase products that we may not be able to sell, which could result in decreases in our prices or write-downs of unsold inventory. Conversely, we could lose sales opportunities and could lose market share or damage our customer relationships if, for example, we underestimate customer demand, are affected by supply chain constraints, or sufficient manufacturing is unavailable. We manufacture MRAM products at our 200mm facility we lease in Chandler, Arizona and use a single foundry, GLOBALFOUNDRIES, for production of higher density products on advanced technology nodes, which may not have sufficient capacity to meet customer demand. The rapid pace of innovation in our industry could also render significant portions of our inventory obsolete. Excess or obsolete inventory levels could result in unexpected expenses or write-downs of inventory values that could adversely affect our business, operating results, and financial condition.
As we expand into new potential markets, we expect to face intense competition, including from our customers and potential customers, and may not be able to compete effectively, which could harm our business.
We expect that our new and future MRAM products will be applicable to markets in which we are not currently operating. The markets in which we operate and may operate in the future are extremely competitive and are characterized by rapid technological change, continuous evolving customer requirements and declining average selling prices. We may not be able to compete successfully against current or potential competitors, which include our current or potential customers as they seek to internally develop solutions competitive with ours or as we develop products potentially competitive with their existing products. If we do not compete successfully, our market share and revenue may decline. We compete with large semiconductor manufacturers and designers and others, and our current and potential competitors have longer operating histories, significantly greater resources and name recognition and a larger base of customers than we do. This may allow them to respond more quickly than we can to new or emerging technologies or changes in customer requirements. In addition, these competitors may have greater credibility with our existing and potential customers. Some of our current and potential customers with their own internally developed solutions may choose not to purchase products from third-party suppliers like us.
We rely on third parties to distribute, manufacture, package, assemble and test our products, which exposes us to a number of risks, including reduced control over manufacturing and delivery timing and potential exposure to price fluctuations, which could result in a loss of revenue or reduced profitability.
Although we operate an integrated magnetic fabrication line located in Chandler, Arizona, we purchase wafers from third parties and outsource the manufacturing, packaging, assembly and testing of our products to third-party foundries and assembly and testing service providers. We use a single foundry, GLOBALFOUNDRIES Singapore Pte. Ltd., for production of higher density products on advanced technology nodes. Our primary product package and test operations
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are located in China, Taiwan and other Asian countries. We also use standard CMOS wafers from third-party foundries, which we process at our Chandler, Arizona facility.
Relying on third-party distribution, manufacturing, assembly, packaging, and testing presents a number of risks, including but not limited to:
● our interests could diverge from those of our foundries, or we may not be able to agree with them on ongoing development, manufacturing and operational activities, or on the amount, timing, or nature of further investments in our joint development;
● capacity and materials shortages during periods of high demand or supply constraints;
● reduced control over delivery schedules, inventories and quality;
● the unavailability of, or potential delays in obtaining access to, key process technologies;
● the inability to achieve required production or test capacity and acceptable yields on a timely basis;
● misappropriation of our intellectual property;
● the third party’s ability to perform its obligations due to bankruptcy or other financial constraints;
● exclusive representatives for certain customer engagements;
● limited warranties on wafers or products supplied to us; and
● potential increases in prices including due to inflation.
Our manufacturing agreement with GLOBALFOUNDRIES includes a customary forecast and ordering mechanism for the supply of certain of our wafers, and we are obligated to order and pay for, and GLOBALFOUNDRIES is obligated to supply, wafers consistent with the binding portion of our forecast. However, our manufacturing arrangement is also subject to both a minimum and maximum order quantity that while we believe currently addresses our projected foundry capacity needs, may not address our maximum foundry capacity requirements in the future. We may also be obligated to pay for unused capacity if our demand decreases in the future, or if our estimates prove inaccurate. GLOBALFOUNDRIES also has the ability to discontinue its manufacture of any of our wafers upon due notice and completion of the notice period. This could cause us to have to find another foundry to manufacture those wafers or redesign our core technology and would mean that we may not have products to sell until such time. Any time spent engaging a new manufacturer or redesigning our core technology could be costly and time consuming and may allow potential competitors to take opportunities in the marketplace. Moreover, if we are unable to find another foundry to manufacture our products or if we have to redesign our core technology, this could cause material harm to our business and operating results.
If we need other foundries or packaging, assembly, and testing contractors, or if we are unable to obtain timely and adequate deliveries from our providers, we might not be able to cost-effectively and quickly retain other vendors to satisfy our requirements. Because the lead time needed to establish a relationship with a new third-party supplier could be several quarters, there is no readily available alternative source of supply for any specific component. In addition, the time and expense to qualify a new foundry could result in additional expense, diversion of resources or lost sales, any of which would negatively impact our financial results.
If any of our current or future foundries or packaging, assembly and testing subcontractors significantly increases the costs of wafers or other materials or services, interrupts or reduces our supply, including for reasons outside of their control, such as due to the COVID-19 pandemic, or if any of our relationships with our suppliers is terminated, our operating results could be adversely affected. Such occurrences could also damage our customer relationships, result in lost revenue, cause a loss in market share, or damage our reputation.
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Disruptions in our supply chain and increased cost of components used in our products may adversely impact our business, results of operations and financial condition, including our ability to fulfill customer demand.
If we fail to procure sufficient components used in our products, we may be unable to deliver our products to our customers on a timely basis, which could lead to customer dissatisfaction and could harm our reputation and ability to compete. We would likely experience significant delays or cessation in producing some of our products if a labor strike, natural disaster, public health crisis, geopolitical event, or other supply disruption were to occur, including as a result of the COVID-19 pandemic or the military conflict in Ukraine, at any of our main suppliers.
Further, the upturn in the semiconductor industry has stretched the supply chain, and we are subject to supply shortages, as well as higher costs as suppliers opportunistically raise prices. For example, there is currently a worldwide shortage of semiconductor, memory and other electronic components affecting many industries. Our products are dependent on some of these electronic components. A continued shortage of electronic components may impact us significantly and could cause us to experience extended lead times and increased prices from our suppliers, which could be significant. Extended lead times and decreased availability of key components could result in a significant disruption to our production schedule, all of which would have an adverse effect on our business, results of operations and financial condition. Additionally, the military conflict in Ukraine creates additional uncertainty and risks relating to our supply chain and the cost of components. See “—General Risk Factors—Unfavorable economic, market and geopolitical conditions, domestically and internationally, may adversely affect our business, financial condition, results of operations and cash flows” for additional information.
We do not have any guarantees of supply from our third-party suppliers, and in certain cases we have limited contractual arrangements or are relying on standard purchase orders or on component parts available on the open market, which may further result in increased costs combined with reduced availability. A continued delay in our ability to produce and deliver our products could also cause our customers to purchase alternative products from our competitors and/or harm our reputation.
Our joint development agreement and strategic relationships involve numerous risks.
We have entered into strategic relationships to manufacture products and develop new manufacturing process technologies and products. These relationships include our joint development agreement with GLOBALFOUNDRIES to develop advanced MTJ technology and STT-MRAM. These relationships are subject to various risks that could adversely affect the value of our investments and our results of operations. These risks include the following:
● our interests could diverge from those of our foundries, or we may not be able to agree with them on ongoing development, manufacturing and operational activities, or on the amount, timing, or nature of further investments in our joint development;
● we may experience difficulties in transferring technology to a foundry;
● we may experience difficulties and delays in getting to and/or ramping production at foundries;
● our control over the operations of foundries is limited;
● due to financial constraints, our joint development collaborators may be unable to meet their commitments to us and may pose credit risks for our transactions with them;
● due to differing business models or long-term business goals, our collaborators may decide not to join us in funding capital investment, which may result in higher levels of cash expenditures by us;
● our cash flows may be inadequate to fund increased capital requirements;
● we may experience difficulties or delays in collecting amounts due to us from our collaborators;
● the terms of our arrangements may turn out to be unfavorable;
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● we are migrating toward a fabless model as 300mm production becomes required and this increases risks related to less control over our critical production processes; and
● changes in tax, legal, or regulatory requirements may necessitate changes in our agreements.
The term of the agreement, as amended, is the completion, termination, or expiration of the last statement of work
entered into pursuant to the joint development agreement.
If our strategic relationships are unsuccessful, our business, results of operations, or financial condition may be materially adversely affected.
We must continuously develop new and enhanced products, and if we are unable to successfully market our new and enhanced products for which we incur significant expenses to develop, our results of operations and financial condition will be materially adversely affected.
To compete effectively in our markets, we must continually design, develop, and introduce new and improved technology and products with improved features in a cost-effective manner in response to changing technologies and market demand. This requires us to devote substantial financial and other resources to research and development. We are developing new technology and products, which we expect to be one of the drivers of our revenue growth in the future. We also face the risk that customers may not value or be willing to bear the cost of incorporating our new and enhanced products into their products, particularly if they believe their customers are satisfied with current solutions. Regardless of the improved features or superior performance of our new and enhanced products, customers may be unwilling to adopt our solutions due to design or pricing constraints, or because they do not want to rely on a single or limited supply source. Because of the extensive time and resources that we invest in developing new and enhanced products, if we are unable to sell customers our new products, our revenue could decline and our business, financial condition, results of operations and cash flows would be negatively affected. For example, if we are unable to generate more customer adoption of our 1Gb product and address new growth opportunities with subsequent STT-MRAM products, we may not be able to materially increase our revenue. If we are unable to successfully develop and market our new and enhanced products that we have incurred significant expenses developing, our results of operations and financial condition will be materially and adversely affected.
Our success and future revenue depend on our ability to secure design wins and on our customers’ ability to successfully sell the products that incorporate our solutions. Securing design wins is a lengthy, expensive, and competitive process, and may not result in actual orders and sales, which could cause our revenue to decline.
We sell to customers, including OEMs and ODMs, that incorporate MRAM into their products. A design win occurs after a customer has tested our product, verified that it meets the customer’s requirements and qualified our solutions for their products. We believe we are dependent, among other things, on the adoption of our 256Mb and 1Gb MRAM products by our customers to secure design wins. Our customers may need several months to years to test, evaluate, and adopt our product and additional time to begin volume production of the product that incorporates our solution. Due to this generally lengthy design cycle, we may experience significant delays from the time we increase our operating expenses and make investments in our products to the time that we generate revenue from sales of these products. Moreover, even if a customer selects our solution, we cannot guarantee that this will result in any sales of our products, as the customer may ultimately change or cancel its product plans, or efforts by our customer to market and sell its product may not be successful. We may not generate any revenue from design wins after incurring the associated costs, which would cause our business and operating results to suffer.
If a current or prospective customer incorporates a competitor’s solution into its product, it becomes significantly more difficult for us to sell our solutions to that customer because changing suppliers involves significant time, cost, effort, and risk for the customer even if our solutions are superior to other solutions and remain compatible with their product design. Our ability to compete successfully depends on customers viewing us as a stable and reliable supplier to mission-critical customer applications when we have less production capacity and less financial resources compared to most of our larger competitors. If current or prospective customers do not include our solutions in their products and we fail to achieve a sufficient number of design wins, our results of operations and business may be harmed.
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The loss of one or several of our customers or reduced orders or pricing from existing customers may have a significant adverse effect on our operations and financial results.
We have derived and expect to continue to derive a significant portion of our revenues from a small group of customers during any particular period due in part to the concentration of market share in the semiconductor industry. Our four largest end customers together accounted for 29% of our total revenue for the nine months ended September 30, 2022, and one of these customers accounted for more than 10% of our revenue during that period. Our four largest end customers together accounted for 47% of our total revenue for the year ended December 31, 2021, and one of these customers individually accounted for more than 10% of our total revenue during the period. The loss of a significant customer, a business combination among our customers, a reduction in orders or decrease in price from a significant customer or disruption in any of our commercial or distributor arrangements may result in a significant decline in our revenues and could have a material adverse effect on our business, liquidity, results of operations, financial condition, and cash flows.
We face competition and expect competition to increase in the future. If we fail to compete effectively, our revenue growth and results of operations will be materially and adversely affected.
The global semiconductor market in general, and the semiconductor memory market in particular, are highly competitive. We expect competition to increase and intensify as other semiconductor companies enter our markets, many of which have greater financial and other resources with which to pursue technology development, product design, manufacturing, marketing and sales and distribution of their products. Increased competition could result in price pressure, reduced revenue, and profitability and loss of market share, any of which could materially and adversely affect our business, revenue, and operating results. Currently, our competitors range from large, international companies offering a wide range of traditional memory technologies to companies specializing in other alternative, specialized emerging memory technologies. Our primary memory competitors include Fujitsu, Infineon, Integrated Silicon Solution, Intel, Macronix, Microchip, Micron, Renesas, Samsung, and Toshiba. In addition, as the MRAM market opportunity grows, we expect new entrants may enter this market and existing competitors, including leading semiconductor companies, may make significant investments to compete more effectively against our products. These competitors could develop technologies or architectures that make our products or technologies obsolete.
Our ability to compete successfully depends on factors both within and outside of our control, including:
● the functionality and performance of our products and those of our competitors;
● our relationships with our customers and other industry participants;
● prices of our products and prices of our competitors’ products;
● our ability to develop innovative products;
● our competitors’ greater resources to make acquisitions;
● our ability to obtain adequate capital to finance operations;
● our ability to retain high-level talent, including our management team and engineers; and
● the actions of our competitors, including merger and acquisition activity, launches of new products and other actions that could change the competitive landscape.
In the event of a market downturn, competition in the markets in which we operate may intensify as our customers reduce their purchase orders. Our competitors that are significantly larger and have greater financial, technical, marketing, distribution, customer support and other resources or more established market recognition than us may be better positioned to accept lower prices and withstand adverse economic or market conditions.
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Our costs may increase substantially if we or our third-party manufacturing contractors do not achieve satisfactory product yields or quality.
The fabrication process is extremely complicated and small changes in design, specifications or materials can result in material decreases in product yields or even the suspension of production. From time to time, we and/or the third-party foundries that we contract to manufacture our products may experience manufacturing defects and reduced manufacturing yields. In some cases, we and/or our third-party foundries may not be able to detect these defects early in the fabrication process or determine the cause of such defects in a timely manner. There may be a higher risk of product yield issues in newer STT-MRAM products.
Generally, in pricing our products, we assume that manufacturing yields will continue to improve, even as the complexity of our products increases. Once our products are initially qualified either internally or with our third-party foundries, minimum acceptable yields are established. We are responsible for the costs of the units if the actual yield is above the minimum set with our third-party foundries. If actual yields are below the minimum, we are not required to purchase the units. Typically, minimum acceptable yields for our new products are generally lower at first and gradually improve as we achieve full production, but yield issues can occur even in mature processes due to break downs in mechanical systems, equipment failures or calibration errors. Unacceptably low product yields or other product manufacturing problems could substantially increase overall production time and costs and adversely impact our operating results. Product yield losses may also increase our costs and reduce our gross margin. In addition to significantly harming our results of operations and cash flow, poor yields may delay shipment of our products and harm our relationships with existing and potential customers.
The complexity of our products may lead to defects, which could negatively impact our reputation with customers and result in liability.
Products as complex as ours may contain defects when first introduced to customers or as new versions are released. Delivery of products with production defects or reliability, quality or compatibility problems could significantly delay or hinder market acceptance of the products or result in a costly recall and could damage our reputation and adversely affect our ability to retain existing customers and attract new customers. Defects could cause problems with the functionality of our products, resulting in interruptions, delays, or cessation of sales of these products to our customers. We may also be required to make significant expenditures of capital and resources to resolve such problems. We cannot assure our stockholders that problems will not be found in new products, both before and after commencement of commercial production, despite testing by us, our suppliers, or our customers. For example, any such problems could result in:
● delays in development, manufacture and roll-out of new products;
● additional development costs;
● loss of, or delays in, market acceptance;
● diversion of technical and other resources from our other development efforts;
● claims for damages by our customers or others against us; and
● loss of credibility with our current and prospective customers.
Any such event could have a material adverse effect on our business, financial condition, and results of operations.
We may experience difficulties in transitioning to new wafer fabrication process technologies or in achieving higher levels of design integration, which may result in reduced manufacturing yields, delays in product deliveries and increased expenses.
We aim to use the most advanced manufacturing process technology appropriate for our solutions that is available from our third-party foundries. As a result, we periodically evaluate the benefits of migrating our solutions to other technologies to improve performance and reduce costs. These ongoing efforts require us from time to time to modify the manufacturing processes for our products and to redesign some products, which in turn may result in delays in product deliveries.
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For example, as smaller line width geometry manufacturing processes become more prevalent, we intend to move our future products to increasingly smaller geometries to integrate greater levels of memory capacity and/or functionality into our products. This transition will require us and our third-party foundries to migrate to new designs and manufacturing processes for smaller geometry products.
We may face difficulties, delays, and increased expense as we transition our products to new processes, and potentially to new foundries. We will depend on our third-party foundries as we transition to new processes. We cannot assure our stockholders that our third-party foundries will be able to effectively manage such transitions or that we will be able to maintain our relationship with our third-party foundries or develop relationships with new third-party foundries. If we or any of our third-party foundries experience significant delays in transitioning to new processes or fail to efficiently implement transitions, we could experience reduced manufacturing yields, delays in product deliveries and increased expenses, any of which could harm our relationships with our customers and our operating results.
Changes to industry standards and technical requirements relevant to our products and markets could adversely affect our business, results of operations and prospects.
Our products are only a part of larger electronic systems. All products incorporated into these systems must comply with various industry standards and technical requirements created by regulatory bodies or industry participants to operate efficiently together. Industry standards and technical requirements in our markets are evolving and may change significantly over time. For our products, the industry standards are developed by the Joint Electron Device Engineering Council, an industry trade organization. In addition, large industry-leading semiconductor and electronics companies play a significant role in developing standards and technical requirements for the product ecosystems within which our products can be used. Our customers also may design certain specifications and other technical requirements specific to their products and solutions. These technical requirements may change as the customer introduces new or enhanced products and solutions.
Our ability to compete in the future will depend on our ability to identify and comply with evolving industry standards and technical requirements. The emergence of new industry standards and technical requirements could render our products incompatible with products developed by other suppliers or make it difficult for our products to meet the requirements of certain of our customers in automotive, transportation, industrial, data storage, and other markets. As a result, we could be required to invest significant time and effort and to incur significant expense to redesign our products to ensure compliance with relevant standards and requirements. If our products are not in compliance with prevailing industry standards and technical requirements for a significant period of time, we could miss opportunities to achieve crucial design wins, our revenue may decline and we may incur significant expenses to redesign our products to meet the relevant standards, which could adversely affect our business, results of operations and prospects.
Our success depends on our ability to attract and retain key employees, and our failure to do so could harm our ability to grow our business and execute our business strategies.
Our success depends on our ability to attract and retain our key employees, including our management team and experienced engineers. Competition for personnel in the semiconductor memory technology field, and in the MRAM space in particular, is intense, and the availability of suitable and qualified candidates is limited. We compete to attract and retain qualified research and development personnel with other semiconductor companies, universities, and research institutions. Given our experience as an early entrant in the MRAM space, our employees are frequently contacted by MRAM startups and MRAM groups within larger companies seeking to employ them. The members of our management and our key employees are at-will. If we lose the services of any key senior management member or employee, we may not be able to locate suitable or qualified replacements, and may incur additional expenses to recruit and train new personnel, which could severely impact our business and prospects. The loss of the services of one or more of our key employees, especially our key engineers, or our inability to attract and retain qualified engineers, could harm our business, financial condition, and results of operations.
We currently maintain and are seeking to expand operations outside of the United States which exposes us to significant risks.
The success of our business depends, in large part, on our ability to operate successfully from geographically disparate locations and to further expand our international operations and sales. Operating in international markets
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requires significant resources and management attention and subjects us to regulatory, economic, and political risks that are different from those we face in the United States. We cannot be sure that further international expansion will be successful. In addition, we face risks in doing business internationally that could expose us to reduced demand for our products, lower prices for our products or other adverse effects on our operating results. The success and profitability, as well as the expansion, of our international operations are subject to numerous risks and uncertainties, many of which are outside of our control, such as the following:
● public health issues, such as the COVID-19 pandemic, which can result in varying impacts to our business, employees, partners, customers, distributors or suppliers internationally as discussed elsewhere in this “Risk Factors” section;
● difficulties, inefficiencies and costs associated with staffing and managing foreign operations;
● longer and more difficult customer qualification and credit checks;
● greater difficulty collecting accounts receivable and longer payment cycles;
● the need for various local approvals to operate in some countries;
● difficulties in entering some foreign markets without larger-scale local operations;
● changes in import/export laws, trade restrictions, regulations and customs and duties and tariffs (foreign and domestic);
● compliance with local laws and regulations;
● unexpected changes in regulatory requirements, including the elimination of tax holidays;
● reduced protection for intellectual property rights in some countries;
● adverse tax consequences as a result of repatriating cash generated from foreign operations to the United States;
● adverse tax consequences, including potential additional tax exposure if we are deemed to have established a permanent establishment outside of the United States;
● the effectiveness of our policies and procedures designed to ensure compliance with the Foreign Corrupt Practices Act of 1977 and similar regulations;
● fluctuations in currency exchange rates, which could increase the prices of our products to customers outside of the United States, increase the expenses of our international operations by reducing the purchasing power of the U.S. dollar and expose us to foreign currency exchange rate risk if, in the future, we denominate our international sales in currencies other than the U.S. dollar;
● new and different sources of competition;
● political, economic, and social instability;
● terrorism and acts of war, such as the military conflict in Ukraine, which could have a negative impact on sales throughout Europe and Asia
● US Department of Commerce regulations or restrictions on exports of certain semiconductor technologies and equipment to China
Our failure to manage any of these risks successfully could harm our operations and reduce our revenue.
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Risk Factors Related to Our Intellectual Property and Technology
Failure to protect our intellectual property could substantially harm our business.
Our success and ability to compete depend in part upon our ability to protect our intellectual property. We rely on a combination of intellectual property rights, including patents, mask work protection, copyrights, trademarks, trade secrets and know-how, in the United States and other jurisdictions. The steps we take to protect our intellectual property rights may not be adequate, particularly in foreign jurisdictions such as China. Any patents we hold may not adequately protect our intellectual property rights or our products against competitors, and third parties may challenge the scope, validity or enforceability of our issued patents, which third parties may have significantly more financial resources with which to litigate their claims than we have to defend against them. In addition, other parties may independently develop similar or competing technologies designed around any patents or patent applications that we hold. Some of our products and technologies are not covered by any patent or patent application, as we do not believe patent protection of these products and technologies is critical to our business strategy at this time. A failure to timely seek patent protection on products or technologies generally precludes us from seeking future patent protection on these products or technologies.
In addition to patents, we also rely on contractual protections with our customers, suppliers, distributors, employees and consultants, and we implement security measures designed to protect our trade secrets and know-how. However, we cannot assure our stockholders that these contractual protections and security measures will not be breached, that we will have adequate remedies for any such breach or that our customers, suppliers, distributors, employees or consultants will not assert rights to intellectual property or damages arising out of such contracts.
We may initiate claims against third parties to protect our intellectual property rights if we are unable to resolve matters satisfactorily through negotiation. Litigation brought to protect and enforce our intellectual property rights could be costly, time-consuming and distracting to management. It could also result in the impairment or loss of portions of our intellectual property, as an adverse decision could limit our ability to assert our intellectual property rights, limit the value of our technology or otherwise negatively impact our business, financial condition and results of operations. Additionally, any enforcement of our patents or other intellectual property may provoke third parties to assert counterclaims against us. Our failure to secure, protect and enforce our intellectual property rights could materially harm our business.
We may face claims of intellectual property infringement, which could be time-consuming, costly to defend or settle, result in the loss of significant rights, harm our relationships with our customers and distributors, or otherwise materially adversely affect our business, financial condition and results of operations.
The semiconductor memory industry is characterized by companies that hold patents and other intellectual property rights and that vigorously pursue, protect and enforce intellectual property rights. These companies include patent holding companies or other adverse patent owners who have no relevant product revenue and against whom our own patents may provide little or no deterrence. From time to time, third parties may assert against us and our customers’ patent and other intellectual property rights to technologies that are important to our business. We have in the past, and may in the future, face such claims.
Claims that our products, processes or technology infringe third-party intellectual property rights, regardless of their merit or resolution, could be costly to defend or settle and could divert the efforts and attention of our management and technical personnel. We may also be obligated to indemnify our customers or business partners in connection with any such litigation, which could result in increased costs. Infringement claims also could harm our relationships with our customers or distributors and might deter future customers from doing business with us. If any such proceedings result in an adverse outcome, we could be required to:
● cease the manufacture, use or sale of the infringing products, processes or technology;
● pay substantial damages for infringement;
● expend significant resources to develop non-infringing products, processes or technology, which may not be successful;
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● license technology from the third-party claiming infringement, which license may not be available on commercially reasonable terms, or at all;
● cross-license our technology to a competitor to resolve an infringement claim, which could weaken our ability to compete with that competitor; or
● pay substantial damages to our customers to discontinue their use of or to replace infringing technology sold to them with non-infringing technology, if available.
Any of the foregoing results could have a material adverse effect on our business, financial condition and results of operations. Furthermore, our exposure to the foregoing risks may also be increased if we acquire other companies or technologies. For example, we may have a lower level of visibility into the development process with respect to intellectual property or the care taken to safeguard against infringement risks with respect to the acquired company or technology. In addition, third parties may make infringement and similar or related claims after we have acquired technology that had not been asserted prior to the acquisition.
We make significant investments in new technologies and products that may not achieve technological feasibility or profitability or that may limit our revenue growth.
We have made and will continue to make significant investments in research and development of new technologies and products, including new and more technically advanced versions of our MRAM technology.
Investments in new technologies are speculative and technological feasibility may not be achieved. Commercial success depends on many factors including demand for innovative technology, availability of materials and equipment, selling price the market is willing to bear, competition and effective licensing or product sales. We may not achieve significant revenue from new product investments for a number of years, if at all. Moreover, new technologies and products may not be profitable, and even if they are profitable, operating margins for new products and businesses may not be as high as the margins we have experienced historically or originally anticipated. Our inability to capitalize on or realize substantial revenue from our significant investments in research and development could harm our operating results and distract management, harming our business.
Interruptions in our information technology systems could adversely affect our business.
We rely on the efficient and uninterrupted operation of complex information technology systems and networks to operate our business. Any significant disruption to our systems or networks, including, but not limited to, new system implementations, computer viruses, security breaches, facility issues, natural disasters, terrorism, war, telecommunication failures or energy blackouts, could have a material adverse impact on our operations, sales and financial results. Such disruption could result in a loss of our intellectual property or the release of sensitive competitive information or supplier, customer or employee personal data. Any loss of such information could harm our competitive position, result in a loss of customer confidence, and cause us to incur significant costs to remedy the damages caused by any such disruptions or security breaches. Additionally, any failure to properly manage the collection, handling, transfer or disposal of personal data of employees and customers may result in regulatory penalties, enforcement actions, remediation obligations, litigation, fines and other sanctions.
We may experience attacks on our data, attempts to breach our security and attempts to introduce malicious software into our IT systems. If attacks are successful, we may be unaware of the incident, its magnitude, or its effects until significant harm is done. Any such attack or disruption could result in additional costs related to rebuilding of our internal systems, defending litigation, responding to regulatory actions, or paying damages. Such attacks or disruptions could have a material adverse impact on our business, operations and financial results.
Third-party service providers, such as wafer foundries, assembly and test contractors, distributors and other vendors have access to certain portions of our and our customers’ sensitive data. In the event that these service providers do not properly safeguard the data that they hold, security breaches and loss of data could result. Any such loss of data by our third-party service providers could negatively impact our business, operations and financial results, as well as our relationship with our customers.
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Risk Factors Related to Regulatory Matters and Compliance
To comply with environmental laws and regulations, we may need to modify our activities or incur substantial costs, and if we fail to comply with environmental regulations, we could be subject to substantial fines or be required to have our suppliers alter their processes.
The semiconductor memory industry is subject to a variety of international, federal, state and local governmental regulations directed at preventing or mitigating environmental harm, as well as to the storage, discharge, handling, generation, disposal and labeling of toxic or other hazardous substances. Failure to comply with environmental regulations could subject us to civil or criminal sanctions and property damage or personal injury claims. Compliance with current or future environmental laws and regulations could restrict our ability to expand our business or require us to modify processes or incur other substantial expenses which could harm our business. In response to environmental concerns, some customers and government agencies impose requirements for the elimination of hazardous substances, such as lead (which is widely used in soldering connections in the process of semiconductor packaging and assembly), from electronic equipment. For example, the European Union adopted its Restriction on Hazardous Substance Directive which prohibits, with specified exceptions, the sale in the EU market of new electrical and electronic equipment containing more than agreed levels of lead or other hazardous materials and China has enacted similar regulations. Environmental laws and regulations such as these could become more stringent over time, causing a need to redesign technologies, imposing greater compliance costs and increasing risks and penalties associated with violations, which could seriously harm our business.
Increasing public attention has been focused on the environmental impact of electronic manufacturing operations. While we have not experienced any materially adverse effects on our operations from recently adopted environmental regulations, our business and results of operations could suffer if for any reason we fail to control the storage or use of, or to adequately restrict the discharge or disposal of, hazardous substances under present or future environmental regulations.
Regulations related to “conflict minerals” may force us to incur additional expenses, may make our supply chain more complex and may result in damage to our reputation with customers.
Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act, the SEC has adopted requirements for companies that use certain minerals and metals, known as conflict minerals, in their products, whether or not these products are manufactured by third parties. These requirements require companies to perform diligence and disclose and report whether or not such minerals originate from the Democratic Republic of Congo and adjoining countries. These requirements could adversely affect the sourcing, availability and pricing of minerals used in the manufacture of our products, and affect our costs and relationships with customers, distributors and suppliers as we must obtain additional information from them to ensure our compliance with the disclosure requirement. In addition, we incur additional costs in complying with the disclosure requirements, including costs related to determining the source of any of the relevant minerals and metals used in our products. Since our supply chain is complex, we have not been able to sufficiently verify the origins for these minerals and metals used in our products through the due diligence procedures that we implement, which may harm our reputation. In such event, we may also face difficulties in satisfying customers who require that all of the components of our products are certified as conflict mineral free and these customers may discontinue, or materially reduce, purchases of our products, which could result in a material adverse effect on our results of operations and our financial condition may be adversely affected.
Our ability to use net operating losses to offset future taxable income may be subject to certain limitations.
In general, under Section 382 of the U.S. Internal Revenue Code of 1986, as amended, or the Code, a corporation that undergoes an “ownership change” is subject to limitations on its ability to utilize its pre-change net operating losses, or NOLs, to offset future taxable income and tax credits to offset tax. As of December 31, 2021, we had gross federal net operating loss carryforwards of approximately $136.0 million, of which $95.2 million will expire in 2028 through 2037 if not utilized, and $40.8 million will carryover indefinitely. As of December 31, 2021, we had state net operating loss carryforwards of approximately $52.1 million, of which $49.3 million will expire in 2023 through 2042 if not utilized, and $2.6 million will carryover indefinitely. The federal NOLs generated prior to 2018 will continue to be governed by the NOL tax rules as they existed prior to the adoption of the 2017 Tax Cuts and Jobs Act (2017 Tax Act), which means that generally they will expire 20 years after they were generated if not used prior thereto. The 2017 Tax Act repealed the 20-year carryforward and two-year carryback of NOLs originating after December 31, 2017, and also limits the NOL
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deduction to 80% of taxable income for tax years beginning after December 31, 2017. Any NOLs generated in 2018 and forward will be carried forward and will not expire. There is no current impact to us as we continue to be in a loss position for U.S. income tax purposes. Future changes in our stock ownership, many of which are outside of our control, could result in an ownership change under Section 382 of the Code. The ability to utilize our net operating losses and tax credits could also be impaired under state law. As a result, we might not be able to utilize a material portion of our state NOLs and tax credits.
Risks Related to Our Common Stock
We expect that the price of our common stock will fluctuate substantially.
The market price of our common stock is likely to be highly volatile and may fluctuate substantially due to many factors, including:
● the duration and severity of the COVID-19 pandemic and its effects on our business, financial condition, results of operations and cash flows;
● the introduction of new products or product enhancements by us or others in our industry;
● announcements by us or our competitors of significant acquisitions, strategic partnerships, joint ventures, capital commitments or restructurings;
● disputes or other developments with respect to our or others’ intellectual property rights;
● product liability claims or other litigation;
● quarterly variations in our results of operations or those of others in our industry;
● sales of large blocks of our common stock, including sales by our executive officers and directors;
● changes in senior management or key personnel;
● changes in earnings estimates or recommendations by securities analysts; and
● general market conditions and other factors, including factors unrelated to our operating performance or the operating performance of our competitors, including those due to the duration and severity of the COVID-19 pandemic and the military conflict in Ukraine.
Stock markets generally have experienced extreme price and volume fluctuations that have often been unrelated or disproportionate to the operating performance of those companies. Further, the semiconductor memory industry is highly cyclical, and our markets may experience significant cyclical fluctuations in demand as a result of changing economic conditions, budgeting and buying patterns of customers and other factors. Fluctuations in our revenue and operating results could also cause our stock price to decline.
In addition, in the past, class action litigation has often been instituted against companies whose securities have experienced periods of volatility in market price, or for other reasons. Securities litigation brought against us following volatility in our stock price or otherwise, regardless of the merit or ultimate results of such litigation, could result in substantial costs, which would hurt our financial condition and operating results and divert management’s attention and resources from our business.
These and other factors may make the price of our stock volatile and subject to unexpected fluctuation.
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Provisions in our corporate charter documents and under Delaware law could make an acquisition of us more difficult and may prevent attempts by our stockholders to replace or remove our current management.
Provisions in our amended and restated certificate of incorporation and our amended and restated bylaws may discourage, delay or prevent a merger, acquisition or other change in control of us that stockholders may consider favorable, including transactions in which stockholders might otherwise receive a premium for their shares. These provisions could also limit the price that investors might be willing to pay in the future for shares of our common stock, thereby depressing the market price of our common stock. In addition, these provisions may frustrate or prevent any attempts by our stockholders to replace or remove our current management by making it more difficult for stockholders to replace members of our board of directors. Because our board of directors is responsible for appointing the members of our management team, these provisions could in turn affect any attempt by our stockholders to replace current members of our management team. Among others, these provisions include that:
● our board of directors has the right to expand the size of our board of directors and to elect directors to fill a vacancy created by the expansion of the board of directors or the resignation, death or removal of a director, which prevents stockholders from being able to fill vacancies on our board of directors;
● our stockholders may not act by written consent or call special stockholders’ meetings; as a result, a holder, or holders, controlling a majority of our capital stock would not be able to take certain actions other than at annual stockholders’ meetings or special stockholders’ meetings called by the board of directors pursuant to a resolution adopted by a majority of the total number of authorized directors, the chairman of the board or the chief executive officer;
● our amended and restated certificate of incorporation prohibits cumulative voting in the election of directors, which limits the ability of minority stockholders to elect director candidates;
● the affirmative vote of holders of at least 66-2/3% of the voting power of all of the then outstanding shares of voting stock, voting as a single class, will be required (a) to amend certain provisions of our certificate of incorporation, including provisions relating to the size of the board, special meetings, actions by written consent and cumulative voting and (b) to amend or repeal our amended and restated bylaws, although such bylaws may be amended by a simple majority vote of our board of directors;
● stockholders must provide advance notice and additional disclosures to nominate individuals for election to the board of directors or to propose matters that can be acted upon at a stockholders’ meeting, which may discourage or deter a potential acquiror from conducting a solicitation of proxies to elect the acquiror’s own slate of directors or otherwise attempting to obtain control of our company; and
● our board of directors may issue, without stockholder approval, shares of undesignated preferred stock; the ability to issue undesignated preferred stock makes it possible for our board of directors to issue preferred stock with voting or other rights or preferences that could impede the success of any attempt to acquire us.
Moreover, because we are incorporated in Delaware, we are governed by the provisions of Section 203 of the Delaware General Corporation Law, which prohibits a person who owns in excess of 15% of our outstanding voting stock from merging or combining with us for a period of three years after the date of the transaction in which the person acquired in excess of 15% of our outstanding voting stock, unless the merger or combination is approved in a prescribed manner.
Our amended and restated certificate of incorporation provides that the Court of Chancery of the State of Delaware and the federal district courts of the United States of America will be the exclusive forums for substantially all disputes between us and our stockholders, which could limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or our directors, officers, or employees.
Our amended and restated certificate of incorporation provides that the Court of Chancery of the State of Delaware is the exclusive forum for the following types of actions or proceedings under Delaware statutory or common law:
● any derivative action or proceeding brought on our behalf;
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● any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee to us or our stockholders;
● any action asserting a claim against us arising under the Delaware General Corporation Law, our amended and restated certificate of incorporation or our amended and restated bylaws; and
● any action asserting a claim against us that is governed by the internal-affairs doctrine.
This provision would not apply to suits brought to enforce a duty or liability created by the Exchange Act. Furthermore, Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts over all such Securities Act actions. Accordingly, both state and federal courts have jurisdiction to entertain such claims. To prevent having to litigate claims in multiple jurisdictions and the threat of inconsistent or contrary rulings by different courts, among other considerations, our amended and restated certificate of incorporation provides that, unless we consent in writing to the selection of an alternative forum, the federal district courts of the United States will be the exclusive forum for resolving any complaint asserting a cause of action arising under the Securities Act. While the Delaware courts have determined that such choice of forum provisions are facially valid, a stockholder may nevertheless seek to bring a claim in a venue other than those designated in the exclusive forum provisions. In such instance, we would expect to vigorously assert the validity and enforceability of the exclusive forum provisions of our amended and restated certificate of incorporation. This may require significant additional costs associated with resolving such action in other jurisdictions and there can be no assurance that the provisions will be enforced by a court in those other jurisdictions.
These exclusive forum provisions may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with us or our directors, officers, or other employees, which may discourage lawsuits against us and our directors, officers and other employees. If a court were to find either exclusive-forum provision in our amended and restated certificate of incorporation to be inapplicable or unenforceable in an action, we may incur further significant additional costs associated with resolving the dispute in other jurisdictions, all of which could seriously harm our business.
Effective December 31, 2021, we ceased to be an “emerging growth company,” and certain reduced reporting requirements applicable to emerging growth companies no longer apply to us, which is expected to increase our costs as a public company and place additional demands on management.
Effective December 31, 2021, we ceased to be classified as an “emerging growth company” as defined in the Jumpstart Our Business Startups Act (the JOBS Act). We have previously taken advantage of certain reduced reporting requirements pursuant to the JOBS Act specifically applicable to emerging growth companies, including exemptions from the requirements of holding advisory “say-on-pay” and the related “say-on frequency” votes on executive compensation. Since we are no longer classified as an emerging growth company, we are now required to comply with those additional reporting requirements for which we were previously exempt. For example, we were required to hold a say-on-pay vote and a say-on frequency vote at our 2022 annual meeting of stockholders. As a result, we expect that we will require additional attention from management with respect to our additional reporting requirements and will incur increased costs, which could include higher legal fees, accounting fees, consultant fees and fees associated with investor relations activities, among others.
General Risk Factors
Unfavorable economic and market conditions, domestically and internationally, may adversely affect our business, financial condition, results of operations and cash flows.
We have significant customer sales both in the United States and internationally. We also rely on domestic and international suppliers, manufacturing partners and distributors. We are therefore susceptible to adverse U.S. and international economic and market conditions. If any of our manufacturing partners, customers, distributors or suppliers experience slowdowns in their business, serious financial difficulties or cease operations, including as a result of the COVID-19 pandemic, our business will be adversely affected. In addition, the adverse impact of general economic factors that are beyond our control, including, but not limited to, housing markets, recession, inflation, deflation, consumer credit activity, consumer debt levels, fuel and energy costs, interest rates, tax rates and policy, unemployment trends, potential industry downturn, the impact of natural disasters such as pandemics, civil disturbances, terrorist activities, and acts of war, including the military conflict in Ukraine, may adversely impact consumer spending, which
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may adversely impact our customers’ spending and demand for our products. Additionally, the military conflict in Ukraine and escalating geopolitical tensions resulting from such conflict have resulted and may continue to result in sanctions, tariffs, and import-export restrictions which, when combined with retaliatory actions taken by Russia, could cause further inflationary pressures and economic and supply chain disruptions, as well as cause us to experience extended lead times and increased prices from our suppliers. Any of the foregoing could adversely affect our business, financial condition, results of operations, and cash flows.
Our business may be adversely impacted by natural disasters and other catastrophic events.
Our operations and business, and those of our manufacturing partners, customers, distributors or suppliers, can be disrupted by natural disasters; industrial accidents; public health issues, such as the COVID-19 pandemic; cybersecurity incidents; interruptions of service from utilities, transportation, telecommunications, or IT systems providers; manufacturing equipment failures; or other catastrophic events. For example, some of our foundries and suppliers’ facilities in Asia are located near known earthquake fault zones and, therefore, are vulnerable to damage from earthquakes. We are also vulnerable to damage from other types of disasters, such as power loss, fire, floods and similar events. If any such natural disasters or other catastrophic events were to occur, our ability to operate our business could be seriously impaired. In addition, we may not have adequate insurance to cover our losses resulting from disasters or other similar significant business interruptions. Any significant losses that are not recoverable under our insurance policies could seriously impair our business and financial condition.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
None.
Item 3. Defaults Upon Senior Securities.
None.
Item 4. Mine Safety Disclosures.
Not applicable.
Item 5. Other Information.
None.
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Item 6. Exhibits
EXHIBIT INDEX
Incorporation By Reference |
| |||||||||
Exhibit | Description | Form | SEC File No. | Exhibit/ | Filing Date | |||||
3.1 | 8-K | 001-37900 | 3.1 | 10/13/2016 | ||||||
3.1.1 | Amendment to Amended and Restated Certificate of Incorporation | 8-K | 001-37900 | 3.1 | 5/22/2019 | |||||
3.1.2 | Amendment to Amended and Restated Certificate of Incorporation | 8-K | 001-37900 | 3.1 | 5/27/2020 | |||||
3.2 | 8-K | 001-37900 | 3.2 | 5/22/2019 | ||||||
10.1 | 10-Q | 001-37900 | 10.1 | 8/12/2022 | ||||||
10.2* | Subcontract Agreement, dated as of October 3, 2022, between the Company and QuickLogic Corporation | |||||||||
31.1* | ||||||||||
31.2* | ||||||||||
32.1** | ||||||||||
101.INS* | Inline XBRL Instance Document - the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document | |||||||||
101.SCH* | Inline XBRL Taxonomy Extension Schema Document | |||||||||
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101.CAL* | Inline XBRL Taxonomy Extension Calculation Linkbase Document | |||||||||
101.DEF* | Inline XBRL Taxonomy Extension Definition Linkbase Document | |||||||||
101.LAB* | Inline XBRL Taxonomy Extension Label Linkbase Document | |||||||||
101.PRE* | Inline XBRL Taxonomy Extension Presentation Linkbase Document | |||||||||
104* | Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101) |
* Filed herewith.
** Furnished herewith. Exhibit 32.1 is being furnished and shall not be deemed to be “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to the liability of that section, nor shall such exhibit be deemed to be incorporated by reference in any registration statement or other document filed under the Securities Act or the Exchange Act, except as otherwise specifically stated in such filing.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
Everspin Technologies, Inc. | ||
Date: November 10, 2022 | By: | /s/ Sanjeev Aggarwal |
Sanjeev Aggarwal | ||
Chief Executive Officer | ||
(Principal Executive Officer) | ||
Date: November 10, 2022 | By: | /s/ Anuj Aggarwal |
Anuj Aggarwal | ||
Chief Financial Officer | ||
(Principal Financial and Accounting Officer) | ||
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Exhibit 10.2
QuickLogic Corporation
Subcontract Agreement
This Subcontract Agreement (this “Agreement”), dated as of October 3, 2022 (the “Effective Date”), is entered into by and between QuickLogic Corporation, a Delaware corporation, with offices located at 2220 Lundy Avenue, San Jose, California, 95131 (“Prime Contractor”), and Everspin Technologies, Inc. a Delaware corporation, with offices located at 5670 W Chandler Boulevard, Suite 130, Chandler, Arizona 85226 (“Subcontractor”). Each of Prime Contractor and Subcontractor is a “Party” and collectively they are the “Parties”.
WHEREAS, Prime Contractor and United States of America (“End Client”) entered into Prototype Project Agreement for Strategic Radiation Hardened (SRH) Field Programmable Gate Array (FPGA), dated July 27, 2022, for the provision by Prime Contractor of the services specified therein (“Underlying Contract”);
WHEREAS, Prime Contractor and Subcontractor desire to enter into this Agreement, pursuant to which Prime Contractor subcontracts its obligation to perform a portion of the services under the Underlying Contract to Subcontractor;
WHEREAS, in connection with such Subcontracted Deliverables (as defined below), Prime Contractor requires a non-exclusive, limited license to incorporate certain Intellectual Property (as defined below) of Subcontractor into a prototype SRH FPGA that can meet or exceed Department of Defense requirements for FPGAs in strategic systems, along with use in accordance with relevant milestones and deliverables required by Prime Contractor from End Client solely related to the Underlying Contract; and
WHEREAS, Subcontractor has agreed to grant Prime Contractor such IP License (as defined below) and provide the Subcontracted Deliverables pursuant to this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.Purpose; Point of Contact. This Agreement sets out the general terms and conditions applicable to the cooperation between Prime Contractor and Subcontractor in connection with the Subcontracted Deliverables under the Underlying Contract. Each Party’s point of contact for technical and commercial communications hereunder shall be (until notice of an alternate point of contact is subsequently provided) the following:
Everspin: David Schrenk; email: david.schrenk@everspin.com
QuickLogic: Brian Faith; email: faith@quicklogic.com
2.Subcontracted Deliverables. Prime Contractor shall subcontract to Subcontractor, and Subcontractor shall perform, the services and develop the products (together, the “Subcontracted Deliverables”) set out in Exhibit A. Subcontractor shall assume toward Prime Contractor all obligations and responsibilities that Prime Contractor assumes toward End Client under those Sections of the Underlying Contract outlined in Exhibit B. Prime Contractor represents that all
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obligations and responsibilities outlined in Exhibit B are copied directly from the Underlying Contract with no adjustment or revision, and that Exhibit B are the only provisions of the Underlying Contract applicable to Subcontractor’s performance hereunder. Subcontractor expressly disclaims any obligation beyond the scope of this Agreement, and Prime Contractor may not, through changes to the Underlying Contract or otherwise, expand Subcontractor’s obligations hereunder without the written consent of the Subcontractor. This Agreement governs in case of any inconsistency between the provisions of this Agreement and the provisions of the Underlying Contract. Subcontractor acknowledges that Prime Contractor has furnished a copy of the relevant sections of the Underlying Contract to Subcontractor Partner in the form of Exhibit B. Notwithstanding anything to the contrary in this Agreement, Subcontractor (a) shall provide the Subcontracted Deliverables in accordance with the requirements of this Agreement and (b) shall not subcontract the Subcontracted Deliverables without the written consent of Prime Contractor.
2.1Change in Schedule and Scope: New work resulting from a delay or change in the assigned Deliverable(s) from the Prime Contractor / Other Subcontractors on the program to the Subcontractor will be funded separately. This new work may result in a delay in the overall schedule of the Subcontractor Deliverables.
3.Acceptance; Fees and Expenses. The Subcontracted Deliverables will be broken out across phases as set forth in Exhibit A (“Phases”). The Parties will evaluate the Subcontracted Deliverables in each Phase against mutually-defined criteria. Upon completion and delivery of a Subcontracted Deliverable (or completion of other tasks associated with the relevant Phase), both Parties will test it for compliance with such criteria. If Subcontractor confirms in writing that the Subcontracted Deliverable complies, and if Prime Contractor has not provided a written objection within fourteen (14) calendar days of delivery of the Subcontracted Deliverable, it will be deemed accepted. Each Party will notify the other party promptly of any material non-compliance and in such case Subcontractor will use commercially reasonable efforts to correct any such non- conformance in a timely manner, and re-submit the Subcontracted Deliverable as described above. The Parties agree to provide each other with commercially reasonable assistance necessary to correct any non-conformance, including, without limitation, information necessary to allow the correcting party to recreate the error or bug identified. The Parties will work together in good faith to complete the Acceptance Testing in accordance with the Development Schedule. If the Subcontracted Deliverable does not achieve acceptance after a second cycle, the Parties are committed to an open and forthright handling of disputes and agree to take reasonable efforts to negotiate with a good faith attempt to resolve any issues at the lowest level possible (“Party Discussion”). Failure to achieve acceptance of a Subcontracted Deliverable is not a breach of this Agreement; provided, that Subcontractor takes reasonable efforts to engage in a Party Discussion; and, provided, further, that Subcontractor acknowledges and agrees that failure to achieve acceptance of a Subcontracted Deliverable by End Client will result in no Fees being paid in connection with such Subcontracted Deliverable and such non-payment by Prime Contractor as a result of non-payment from End Client will not be a breach of this Agreement. For the successful completion of the Subcontracted Deliverables as described above, and for the grant of the IP License, Prime Contractor shall pay to Subcontractor (against Subcontractor’s invoice) fees in accordance with the fee schedule agreed between Prime Contractor and Subcontractor Partner and included here as Exhibit C (“Fees”). The Fees will be payable within 30 calendar days following acceptance (as described above) of the Subcontracted Deliverables required by the applicable milestone; provided, that, if the End Client does not pay Prime Contractor as a result of a defect
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or non-conforming Subcontracted Deliverable, Prime Contractor shall not be obligated to pay Subcontractor in connection with such Subcontracted Deliverable, and Subcontractor may terminate this Agreement only following a Party Discussion that does not result in a resolution. Subcontractor acknowledges that this Agreement and the Fees payable hereunder are fixed firm and Prime Contractor will not be responsible for payment of any fees or expenses in excess of the Fees on Exhibit C, and Prime Contractor is only responsible for payment of Fees upon completion of the Subcontracted Deliverables as described above. When earned in accordance with the terms of this Agreement, a Fee is not subject to refund under any circumstance, even if (for example) a subsequent milestone is not achieved. Subcontractor also acknowledges and agrees that any Fees associated with milestone deliverables after Phase 2a are not guaranteed and are subject to continued funding of End Client. If End Client terminates the Underlying Contract or determines not to fund any Phase beyond Phase 2a, this Agreement will terminate and Prime Contractor will not be responsible for continued payment of any Fees following such termination, other than those already earned and for which End Client has paid prior to such date in accordance with the terms of this Agreement.
3.1 | Definitions. As used herein: |
(a)“Product” means the target delivered Strategic Radiation Hard device manufactured on Skywater RH90 CMOS as defined in the SOW; output of Phase 3.
4.Intellectual Property Matters and Licenses. Subject to the terms and conditions outlined herein and on any statement of work prepared in connection with this Agreement, including without limitation payment of all Fees in accordance with Section 3, Subcontractor grants to Prime Contractor a right and license to use the Subcontracted Deliverables subject to the scope of use limitations in Exhibit A (the “IP License”). For the avoidance of doubt, the IP License does not (i) extend to any Background IP of Subcontractor other than as incorporated into the Subcontracted Deliverables, or (ii) permit commercialization of the Subcontracted Deliverables (whether to End Client or otherwise) or any Background IP of Subcontractor incorporated into Subcontracted Deliverables other than as expressly set out in Exhibit A, and subject to termination as set out herein. The Intellectual Property Rights underlying the IP License are the exclusive property of Subcontractor, and may be protected by patent and copyright laws, applicable trade secrets laws, international treaties and other intellectual property laws and treaties. The Intellectual Property Rights of Prime Contractor are the exclusive property of Prime Contractor, and may be protected by patent and copyright laws, applicable trade secret laws, international treaties and other intellectual property laws and treaties. Each Party agrees not to: (a) modify, adapt, alter, translate or create derivative works from the other Party’s Intellectual Property Rights, (b) distribute, sublicense, lease, rent, loan or otherwise transfer the other Party’s Intellectual Property Rights to any third party except the End Client in accordance with the terms of this Agreement, or (c) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the other Party’s Background IP (including, in the case of Subcontractor, its IP License). Except for the rights and licenses expressly granted herein, including to the Prime Contractor and End Client, no right or license to the IP License or Subcontractor Partner’s Intellectual Property Rights are granted by implication or otherwise. No right or license to the Prime Contractor’s Background IP or Intellectual Property Rights are granted by implication or otherwise.
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4.1Foreground IP. All MRAM Foreground IP and all other Foreground IP created solely by Subcontractor (and which does not incorporate any of Prime Contractor’s Background IP) is the sole property of Subcontractor and no license granted herein transfers ownership of MRAM or other Foreground IP created solely by Subcontractor (and which does not incorporate any of Prime Contractor’s Background IP), or any license rights beyond those expressly granted herein. Any Foreground IP created jointly by Prime Contractor and Subcontractor through the exercise of the IP License is hereby licensed to each other on a non- exclusive, perpetual and irrevocable, royalty-free and fully paid basis. Any Foreground IP with respect to which, under U.S. law, the Parties are (as applicable) joint authors or joint inventors, may be freely practiced by a Party, without the need to account for or to share revenues with the other Party.
4.2 | Definitions. As used herein: |
(a)“Background IP” means all Intellectual Property Rights created, acquired or otherwise developed prior to the Effective Date of the Agreement by a Party, or (b) developed entirely outside the scope of the Agreement without reference to the Confidential Information of the other Party.
(b)“Foreground IP” means all Intellectual Property Rights that were developed or created by Subcontractor pursuant to, related to, or in connection with this Agreement and the activities contemplated herein.
(c)“Intellectual Property Rights” means all present and future worldwide copyrights, trademarks, trade secrets, patents, patent applications, moral rights, contract rights, and other proprietary rights. Nothing herein grants any license or ownership rights to Subcontractor Partner of Prime Contractor’s Intellectual Property Rights. The Intellectual Property Rights of Prime Contractor are the exclusive property of Prime Contractor, and may be protected by patent and copyright laws, applicable trade secret laws, international treaties and other intellectual property laws and treaties.
(d)“MRAM” means magnetoresistive RAM or magnetoresistive random-access memory.
(e)“MRAM Foreground IP” means Foreground IP related in whole or in part to (i) the Subcontracted Deliverables, or (ii) MRAM.
5.Confidentiality. All non-public, confidential, or proprietary information of Prime Contractor, End Client, or Subcontractor (“Confidential Information”), including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations (including manufacturing operations), customer lists, pricing, or discounts, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, or otherwise learned in connection with this Agreement, and whether or not marked, designated, or otherwise identified as "confidential," in connection with this Agreement is confidential, solely for use in performing this Agreement and may not be disclosed or copied unless authorized by the disclosing Party in writing. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of the receiving Party’s breach of this
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Agreement; (b) is obtained by a Party on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; or (c) was or is independently developed by such Party without using any Confidential Information. Upon the disclosing Party’s request, the receiving Party shall promptly return all documents and other materials received from the disclosing Party. The disclosing Party shall be entitled to injunctive relief for any violation of this Section.
6.Term. This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Subcontracted Deliverables for Phase 1 and Phase 2a unless sooner terminated pursuant to Section 8 (the “Term”); provided, that, this Agreement shall be automatically extended for Phase 2b and Phase 3 at the option of Prime Contractor and contingent upon End Client exercising its option to fund Phase 2b and Phase 3. Throughout the Term, Subcontractor must continue to meet all schedule, cost, and deliverable milestones as stipulated in this Agreement in accordance with and in compliance with the down-selection obligations included in Exhibit B.
7.Termination. Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party: (a) materially breaches this Agreement, and such breach is incapable of cure, or the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within 45 days after filing; (d) is dissolved or liquidated or takes any corporate action for such purpose; (e) makes a general assignment for the benefit of creditors; or (f) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Either may terminate this Agreement, effective upon written notice to the other, if the Underlying Contract terminates for any reason, or if the Underlying Contract is amended in a manner that impacts Subcontractor Partner’s obligations.
8.Effect of Expiration or Termination. Upon expiration or termination of this Agreement for any reason, all payment obligations that were earned in accordance with Section 3 herein prior to termination, Sections 4.1, 4.2, 5, 11 and 13 shall survive. In addition, Subcontractor shall promptly: (a) deliver to Prime Contractor all Subcontracted Deliverables, documents, work product, and other materials, whether or not complete, prepared by or on behalf of Subcontractor Partner in the course of performing the Subcontracted Deliverables for which Prime Contractor has paid; (b) return to Prime contractor all Prime Contractor-owned and End Client-owned property, equipment, or materials in its possession or control; (c) remove any Subcontractor - owned property, equipment, or materials located at Prime Contractor’s and End Client’s locations;
(d) deliver to Prime Contractor, all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on any Confidential Information of Prime Contractor and End Client; (e) permanently erase all Prime Contractor Confidential Information and End Client Confidential Information from its computer systems unless Subcontractor has rights to retain and/or use such information; and (f) certify in writing to Prime Contractor that it has complied with the requirements of this Section 8.
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9.Independent Contractor. It is understood and acknowledged that in providing the Subcontracted Deliverables, Subcontractor acts in the capacity of an independent contractor and not as an employee or agent of the Prime Contractor. Subcontractor shall control the conditions, time, details, and means by which Subcontractor performs the Subcontracted Deliverables. Prime Contractor shall have the right to inspect the work of Subcontractor as it progresses solely for the purpose of determining whether the work is completed according to this Agreement. Subcontractor has no authority to commit Prime Contractor or bind Prime Contractor to any obligation or liability or to act for or on behalf of Prime Contractor.
10.Indemnification. Subcontractor shall indemnify, defend, and hold harmless Prime Contractor and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Parties”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, incurred by Indemnified Parties in a final judgment (collectively, “Losses”), relating to
(i) any claim of a third party arising out of or occurring in connection with Subcontractor’s gross negligence or willful misconduct and (ii) any claim of a third party that the Background IP that is covered by the IP License infringes any Intellectual Property Rights of another party. Subcontractor may enter into any settlement without Prime Contractor’s prior written consent, so long as the settlement does not admit liability of Prime Contractor or End Client. In the event of such a third party claim, Subcontractor shall use reasonable commercial efforts to modify the Background IP or Subcontracted Deliverable to avoid such infringement, or shall purchase a license from the third party claimant, but if it is unable to do so on reasonable terms, Subcontractor reserves the right to terminate the IP License.
11.Limitation of Liability. Other than with respect to willful misconduct by a Party of licenses granted hereunder with respect to Intellectual Property Rights pursuant to Section 4 and willful misconduct by a Party of confidentiality pursuant to Section 5, in no event will either Party be liable for any consequential, indirect, exemplary, special or incidental damages, including any lost data and lost profits, arising from or relating to this Agreement, or for aggregate losses (regardless of the number of claims) in excess of the Fees actually paid to Subcontractor prior to the date on which a claim for damages is asserted.
12.Compliance with Law. Subcontractor is in compliance with and shall comply with all applicable laws, regulations, and ordinances, including any applicable ITAR/EAR export compliance laws. Subcontractor has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Subcontractor Partner agrees to develop a plan on how they will address ITAR/EAR export control compliance as it relates to the elements of the program that are controlled.
13.General. This Agreement and all matters arising out of or relating to this Agreement, including tort and statutory claims are governed by, and construed in accordance with, the laws of California (including its statutes of limitations, without giving effect to any conflict of laws provisions thereof. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous written or oral understandings, agreements, representations, and warranties with respect to such subject matter.
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The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. The Parties may not amend this Agreement except by written instrument signed by the Parties. No waiver of any right, remedy, power, or privilege under this Agreement (“Right(s)”) is effective unless contained in a writing signed by the Party charged with such waiver. Neither Party may directly or indirectly assign, transfer, or delegate any of or all of its rights or obligations under this Agreement any other manner, without the prior written consent of the other Party (other than in connection with a change of control, merger (whether or not such Party is the surviving entity), operation of law, or sale of all or substantially all of a Party’s assets, with respect to which consent is not required). Any purported assignment or delegation in violation of this Section shall be null and void. This Agreement is binding upon and inures to the benefit of the Parties and their respective successors and permitted assigns. Except for the Parties, their successors and permitted assigns, there are no third party beneficiaries under this Agreement. This Agreement may be executed in counterparts.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the Effective Date by their respective officers thereunto duly authorized.
| QUICKLOGIC CORPORATION | |
| | |
| By |
|
| Name: | Brian C. Faith |
| Title: | President & CEO |
| | |
| EVERSPIN TECHNOLOGIES, INC. | |
| | |
| By |
|
| Name: | Sanjeev Aggarwal |
| Title: | President & CEO |
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EXHIBIT A
SUBCONTRACTED DELIVERABLES; PHASES; IP LICENSE
Option 1 – “Instant On” Everspin Design Milestone and Deliverables
Assumptions:
RH90 PDK Pre-POR = Pre-POR PDK (0.1.805 is current as of 9/19/2022), pre-MRAM mods RH90 PDK POR = POR version as planned to be delivered by Mar 30, 2023 (pre MRAM mods) RH90 PDK MRAM Pre-POR = Pre-POR PDK that includes changes for MRAM
RH90 PDK MRAM POR = POR PDK that includes changes for MRAM
Block definition (details below) available from QL prior to start of Phase 1
Pre-POR PDK (Standard format is fine) from SW available prior to start of Phase 1
Skywater to create RH90-MRAM Pre-POR PDK with ES provided information on MRAM backend to generate a unified RH90-MRAM Pre-POR PDK for design enablement.
Design tool support and PDK features for ES needs are as below.
Item | Everspin Need |
Physical Verification ● DRC ● LVS ● Dummy fill | PVS or Calibre Note: This is needed due to tools setup. |
Device simulation | Spectre |
Parasitic extraction (including corners) | Cadence QRC |
Place and Route | Innovus |
Voltus | Spectre for power lib QRC for parasitic information |
Hand layout and Custom IC design tool | Cadence Virtuoso |
Phase 1:
Brief Description of Tasks:
- Skywater will provide Cadence Virtuoso (Custom design tool) and Spectre (Device simulation) portions of the Pre-POR MRAM PDK
| ● | As an option, QuickLogic will enable or cover the license costs for Caliber for three people from feasibility start to final reticle tapeout in phase 2b. |
- Everspin will provide engineering support, in conjunction with Skywater, to augment the RH90 PDK to enable MRAM-based design and simulations.
- Everspin will also undertake a design feasibility study to determine approximate power, performance, and area (PPA) of the MRAM bit configuration designs for Skywater RH90. This
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study will consist of at least a 4 MTJ “Wheatstone” configuration. The goal of the final design will be:
| ● | Area <=49.2um2, i.e., 1x the area of an X0 D Flip-Flop in RH90. |
| ● | Static power <= 6.1nW in a steady-state read mode while maintaining a logic-level output, i.e., 10x the static power of an X0 D Flip-Flop in RH90 |
| ● | Require <200uA in a programming mode, i.e., 2x the anticipated requirements |
| ● | Require <1.2V across MTJ to program |
| ● | Able to be converted into an OTP mode with <=1.5V across MTJ and <=100us (to be estimated during feasibility study). |
| ● | Not be “Radiation Hardened” (RadHard). |
Parameter | Objective |
Electrical Performance & Reliability | |
Configuration Memory Reprogrammability (cycles) | ≥ 100, OTP capable (OTP authentication capability acceptable) |
Temperature Performance Range (°C) | -55 to 125 |
Operating Lifetime (years) standby | 30 |
Operating Lifetime (hours) full power worst case conditions | 6000 |
| ● | Final selection of MRAM bit configuration design and parameters shall be at the joint discretion of Everspin and QuickLogic. |
Definition of the interface protocol to config bit & block will be jointly defined with QL leading the understanding of how read, write and power-up are done in FPGAs.
Deliverables
| ● | 2 months from start of feasibility study, delivery of RH90 PDK Pre-POR, and definition of the interface protocol (block definition) - Written results in PowerPoint format and oral presentation detailing the following: |
1. | Requirements for MRAM design on RH90 |
2. | Justification for MRAM PDK design choices (e.g., metal layers for MRAM backend) |
3. | Anticipated characteristics of MTJ in an MRAM config bit |
| ◾ | Parameter |
| ◾ | Measurement conditions |
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| ◾ | Acceptable range |
4. | Anticipated MRAM configuration bit parameters in feasibility study |
5. | Results of feasibility study using delivered RH90 PDK Pre-POR, including updated goals for power, performance, and area. Change in PDK will change results. |
6. | Provide Skywater with design rules information needed to develop the Pre-POR MRAM PDK |
●
7. | “Whitebox” design parameters for MTJs/MRAM |
| ● | Note: The Distributions won’t be shared until the license is fully paid up at the end of Phase 2b. |
| ● | Rough layout rules |
| o | minimum MTJ array rows, columns |
| o | rough MTJ placement pitch |
Phase 2a:
Brief description of tasks:
- Phase 2a kicks off on the delivery of the final RH90 MRAM PDK Pre-POR from Skywater. Any modifications to the PDK will lead to delays in the schedule and may require extra engineering resources.
- Everspin will select and characterize an MTJ stack suitable for use on an MRAM configuration bit. This includes physically fabricating short-flow wafers (no CMOS) to demonstrate MTJ breakdown characteristics.
- Everspin will review status of an initial (non-final) design of the selected non-radiation hardened MRAM config bit. The bit will continue to meet the goals discussed in Phase 1. Any update to the goals to be jointly reviewed and approved by Everspin and QuickLogic.
- Everspin will review status of an initial (non-final) design of the selected non-radiation hardened MRAM config block, consisting of <1024 MRAM config bits.
- Everspin will provide anticipated bit-error-rates to QuickLogic to enable ECC circuit design.
Deliverables
| ● | T0 + 14days – Setup Pre-POR MRAM PDK from Skywater at Everspin and provide feedback on MRAM design rules |
| ● | T0 + 60days May, 2023– Start to fabricate short flow wafers based on Phase 1 output to demonstrate MTJ breakdown characteristics. |
| ● | T0 – Written results in PowerPoint format, and oral presentation detailing the results of the MTJ stack selection, including the following: |
| o | Rationale behind MTJ selection |
| ● | T0 + 90days - Joint review of the design progress to meet the GDS schedule in Phase 2b. |
Note: T0 refers to the date when full Pre-POR MRAM PDK (see table in page 1) is available from Skywater and supersedes dates (if delivered later) in this document.
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Phase 2b (subject to continued funding)
Brief description of tasks:
- Everspin will complete a final design of a non-radiation hardened MRAM config bit and block.
- Everspin will develop MRAM config block test structures to be included on TCV
- Everspin will develop test methodology for MRAM config block test structures with QuickLogic Support.
- Everspin fabricate the MRAM layers to Skywater RH90 wafers
- Everspin to test MRAM config block test structures with QL support.
- Phase 2 CMOS at Skywater needs to run based on pre-POR PDK unless no difference in Si between pre-POR and POR PDK
- Everspin will provide engineering support to QuickLogic and its subcontractors for electrical testing of a TCV FPGA.
Deliverables
| ● | T0 + 150days – Results of measuring MTJ parameters from short-flow wafers corresponding to conditions defined in Phase 1. |
| ● | T0 + 150days – Final LEF/LIB for non-radhard configuration blocks using RH90 PDK. |
| ● | T0 + 210days – Final GDS/SPICE for non-radhard MRAM config blocks released to QuickLogic. QuickLogic needs to share backend GDS with Everspin.) |
| ● | Note: there must be compatibility of design rules between QuickLogic and Everspin layout |
| ● | T0 + 210 days – Final datasheet on the MRAM config blocks. |
| ● | T0 + 210 days – Written in PowerPoint format, and oral presentation detailing: |
| ● | the final design of the non-RadHard MRAM configuration block |
| ● | T0 + 300days – Wafers are delivered to Everspin for MRAM fabrication |
| ● | T0 + 410days – Fabricated wafers (assumes license is paid here) |
| ● | T0 + 435days – Final MRAM config block testing results |
| ● | T0 + 525days – Final written report and oral presentation detailing the results of the Phase 2 |
Phase 3 (subject to continued funding)
Deliverables for Phase 3, currently unfunded, are not discussed here, and will be handled through separate amendments as required.
Options (subject to continued funding)
Deliverables for additional, unfunded, Cornerstone “Options” are not discussed here, and will be handled through separate amendments as required.
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1.FOREGROUND IP LICENSE: Government Purpose Rights are granted to the End Client pursuant to Exhibit B.
2.BACKGROUND IP LICENSE FOR PHASES: The IP License grants Limited Rights to the Subcontractor’s Background IP for the development of the Subcontracted Deliverables for End Client on Skywater RH90, the Product as set out in the Data Rights and IP Assertion Table in paragraph 4 below; not for commercial production.
3.BACKGROUND IP LICENSE FOR COMMERICAL PRODUCTION: [When IP License fee is fully paid up to the Subcontractor, Subcontractor will grant a Royalty-based commercial license as set out in the Data Rights and IP Assertion Table in paragraph 4 below, limited to the Product only for End Client with CMOS manufactured on Skywater RH90; but also for commercial production by the licensee (QuickLogic, or designee as determined by US DoD) subject to the following. Manufacturing of the MRAM portion of the RadHard device in the Product through the exercise of this portion of the IP License must be conducted through Subcontractor Partner. A commercial royalty of 20% of the sales price of the end device must be paid to the Subcontractor quarterly, within 30 days of the end of the traditional calendar quarter, with monthly reports to be submitted.]
4. | DATA RIGHTS AND IP ASSERTION TABLE: |
Integration flow that details the sequence of process steps to fabricate the STT-MRAM devices; (also referred to as PROMIS flow) | Funded at private expense | Limited | Everspin Technologies, Inc. | MRAM Tech Development |
Process recipe information for processes immediately before, during and after the STT-MRAM module. Before refers to metal contact (MVIA) to the bottom of the MTJ bit. During refers to the fabrication of the MTJ bit. After refers to the via / trench (TJVIA) contact to the top of the MTJ bit. | Funded at private expense | Limited | Everspin Technologies, Inc. | Technology Development, Optimization and Yield |
MTJ (Magnetic tunnel junction) material stack information | Funded at private expense | Limited | Everspin Technologies, Inc. | MRAM Tech Development |
TEM, SEM and compositional analysis for the layers processed in Everspin | Funded at private expense | Limited | Everspin Technologies, Inc. | Technology Development, Optimization and Yield |
Tools used for processes immediately before, during and after the STT-MRAM module | Funded at private expense | Limited | Everspin Technologies, Inc. | Technology Development, Optimization and Yield |
Description and layout of the parametric structures used to characterize the STT- MRAM process | Funded at private expense | Limited | Everspin Technologies, Inc. | MRAM Config Bit / Macro Design |
Electrical data from the parametric structures | Funded at private expense | Limited | Everspin Technologies, Inc. | Technology Development, Optimization and Yield |
Test methodology shared (if any) for the execution of this project | Funded at private expense | Limited | Everspin Technologies, Inc. | Test Program Training and Transfer |
Information detailing the bit cell, bias and ECC architecture | Funded at private expense | Limited | Everspin Technologies, Inc. | MRAM Config Bit / Macro Design |
MTJ fuse information | Funded at private expense | Limited | Everspin Technologies, Inc. | MRAM Config Bit / Macro Design |
Macro/Architecture definition using STT- MRAM bits for enabling FPGA devices | Mixed Funding | Government Purpose License Rights | Everspin Technologies, Inc. | MRAM Config Bit / Macro Design |
The GDS (output) from this project for the front end and backend, which will include Everspin design IP and bit cell information. | Mixed Funding | Government Purpose License Rights | Everspin Technologies, Inc. | MRAM Config Bit / Macro Design |
GDS and mask information from this project for the layers processed at Everspin | Mixed Funding | Government Purpose License Rights | Everspin Technologies, Inc. | Technology Development, Optimization and Yield |
Information relating to wafer handshake between Everspin and CMOS FABs. | Mixed Funding | Government Purpose License Rights | Everspin Technologies, Inc. | PDK and Design Setup |
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EXHIBIT B
PROVISIONS FROM UNDERLYING CONTRACT
Prime Contractor certifies that the provisions from the Underlying Contract outlined in this Exhibit B are directly copied from the Underlying Contract signed by Prime Contractor and there have been no modifications, revisions or changes made to the provisions in this Exhibit B.
III. Objective
The primary objective of this agreement is to provide the Department of Defense with a continental US based, SRH, high reliability FPGA prototype to support identified and future DoD strategic and space system requirements.
IX. | Special Terms and Conditions |
C. Limitation of Liability: Claims for damages of any nature whatsoever pursued under this agreement shall be limited to direct damages only up to the aggregate amount of Government funding disbursed as of the time the dispute arises. In no event shall the Government be liable for claims for consequential, punitive, special and incidental damages, claims for lost profits, or other indirect damages.
F. Down-select Criteria: Down-selection will be based on contractor’s substantiated capability to achieve project delivery expectations. Contractor’s technology selection plan, integrated master schedule, cost schedule, and work breakdown structure, to be provided at the conclusion of each Phase activities, will be evaluated with respect to effort thresholds and objectives, feasibility of implementation, and appropriate identification and acceptance of technical challenges. Contractor must also include a comprehensive risk analysis, presented in logical, structured format, including development of suitable mitigation strategies.
Throughout contract activities, contractor must continue to meet all schedule, cost, and deliverable milestones, as stipulated in contractor’s effort planning materials defined in the previous paragraph, and agreed to by the Government. Contractor must also maintain transparency to the Government, and appropriately respond to all Government requests for related details, with respect to execution of agreement activities, while maintaining cognizance and applicable observance of data rights assertions.
Contractors meeting the criteria above will be selected for continuing agreement performance for the next Phase.
X. | Intellectual Property/Data Rights |
The Government shall have Government Purpose Rights (GPR) in Technical Data, Computer Software, and Computer Software Documentation delivered under this OT Agreement unless otherwise specified in Attachment 004 – Data Rights IP Assertion Table.
B-1
Technical data delivered with GPR will automatically revert to unlimited rights five years after the end of the contract performance period.
XI. | Modifications |
D.In the event of a material breach of any term of this agreement, the aggrieved party shall provide notice to the other party in accordance with the Disputes section of this agreement. Willful failure to perform a material term of this agreement, unless excused by circumstances beyond that party’s control, will be considered a breach of this agreement. The aggrieved party shall have all contractual remedies available under Federal law, including specific performance and other equitable relief.
E.If one party desires the termination of this agreement for its convenience, the parties agree to negotiate in good faith for a mutual resolution of any settlement issues, including payment of costs incurred and a reasonable allowance for profit on work performed, data rights, and deliveries of prototype items and data. Upon receiving notice that one party desires a convenience termination of this agreement, all parties will take reasonable efforts to minimize additional costs while the settlement is negotiated. In the event that a settlement cannot be reached, the Disputes section of this agreement will be utilized to reach a final determination.
XII. | Disputes |
A.Whenever disputes, disagreements, or misunderstandings arise, the Parties shall attempt to resolve the issue(s) involved by discussion and mutual agreement as soon as practicable. The Parties are committed to an open and forthright handling of disputes, with a good faith attempt to resolve such issues at the lowest level possible.
XIV. | Security, Safety, Environmental |
B. | SAFETY: |
i.The Contractor shall comply with all Federal, State, and Local safety laws and regulations in order to maintain a safe and non-hazardous occupational environment during execution of this agreement. The contractor shall maintain full compliance with Occupational Safety and Health Administration regulations and utilize industries best practices to include applicable American industry standards and codes during execution of this effort.
ii.Accident/Incident Report: The contractor shall report immediately any major accident/incident (including fire) resulting in any one or more of the following: causing one or more fatalities or one or more disabling injuries; damage of Government property exceeding $10,000; affecting program planning or production schedules; degrading the safety of equipment under contract, such as personnel injury or property damage may be involved; identifying a potential hazard requiring corrective action.
C.ENVIRONMENTAL: The contractor shall adhere with Federal, State, and local environmental laws and regulations, Executive Orders, treaties, and agreements. The contractor
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shall consider alternate materials and processes in order to eliminate, reduce or minimize the generation of hazardous waste while minimizing item cost and risk/degradation to system performance.
XV. | Foreign Participation: |
A.FOREIGN INVOLVEMENT: For the entirety of this agreement, keeping with the Cornerstone Mission of "Strengthen the force posture of the US Defense Industrial Base (DIB)," and in accordance with the 2018 Unclassified National Defense Strategy (NDS) which articulates the threat from foreign predatory economics and inter-state strategic competitions that are the primary threats to US security, the Government will restrict foreign participation, access and transfers. Any proposed foreign participation, access or transfer will require government notification and concurrence on a case-by-case basis prior to initiating any work effort.
B. | NON-US RESEARCH PROGRAMS: For the entirety of this agreement, keeping |
with the Cornerstone Mission of "Strengthen the force posture of the US Defense Industrial Base (DIB)," and the intent of protecting tax-payer investments and intellectual property, the Government will restrict direct or indirect participation, collaboration, communication or acceptance of funding with non-US research programs, such as the Thousand Talent Program (TTP), even in the case the activity is conducted with and/or through a US citizen, entity or company. Any proposed non-US research program involvement will require government notification and concurrence on a case-by-case basis prior to initiating any work effort.
C.FOREIGN ACQUISITIONS AND MERGERS: For the entirety of this agreement, the Cornerstone Member shall notify the Government within three (3) business days of entering any discussions regarding potential foreign acquisition or merger, for itself or any business unit of the Cornerstone Member. Said notification will include all relevant details of the potential
merger or acquisition. Per the “Foreign Involvement” clause, above, the Government retains the right to consent to any foreign acquisition or merger, considering whether or not the merger/acquisition is consistent with the best interests of the Government.
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EXHIBIT C
FEE SCHEDULE
Phase | Time est | Milestone | Payment |
1 | 30-Nov- 22 | Feasibility study and spec for MRAM config bit | 320,000 |
| Requirements for MRAM design on RH90 | | |
Justification for MRAM PDK design choices | | ||
Anticipated characteristics of MTJ in an MRAM config bit | | ||
Anticipated MRAM configuration bit parameters | | ||
Results of feasibility study (goals for power, performance, and area) | | ||
“Whitebox” design parameters for MTJs/MRAM | | ||
2a | 1-Feb-23 | CAD License & Equipment | 18,714 |
8-Mar-23 | SW RH90 PDK, design Setup, test structures | 738,200 | |
| Provide SkyWater with information needed to develop the Pre-POR MRAM PDK | | |
Fabricate short flow wafers based on Phase 1 output | | ||
1-Mar-23 | CAD License & Equipment | 18,714 | |
1-Apr-23 | CAD License & Equipment | 18,714 | |
1-May-23 | CAD License & Equipment | 18,714 | |
1-Jun-23 | CAD License & Equipment | 18,714 | |
30-Jun-23 | MRAM tech dev wafers, masks, equipment | 322,500 | |
Fabricate short flow wafers based on Phase 1 output | | ||
Optional monitored testing of short flow wafers | | ||
Results of measuring MTJ parameters from short-flow wafers | | ||
Rationale behind MTJ selection | | ||
30-Jun-23 | MRAM MTP/OTP Tech Development for config bit | 640,000 | |
30-Jun-23 | Results of MTJ Stack selection | | |
MRAM config bit design | 680,000 | ||
Joint review of the design progress to meet the GDS schedule | | ||
1-Jul-23 | CAD License & Equipment | 18,714 | |
| |||
| | Phase 1 and 2a | 2,812,984 |
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2b | 1-Aug-23 | License Fee | 1,000,000 |
1-Aug-23 | CAD License & Equipment | 18,714 | |
5-Aug-23 | MRAM config bit design | 136,000 | |
| Final LEF/LIB for non-radhard configuration blocks using RH90 PDK | | |
30-Aug- 23 | MRAM MTP/OTP Tech Development for config bit | 128,000 | |
| Results of MTJ Stack selection | | |
30-Aug- 23 | MRAM tech dev wafers, masks, equipment | 107,500 | |
| Complete short flow wafers based on Phase 1 output | | |
15-Feb- 24 | License Fee | 1,000,000 | |
| Final GDS/SPICE for non-radhard MRAM config blocks | | |
Final datasheet on the MRAM config blocks | |||
1-Jul-24 | License Fee | 1,000,000 | |
16-May- 24 | MRAM Test and Characterization | 288,000 | |
| Complete CMOS wafer fabrication | | |
Final MRAM config block test results | | ||
14-Aug- 24 | Test Program Training and Transfer | 48,000 | |
| |||
| | Phase 2b | 3,726,214 |
| |||
| | Phase 1, 2a and 2b | 6,539,198 |
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Exhibit 31.1
Certification of the Principal Executive Officer
I, Sanjeev Aggarwal, certify that:
| 1. | I have reviewed this Form 10-Q of Everspin Technologies, Inc.; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
| 4. | The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
| 5. | The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): |
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
Date: November 10, 2022
| /s/ Sanjeev Aggarwal |
| Sanjeev Aggarwal |
| Chief Executive Officer (Principal Executive Officer) |
Exhibit 31.2
Certification of Principal Financial Officer
I, Anuj Aggarwal, certify that:
| 1. | I have reviewed this Form 10-Q of Everspin Technologies, Inc.; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
| 4. | The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
| (a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
| (b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
| (c) | Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
| (d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
| 5. | The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): |
| (a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and |
| (b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. |
Date: November 10, 2022
| /s/Anuj Aggarwal |
| Anuj Aggarwal |
| Chief Financial Officer (Principal Financial Officer) |
Exhibit 32.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER
Pursuant to the requirement set forth in Rule 13a-14(b) of the Securities Exchange Act of 1934, as amended, (the “Exchange Act”) and Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. §1350), Sanjeev Aggarwal, Chief Executive Officer of Everspin Technologies, Inc. (the “Company”), and Anuj Aggarwal, Chief Financial Officer of the Company, each hereby certifies that, to the best of his knowledge:
1. The Company’s Quarterly Report on Form 10-Q for the period ended September 30, 2022, to which this Certification is attached as Exhibit 32.1 (the “Periodic Report”), fully complies with the requirements of Section 13(a) or Section 15(d) of the Exchange Act; and
2. The information contained in the Periodic Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: November 10, 2022
| /s/ Sanjeev Aggarwal |
| Sanjeev Aggarwal |
| Chief Executive Officer (Principal Executive Officer) |
| |
| /s/ Anuj Aggarwal |
| Anuj Aggarwal |
| Chief Financial Officer (Principal Financial Officer) |
This certification accompanies the Form 10-Q to which it relates, is not deemed filed with the Securities and Exchange Commission and is not to be incorporated by reference into any filing of Everspin Technologies, Inc. under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended (whether made before or after the date of the Form 10-Q), irrespective of any general incorporation language contained in such filing.