Exhibit
10.5


 






CERTAIN INFORMATION (INDICATED BY “[***]”) IN THIS EXHIBIT HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.  CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.


 


TOSHIBA


Toshiba America Electronic Components, Inc.


2950 Orchard Parkway, San Jose, CA 95131


 


Design and Production Agreement


 


Amendment #1


 


Netlist Inc.


 


This
Amendment #1 (“Amendment”) to the Register ASIC Design and Production
Agreement, dated July 31, 2008, (TAEC#27N1242613) (“Agreement”) is between
Toshiba America Electronic Components, Inc., with a principal place of
business at 19900 MacArthur Boulevard, Suite 400, Irvine, CA 92612 (“TAEC”)
and Netlist Inc. with a place of business at 51 Discovery, Suite 150
Irvine, CA 92618 (“Customer”) and sets out the terms and conditions under which
TAEC will design the product identified herein for Customer. This Amendment is
effective as of the date finally executed below (“Effective Date”).


 


1.                                      Project
Name


 


Register
ASIC


 


2.                                      New
Schedule


 


The
parties agree to delete the contents of Section 4 of the Agreement,
Schedule, and replace it with the following:


 


Major
Project Milestones


 


	
  Event

  	
   

  	
  Target Date/Completed

  
	
  [***]

  	
   

  	
  [***]

  
	
  [***]

  	
   

  	
  [***]

  
	
  [***]

  	
   

  	
  [***]

  
	
  [***]

  	
   

  	
  [***]

  
	
  [***]

  	
   

  	
  [***]

  
	
  [***]

  	
   

  	
  [***]

  
	
  [***]

  	
   

  	
  [***]

  
	
  [***]

  	
   

  	
  [***]

  
	
  [***]

  	
   

  	
  TBD

  
	
  [***]

  	
   

  	
  TBD

  
	
  [***]

  	
   

  	
  TBD

  
	
  [***]

  	
   

  	
  TBD

  



 

















 


Production turnaround time: [***] working
weeks.


 


Schedule is provisional.


 


3.                                      New
Package and Die Size Option


 


The
parties agree to delete the contents of Section 6 of the Agreement,
Package and Die Size Option, and replace it with the following:


 


	
  Package

  	
   

  	
  Ball Pitch

  	
   

  	
  Body Size

  	
   

  	
  Substrate Layers

  	
   

  	
  Die Size

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  



 


4.                                      New
Price


 


The
parties agree to delete the contents of Section 8 of the Agreement, Price,
and replace it with the following:


 


	
  First

  	
   

  	
  [***] pieces:

  	
   

  	
  US$[***]

  	
   

  	
  *[***]

  
	
  Next

  	
   

  	
  [***] pieces:

  	
   

  	
  US$[***]

  	
   

  	
   

  
	
  Next

  	
   

  	
  [***] pieces:

  	
   

  	
  US$[***]

  	
   

  	
   

  
	
  After
  first

  	
   

  	
  [***] pieces:

  	
   

  	
  US$[***]

  	
   

  	
   

  



 






*
Prices for first 1 Mpcs represent an addition of US$[***] per
unit in amortized Total NRE cost. See Section 10.


 


Changes
in die size will affect the price quoted.


 


The
prices quoted herein for mass production are based on the assumption of
adequate yield. TAEC reserves the right to adjust pricing based on mutual
agreement in the event that adequate yield figures, in TAEC’s reasonable
opinion, are not achieved by the start of mass production despite reasonable
commercial efforts by both parties. TAEC will provide Netlist with timely data
such that Netlist can reasonably assess yield.


 


Prices
do not include and are subject to any applicable sales tax.


 


5.                                      New
Engineering Sample and Risk Production Pricing


 


The
parties agree to delete Section 13.3 of the Agreement. The parties agree
to delete the contents of Section 12 of the Agreement, Extra Engineering
Samples, and replace it with the following:


 


All
extra engineering samples and Risk Production parts shall be sold at US$[***] each ([***] the unit
price of US[***]).


 

















 


All
extra engineering samples are sold as Prototypes and are subject to, without
limitation, Articles 18.2 and 19.1 of the Design and Production Agreement Terms
and Conditions (“Terms and Conditions”). All Risk Production parts are subject
to, without limitation, Articles 18.2 and 19.2 of the Terms and Conditions.
TAEC reserves the right in its sole discretion to determine whether to accept
extra engineering sample or Risk Production orders.


 


6.                                      Additional
Non-Recurring Engineering Charges and Payment Schedule


 


Customer
agrees to pay additional non-recurring engineering charges of US$[***] (“Additional NRE”) to TAEC for design support. The
Additional NRE will be due and payable as follows:


 


1.                                      US$[***] upon [***].


 


2.                                      US$[***] upon [***] together
with test logs showing successful completion of the mutually agreed-upon tests.


 


For
the avoidance of doubt, the Additional NRE payable under this Amendment is in
addition to and does not replace the NRE payable under the Agreement.


 


7.                                      Cancellation


 


7.1                               If Customer
wishes to discontinue the project after execution of this Amendment, then in
addition to the provisions set Forth in Section 10 of the Terms and
Conditions, the Customer shall be responsible to pay TAEC for the NRE charges
as set forth below (“Additional Cancellation Fee”), unless otherwise agreed in
writing between TAEC and the Customer:


 


	
  Time

  	
   

  	
  Additional Cancellation Fee

  
	
  [***]

  	
   

  	
  [***]% of
  Additional NRE

  
	
  [***]

  	
   

  	
  [***]% of
  Additional NRE

  
	
  [***]

  	
   

  	
  [***]% of
  Additional NRE

  



 


7.2                               For the
avoidance of doubt, NRE already invoiced to Customer per the milestones and NRE
payment schedule set forth herein and in the DPA (“Paid NRE”) shall offset the
Additional Cancellation Fee assessed in Article 7.1 above. To the extent
that the Paid NRE exceeds the Additional Cancellation Fee and the Cancellation
Fee set forth in Section 10 of the Terms and Conditions of the Agreement,
TAEC shall not charge further Additional Cancellation Fee; however, Paid NRE
will not be refunded upon cancellation of the design.


 


8.                                      Additional
Terms


 


8.1                               [***]


 


Except
as modified herein, all other terms and conditions of the Agreement shall
remain in full force and effect per their terms.


 

















 


	
  Toshiba
  America Electronic Components, Inc.

  	
   

  	
  NetList
  Inc.

  
	
   

  	
   

  	
   

  
	
  /s/
  Takeshi Iwamoto

  	
   

  	
  /s/
  Gail Itow

  
	
  Signature

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Gail
  Itow, CFO

  
	
  Takeshi
  Iwamoto VP, Customer SoC & Foundry Business Unit

  	
   

  	
  Printed
  Name and Title

  
	
  Printed
  Name and Title

  	
   

  	
   

  
	
   

  	
   

  	
  1-28-10

  
	
  1-28-10

  	
   

  	
  Date

  
	
  Date