Exhibit
10.6


 






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 #2


 


Netlist Inc.


 


This
Amendment #2 (“Amendment #2”) to the Register ASIC Design and Production
Agreement, dated July 31, 2008, as amended (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
Internal/External IP


 


The
parties agree to delete the contents of Section 7 of the Agreement, Internal/External
IP and replace it with the following:


 


Internal
IP:


[***]


 


External
IP:


[***]


 


Testing
of Internal and External IP will proceed as set forth in the Product Testing
Agreement between the parties (TAEC# 121ANN311)


 


Customer
will he responsible for any and all support, Defect/Bug fixes, upgrades and/or
maintenance that may be required for the External IP.


 


Customer
is responsible for validating the External IP as used in the design. TAEC will
generate test vectors for manufacturing testing of External IP as described in
the Register DFT specification.


 


4.                                      Addition
to Section 9, Non-Recurring Engineering Charges (“NRE”)


 


The
parties agree to add the following provision to Section 9 of the
Agreement, Non-Recurring Engineering Charges (“NRE”):


 


9.5                                 [***]


 


TAEC
will be responsible [***] and [***] verification of any [***].
Customer agrees that [***] of [***] is Customer’s responsibility and TAEC does not assume
any portion of financial cost incurred by Customer in [***] or
[***] any [***].
In the event any [***] is identified in the [***] after TAEC has procured such [***],
then TAEC will communicate in writing to Customer such [***] provider
notification along with any [***] associated
with fixing such [***], Customer may choose to [***] this [***] at its
own discretion. TAEC will not undertake to [***] until
Customer so requests in writing and the parties have agreed on a [***] for such work. If Customer requests TAEC to repair the
[***] in the [***],[***] will be calculated as set forth in Section 9.2.


 

















 


[***], at its sole
discretion, may choose to [***]for
additional [***] resulting from any [***] which [***] believes
has occurred as a result of [***] actions
and which was not present in the [***] upon
receipt from the [***].


 


5.                                      Additional
Features Non-Recurring Engineering Charges and Payment Schedule


 


5.1                                 Customer agrees to pay
non-recurring engineering charges (“Additional Features NRE”) to TAEC for
support of design changes. Support includes:


 


[***]


 


5.2                                 The Additional Features WE
will be calculated according to the resources expended by TAEC.  Which will be charged at the rate of US$[***] per full-time-equivalent person per week.  TAEC will provide a weekly update to Customer
regarding resources expended.


 


TAEC
estimates that the Additional Features NRE for this Register design will be US$[***] or [***].  This estimate is subject to change.


 


5.3                                 The Additional Features NRE
will be payable as fellows:


 


1.                                       US$[***] ([***]% of
estimated Additional Features NRE) upon [***] or [***], whichever is earlier.


 


2.                                       The balance
(total person-weeks actually expended, less US$[***]),
upon [***] together with test lugs showing
successful completion of the Toshiba Testing as defined in the Product Testing
Agreement between the parties.


 


For
the avoidance of doubt, the Additional Features NM: payable under this
Amendment #2 is in addition to and does not replace the NRE payable under the
Agreement and/or Amendment #1.


 


6.                                      Cancellation


 


6.1                                 If Customer wishes to
discontinue the project set forth in this Amendment #2 prior to tapeout, then
Customer shall pay TAEC US$[***] (“Additional
Features Cancellation Fee”). In addition, TALC reserves the right to invoice
Customer for any resources expended by TAEC prior to cancellation in excess of
14.88 person-weeks. The Additional Features Cancellation Fee shall be offset by
any amount of the Additional Features NRE already paid to TAEC by Customer.


 


6.2                                 In the event that Customer
unilaterally fails to provide information, data, or approvals necessary for
TAEC to proceed with the project for a period of [***] from
TAEC’s initial request for such information, data, or approvals, TAEC reserves
the right to deem the project set forth in this Amendment #2 cancelled and
assess the Additional Features Cancellation Fee.


 

















 


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

  	
   

  	
   

  
	
   

  	
   

  	
  3/5/10

  
	
   

  	
   

  	
  Date

  
	
  3/10/10

  	
   

  	
   

  
	
  Date