Exhibit
10.9


 






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
  America Electronic Components, Inc.

  	
   

  	
  TOSHIBA

  
	
  2950
  Orchard Parkway, San Jose, CA 95131

  	
   

  	
   

  



 


Design and Production Agreement

Amendment #2

Netlist Inc.


 


This Amendment #2 (‘‘Amendment #2”) to the ID ASIC Design and
Production Agreement, dated July 31, 2008, as amended (TAEC# 51N12402125)
(“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


 


ID 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:


 


	
  Toshiba
  Confidential

  	
   

  	
  TAEC#51N12402125B

  



 


1

















 


Internal IP:


 


[***]


 


External
IP:


 


[***]


 


4.                                      Additional
Features Non-Recurring Engineering Charges and Payment Schedule:


 


4.1                                 Customer agrees to pay
non-recurring engineering charges (“Additional Features NRE”) to TAEC for
support of the following design changes:


 


[***]


 


4.2                                 The Additional Features NRE
will he 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 ID design will be US$[***], or [***]. This
estimate is subject to change.


 


4.3                                 The Additional Features NRE
will be payable as follows:


 


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


 


2.                                       The balance (total
person-weeks actually expended, less US$[***]) upon [***] together with test logs 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. NRE payable under this
Amendment #2 is in addition to and does not replace the NRE payable under the
Agreement and/or Amendment #1.


 


5.                                     Cancellation


 


5.1                                 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, TAEC reserves the right to
invoice Customer for any resources expended by TAEC prior to cancellation in
excess of 19 person-weeks. The Additional Features Cancellation Fee shall be
offset by any amount of the Additional Features NRE already paid to TAEC by
Customer.


 


5.2                                 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 lull force and effect pet their terms


 


2

















 


	
  Toshiba
  American Electronic Components, Inc.

  	
   

  	
  Netlist
  Inc,

  
	
   

  	
   

  	
   

  
	
  /s/
  Takeshi Iwamoto

  	
   

  	
  /s/
  Gail Itow

  
	
  Signature

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Takeshi
  Iwamoto VP, Customer SoC Foundry

  	
   

  	
  Gail
  Itow, CFO

  
	
  Business
  Unit

  	
   

  	
   

  
	
  Printed
  name and title

  	
   

  	
  Printed
  name and title

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  3/10/10

  	
   

  	
  3/5/10

  
	
  Date

  	
   

  	
  Date

  



 


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