**Exhibit10.6**

 

**CERTAIN INFORMATION (INDICATED BY “[***]”) IN THIS EXHIBIT HASBEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGECOMMISSION.  CONFIDENTIAL TREATMENT HASBEEN 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.**

 

ThisAmendment #2 (“Amendment #2”) to the Register ASIC Design and ProductionAgreement, dated July 31, 2008, as amended (TAEC#27N1242613) (“Agreement”)is between Toshiba America Electronic Components, Inc., with a principalplace of business at 19900 MacArthur Boulevard, Suite 400, Irvine, CA92612 (“TAEC”) and Netlist Inc. with a place of business at 51 Discovery, Suite 150Irvine, CA 92618 (“Customer”) and sets out the terms and conditions under whichTAEC will design the product identified herein for Customer, This Amendment iseffective as of the date finally executed below (“Effective Date”).

 

**1.****                                     ****ProjectName**

 

RegisterASIC

 

**2.****                                     ****NewSchedule**

 

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

 

**MajorProject Milestones**

 
| **Event** | ** ** | **Target Date/Completed** |
|-----------|------------|--------------------------------|
| **[***]** | ** ** | **[***]**                      |
| **[***]** | ** ** | **[***]**                      |
| **[***]** | ** ** | **[***]**                      |
| **[***]** | ** ** | **[***]**                      |
| **[***]** | ** ** | **[***]**                      |
| **[***]** | ** ** | **[***]**                      |
| **[***]** | ** ** | **[***]**                      |
| **[***]** | ** ** | **[***]**                      |
| **[***]** |       | TBD                            |
| **[***]** |       | TBD                            |
| **[***]** |       | TBD                            |
| **[***]** |       | TBD                            |

 

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

 

Schedule is provisional.

 

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**3.****                                     ****NewInternal/External IP**

 

Theparties agree to delete the contents of Section 7 of the Agreement, Internal/ExternalIP and replace it with the following:

 

InternalIP:

**[***]**

 

ExternalIP:

**[***]**

 

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

 

Customerwill he responsible for any and all support, Defect/Bug fixes, upgrades and/ormaintenance that may be required for the External IP.

 

Customeris responsible for validating the External IP as used in the design. TAEC willgenerate test vectors for manufacturing testing of External IP as described inthe Register DFT specification.

 

**4.****                                     ****Additionto Section 9, Non-Recurring Engineering Charges (“NRE”)**

 

Theparties agree to add the following provision to Section 9 of theAgreement, Non-Recurring

 

EngineeringCharges (“NRE”):

 

9.5                                 **[***]**

 

TAECwill be responsible **[***]**and **[***]** verification of any **[***]**.Customer agrees that **[***]**of **[***]**is Customer’s responsibility and TAEC does not assumeany 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 **[***]**providernotification along with any **[***]**associatedwith fixing such **[***]**, Customer may choose to **[***]**this **[***]**at itsown discretion. TAEC will not undertake to **[***]**untilCustomer 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  **[***]**foradditional **[***]**resulting from any **[***]**which **[***]**believeshas occurred as a result of **[***]** actionsand which was not present in the **[***]** uponreceipt from the **[***]**.

 

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**5.****                                     ****AdditionalFeatures  Non-Recurring EngineeringCharges and Payment Schedule**

 

5.1                                 Customer agrees to paynon-recurring engineering charges (“Additional Features NRE”) to TAEC forsupport of design changes. Support includes:

 

**[***]**

 

5.2                                 The Additional Features WEwill 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 Customerregarding resources expended.

 

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

 

5.3                                 The Additional Features NREwill be payable as fellows:

 

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

 

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

 

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

 

**6.****                                     ****Cancellation**

 

6.1                                 If Customer wishes todiscontinue the project set forth in this Amendment #2 prior to tapeout, thenCustomer shall pay TAEC US$**[***]** (“AdditionalFeatures Cancellation Fee”). In addition, TALC reserves the right to invoiceCustomer for any resources expended by TAEC prior to cancellation in excess of14.88 person-weeks. The Additional Features Cancellation Fee shall be offset byany amount of the Additional Features NRE already paid to TAEC by Customer.

 

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

 

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Exceptas modified herein, all other terms and conditions of the Agreement shallremain 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                 |
| 3/10/10                                                            |       | Date                   |
| Date                                                               |       |                   |

 

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