**Exhibit 10.6**

 

**CERTAININFORMATION (INDICATED BY “[***]”) IN THIS EXHIBIT HAS BEEN OMITTED AND FILEDSEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.  CONFIDENTIAL TREATMENT HAS BEEN REQUESTEDWITH RESPECT TO THE OMITTED PORTIONS.**

 

TOSHIBA

 

Toshiba AmericaElectronic Components, Inc.

2950 Orchard Parkway, SanJose, CA 95131

 

**Designand Production Agreement**

 

**Amendment#2**

 

**NetlistInc.**

 

This Amendment #2 (“Amendment #2”) to the RegisterASIC Design and Production Agreement, dated July 31, 2008, as amended(TAEC#27N1242613) (“Agreement”) is between Toshiba America ElectronicComponents, Inc., with a principal place of business at 19900 MacArthurBoulevard, Suite 400, Irvine, CA 92612 (“TAEC”) and Netlist Inc. with aplace of business at 51 Discovery, Suite 150 Irvine, CA 92618 (“Customer”)and sets out the terms and conditions under which TAEC will design the productidentified herein for Customer, This Amendment is effective as of the datefinally executed below (“Effective Date”).

 

**1.**             **Project Name**

 

Register ASIC

 

**2.**             **New Schedule**

 

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

 

**Major Project Milestones**

 
| **Event**                                      | ** ** | **Target  Date/Completed** |
|------------------------------------------------|------------|----------------------------|
| Development PO Released                        | ** ** | **[***]**                  |
| Preliminary Feasibility Study                  | ** ** | **[***]**                  |
| Design Decision                                | ** ** | **[***]**                  |
| Design Initiation                              | ** ** | **[***]**                  |
| Package Selection Finalized                    | ** ** | **[***]**                  |
| Early RTL for Pipecleaning                     | ** ** | **[***]**                  |
| Final RTL (functionally correct)               | ** ** | **[***]**                  |
| Tapeout — Second Signoff (GDSII transfer) | ** ** | **[***]**                  |
| Delivery of Prototypes                         |       | TBD                        |
| System compliance phase — start           |       | TBD                        |
| System compliance phase — complete        |       | TBD                        |
| 1st Risk Production shipment              |       | TBD                        |

 

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Production turnaroundtime:  16 working weeks.

 

Schedule is provisional.

 

**3.**             **New Internal/External IP**

 

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

 

Internal IP:

**[***]**

 

External IP:

**[***]**

 

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

 

The parties agree to add the following provision to Section 9of the Agreement, Non-Recurring

 

Engineering Charges (“NRE”):

 

9.5           External IP Defects/Bugs

 

**[***]**

 

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**5.**             **Additional Features Non-RecurringEngineering Charges and Payment Schedule**

 

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

 

**[***]**

 

5.2           The Additional Features WE will be calculatedaccording 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.

 

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

 

5.3           The Additional Features NRE will be payable asfellows:

 

1.             US$**[***]**(**[***]**% of estimated AdditionalFeatures NRE) upon tapeout **[***]**whichever is earlier.

 

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

 

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

 

**6.**             **Cancellation**

 

6.1           If Customer wishes to discontinue the project setforth in this Amendment #2 prior to tapeout, then Customer shall pay TAEC US$**[***]** (“Additional Features Cancellation

 

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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 Customer unilaterally fails toprovide information, data, or approvals necessary for TAEC to proceed with theproject 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.

 

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

 

 

| **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                                                          |       |                   |

 

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