**Exhibit10.9**

 

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

 
| Toshiba America Electronic  Components, Inc. | ** ** | **TOSHIBA** |
|---------------------------------------------------|------------|-------------|
| 2950 Orchard Parkway,  San Jose, CA 95131         |       |        |

 

**Design and Production AgreementAmendment #2Netlist Inc****.**

 

This Amendment #2 (‘‘Amendment #2”) to the IDASIC 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 51Discovery, Suite 150 Irvine, CA 92618 (“Customer”) and sets out the termsand conditions under which TAEC will design the product identified herein forCustomer. This Amendment is effective as of the date finally executed below (“EffectiveDate”).

 

**1.             ProjectName**

 

**ID ASIC**

 

**2.             NewSchedule**

 

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                       |

 

Production turnaroundtime:  16 working weeks.

 

Schedule is provisional.

 

**3.             NewInternal/External IP**

 

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

 

Toshiba Confidential

 

1

----

 

Internal IP:

 

**[***]**

 

ExternalIP:

**[***]**

 

**4.****                                     ****Additional Features Non-Recurring EngineeringCharges and Payment Schedule:**

 

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

 

**[***]**

 

2

----

 

4.2                                 TheAdditional Features NRE will he calculated according to the resources expendedby TAEC, which will be charged at the rate of US$**[***]**perfull-time-equivalent person per week. TAEC will provide a weekly update toCustomer regarding resources expended.

 

TAECestimates that the Additional Features NRE for this ID design will be US$**[***]**, or thirty-two (32) person-weeks. This estimate issubject to change.

 

4.3                                 TheAdditional Features NRE will be payable as follows:

 

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

 

2.                                       Thebalance (total person-weeks actually expended, less US$**[***]**)upon Delivery of Prototypes together with test logs showing successfulcompletion of the Toshiba Testing as defined in the Product Testing Agreementbetween the parties.

 

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

 

**5.             Cancellation**

 

5.1                                 IfCustomer wishes to discontinue the project set forth in this Amendment #2 priorto tapeout, then Customer shall pay TAEC US$**[***]**(“Additional Features Cancellation Fee”), In addition, TAEC reserves the rightto invoice Customer for any resources expended by TAEC prior to cancellation inexcess of 19 person-weeks. The Additional Features Cancellation Fee shall beoffset by any amount of the Additional Features NRE already paid to TAEC byCustomer.

 

5.2                                 Inthe event that Customer unilaterally fails to provide information, data, orapprovals 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 inthis Amendment #2 cancelled and assess the Additional Features CancellationFee.

 

Except as modified herein, all Other terms andconditions of the. Agreement shall remain in lull force and effect pet theirterms

 
| Toshiba American  Electronic Components, Inc.      |     | Netlist Inc,             |
|---------------------------------------------------------|----------|--------------------------|
|                                                    |     |                     |
| */s/ Takeshi Iwamoto*                                   | * * | */s/ Gail Itow*          |
| *Signature*                                             | * * | *Signature*              |
| * *                                                | * * | * *                 |
| Takeshi Iwamoto VP,  Customer SoC Foundry Business Unit |     | Gail Itow, CFO           |
| *Printed name and title*                                |     | *Printed name and title* |
| * *                                                | * * | * *                 |
| * *                                                | * * | * *                 |
| 3/10/10                                                 |     | 3/5/10                   |
| *Date*                                                  | * * | *Date*                   |

 

3

----