Exhibit 10.8


 


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.

  	
   

  
	
  2950 Orchard
  Parkway, San Jose, CA 95131

  	
  TOSHIBA

  



 


Design and Production Agreement


Amendment #1


Netlist Inc.


 


This Amendment #1 (“Amendment”)
to the ID ASIC Design and Production Agreement, dated
July 31, 2008 (TAEC#’51N12402I25) (“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

  
	
  Development PO
  Released

  	
   

  	
  [***]

  
	
  Preliminary
  Feasibility Study

  	
   

  	
  [***]

  
	
  Design Decision

  	
   

  	
  [***]

  
	
  Design
  Initiation

  	
   

  	
  [***]

  
	
  Package
  Selection Finalized

  	
   

  	
  [***]

  
	
  Early Database
  for Pipecleaning

  	
   

  	
  [***]

  
	
  Final Database
  (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 turnaround time: 16 working weeks.


 


Toshiba Confidential


 

















 


Schedule is provisional.


 


3.             New Package and Die Size Option


 


The
parties agree to delete the contents of Section 6 of the Agreement, Package and
Die Size Option, and replace it with the following:


 


[***]


 


	
  Package

  	
   

  	
  Ball Pitch

  	
   

  	
  Body Size

  	
   

  	
  Substrate

  Layers

  	
   

  	
  Die Size

  	
   

  
	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  



 


4.             New Price


 


The parties agree to delete
the contents of Section 8 of the Agreement, Price, and replace it with the
following:


 


	
  First

  	
   

  	
  10M pieces:

  	
   

  	
  US$[***]

  
	
  Next

  	
   

  	
  20M pieces:

  	
   

  	
  US$[***]

  
	
  Next

  	
   

  	
  20M pieces:

  	
   

  	
  US$[***]

  
	
  After first

  	
   

  	
  50M pieces:

  	
   

  	
  US$[***]

  



 


Changes
in die size will affect the price quoted.


 


The
prices quoted herein for mass production are based on the assumption of
adequate yield.  TAEC
reserves the right to adjust pricing based on mutual agreement in the
event that adequate yield figures, in TAEC’s
reasonable opinion, are not achieved by the start of mass production despite
reasonable commercial efforts by both parties. 
TAEC will provide Netlist with timely data such that Netlist
can reasonably assess yield.


 


Prices
do not include and are subject to any applicable sales tax.


 


5.             New Engineering Sample and Risk
Production Pricing


 


The parties agree to
delete Section 13.3 of the Agreement. 
The parties agree to delete the contents of Section 12 of the
Agreement, Extra Engineering Samples, and replace it with the following:


 


All
extra engineering samples and Risk Production parts shall be sold at US$[***]each
(2X the unit price of US$[***]).


 


All
extra engineering samples are sold as Prototypes and are subject to, without
limitation, Articles 18.2 and 19.1 of the Design and Production Agreement Terms
and Conditions (“Terms and Conditions”). 
All Risk Production parts are subject to, without limitation, Articles
18.2 and 19.2 of the Terms and Conditions. 
TAEC


 

















 


reserves the right in its sole discretion to determine whether
to accept extra engineering sample or Risk Production orders.


 


6.             Additional Non-Recurring Engineering
Charges and Payment Schedule


 


Customer agrees to pay
additional non-recurring engineering charges of US$[***] (“Additional NRE”) to TAEC for package and design support.  The Additional NRE
will be due and payable as follows.


 


1.             US$[***] upon
Tapeout.


 


2.             US$[***] upon
Delivery of Prototypes together with test logs showing successful completion of
the mutually agreed-upon tests.


 


For the avoidance of
doubt, the Additional NRE payable under this
Amendment is in addition to and does not replace the NRE
payable under the Agreement.


 


7.             Cancellation


 


7.1           If Customer wishes to discontinue the project after
execution of this Amendment, then in addition to the provisions set forth in Section 10
of the Terms and Conditions, the Customer shall be responsible to pay TAEC for the NRE charges as set
forth below (“Additional Cancellation Fee”), unless otherwise agreed in writing
between TAEC and the Customer:


 


	
  Time

  	
   

  	
  Additional
  Cancellation Fee

  
	
  [***]

  	
   

  	
  [***]% of Additional NRE

  
	
  [***]

  	
   

  	
  [***]% of Additional NRE

  
	
  [***]

  	
   

  	
  [***]% of Additional NRE

  



 


7.2           For the avoidance of doubt, NRE
already invoiced to Customer per the milestones and NRE
payment schedule set forth herein and in the DPA (“Paid
NRE”) shall offset the Additional Cancellation Fee
assessed in Article 7.1 above.  To
the extent that the Paid NRE exceeds the Additional
Cancellation Fee and the Cancellation Fee set forth in Section 10 of the
Terms and Conditions, TAEC shall not charge further
Additional Cancellation Fee; however, Paid NRE will
not be refunded upon cancellation of the design.


 


8.             Additional Terms


 


8.1           [***]


 

















 


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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Takeshi Iwamoto
  VP, Customer SoC & Foundry Business Unit

  	
   

  	
  Gail Itow, CFO

  
	
  Printed
  name and title

  	
   

  	
  Printed
  name and title

  
	
   

  	
   

  	
   

  
	
  1-28-10

  	
   

  	
  1-28-10

  
	
  Date

  	
   

  	
  Date