Exhibit 10.6


 


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


 


Toshiba America
Electronic Components, Inc.


2950 Orchard Parkway, San
Jose, CA 95131


 


Design
and Production Agreement


 


Amendment
#2


 


Netlist
Inc.


 


This Amendment #2 (“Amendment #2”) to the Register
ASIC Design and Production Agreement, dated July 31, 2008, as amended
(TAEC#27N1242613) (“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


 


Register 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 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 turnaround
time:  16 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:


 


Internal IP:


[***]


 


External IP:


[***]


 


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


 


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


 


Engineering Charges (“NRE”):


 


9.5           External IP Defects/Bugs


 


[***]


 

















 


5.             Additional Features Non-Recurring
Engineering Charges and Payment Schedule


 


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


 


[***]


 


5.2           The Additional Features WE will 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 Customer
regarding resources expended.


 


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


 


5.3           The Additional Features NRE will be payable as
fellows:


 


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


 


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


 


6.             Cancellation


 


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


 


6.2           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 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

  
	
   

  	
   

  	
  Date

  
	
   

  	
   

  	
   

  
	
  3/10/10

  	
   

  	
   

  
	
  Date