Exhibit
10.9


 


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.

  	
   

  	
  TOSHIBA

  
	
  2950 Orchard Parkway,
  San Jose, CA 95131

  	
   

  	
   

  



 


Design and Production Agreement

Amendment #2

Netlist Inc.


 


This Amendment #2 (‘‘Amendment #2”) to the ID
ASIC 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 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 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:


 


Toshiba Confidential


 


1

















 


Internal IP:


 


[***]


 


External
IP:


[***]


 


4.                                      Additional Features Non-Recurring Engineering
Charges and Payment Schedule:


 


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


 


[***]


 


2

















 


4.2                                 The
Additional Features NRE will he 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 ID design will be US$[***], or thirty-two (32) person-weeks. This estimate is
subject to change.


 


4.3                                 The
Additional Features NRE will be payable as follows:


 


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


 


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


 


5.             Cancellation


 


5.1                                 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, TAEC reserves the right
to invoice Customer for any resources expended by TAEC prior to cancellation in
excess of 19 person-weeks. The Additional Features Cancellation Fee shall be
offset by any amount of the Additional Features NRE already paid to TAEC by
Customer.


 


5.2                                 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 lull force and effect pet their
terms


 


	
  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

  



 


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