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