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Netlist Inc – ‘10-Q’ for 4/3/10 – EX-10.8

On:  Monday, 5/17/10, at 5:12pm ET   ·   For:  4/3/10   ·   Accession #:  1104659-10-29127   ·   File #:  1-33170

Previous ‘10-Q’:  ‘10-Q’ on 11/3/09 for 10/3/09   ·   Next:  ‘10-Q’ on 8/12/10 for 7/3/10   ·   Latest:  ‘10-Q’ on 11/9/23 for 9/30/23   ·   4 References:   

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 5/17/10  Netlist Inc                       10-Q        4/03/10   15:1.8M                                   Merrill Corp-MD/FA

Quarterly Report   —   Form 10-Q
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 10-Q        Quarterly Report                                    HTML    637K 
 2: EX-10.1     Material Contract                                   HTML     46K 
11: EX-10.10    Material Contract                                   HTML     90K 
12: EX-10.11    Material Contract                                   HTML     35K 
 3: EX-10.2     Material Contract                                   HTML     49K 
 4: EX-10.3     Material Contract                                   HTML    142K 
 5: EX-10.4     Material Contract                                   HTML     26K 
 6: EX-10.5     Material Contract                                   HTML     45K 
 7: EX-10.6     Material Contract                                   HTML     32K 
 8: EX-10.7     Material Contract                                   HTML    141K 
 9: EX-10.8     Material Contract                                   HTML     43K 
10: EX-10.9     Material Contract                                   HTML     31K 
13: EX-31.1     Certification per Sarbanes-Oxley Act (Section 302)  HTML     16K 
14: EX-31.2     Certification per Sarbanes-Oxley Act (Section 302)  HTML     16K 
15: EX-32       Certification per Sarbanes-Oxley Act (Section 906)  HTML     12K 


EX-10.8   —   Material Contract


This exhibit is an HTML Document rendered as filed.  [ Alternative Formats ]



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

 



Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘10-Q’ Filing    Date    Other Filings
Filed on:5/17/108-K
For Period End:4/3/1010-Q/A
7/31/08
 List all Filings 


4 Subsequent Filings that Reference this Filing

  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

 2/23/24  Netlist Inc.                      10-K       12/30/23   76:9.6M                                   Toppan Merrill Bridge/FA
 2/28/23  Netlist Inc.                      10-K       12/31/22   72:9M                                     Toppan Merrill Bridge/FA
 3/01/22  Netlist Inc.                      10-K        1/01/22   73:9M                                     Toppan Merrill Bridge/FA
 3/26/21  Netlist Inc.                      10-K        1/02/21   78:7.7M                                   Toppan Merrill Bridge/FA
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Filing Submission 0001104659-10-029127   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

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