EXHIBIT 1.2
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TRANSMETA CORPORATION
DEBT SECURITIES
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UNDERWRITING AGREEMENT
STANDARD PROVISIONS
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TRANSMETA CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT STANDARD PROVISIONS
From time to time, Transmeta Corporation, a Delaware corporation
("Transmeta"), may enter into one or more underwriting agreements that provide
for the sale of certain debt securities (the "Securities"), to the purchaser or
purchasers named therein (the "Underwriters"). The standard provisions set forth
herein may be incorporated by reference in any such underwriting agreement (the
"Underwriting Agreement"). The Underwriting Agreement, including the provisions
incorporated therein by reference, is herein referred to as "this Agreement."
Unless otherwise defined herein, terms defined in the Underwriting Agreement are
used herein as therein defined. Capitalized terms not otherwise defined in this
Agreement shall have the meaning ascribed thereto in the Indenture (as
hereinafter defined).
The terms governing of the issuance and sale of any particular series
of Securities shall be as provided in the applicable Underwriting Agreement
(with respect to each Underwriting Agreement, such series of Securities are
herein referred to as the "Designated Securities").
1. ISSUANCE OF DESIGNATED SECURITIES. Sales of the Designated
Securities may be made from time to time to the Underwriters of the Designated
Securities. Any firm or firms designated as the representative or
representatives, as the case may be, of the Underwriters of the Designated
Securities in the Underwriting Agreement relating thereto will act as the
representative or representatives (the "Representative"). The obligation of
Transmeta to issue and sell any of the Designated Securities and the obligation
of any Underwriters to purchase any of the Designated Securities shall be
evidenced by the Underwriting Agreement with respect to the Designated
Securities specified therein. Each Underwriting Agreement shall specify the
aggregate principal amount of the Designated Securities, the public offering
price of the Designated Securities, the purchase price to the Underwriters of
the Designated Securities, the names of the Underwriters of the Designated
Securities, the name of the Representative, if any, of such Underwriters, and
the principal amount of the Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of the
Designated Securities and payment therefor. The Underwriting Agreement shall
also specify, to the extent not set forth in the Registration Statement and
Prospectus (as hereinafter defined) with respect thereto, the general terms of
the Designated Securities. An Underwriting Agreement shall be in writing (which
may be in counterparts), and may be evidenced by an exchange of facsimile
transmissions. The obligations of the Underwriters under each Underwriting
Agreement shall be several and not joint.
2. REPRESENTATIONS AND COVENANTS. Transmeta represents to, and
covenants with, each Underwriter that:
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(a) Transmeta meets the requirements for the use of Form
S-3 and a registration statement on Form S-3 (Registration No. 333-__________,
including a prospectus, relating to the Securities of Transmeta has been filed
with the Securities and Exchange Commission (the "Commission") in accordance
with applicable regulations of the Commission under the Securities Act of 1933,
as amended (the "Act"), and has been declared effective under the Act. Such
registration statement, as amended to the date of this Agreement, is hereinafter
referred to as the "Registration Statement," and such prospectus as proposed to
be supplemented by a prospectus supplement (the "Prospectus Supplement")
relating to the Designated Securities to be filed pursuant to Rule 424 under the
Act is hereinafter referred to as the "Prospectus." Any reference herein to the
Registration Statement or the Prospectus shall be deemed to refer to and include
the documents which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") on or before the date of this Agreement, and
incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3,
excluding any documents or portions of such documents which are deemed under the
rules and regulations of the Commission under the Act not to be incorporated by
reference; and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement or the Prospectus shall
be deemed to refer to and include the filing of any document under the Exchange
Act deemed to be incorporated therein by reference after the date of this
Agreement. For purposes of this Agreement, "Effective Time" with respect to the
Registration Statement means (A) if Transmeta has not advised the Representative
that it proposes to amend such registration statement, the date and time as of
which such registration statement, or the most recent post-effective amendment
thereto (if any) filed prior to the execution and delivery of this Agreement,
was declared effective by the Commission or has become effective upon filing
pursuant to Rule 462(c) under the Act, or (B) if Transmeta has advised the
Representative that it proposes to file an amendment or post-effective amendment
to such registration statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective amendment, as the case
may be, is declared effective by the Commission. "Effective Date" with respect
to the Registration Statement means the date of the Effective Time thereof.
(b) At the Effective Time, the Registration Statement and
the Prospectus conformed, and any amendments thereof and supplements thereto
relating to the Designated Securities will conform, in all material respects to
the requirements of the Act and the rules and regulations of the Commission
thereunder; each document filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus complied when so filed as to form with the Exchange
Act and the rules and regulations of the Commission thereunder; the Indenture
conforms in all material respects to the requirements of the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act") and the rules and regulations of
the Commission thereunder; and neither the Registration Statement on the
Effective Date nor the Prospectus as of the date thereof and on the Closing Date
included or will include any untrue statement of a material fact or omitted or
will omit to state any material fact required to be stated therein or necessary
to make the statements therein, in the case of the Registration Statement, not
misleading, or in the case of the Prospectus, in light of the circumstances in
which they were made, not misleading; provided, however, that Transmeta makes no
representations as to (i) that part of the Registration Statement which shall
constitute a Trustee's Statement of Eligibility and Qualifications (Form T-1)
under the Trust Indenture Act and (ii) any statements or omissions
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made in reliance upon and in conformity with information furnished to Transmeta
by or on behalf of any Underwriter for use in connection with the preparation of
such documents.
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Designated Securities shall be made at the offices of counsel for the
Underwriters, on the date and at the time specified in the Underwriting
Agreement (the "Closing Date"), which Closing Date may be postponed by agreement
between the Underwriters, or the Representative, as the case may be, and
Transmeta. Delivery of the Designated Securities shall be made to the
Underwriters or, if appropriate, the Representative for the respective accounts
of the Underwriters, in either case, against payment by the Underwriters
directly or through the Representative of the purchase price thereof to or upon
the order of Transmeta by certified or official bank check or checks payable in
New York Clearing House funds, unless otherwise agreed in the Underwriting
Agreement. Certificates for the Designated Securities shall be registered in
such names and in such denominations as the Representative may request in
writing not less than one full business day in advance of the Closing Date.
If so requested by the Underwriters or the Representative, as the case
may be, Transmeta agrees to have the Designated Securities available for
inspection, checking and packaging in New York, New York, at least one business
day prior to the Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that the
Underwriters propose to offer the Designated Securities for sale to the public
upon the terms and conditions set forth in the Prospectus.
5. AGREEMENTS. Transmeta agrees with the Underwriters that:
(a) Transmeta will cause the Prospectus Supplement to be
filed pursuant to Rule 424 under the Act and will promptly advise the
Underwriters or the Representative, as the case may be, when the Prospectus
Supplement has been so filed, and prior to the termination of the offering of
the Designated Securities will promptly advise such Underwriters or
Representative (i) when any amendment to the Registration Statement has been
declared effective or has become effective upon filing pursuant to Rule 462(c)
under the Act or any further supplement to the Prospectus has been filed, (ii)
of any request by the Commission for any amendment of the Registration Statement
or the Prospectus or for any additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (iv) of the receipt by Transmeta of any notification with
respect to the suspension of the qualification of the Designated Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. Transmeta will use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the withdrawal
thereof. Transmeta will not file any amendment to the Registration Statement or
supplement to the Prospectus relating to the Designated Securities unless it has
furnished the Underwriters or the Representative, as the case may be, a copy
prior to filing and will not file any such proposed amendment or supplement to
which such Underwriters or Representative reasonably objects.
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(b) If, at any time when a prospectus relating to the
Designated Securities is required to be delivered under the Act or any other
applicable securities law, any event occurs as a result of which the Prospectus
as then amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary to amend or supplement the Prospectus to
comply with the Act or the Exchange Act or the respective rules thereunder,
Transmeta will promptly notify the Underwriters or the Representative, as the
case may be, and will promptly prepare and file with the Commission, subject to
paragraph (a) of this Section 5, an amendment or supplement which will correct
such statement or omission or an amendment which will effect such compliance.
(c) Transmeta will make generally available to its
security holders and to the Underwriters or the Representative, as the case may
be, as soon as practicable, but not later than 45 days after the end of the
12-month period beginning at the end of the fiscal quarter of Transmeta during
which the filing of the Prospectus Supplement pursuant to Rule 424 under the Act
first occurs (except not later than 90 days if such filing date is in the last
fiscal quarter), an earnings statement (which need not be audited) of Transmeta
and its consolidated subsidiaries, covering such 12-month period, which will
satisfy the provisions of Section 11(a) of the Act.
(d) Transmeta will furnish to the Underwriters or the
Representative, as the case may be, and counsel for such Underwriters or for
such Representative copies of the Registration Statement (including, if
requested, the exhibits thereto and the documents incorporated by reference in
the Prospectus) and each amendment or supplement thereto relating to the
Designated Securities which is thereafter filed pursuant to paragraph (a) or (b)
of this Section 5 and to each Underwriter, so long as delivery of a prospectus
by an Underwriter or dealer may be required by the Act or other applicable
securities laws, as many copies of the Prospectus and any amendments thereof and
supplements thereto, relating to the Designated Securities, as such Underwriters
or such Representative may reasonably request.
(e) Transmeta will pay (i) all expenses incurred by it in
the performance of its obligations under this Agreement, (ii) reasonable fees
charged for rating the Designated Securities and for preparing a Blue Sky and
Legal Investment Memorandum with respect to the sale of the Designated
Securities and (iii) the expenses of printing or otherwise producing and
delivering the Designated Securities, the documents specified in paragraph (d)
of this Section 5 and any Blue Sky and Legal Investment Memorandum.
(f) Transmeta will use its best efforts to arrange and
pay for the qualification of the Designated Securities for sale under the laws
of such jurisdictions as the Underwriters or the Representative, as the case may
be, may designate and to maintain such qualifications in effect so long as
required for the distribution of the Designated Securities; provided, however,
that Transmeta shall not be required to qualify to do business in any
jurisdiction where it is not now qualified or to take any action which would
subject it to general or unlimited service of process in any jurisdiction where
it is not now so subject.
(g) If the sale of the Designated Securities provided for
in an Underwriting Agreement is not consummated by reason of any failure,
refusal or inability on the part of
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Transmeta to perform any agreement on its part to be performed (except for any
failure so to perform on the part of Transmeta engendered by a failure, refusal
or inability on the part of the Underwriters or any Representative to perform
any agreement on their part to be performed) or the failure of any condition set
forth in Section 6, Transmeta will reimburse the several Underwriters who are
named in such Underwriting Agreement for all reasonable out-of-pocket
disbursements incurred by the Underwriters in connection with their
investigation, marketing and preparing to market the Designated Securities, and
upon such reimbursement Transmeta shall have no further liability to the
Underwriters except as provided in Section 7.
(h) During the period beginning on the date of this
Agreement and terminating on the later of (i) the Closing Date or (ii) the date
of notice to Transmeta by the Representative or the Underwriters (which shall
not exceed forty-five days from the date of this Agreement), Transmeta will not
offer, sell, contract to sell or otherwise dispose of any debt securities of
Transmeta substantially similar to the Designated Securities covered by this
Agreement, without the prior written consent of such Representative or such
Underwriters.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Designated Securities shall be
subject to the accuracy of the representations on the part of Transmeta
contained herein as of the date hereof and the Closing Date, to the performance
by Transmeta of its obligations hereunder and to the following additional
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted and be pending or threatened as of the
Closing Date;
(b) Fenwick & West LLP, counsel for Transmeta, shall have
furnished to the Representative their opinion, dated the Closing Date,
substantially in the form attached hereto as Exhibit A;
(c) The Underwriters or the Representative, as the case
may be, shall have received from counsel for the Underwriters such opinion or
opinions, dated the Closing Date, with respect to such matters as such
Underwriters or Representative may reasonably require;
(d) Transmeta shall have furnished to the Underwriters or
the Representative, as the case may be, a certificate, dated the Closing Date,
of Transmeta, signed by any executive officer of Transmeta, to the effect that
the signer of such certificate has carefully examined the Registration
Statement, the Prospectus and this Agreement and that:
(i) The representations of Transmeta in this
Agreement are true and correct in all material respects on and as of the Closing
Date with the same effect as if made on the Closing Date, and Transmeta has
complied with all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to the Closing Date;
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(ii) No stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted and are pending or, to his or her knowledge,
threatened as of such date; and
(iii) Since the date of the most recent financial
statements included in the Prospectus, there has been no material adverse change
in the condition (financial or otherwise) of Transmeta and its consolidated
subsidiaries, taken as a whole, nor any material increase in the debt of
Transmeta and its consolidated subsidiaries, except as set forth in or
contemplated by the Prospectus.
(e) The Underwriters or the Representative, as the case
may be, shall have received from Ernst & Young LLP a letter, dated the Closing
Date, which letter shall be in form as may be agreed upon among such
Underwriters or Representative, Transmeta and Ernst & Young LLP and shall cover
such matters as may be reasonably requested by such Underwriters or
Representative.
(f) Prior to the Closing Date, Transmeta shall have
furnished to the Underwriters or the Representative, as the case may be, such
further information, certificates and documents as they may reasonably request.
(g) Subsequent to the date hereof, there shall not have
occurred any change, or any development involving a prospective change, in or
affecting the business or properties of Transmeta and its subsidiaries
considered as a whole which the Underwriters or the Representative, as the case
may be, concludes, in its judgment, after consultation with Transmeta,
materially impairs the investment quality of the Designated Securities so as to
make it impractical or inadvisable to proceed with the public offering or the
delivery of the Designated Securities as contemplated by the Prospectus and
there shall not have been any decrease in the ratings of any of Transmeta's debt
securities by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act).
7. INDEMNIFICATION AND CONTRIBUTION.
(a) Transmeta agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter,
and each person, if any, who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus, or in any amendment
thereof or supplement thereto relating to the Designated Securities, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by them, as so incurred, in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that Transmeta will not be liable in any
such case to the
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extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
information furnished in writing to Transmeta by or on behalf of any Underwriter
through the Representative or the Underwriters, as the case may be, for use in
connection with the preparation thereof. This indemnity agreement will be in
addition to any liability which Transmeta may otherwise have.
(b) Each Underwriter severally agrees to indemnify and
hold harmless Transmeta, each of its directors, officers, employees and agents,
and each person who controls Transmeta within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity from Transmeta
to each Underwriter, but only with reference to information furnished in writing
to Transmeta by or on behalf of such Underwriter directly or through any
Representative for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise than under this Section 7. In case any such action
is brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided that, if the defendants in any
such action include both the indemnified party and the indemnifying party, and
the indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel, to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
representatives representing the indemnified parties who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). An indemnifying party will not,
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without the prior written consent of each indemnified party, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in this
Section 7 is due in accordance with its terms but is for any reason held by a
court to be unavailable from Transmeta or the Underwriters on grounds of policy
or otherwise, Transmeta and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to which
Transmeta or one or more of the Underwriters may be subject in such proportion
so that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of the
Prospectus bears to the public offering price appearing thereon and Transmeta is
responsible for the balance; provided that (y) in no case shall any Underwriter
(except as may be provided in any agreement among underwriters relating to the
offering of the Designated Securities) be responsible for any amount in excess
of the underwriting discount applicable to the Designated Securities purchased
by such Underwriter hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act shall have
the same rights to contribution as such Underwriter, and each person who
controls Transmeta within the meaning of either the Act or the Exchange Act,
each officer of Transmeta who shall have signed the Registration Statement and
each director of Transmeta shall have the same rights to contribution as
Transmeta, subject in each case to clause (y) of this paragraph (d). Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may be
sought, but the omission to so notify in writing such party or parties shall not
relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this paragraph
(d).
8. TERMINATION. This Agreement shall be subject to termination in
the absolute discretion of the Underwriters or the Representative, as the case
may be, by written notice given to Transmeta prior to delivery of and payment
for the Designated Securities, if prior to such time (i) trading in Transmeta's
Common Stock or securities generally on the New York Stock Exchange shall have
been suspended or materially limited, (ii) a general moratorium on commercial
banking activities in New York shall have been declared by either Federal or New
York State authorities or (iii) there shall have occurred any material outbreak
or escalation of hostilities or other calamity or crisis the effect of which on
the financial markets of the United States is such as to make it, in the
reasonable judgment of such Underwriters or such Representative, impracticable
or inadvisable to proceed with the offering or delivery of the Designated
Securities as contemplated by the Prospectus and Prospectus Supplement.
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9. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, indemnities and other statements of Transmeta, or
its officers and of the Underwriters and/or any Representative set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter, Transmeta or any
of the officers, directors or controlling persons referred to in Section 7
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 5(e) and 7 hereof shall survive the termination or
cancellation of this Agreement.
10. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters
shall fail to purchase and pay for any Designated Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Designated Securities set forth opposite their names in the appropriate
schedule of the Underwriting Agreement bears to the aggregate amount of
Designated Securities set forth opposite the names of all the remaining
Underwriters) the Designated Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate amount of Designated Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the amount of Designated Securities set forth in the appropriate schedule of the
Underwriting Agreement, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Designated Securities, and if such nondefaulting Underwriters do not purchase
all the Designated Securities, this Agreement will terminate without liability
to any nondefaulting Underwriter or Transmeta. In the event of a default by any
Underwriter as set forth in this Section 10, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Representative or
Underwriters, as the case may be, shall determine in order that the required
changes in the Registration Statement and the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to Transmeta
and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
12. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
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