TRANSMETA CORPORATION DEBT SECURITIES UNDERWRITING AGREEMENT STANDARD PROVISIONS
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 U.S. 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 40 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 75 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 45 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 ▇▇▇▇,
▇▇▇▇▇▇ and ▇▇▇▇▇ 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 ▇▇▇▇, Pilger and ▇▇▇▇▇ 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 Nasdaq Global Market 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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